GA Code § 44-6-162 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 7 - Tenancy in Common|Part 2 - Partition|Subpart 2 - Statutory Partition|§ 44-6-162. Notice of Intention to Apply for Writ of Partition

 The party applying for the writ of partition shall give the other parties concerned at least 20 days' notice of his or her intention to make the application. If any of the other parties is a minor, a mentally ill or intellectually disabled person, or a beneficiary of a trust, the 20 days' notice shall be served on the guardian of such minor, the guardian of such mentally ill or intellectually disabled person, or the trustee of such beneficiary. If any of the parties reside outside of this state, the court may order service by publication as in its judgment is right in each case.   (Laws 1767, Cobb's 1851 Digest, p. 582; Code 1863, § 3898; Code 1868, § 3922; Code 1873, § 3998; Code 1882, § 3998; Civil Code 1895, § 4788; Civil Code 1910, § 5360; Code 1933, § 85-1506; Ga. L. 1991, p. 94, § 44; Ga. L. 2015, p. 385, § 4-11/HB 252.)    The 2015 amendment,  effective July 1, 2015, inserted "or her" in the first sentence and substituted "intellectually disabled" for "retarded" twice in the second sentence.   Editor's notes.   - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"   Law reviews.   - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).   JUDICIAL DECISIONS   Section inapplicable when petition prays for sale of lands.    - When the petition stated an equitable cause of action for partition and accounting under § 44-6-167, the provisions of former Code 1933, § 85-1506 (see O.C.G.A. § 44-6-162) did not apply. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).    No process is required except the notice under this statute. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921) (see O.C.G.A. § 44-6-162).    As this is a special statutory proceeding, the notice of intention is the only process necessary in order to bring the defendant into court to meet the application for partition. Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970).    Petition does not require any process or prayer for process attached to the petition. Griffin v. Griffin, 153 Ga. 547, 113 S.E. 161 (1922).    Notice of application for partition is equivalent of process in the statutory proceeding for partition, which is not in rem. Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).   Applicant must show title in applicant and name each person who may own interest.    - In order for a statutory partition proceeding to be maintainable, the applicant must not only show title in the applicant to a specified interest in the property sought to be sold or divided, but must name as defendant each of the other persons who may own an interest therein, and set forth their respective interests. Hill v. McCandless, 198 Ga. 737, 32 S.E.2d 774 (1945).   Notice to grantee in recorded deed to secure debt required.    - When the petition showed that a recorded deed to secure a debt was outstanding against the property sought to be partitioned, and it not appearing that the grantee in the deed had been properly notified of the application for the partition, so as to bring the grantee into the proceeding, the petition should have been dismissed. Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).   Trustee empowered to sell and reinvest premises proper, but not necessary, party.    - Trustee who, by the deed of trust, has a power of sale and reinvestment, is a proper, though not a necessary, party in a proceeding to partition the premises amongst the beneficiaries. Welch v. Agar, 84 Ga. 583, 11 S.E. 149, 20 Am. St. R. 380 (1890).    Service upon minor will not enforce appearance of minor after minor has arrived at age. Welch v. Agar, 84 Ga. 583, 11 S.E. 149, 20 Am. St. R. 380 (1890).    Part of former Civil Code 1895, § 4788 (see O.C.G.A. § 44-6-162) relating to service by publication was not repealed by general provisions on the same subject in former Civil Code 1895, §§ 4976 and 4977 (see O.C.G.A. § 9-10-71). Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).    When no application has been filed, judge has no jurisdiction to order service by publication. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).   Defendant failing to appear after receiving notice cannot have partition order revoked.    - When the defendant, after receiving the notice provided by this statute, failed to appear, defendant could not thereafter have the order for partition revoked and set aside on the ground that the court did not have jurisdiction to entertain the equitable petition at the time. Gammon v. Holloway-Smith Co., 150 Ga. 253, 103 S.E. 154 (1920).    Cited in Childs v. Hayman, 72 Ga. 791 (1884); Miller v. A.M. Watson & Co., 135 Ga. 408, 69 S.E. 555 (1910); English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924); Cates v. Duncan, 178 Ga. 748, 174 S.E. 380 (1934); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Starling v. Starling, 214 Ga. 786, 107 S.E.2d 651 (1959); Brinson v. Thornton, 220 Ga. 234, 138 S.E.2d 268 (1964); Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980); Iteld v. Siverboard, 247 Ga. 158, 275 S.E.2d 645 (1981).   RESEARCH REFERENCES   Am. Jur. 2d.   - 59A Am. Jur. 2d, Partition, § 98.   C.J.S.   - 68 C.J.S., Partition, § 126 et seq.