GA Code § 9-3-23 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 3 - Limitations of Actions|Article 2 - Specific Periods of Limitation|§ 9-3-23. Sealed Instruments

 Actions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument.   (Laws 1806, Cobb's 1851 Digest, p. 566; Ga. L. 1855-56, p. 233, § 11; Code 1863, § 2856; Code 1868, § 2864; Code 1873, § 2915; Code 1882, § 2915; Civil Code 1895, § 3765; Civil Code 1910, § 4359; Code 1933, § 3-703.)   Law reviews.   - For article surveying Real Property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985). For article, "Construction Law," see 63 Mercer L. Rev. 107 (2011). For comment on Baxley Hdwe. Co. v. Morris, 165 Ga. 359, 140 S.E. 869 (1927), see 1 Ga. B.J. 51 (1927).   JUDICIAL DECISIONS    Phrase "shall be brought" refers to commencement of an action. Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905).   Six-year limitation applicable in absence of allegation of seal.    - When appellant commenced action for proceeds of insurance policy over twenty years after the cause of action, if any, arose, and the appellant neither alleged nor presented any evidence to the trial court that the contract of insurance was under seal, the trial court properly applied the six-year limitations period applicable to simple contracts in writing and concluded that the action was barred. Lester v. Aetna Life Ins. Co., 172 Ga. App. 486, 323 S.E.2d 655 (1984).   Breach of sealed contract to purchase inventory.    - Action for breach of a written contract, under seal, to purchase the inventory of a retail business was governed by the four-year limitation period under the UCC and not by the 20-year limitation period applicable to actions on sealed instruments. McLean v. Gray, 180 Ga. App. 794, 350 S.E.2d 815 (1986).   Definition of sealed instrument part of limitation statute.   - Definition of a sealed instrument, including recital of sealing in body thereof, is a part of this limitation statute. Alropa Corp. v. Rossee, 86 F.2d 118 (5th Cir. 1936).    Easement agreement under seal is within O.C.G.A. § 9-3-23. - After the LLC granted the condominium association an easement to a perpetual non-exclusive right to access the LLC's private roadway system, the association's claims were not time barred as the statute of limitation for an action on an instrument under seal was 20 years; and the easement was an instrument under seal because the body of the easement provided that the duly authorized representatives of the LLC and the association had signed and sealed the agreement; the LLC placed its corporate seal, containing the word "SEAL," adjacent to its signature; and the LLC's intent to seal the contract was shown in the body of the instrument. One Buckhead Loop Condo. Ass'n v. Regent Tower Holdings, 341 Ga. App. 5, 798 S.E.2d 633 (2017).   Designation as sealed instrument and representation of seal required.    - Under this section, in order for note to be a sealed instrument, it must not only be designated as such by terms of instrument itself, but there must also be annexed to the signature some representation of a seal. Lanier v. Berry, 41 Ga. App. 34, 151 S.E. 821 (1930).   Word "seal" in a scroll or its equivalent, following signature, does not make instrument one under seal within meaning of this section unless there is a recital of a seal in the body of the instrument. Alropa Corp. v. Rossee, 86 F.2d 118 (5th Cir. 1936).    Even though an escrow agreement stated it was signed under seal and signatures of the borrowers and sellers were followed by the word "seal," the six-year limitation period for ordinary contracts, not O.C.G.A. § 9-3-23, applied since the signature of the escrow agent was not accompanied by such designation. McCalla v. Stuckey, 233 Ga. App. 397, 504 S.E.2d 269 (1998).   Sealing must be indicated in body of note and after signature.    - Promissory notes must recite that they are under seal in body of instrument and seal must be attached to signature of maker, before this section applies. Skrine v. Lewis, 68 Ga. 828 (1882); Barnes v. Walker & Co., 115 Ga. 108, 41 S.E. 243 (1902); Jackson v. Augusta S.R.R., 125 Ga. 801, 54 S.E. 697 (1906); Anderson v. Peteet, 6 Ga. App. 69, 64 S.E. 284 (1909).    Contract which did not recite that it was under seal was not a sealed instrument, even though "L.S." appeared after signatures. Cooper v. Dixie Cotton Co., 144 Ga. 33, 86 S.E. 242 (1915).    In order to render promissory note a sealed instrument, intention to execute it as such must appear both in body of instrument and after signature. Johnson v. International Agric. Corp., 41 Ga. App. 740, 154 S.E. 465 (1930); Woodall v. Hixon, 154 Ga. App. 844, 270 S.E.2d 65 (1980), rev'd on other grounds, 246 Ga. 758, 272 S.E.2d 727 (1980).    Written contract which recites in body thereof that it is executed under seal and contains word "seal" or letters "L.S." after signature of party executing the contract is a contract under seal. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180 (1935).    Sealed instrument must contain recital in the body of the instrument that it is given under seal, and signature of party to the instrument must have attached thereto a seal or scroll; in other words, there must be both recital in body of instrument of intention to use a seal, as well as affixing of seal or scroll after the signature. Chastain v. L. Moss Music Co., 83 Ga. App. 570, 64 S.E.2d 205 (1951).    Contract was a sealed instrument and 20-year period of limitations applied when the promissory portion of the contract ended "Signed, sealed and delivered by the Buyer . . ." and following buyer's signature on the contract appeared the word "(SEAL)." Telfair Fin. Co. v. Williams, 172 Ga. App. 489, 323 S.E.2d 689 (1984).    Promissory note was under seal and thus subject to a 20 year statute of limitations since the words "Witness hand and seal" were found in the body of the note, and the decedent's signature was followed by the letters "L. S.;" although the word "my" was not written in the blank, the blank was obviously meant to be filled with either the singular "my" or the plural "our," depending on the number of makers. Brown v. Cooper, 237 Ga. App. 348, 514 S.E.2d 857 (1999).    There was no basis for a homebuilder's claim that because the agreements at issue recited that the parties had "hereunto set their hand and seals," the agreements were in fact executed under seal, and were thus subject to the 20-year limit of O.C.G.A. § 9-3-23; in fact, the agreements bore no seal, and were thus subject to the six-year statute of limitation for written contracts. Koncul Enters. v. Fleet Fin., Inc., 279 Ga. App. 39, 630 S.E.2d 567 (2006).   Sealed amendments to unsealed contract did not render the contract one under seal.    - Contract for the sale of an office building was not a contract under seal to which the 20-year statute of limitations of O.C.G.A. § 9-3-23 applied, but was governed by the 6-year statute of limitations, O.C.G.A. § 9-3-24, because, although the agreement recited that it was under seal, the word "Seal" did not appear next to the signatures. Five amendments to the agreement, which were executed under seal, did not convert the existing agreement into a contract under seal because there was no evidence the parties intended such a conversion. Perkins v. M&M Office Holdings, LLC, 303 Ga. App. 770, 695 S.E.2d 82 (2010).   Indication of sealing plus "(L.S.)".    - When the written lease agreement utilized a basic form consisting of a clause within the body of the contract stating that the parties had "set their hands and affixed their seals" thereto with the letters "(L.S.)" following their signatures, it constituted a valid instrument under seal. Travel Centre, Ltd. v. Starr-Mathews Agency, Inc., 179 Ga. App. 406, 346 S.E.2d 840 (1986).   "(Seal)" after signatures insufficient.    - Option to purchase contract, bearing only the imprimatur "(SEAL)" after the signatures, does not create an instrument under seal. Travel Centre, Ltd. v. Starr-Mathews Agency, Inc., 179 Ga. App. 406, 346 S.E.2d 840 (1986).   "Seal" after signature required.   - Licensor's claim as to the licensee was time barred because the note was missing one of the two necessary elements to make it an instrument under seal as to the licensee since there was no affixed seal or use of the word "seal" after the signature for the licensee. Holiday Hosp. Franchising, LLC v. Oakbrook Realty & Invs., LLC, 817 Fed. Appx. 694 (11th Cir. 2020)(Unpublished).   Recital in note plus notation "seal" after signatures sufficient.    - Note that stated that the note was "given under the hand and seal of each of the undersigned" and the appearance of the notation "(seal)" after the debtors' signatures rendered the document one under seal and subject to a 20-year statute of limitations. Thomas v. Summers, 329 Ga. App. 250, 764 S.E.2d 578 (2014).    State gold bond recited that it was attested to under the seal of the State of Georgia, and so the trial court correctly concluded that the applicable limitation period was that for instruments under seal. Sparagon v. State, 249 Ga. App. 440, 548 S.E.2d 118 (2001).    Plat signed by the surveyor and with the surveyor's seal attached did not qualify as an "instrument under seal" governed by the 20-year statute of limitation. Landmark Eng'g, Inc. v. Cooper, 222 Ga. App. 752, 476 S.E.2d 63 (1996).    Recital that note is "given under hand and seal of each party" is a recital therein that it is executed under seal of the party subscribing the party's name thereto as the maker. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180 (1935).    Recital in note, "witness my hand and seal," is recital that note is executed under seal of person whose name is subscribed thereto as maker. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180 (1935).    Phrase "signed, sealed, and delivered in presence of," or the like, above space for witnessing, does not indicate intention of parties to execute sealed instrument, but is merely statement to be signed by witness or witnesses. Johnson v. International Agric. Corp., 41 Ga. App. 740, 154 S.E. 465 (1930).    Promissory note under seal is within this section. Barnwell v. Hanson, 80 Ga. App. 738, 57 S.E.2d 348 (1950).    This section is applicable to promissory note executed under seal of maker thereof. Harris v. Stribling, 66 Ga. App. 321, 17 S.E.2d 766 (1941).    Endorsement of a sealed instrument is itself a contract under seal, even though the signature of the endorser has no seal or scroll attached to it, and the statutory bar applicable to the endorser is 20 years; this is true whether endorsement is for purpose of passing title to the instrument or for accommodation purpose of giving credit to it. Pitman v. Pitman, 215 Ga. 585, 111 S.E.2d 721 (1959).    This section applies to contract of endorsement on sealed instrument, even though no seal appears after signature of payee. Milledge v. Gardner, 29 Ga. 700 (1859); Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762, 42 S.E. 1002 (1902).   Unsealed acknowledgment of original sealed obligation.    - Unsealed written acknowledgment or recognition of original obligation under seal revives or extends such obligation for period of time during which a sealed paper would run, which is 20 years. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365 (1943).   Sealed writing implying promise to pay indebtedness.    - Signed and sealed writing acknowledging indebtedness by maker to another named person, in a certain sum, and specifying when it is to become due, imports promise to pay said sum at the time specified, and, although promise is not express, but understood, period of limitation for an action thereon is 20 years. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365 (1943).    Recital in a deed which is under seal, legally executed and accepted by the grantee, obligating the grantor to pay grantee sum of money, is not barred by statute of limitations until 20 years have elapsed from date of delivery of the deed. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365 (1943).   Breach of covenants in sealed deed.    - When grantee accepts a deed which is under seal and thereby becomes bound by covenants therein, period of limitation applicable to action for a breach of such covenants is 20 years. Brice v. National Bondholders Corp., 187 Ga. 511, 1 S.E.2d 426 (1939) (decided prior to enactment of O.C.G.A. § 9-3-29).    Statute of limitations on sheriff's official bond is 20 years, since such bond is under seal and there is no express statute providing for different period of limitation of actions. Washburn v. Foster, 87 Ga. App. 132, 73 S.E.2d 240 (1952).   Contracts for purchase of land.    - This section has been applied to contracts for purchase of land, which would include contracts for purchase of an interest in land, such as purported lease brought to be canceled. Baxley Hdwe. Co. v. Morris, 165 Ga. 359, 140 S.E. 869 (1927), later appeal, 168 Ga. 769, 149 S.E. 35 (1929), for comment, see 1 Ga. B.J. 51 (1927).   Promissory note under seal is within this section.    - O.C.G.A. § 9-3-23, not the four-year limitation prescribed by the UCC, applied to an action on a promissory note that was secured by defendant's automobile since the note was a contract under seal. Georgia Receivables, Inc. v. Cheatham, 216 Ga. App. 656, 455 S.E.2d 375 (1995).    Promissory note executed in another state, which does not contain recital in body thereof that it is under seal, is not a sealed instrument upon which suit may be brought at any time within 20 years after right of action accrues, even though the word "seal" is written after the signature to the note. Gaffe v. Williams, 68 Ga. App. 299, 22 S.E.2d 765 (1942).   Assignee's recovery of collateral under a life insurance policy.    - Bank was properly granted summary judgment in an interpleader action involving competing claims between the bank and a widow to the proceeds of a life insurance policy as the decedent, the widow's spouse, assigned the policy to the bank as collateral for a loan in 1977 and, despite having the debt discharged in bankruptcy, the bank was not precluded to recover the bank's collateral. Further, the bank's right to recover did not accrue until the decedent's death; therefore, the statutes of limitation had not expired. Miller v. Branch Banking & Trust Co., 292 Ga. App. 189, 663 S.E.2d 756 (2008).   Computing 20-year period.    - Day promissory note was due and payable is to be excluded in reckoning period named in statute of limitations. Harris v. Stribling, 66 Ga. App. 321, 17 S.E.2d 766 (1941).   Accrual of action.    - When a second mortgage note specified that a default on the first mortgage executed on the same date would constitute a default on the second mortgage, a cause of action for payment of the second note accrued on the date of default on the first note. Blanton v. Whelan, 232 Ga. App. 631, 502 S.E.2d 746 (1998).    Maturity date of debt instruments under seal is the commencing point for when a right of action accrues for purposes of the 20-year statute of limitation. Sparagon v. State, 249 Ga. App. 440, 548 S.E.2d 118 (2001).   Questions of fact remained to be determined.    - Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor's failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696, 792 S.E.2d 489 (2016).    Cited in Flynt v. Hatchett, 9 Ga. 328 (1851); Stansell v. Corley, 81 Ga. 453, 8 S.E. 868 (1889); Waterman v. Bareclay, 10 Ga. App. 108, 72 S.E. 716 (1911); Harris v. Black, 143 Ga. 497, 85 S.E. 742 (1915); National Sur. Co. v. Farmers State Bank, 145 Ga. 461, 89 S.E. 581 (1916); Louther v. Tift, 20 Ga. App. 309, 93 S.E. 70 (1917); Prince v. Wood, 23 Ga. App. 56, 93 S.E. 457 (1918); Whelchel v. Haynes, 148 Ga. 307, 96 S.E. 568 (1918); Morrison v. Fidelity & Deposit Co., 150 Ga. 54, 102 S.E. 354 (1920); Elrod v. Bagley, 150 Ga. 329, 103 S.E. 841 (1920); Old Colony Trust Co. v. Atlanta, B. & A.R.R., 264 F. 355 (N.D. Ga. 1920); United Leather Co. v. Proudfit, 151 Ga. 403, 107 S.E. 327 (1921); McDonell v. Hines, 28 Ga. App. 197, 110 S.E. 505 (1922); Miller County v. Bush, 28 Ga. App. 130, 110 S.E. 515 (1922); Massachusetts Protective Ass'n v. Kittles, 2 F.2d 211 (5th Cir. 1924); Whittle v. Nottingham, 164 Ga. 155, 138 S.E. 62 (1927); Simmerson v. Herringdine, 166 Ga. 143, 142 S.E. 687 (1928); Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843, 151 S.E. 680 (1930); Talmadge v. McDonald, 44 Ga. App. 728, 162 S.E. 856 (1932); Adams v. F & M Bank, 47 Ga. App. 420, 170 S.E. 704 (1933); Hamby v. Crisp, 48 Ga. App. 418, 172 S.E. 842 (1934); Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934); Marshall v. Walker, 50 Ga. App. 551, 178 S.E. 760 (1935); Girtman v. Tanner-Brice Co., 54 Ga. App. 682, 188 S.E. 846 (1936); Citizens & S. Nat'l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527 (1937); Scott v. Gaulding, 60 Ga. App. 306, 3 S.E.2d 766 (1939); Alropa Corp. v. Pomerance, 190 Ga. 1, 8 S.E.2d 62 (1940); Hadaway v. Hadaway, 192 Ga. 265, 14 S.E.2d 874 (1941); Holt v. Tate, 193 Ga. 256, 18 S.E.2d 12 (1941); Dukes v. Rogers, 67 Ga. App. 661, 21 S.E.2d 295 (1942); Gaffe v. Williams, 194 Ga. 673, 22 S.E.2d 512 (1942); Murray v. Baldwin, 69 Ga. App. 473, 26 S.E.2d 133 (1943); Sampson v. Vann, 203 Ga. 612, 48 S.E.2d 293 (1948); Vinson v. Citizens & S. Nat'l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 320 F. Supp. 1146 (S.D. Ga. 1970); Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977); Johnson v. Heifler, 141 Ga. App. 460, 233 S.E.2d 853 (1977); Shier v. Price, 152 Ga. App. 593, 263 S.E.2d 466 (1979); City of Lawrenceville v. Yancey, 163 Ga. App. 462, 294 S.E.2d 691 (1982); Donalson v. Coca-Cola Co., 164 Ga. App. 712, 298 S.E.2d 25 (1982); Merritt v. Citizens Trust Bank, 164 Ga. App. 716, 298 S.E.2d 264 (1982); Virgil v. Kapplin, 187 Ga. App. 206, 369 S.E.2d 808 (1988); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114, 395 S.E.2d 326 (1990); Georgia Receivables, Inc. v. Maddox, 216 Ga. App. 164, 454 S.E.2d 541 (1995); Fincit Co. II v. Hardin, 225 Ga. App. 232, 483 S.E.2d 609 (1997).   OPINIONS OF THE ATTORNEY GENERAL    It is necessary to retain an entire highway project file for a 20-year period  in order to adequately protect the state's interests in compliance with state law because highway construction contracts are sealed contracts and are therefore subject to the 20-year statute of limitations under this section. 1973 Op. Att'y Gen. No. 73-89.   RESEARCH REFERENCES   Am. Jur. 2d.   - 51 Am. Jur. 2d, Limitation of Actions, §§ 135, 304, 342. 68 Am. Jur. 2d, Seals, §§ 3, 5.   C.J.S.   - 54 C.J.S., Limitations of Actions, § 79 et seq.   ALR.    - Statutes of limitations or laches as bar to suit by heirs or next of kin to set aside conveyance or transfer by ancestor, 2 A.L.R. 447.    Effect of absence of seal from execution, 28 A.L.R. 936.    Statute of limitations applicable to coupons detached from bonds or other instruments, 62 A.L.R. 270.    Statute of limitations in actions or proceedings to secure return of purchase price paid to municipality or other public body for bonds that are invalid, 94 A.L.R. 608.    What constitutes a promise in writing to pay money within statutes of limitation, 111 A.L.R. 984.    Right to deficiency or personal judgment under mortgage notwithstanding bar of limitation against action on personal debt, 124 A.L.R. 640.    Bar of limitation against action on debt secured by mortgage as affecting suit to foreclose mortgage, 161 A.L.R. 886.   What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.   Liability on statutory bond as within statute of limitations prescribing specific limitation period for liabilities created by statute, 32 A.L.R.2d 1240.   Limitation statute applicable to action on bonds of public body or on obligation to collect revenues for their payment, 38 A.L.R.2d 930.   When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807.   When statute of limitations begins to run against note payable on demand, 71 A.L.R.2d 284.   Choice of law as to applicable statute of limitations in contract actions, 78 A.L.R.3d 639.