§ 44-11-9 - Setoff of value of improvements against mesne profits by adverse claimant; right of plaintiff to election; payment by defendant to plaintiff and acquisition of title; sale; levy; molding
O.C.G.A. 44-11-9 (2010)
44-11-9. Setoff of value of improvements against mesne profits by adverse claimant; right of plaintiff to election; payment by defendant to plaintiff and acquisition of title; sale; levy; molding of decree; title of purchaser
(a) In all actions for the recovery of land, the defendant who has a bona fide possession of the land under adverse claim of title may set off the value of all permanent improvements placed on the land in good faith by himself or other bona fide claimants under whom he claims. If the legal title to the land is found to be in the plaintiff and if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits.
(b) The verdict mentioned in subsection (a) of this Code section shall find the value of the land itself at the time of the trial. Such verdict shall give the plaintiff the right:
(1) To have and recover the premises subject to the payment to the defendant of the excess of the value of the improvements over the mesne profits, such payment to be made by the plaintiff to the defendant within such time as may be fixed by the court in the decree; or
(2) To receive from the defendant the value of the land and the mesne profits found by the jury to be due to the plaintiff, such payment to be made by the defendant to the plaintiff within such time as the court may direct by its decree.
In the event that the plaintiff fails to make the payment pursuant to paragraph (1) of this subsection within the time allowed in the decree, the defendant shall have the right to pay to the plaintiff the value of the land and the mesne profits in accordance with paragraph (2) of this subsection. In all cases in which a setoff of improvements is sought in excess of mesne profits, the jury shall have the right to fix the time from which mesne profits shall be allowed.
(c) Upon the defendant making the payment to the plaintiff with all court costs of the proceedings, the defendant shall then acquire and have all the right and title the plaintiff had and held in and to the property in dispute. The court may by its decree require the plaintiff to make such titles to the lands in dispute as may be necessary in the premises, or to have the premises sold by a commissioner appointed by the court and the proceeds of such sale divided between the plaintiff and the defendant in the ratio or proportion that the value of the land itself bears to the amount of the excess of value of improvements over the mesne profits, or to recover the value of the land itself together with the amount of any excess of the value of the mesne profits over and above the value of the improvements. In case the plaintiff elects to recover the value of the land itself together with the amount of the excess of value of mesne profits over the value of the improvements, any fi. fa. issued upon the verdict and judgment entered therein shall be levied upon the lands and improvements; and the same shall be sold by the sheriff after due advertisement under the law governing sheriffs' sales.
(d) In those cases contemplated by this Code section, the court shall mold a decree to carry out and effectuate fully the provisions of the verdict.
(e) The purchaser of the premises, whether the same are sold by a commissioner appointed by the court or by the sheriff under a fi. fa. as provided in subsection (c) of this Code section, shall acquire all the right, title, and interest in the land and the improvements owned and possessed by the plaintiff or the defendant.