Funderburke v. Kellett (1988)
Citation: 257 Ga. 822, 364 S.E.2d 845 (1988) · Court: Supreme Court of Georgia · Decided: 1988
A foundational georgia due-process decision on notice before barring the right to redeem after a tax sale. The Georgia Supreme Court held that a statutory scheme giving only published notice to an out-of-county holder of a security deed or mortgage — when foreclosing (barring) the right to redeem — does not satisfy due process. Notice by publication is permissible only where the inability to make personal service genuinely satisfies the constitutional mandate.
Facts
The case concerned the notice owed to the holder of a security deed or mortgage who lived outside the county where the land was located. Under the challenged provisions, such an out-of-county security-interest holder would receive only published notice of the foreclosure of the right to redeem following a tax sale, rather than mailed or personal notice.
Holding
The notice provisions of O.C.G.A. § 48-3-9(b) and subsections (b) and (c) of O.C.G.A. § 48-4-46 are not in accord with due process to the extent they allow an out-of-county security-deed or mortgage holder to receive only published notice of the foreclosure of the right to redeem. The Court construed the statutory phrase “for any reason” to mean that publication is permissible only if the sheriff’s inability to effect personal service satisfies the constitutional due-process mandate — i.e., publication is a fallback only after genuine, reasonable efforts at personal service.
Reasoning
- The governing standard is mullane-v-central-hanover: notice must be reasonably calculated to reach the interested party. Publication alone is the least reliable form and is constitutionally disfavored where the party’s identity and whereabouts are reasonably ascertainable.
- A recorded security-deed or mortgage holder is a known, identifiable party of record — consistent with mennonite-v-adams (mortgagees of record are entitled to actual, mailed notice).
- Geography (the lienholder being out of county) does not reduce the constitutional floor; the state must attempt personal service and may resort to publication only when that effort fails for reasons that themselves satisfy due process.
Practical impact
- For investors / operators: a Georgia barment (foreclosure of the right to redeem) that rested only on publication to a known, recorded out-of-county lienholder is constitutionally vulnerable. Title taken through such a barment carries set-aside risk; the barment file should show reasonable personal-service efforts to all recorded interest holders before any publication. See void-vs-voidable and quiet-title-after-tax-sale seasoning.
- For former owners / lienholders: an out-of-county mortgagee or security-deed holder who received only published notice of a barment may have grounds to challenge the foreclosure of redemption rights for inadequate notice.
Good-law status
Still good law as of last_verified 2026-06-02. Consistent with and reinforced by Mennonite
and Mullane. The Georgia barment-notice statutes (O.C.G.A. § 48-4-45 et seq.) have been applied in
light of this constitutional requirement. Not overruled.
Why it matters
Funderburke is Georgia’s anchor for the rule that known, recorded lienholders must get more than publication before their redemption rights are barred. It is core due-process-notice authority for evaluating the validity of a Georgia barment and the title that flows from it.
Related authorities
- mennonite-v-adams — mortgagees of record are entitled to actual (mailed) notice.
- mullane-v-central-hanover — notice must be “reasonably calculated” to reach the party.
- drst-holdings-v-brown-2012 — who may validly redeem and claim excess funds in Georgia.
Applies in →
Legal information, not legal advice. This page summarizes a court decision for educational purposes and does not create an attorney-client relationship. Verify against the primary opinion and consult a licensed attorney in the relevant jurisdiction before acting. Last verified 2026-06-02.