Request By:
Ms. Lillian Elliott
Deputy Clerk
Pike County Clerk's Office
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that a grantee in a deed of real estate lodged the deed and a land purchase contract for recording in your office. Later, the grantee returned to your office and asked that you return her instruments (the deed and contract) to her and without your recording them. There is a mortgage outstanding against the property. The contract deals with the mortgage, but the deed does not mention the mortgage.
Your question is whether the clerk can return these instruments to the grantee or owner of the instruments without recording them, or whether the clerk or his deputy must first record the instruments so tendered for recording.
Since the deed is the operative instrument of conveyance of title, we shall concentrate on the deed. See KRS 382.100. See 23 Am.Jur.2d, Deeds, § 5, page 81. The contract here merely contemplates the transfer of title. However, we must add that the reason for wanting to pick up the deed prior to recordation is not germane to the technical question relating to the county clerk's function as the recorder of such instruments.
The court pointed out in
McKinney v. Fox, 305 Ky. 659, 205 S.W.2d 315 (1947) 316, that:
"It is the policy of the law that deeds to real estate should be made a matter of record. Where an owner fails to record his deed, there is a presumption that a subsequent purchaser who buys the property and pays for it has no notice of an infirmity in the title; and unless there is substantial proof of facts which would put a reasonable man on notice, the subsequent purchaser has the better right.
Terry v. Ellsworth, 236 Ky. 54, 32 S.W.2d 558."
It is written in 26 C.J.S., Deeds, § 71, page 798, that "The design of recording laws is to prevent fraud and to permit and require the public to act with the presumption that recorded instruments exist and are genuine."
However, that policy of the law requiring recordation for the furnishing of constructive notice does not decide your question, since there is no statute, of which we are aware, that makes the tendering or lodging of a deed for recording an irrevocable act. Further, the failure to record a deed does not diminish its value as color of title or destroy the title which it conveys.
Morning Star Baptist Church v. Bryant, 306 Ky. 721, 209 S.W.2d 86 (1948) 87. In other words, where a grantee accepts a deed it is his business to have it recorded, but his failure to do so will not divest him of title when there is delivery and acceptance.
Fitzpatrick v. Layne, 291 Ky. 523, 165 S.W.2d 13 (1942) 17. Put another way, the recording of a deed is not necessary to its validity as between the parties to the instrument. 26 C.J.S., Deeds, Sec. 74, pages 799-801.
Of course, the recording of a recordable instrument constitutes constructive notice to third persons.
Billington v. Dunn, 217 Ky. 164, 289 S.W. 213 (1926).
KRS 382.110 relates to the recording of deeds and mortgages. KRS 382.190 pertains to the clerk's advertising all unrecorded deeds and the reason for not recording them. KRS 382.240 provides that each instrument that is recorded shall be delivered to the party entitled thereto. KRS 382.300 provides that every county clerk shall record all deeds and mortgages that are lodged for record, properly certified, or that are acknowledged or proved before him as required by law.
CONCLUSION
Based upon the foregoing reasoning and authorities, it is our opinion that the grantee of the deed in question, as the holder and owner of the instrument, may legally withdraw from your office the deed and allied contract without their being recorded. While the court held, in
Webb v. Austin, Ky., 58 S.W. 808 (1900) 809, that where a mortgage duly lodged for record was withdrawn from the clerk's office prior to its recordation, and the property was purchased by another without notice of it, the mortgage would not be enforced to the prejudice of the innocent purchaser, there is nothing in that opinion indicating that there is a law or legal principle prohibiting a document owner from withdrawing it from the clerk's office prior to recordation. The original deed is not a public record. It is the instrument which is used to make the public record by the act of recording. The instrument is a private document which remains the property of its owner.
As relates to the state tax paid on the deed (KRS 142.010), that statute imposes a state tax of one dollar ($1.00) on each "conveyance of real property." There is no condition as to recording or not recording. Subsection (2) of that statute provides that the tax imposed shall be collected by each county clerk as a prerequisite to the filing of an instrument subject to the tax. Thus that tax is irrevocable. The owner of the deed cannot get her tax money back. The same principle applies to the real estate transfer tax of KRS 142.050. The tax is based upon the transfer of real property and is not conditioned on the recording of the deed. See KRS 382.260.