Request By:
Mr. Billy H. Squires
Green County Court Clerk
Courthouse
Greensburg, Kentucky 42723
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You have written concerning the situation in which a company or individual mistakenly files a mortgage or deed of release in your county, and the same has been recorded and the appropriate fees paid, which should have been filed in another county. Particularly, you wished to know whether you are required to return the fees and what should be done to clear the record.
The clear intention of the fee system is to give the county clerk a vested right to be paid a fee upon proper performance of the commensurate task. Though the county clerk has many duties with reference to determining whether deeds, mortgages or deeds of release are recordable instruments, ascertaining whether the described land or the greater part thereof lies within your county is not one of them. See KRS Chapter 382. This is the task of the one seeking to record the instrument. Therefore, if a mortgage or deed of release meets the other requirements necessary to make it a recordable instrument, and if it has been recorded in your county, you are entitled to keep the recording fees. Since it is the one seeking to record the mortgage or deed of release who has made the mistake, it is he who shall bear the financial loss.
Likewise, you do not bear the responsibility for clearing the records. In Rodley's Adm'r v. Jack Morris, 6 Ky. Ap 151, 152 (1872) the Court wrote:
"The interests of the individuals, as well as the whole public requires that public records should never be altered, or their veracity questioned unless the power as well as the right to alter or amend is clearly shown."
Were you to go back and mark the mistakenly recorded mortgage or deed of release void, you would be altering the record in a manner which is not statutorially authorized. Rather than curing the mistake, this would only serve to cloud the record further.
The proper procedure for clearing your records of a mistakenly filed mortgage is to have the parties to the mortgage file a deed of release or other instrument which complies with the statutory requirements necessary to terminate any mortgage (see KRS 382.290 and 382.360), except this deed of release or instrument should contain a clause which makes it clear that the release is being made only for the purposes of clearing the records in the county in which the mortgage was mistakenly filed and that the mortgage has been filed and continues to be in effect in the county of (where the land or the greater portion thereof lies). This instrument should be filed in your office. You will charge the same fee for recording this instrument and noting the release as you would if the mortgage had been properly filed in your office in the first place. If a marginal notation is made on the mortgage book, it too should reflect that the release is being made only for the purpose of clearing the record and that the mortgage is properly filed in county and is still in effect.
To clear the record of a mistakenly filed deed of release, the parties thereto should file a supplemental deed of release in your office which states that the mortgage, which is the basis of the deed of release, is filed in county, and that a deed of release has been recorded in that county. The supplement should further state that the original deed of release was improperly filed in your county, and that there is and has been no mortgage on the described property filed in your county.
Since you have no primary responsibility with reference to clearing your records of the mistakenly filed mortgage or deed of release, or with reference to seeing that they are filed in the proper county, you need do nothing until the parties to the mortgage or deed bring you the necessary documents to record.
Yours very truly,
ROBERT F. STEPHENS, ATTORNEY GENERAL
By: Elizabeth E. Blackford, Assistant Attorney General