Request By:
Mr. Ralph E. Coppage
Harrison County Clerk
Courthouse
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Farmers Home Administration lodged for record in your office a release of real estate mortgage instrument. However, the release expressly refers to three different mortgages by book numbers and page numbers of your recording system.
Question No 1:
"Should a release fee of $5.00 be charged for each release for a total fee of $15.00?"
KRS 64.012 provides in part that "Receiving the acknowledgment, recording and certifying each deed of release of a mortgage or lien under KRS 382.360" entitles the clerk to a fee of five dollars ($5.00). (Emphasis added). Immediately next to or under that language just cited is this: "Each additional marginal notation relating to the same instrument . . . . $1.51." (Emphasis added).
KRS 382.360 reads:
"(1) Liens by deed or mortgage may be discharged by an entry acknowledging their satisfaction on the margin of the record thereof signed by the person entitled thereto, or his personal representative, and attested by the clerk, or may be discharged by a separate deed of release, which shall recite the date of the instrument and deed book and the page wherein it is recorded. Such release in the case of a mortgage or deed of trust shall have the effect to reinstate the title in the mortgagor or grantor or person entitled thereto.
"(2) If a lien or mortgage is released by a deed of release, the clerk shall immediately indorse on the margin of the record wherein the lien is retained 'Released by deed of release (stating whether in whole or in part) lodged for record (giving date, deed book and page wherein such deed of lelease may be found)' and the clerk shall also attest such certificate."
The earlier clerk's fee statute, KRS 64.010, merely contained a fee of $2.25 for recording each deed of release of a mortgage; but that statute was repealed in 1978, Acts 1978, Ch. 84, § 26. In the same 1978 Acts, Ch. 84, § 1, a new clerks' fee schedule was created, designated by the Statutes Reviser as KRS 64.012.
The copy of the subject mortgage release instrument mailed to us constitutes a "deed of release" , as mentioned in KRS 64.012 and KRS 382.360.
In considering the history of KRS 64.012 and the explicit reference therein to KRS 382.360, and the immediate juxtaposition of the $1.50 fee for "each additional marginal notation" to the $5.00 fee for recording and certifying a deed of release in KRS 64.012, it is our opinion that these statutory elements must be read together to make sense. In so doing, we conclude that for the first mortgage mentioned in the release instrument, the clerk's fee is $5.00. Since the release instrument involves two additional mortgages, the clerk's fee is $1.50 for each of the two additional mortgages, for a total fee in this situation of eight dollars ($8.00).
In this situation, the words "deed of release" , and "KRS 382.360", and "each additional marginal notation relating to the same instrument" are related and "associated" words. Carson & Co. v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908). Moreover, the immediate juxtaposition in KRS 64.012 of the fee item relating to the deed of release and the fee item relating to each additional marginal notation is a compelling contextual consideration, when the statute is viewed in its historical development. Green v. Moore, 281 Ky. 305, 135 S.W.2d 682 (1940).
Question No. 2:
"Should a release fee of $5.00 be charged for the deed of release and $1.50 each for marginal releases of the 2 remaining releases?
We have answered that question in the affirmative, above.