Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In the 1982 session, in an Act relating to guardians, conservators and mentally disabled persons, a new section was enacted: KRS 387.590 (Ch. 141, § 10). The statute relates to the types of guardians and conservators to be appointed by the court.
KRS 387.590(8) reads:
The judgment of partial disability or disability and the order of appointment shall be filed in the district court. The judgment shall be indexed in the book in which notices of actions and encumbrances are indexed. Unless such judgment is filed and indexed, it shall not constitute notice to any subsequent bona fide purchaser for value, mortgagee, or encumbrancer.
Your question reads:
Must such a judgment also be filed in the county clerk's office, so that this information will be readily available to attorneys searching titles in the county clerk's office?
KRS 387.510, a new section (Ch. 141, § 2), in subsections (8) and (9) and (10), makes a definitional distinction between a person adjudged "disabled" and adjudged "partially disabled" or a "mentally ill person" by the district court. See KRS 387.520 (Ch. 141, § 3), which vests in the district courts the exclusive jurisdiction over all proceedings involving a determination of partial disability or disability. A disabled person under KRS 387.510(8)(b) is one who is legally unable to effectively dispose of both real and personal property. The definitions reflect gradations of disability. A court judgment would be calculated to reflect precisely the extent, if any, of any legal incompetence in connection with the person's conveying title to real estate.
KRS 387.770(1) (Ch. 141, § 28) provides that all determinations of disability and orders of appointment shall be filed as public records with the clerk of the court. All other court records of a respondent made in all proceedings under the Act shall be confidential and shall not be open to the general public, except as provided in KRS 387.770(3) (obtaining a court order of disclosure).
A judgment of incompetency was treated in KRS 203.026, which reads:
It shall be the duty of the clerk of the court, immediately upon the rendering of a judgment in an inquest proceeding adjudging a person to be incompetent, or a restoration of same, within not more than twenty-four (24) hours thereafter, to file an attested copy of said judgment in the office of the clerk of the county court of the county in which said judgment was rendered, which copy shall be filed and not recorded by the county clerk but indexed in the book in which notices of action and encumbrances are indexed. Unless a copy of said judgment is filed in said county clerk's office, the judgment shall not constitute notice to any subsequent bona fide purchaser for value, mortgagee, or encumbrancer.
Legislation similar to the 1982 legislation (Ch. 141) was enacted in 1980, effective July 1, 1982 (Ch. 396). However, that legislation was repealed in § 146, Chapter 141 (1982). Chapter 141 became effective July 1, 1982.
The effect of KRS 387.590(8) is that the judgment of disability or partial disability must be filed in the district court. Thus the circuit court-district court clerk must see to it that such judgments are filed in the clerk's office; and the circuit clerk must establish, on and after July 1, 1982, an index system covering such judgments collected in a book identifiable as involving notices of actions and encumbrances.
Actually, the language "indexed in the book in which notices of action and encumbrances are indexed" was lifted from KRS 203.026, quoted above. However, in § 146 of Chapter 141 (1982), KRS Chapter 203 is expressly repealed. It is our opinion that by the repeal of Chapter 203, the General Assembly intended to place the filing of disability judgments and the indexing of same as a responsibility of the circuit clerk, instead of the county clerk. Thus on and after July 1, 1982, there is no statutory basis for filing disability judgments and indexing them in the county clerk's office. Here we think the courts would consider that they are bound by the plain meaning of KRS 387.590(8). H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937). The repeal of KRS Chapter 203 was express, and there can be no doubt as to intention. Finally, the powers of a county clerk to receive instruments for filing and indexing are limited to such powers as are expressly conferred by statute or which exist by a necessary implication. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288, 227 S.W.2d 199 (1950). Although the filing and indexing of disability judgments with the county clerk would be logical, when considering that the land title instruments are of record with the clerk, it would be up to the courts as to whether such filing and indexing is required by necessary implication. In any event, this is a matter which may be addressed to the General Assembly.