Request By:
Mr. Sidney H. Hulette
Attorney at Law
107 S. Morgan Street
P.O. Box 419
Morganfield, Kentucky 42437
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter reads in part:
"I represent a party who has recently purchased railroad property located in four (4) counties in Western Kentucky. The county with the greatest amount of property in this purchase is Union County, with Crittenden County being second, Caldwell County being third, and Webster County being fourth in total size. The property is a continuous tract, comprised of a railbed and eighty (80) foot right-of-way.
"Pursuant to KRS 382.110(1), the deed was initially recorded in Union County and the transfer tax was paid on the entire purchase. Duplicate originals were then recorded in Crittenden County and Webster County, both having notations on the deeds that the transfer taxes had been paid. Upon tendering a duplicate original at the Caldwell County Courthouse showing the tax as having been paid to Union County, the Clerk refused to allow the deed to be recorded without a payment of transfer tax. "
KRS 382.110(1) reads:
"(1) All deeds, mortgages and other instruments required by law to be recorded to be effectual against purchasers without notice or creditors, shall be recorded in the county clerk's office of the county in which the property conveyed, or the greater part thereof, is located."
You have informed us that the land description in reality embraces one boundary, but involving a land strip contiguously extending through the four counties. Under those facts, and since the greater part of the land conveyed lies in Union County, we are of the opinion that you correctly had the deed recorded in Union County. KRS 382.110(1) is explicit on this point. Since the cases hold that the correct recording in the county containing the greater land area provides constructive notice as to all of the land described in the deed, then it follows that no additional recording in the other three counties was or is necessary or legally required. Thus the clerks in Crittenden, Caldwell and Webster Counties could have legally refused to record such deed. In Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821, the court wrote that "The law will not force anyone to do a vain or useless thing." (Emphasis added.)
See the early case of Shively v. Gilpin, 23 K.L.R. 2090, 66 S.W. 763 (1902), holding that under KRS 382.110 (then § 495 of the Kentucky Statutes) a deed conveying land lying in two or more counties may be recorded in the county containing the greater part of the land conveyed, and such recorded deed affords full constructive notice of the entire contents of the deed. The language in Shively, relating to land in the "boundary" lying in two counties, suggests that KRS 382.110 was designed to cover only lands in one boundary lying contiguous to each other. The later case of Branaman v. Black Tam Mining Company, Ky., 446 S.W.2d 573 (1969), supports that analysis. In that case a single tract of 17 9/16 acres was the pivotal tract. The court noted that "the tract" is "located in Webster and Union Counties, but the greater portion of it is situated in Webster County." (Emphasis added). Our overwhelming reaction to the language employed in the above two cases spells out that KRS 382.110(1) was designed to cover only contiguous land in a single tract or boundary. Thus where a deed contains noncontiguous property and more than one boundary of land lying in two or more counties, such deed, to give constructive notice as to all land in the deed, must be recorded in the respective counties in which each parcel is located. The court in Branaman, above, said as much, while pointing out that only contiguous property in one boundary was factually involved.
Thus where a deed contains, for example, three tracts, none of which are contiguous, and which tracts lie in three counties, the deed must be recorded, under KRS 382.110, in each county in which the tracts are located.
In your situation, you recorded in Union County; and since the property is contiguous, that recording gave constructive notice to all of the land in the four counties.
KRS 142.050(3) reads:
"(3)(a) If any deed evidencing a transfer of title subject to the tax herein imposed is offered for recordation, the county clerk shall ascertain and compute the amount of the tax due thereon and shall collect such amount as prerequisite to acceptance of the deed for recordation.
"(b) The amount of tax shall be computed on the basis of the value of the transferred property as set forth in the deed.
"(c) The tax required to be levied by this section shall be collected only once on each transaction and in the county in which the deed is required to be recorded by KRS 382.110(1)."
The real estate transfer tax is imposed upon the grantor named in the deed at the rate of fifty cents (50 ) for each five hundred dollars ($500) of value or fraction thereof. KRS 142.050(2).
The fact remains that the transfer tax was paid on the entire land purchase. That being the case, the law does not require that the tax be paid again. Once suffices.
Note that under KRS 142.050(4) the county clerk who collects the real estate transfer tax shall retain five percent (5%) as his or her fee for collection. Obviously, in a multicounty situation, such as this, only one clerk will collect the tax, and thus only one clerk will get the fee for collection. We believe the clerks in Crittenden, Caldwell and Webster should not accept such copies of this deed for recordation.