Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your office is receiving a number of real estate mortgages for recording. Those mortgages contain assignments that are appended to the mortgage instruments and are executed prior to the lodging of the mortgages for record in your office.
Question No. 1:
"Since the assignment is a part of the original mortgage and there is no need to make a marginal notation, do we charge for the assignment over and above the fee for recording the mortgage? "
Under KRS 64.012, the clerk's fee for recording a mortgage of real estate, certificates, and all services connected with the same, provided the entire record does not exceed three pages, is seven dollars ($7.00). The fee for recording each page in excess of the three pages just mentioned is one and one-half dollars ($1.50).
The fee for recording a "deed of assignment" of a real estate mortgage is five dollars ($5.00), according to KRS 64.012. Unfortunately, KRS 64.012 contains no explicit provisions covering especially an assignment made a part of the mortgage document. Within the framework of the facts and wording of the fee statute, it is our opinion that no separate deed of assignment is involved. The assignment is merely a part of the mortgage instrument. That being the case, there can be no valid charge for recording the assignment part over and above the fee for recording the entire mortgage document, which includes the assignment. The literal language of KRS 64.012 clearly suggests that a "deed of assignment" means a separate deed of assignment, involving only an assignment. The courts have ruled that courts have a duty to construe statutes literally if it is reasonably possible to do so. Here that is literally if it is reasonably possible to do so. Here that is the case. See
Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974).
Question No. 2:
"Since the assignment is self-explanatory on the mortgage, are we required to index the assignment at the time of recording? "
In
Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418, 293 S.W. 986 (1927) 989, this was written:
"The recording of any instrument which conveys title to real estate or any interest therein or any easement therein or which places a restriction or burden upon any real estate is of the utmost importance, and when such instrument is recorded it is notice to the world, and every one thereafter purchasing property the title to which is affected by the instrument is bound by the provisions of the instrument. It is therefore of the utmost importance that the clerk of the county court in the respective counties comply with the provisions of section 513, Ky. Stats., as to the indexing of all such instruments which in any manner affect the title to real estate. Such instruments should be indexed in the name or names of the parties executing them, and it is only by and through a proper indexing of such instruments that the title examiner may intelligently make up his abstract or give advice concerning the title."
Elsewhere in Seat v. Louisville & Jefferson County Land Co., page 991, the court ruled:
"Where the clerk records an instrument which is recordable in his office, it is notice to all parties as provided by law, and this notice exists regardless of whether the clerk has properly indexed the instrument." (Emphasis added).
Thus where an instrument is properly recorded, there is constructive notice regardless of any failure to properly index the instrument. See also
Parrish v. Newbury, Ky., 279 S.W.2d 229 (1955) 232.
The remaining question is whether or not you, as clerk, are required to index the "assignment" part of the mortgage-assignment instrument. Although the mortgage-assignment instrument constitutes a single document, as relates to KRS 64.012, the instrument in reality contains two legal transactions. See KRS 382.080, and
Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337, 65 S.W.2d 69 (1933).
Thus it is our opinion that KRS 382.200 requires the county clerk to cross-index the mortgage and the assignment contained in the mortgage, showing the linkage between the mortgage and the assignment thereof. That statute, in spite of the constructive notice afforded in the proper recording of the mortgage-assignment instrument, requires a proper indexing of the assignment portion as well as the mortgage portion of the instrument, since both transactions affect the title to the real estate in question.
Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418, 293 S.W. 986 (1927) 989.
Unfortunately, we are unable to find in KRS 64.012 any clerk's fee for indexing the assignment portion of the mortgage-assignment documents. We can only suggest that this inequity be remedied by an appropriate bill amending KRS 64.012 and explicitly providing for a fee for cross-indexing the assignment portion of a mortgage-assignment instrument.