July 5, 1984

Mr. Thomas Graslie 
Harding County State's Attorney 
Post Office Box 427 
Buffalo, South Dakota 57720

OFFICIAL OPINION NO. 84-27

Recording/Filing of documents by Register of Deeds office

Dear Mr. Graslie:

You have requested an official opinion from this office based upon the following factual situation:

FACTS 

The Harding County Register of Deeds has been approached to record or file instruments such as a 'Title Deed Alodium Freehold at 'Common Law", a 'Vested Interest' statement and other documents by individuals who are the apparent title holders of the property.  These documents have a professed 'common law' origin and do not pertain to the transfer of title or the filing of legal encumbrances such as statutory liens.  (See Appendix)

Based upon the above facts you asked the following questions:

QUESTIONS: 

May a register of deeds legally refuse to accept an instrument for filing or recording?  If so, what guidelines should a register of deeds use in accepting or rejecting instruments for filing or recording?

SDCL 7-9-1 states: 

The register of deeds shall keep full and true records in proper books, of all deeds, mortgages, and other instruments authorized by law to be recorded in his office, and records of all chattel mortgages, bills of sale, conditional sale contracts, and other instruments authorized by law to be filed in his office, provided the person offering any of such instruments  shall pay in advance the fee required by law for recording or filing the same.  However, the register of deeds may destroy those records that the state records destruction board, pursuant to §  1-27-19, has declared to be of no further administrative, legal, fiscal, research or historical value.

The above statute requires the register of deeds to accept any legally authorized instrument for recording or filing upon payment of a fee.  This statutory provision, however, does not require the register of deeds to accept any instrument for recording filing. The purpose of recording and filing statutes is to give notice of and to protect rights as against subsequent purchasers or encumbrances, not to create rights not possessed either by law or in fact.  Magnuson v. Breher, 284 N.W. 853 (N.D. 1939).

Given the purpose of the recording and filing statutes, it is my opinion that the register of deeds has a duty to refuse to accept for recording or filing any instrument that on its face appears to have no legal authorization.  A register of deeds should determine upon review of the instrument whether there is statutory authority authorizing the recording or filing of the official instrument.  If an instrument presented for recording does not facially comport with the legal requirements of recording instruments under SDCL 43-28 or elsewhere, the instrument should be refused.  Likewise, if an instrument presented for filing does not comport with the statutory provisions for filing instruments such as liens under SDCL Chapter 44-2, secured transactions under  SDCL Chapter 57A-9 or other relevant statutes, that instrument should also be refused.

An example of the type of instrument review a register of deeds should perform is common law lien filings.  As I indicated in AGR 82-66 an instrument purporting to be a common law lien should never be recorded by the register of deeds, and filed only where the instrument indicates that the person filing the lien is in possession of the personal property against which the lien is claimed and the lien statement complies with the provisions of SDCL § § 44-2-3 and 44-2-4.

Another example is the instrument described in your actual statement which is appended hereto, a 'Title Deed Alodium Freehold Act 'Common Law."  This instrument appears to be nothing more than a bald assertion by apparent owners of real property that they are the absolute owners of the property and that their ownership cannot be contested regardless of other recorded or filed instruments by any governmental body.  The term 'alodium' was used during ancient common law times to define the type of ownership in estate or land that was absolute and not subject to any feudal duties or burdens of a lord or superior.  The term, however, is not defined by South Dakota law and based upon my research the term has not been used to define a type of ownership in real property in this State.

This instrument is a creature with no possible statutory authorization for  recording or filing.  First the instrument does not affect the title to or possession of real property and thus is not entitled to be recorded.  The instrument, as used, conveys nothing nor does it clarify the legal status or ownership of the described property.  The instrument cannot be construed as a warranty deed, tax deed, quit claim deed, mortgage or even an explanatory affidavit.  Secondly, the instrument is facially insufficient in satisfying any statutory filing provision.

In stating my opinion that the register of deeds may refuse to accept for recording or filing instruments that are facially devoid of any legal authorization, I am not indicating that the register of deeds should act in quasi-judicial function.  Only those instruments that are facially devoid of legal authorization should be refused for filing.  As the State Supreme Court held in Bliss v. Tidrick, 127 N.W. 852 (S.D. 1910), even a void deed may be recorded.  Where a deficiency is not clearly present the register of deeds should accept for recording or filing instruments upon payment.  There are available legal avenues for individuals to challenge the validity of instruments recorded or filed by the register of deeds and to rectify any clouds that a void yet properly filed instrument may have.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

ATTACHMENT

TITLE DEED ALODIUM FREEHOLD AT 'COMMON LAW'

  I/We, _____, do declare to one and all people, under the penalties of perjury, to be the only lawful owner of the property known as by legal land patent no. ___ Section No. ___, Township No. ___, Range No. ___. __________ (If more space needed attach a copy.)

and challenge anyone to prove otherwise.

  I/We, _____, further declare the above said property to be my/our 'Alodium'; An estate held by absolute ownership, without recognizing any Superior to whom any duty is due on account thereof, 1 Washb. Real Prop. 16.  McCartee v. Orphan Assylum, 9 Cow. (N.Y.) 511 18 Am Dec. 516.

  A conveyance is said to be absolute, as distinguished from a mortgage or other conditional conveyance:  1 Powell, Mort. 125: Kaleialli v. Sullivan, (C.C.A.) (Hawaii) 242 F. 446, 452:  Gogarn v. Connors, 153 N.W. 1068, 188 Mich. 161.

  This land is impervious to collateral attack by the City, County, State or  Federal Government.  Neff v. U.S. 165, 263, 377, 91 C.C.A. 241.

  An estate held by absolute ownership, without recognizing any superior to whom any duty is due on account thereof.  1 Washb. R.P. (5th ed.) *16.

  In the United States the title to land is essentially allodial, and every tenant in fee-simple has an absolute and unqualified dominion over it; yet in technical language his estate is said to be in fee, a word which implies a feudal relation, although such a relation has ceased to exist in any form, while in several of the states the lands have been declared to a allodial; Wallace v. Harmstad, 44 pa. 492; Matthews v. Ward, 10 Gill & J. (Md) 443: In some states, the statutes have declared lands to be allodial. Barker v. , 28 Wis. 367.

  I/We, _____, do state that we are the Freeman that is one who is not a slave.  One form fee or made so by the Constitution of the United States, the Constitution of the States (individually) and the National Constitution of the World.  From the Constitution we have become the Freeholders the owner of a freehold estate.  Such a man must have been formerly a freeman; and the gift to any man by his lord of an estate to him and his heirs made the tenant a freeman, if he had not been so before.  1 Washb. R.P. 29. 45.  One who owns land in fee or for life, or for some indeterminate period. The estate may be equitable or legal.  State v. Ragland, 75 N.C. 13.  At law a freehold which has descended to a man, upon which he may enter at pleasure.  Termes de la Ley.

  I/We, do state that we do have a United States Land Patent and that it does state that we do have the property, and to our heirs and to the assigns forever.

  WARNING TO ALL TRESPASSERS, an unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another.  Any unlawful act committed with violence, actual or implied, to the person, property, or rights of another.  Any unauthorized entry upon the realty of another to the damage thereof.  Beardslee v. French, 7 Conn. 125, 18 Am Dec. 86. 'THROUGHOUT THE MIDDLE AGES, TRESPASS IS REGARDED AS A CRIME:' Maitland, 2 Sel. Essays Anglo Amer. Leg. Hist. 589.  The boundaries from the Land patent but reaches to the sky and to the centre of the earth; Guille v. Swan 19 Johns (N.Y.) 381, 10 Am. Dec. 234.

_____________________________ 
Signature of person (claimant)

_____________________________ 
Witnesseth

_____________________________ 
Signature of person (claimant)

_____________________________ 
Witnesseth

  Subscribed to and affirmed to before me, a Notary Public, in and for the  County of _____, State of _____, this ___ day of _____, 19__ year of our Lord.

_____________________________ 
Notary Public

My commission expires: