January 12, 1988

Mr. Craig E. Smith 
P.O. Box P 
Gettysburg, South Dakota 57442

Official Opinion No. 88-02

Poor relief liens

Dear Mr. Smith:

You have requested the official opinion of this Office regarding the following factual situation:

FACTS: 

The 1987 session of the State Legislature enacted SDCL 28‑14‑19 and SDCL 28‑14‑20;  the statutes provide: 

28-14-19.  Any lien or encumbrance against property created by this chapter shall terminate and be discharged upon the closing and termination of the estate of any person against whom any such lien or encumbrance is claimed. 

28-14-20.  Any lien or encumbrance created under this chapter prior to July 1, 1937, is hereby terminated as a matter of law. 

The Register of Deeds of Potter County is in doubt as to the effect of these statutes and what action is required by a register of deeds by these enactments.

Based upon those facts, you have asked the following questions:

QUESTIONS: 

1.   Does SDCL 28-14-19 terminate and discharge a county lien for poor relief created after July 1, 1937, and before July 1, 1987, where the probate estate of the recipient of poor relief has been closed and terminated? 

2.   Should the register of deeds remove the county lien from the property records of the county in those cases where the estate of the poor relief  recipient has been closed and terminated?

DISCUSSION:

SDCL ch. 28-14 is entitled "Reimbursement of county poor relief expenditures" and creates liens against the property of poor relief recipients and property which they may have or may later acquire.  That chapter also prescribes records required to be kept by county officials, including the register of deeds, as to receipt of poor relief and property to which a county's lien attaches. Provision is made for payment, compromise, and release of a county's lien. SDCL 28‑14‑18 requires the register of deeds to file for record all satisfactions and releases, and partial satisfactions and releases of poor relief liens and also to note the fact of recording all such satisfactions and releases on the margin of any record of such lien in that office.

IN RE QUESTIONS NO. 1 AND NO. 2:

SDCL 28-14-19 does, in fact, appear to terminate and discharge liens created after July 1, 1937, and before July 1, 1987, where the probate estate of the recipient of poor relief has been closed and terminated.  SDCL 28-14-20 appears to terminate all liens created under the chapter before July 1,  1937.  However, the determination of whether a particular lien has been effectively discharged is for the title examiner, not the register of deeds. There is no authorization for a register of deeds to "remove" a lien from record.  There is authorization for margin notation of satisfactions and releases on any record of a lien.  Although these statutes are not specifically designated as either a satisfaction or a release, that is their ultimate effect.  If a properly authenticated copy of a document is filed triggering the action of the statute (e.g. a final order of probate offered for record), the register of deeds should accept the same.  In those cases where the estate of the poor relief recipient is shown to have been closed and terminated by appropriate recording in the register of deeds office, the register of deeds should note that recording and could make a reference to these statutes in the margin of any record of a poor relief lien against property of that recipient.

Therefore, my answer to Question No. 1 is "yes" where appropriate documentation of compliance with the statute is made a matter of record.  The answer to Question No. 2 is "no."  However, any documents showing compliance with the statutes should be noted in the margin, and could be accompanied by the citation of these statutes.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General