February 14, 1985
Mr. John Fitzgerald
Butte County State's Attorney's Office
Butte County Courthouse
Belle Fourche, South Dakota 57717
OFFICIAL OPINION NO. 85-10
Register of Deeds' duty to prepare list of transfers
Dear Mr. Fitzgerald:
You have requested an official opinion from this office involving the following factual situation:
FACTS:
On May 27, 1983, a certain written instrument designated 'Quitclaim Deed,' was submitted to the Register of Deeds of your county for recording. The Register of Deeds recorded the instrument and listed the two designated grantors and the two persons, described as wife and husband, designated in the instrument as 'grantees,' with the described property on the list of transfers which SDCL 7-9-10 requires to be kept by him. The list of transfers was submitted to taxing authorities.
The first two paragraphs of the instrument are as follows:
Quitclaim Deed
'A' and 'B,' husband and wife, having P.O. address of ________, South Dakota, GRANTORS, for and in consideration of the One Dollar ($1.00) and other valuable consideration,
CONVEY AND QUITCLAIM To 'C' and 'D,' wife and husband, having P.O. address of ________, South Dakota, GRANTEES, all rights, titles, and interests, including any and all after-acquired rights, titles, and interests, in and to the following described real estate in the County of Butte, State of South Dakota:
Those two paragraphs are followed by the real property description. The real property description is followed by a paragraph of substantial length which recites considerable detail of the date, description, execution, and recording of two other documents involving the same parties and the same real property. Those recitations are followed by the following paragraph:
Record fee title to aforesaid real property, and all improvements thereon and appurtenances thereto, and all oil, gas, and mineral rights and interests continue to be held by 'C,' one of the GRANTEES herein, said 'C' being sole owner of all such properties prior to the execution of aforesaid CONTRACT FOR DEED.
'C' has complained to the Register of Deeds that only she should have been named on the list of transfers as an owner.
You have asked the following questions:
QUESTIONS:
1. Does the Register of Deeds have the duty to interpret ambiguous language in a document submitted for recording to determine the intent of the parties in preparing the list of transfers?
2. Should the Register of Deeds, in this case, change the entries made on the list of transfers?
The following sections of the South Dakota Codified Laws are applicable to your inquiry:
SDCL 7-9-10. It shall be the duty of the register of deeds in each county to keep in his office and to enter therein the name of the grantor and the grantee and a sufficient description of the real estate in each transfer to perfectly identify the same and, on the last working day of each calendar month, he shall certify to the secretary of revenue, county auditor and director of equalization a list of transfers for the current month.
SDCL 43-4-6. A transfer in writing is called a grant, or conveyance, or bill of sale. The term 'grant' in this title includes all these instruments, unless it is specifically applied to real property.
SDCL 43-4-14. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct.
If the operative words of a grant are doubtful, recourse may be had to its recitals to assist construction.
SDCL 43-4-15. If several parts of a grant are absolutely irreconcilable, the former part prevails.
SDCL 43-25-7. The standard form of quitclaim deeds in this state is as follows:
QUITCLAIM DEED
_____, grantor, of _____ county, state of _____, for and in consideration of _____ dollars, conveys and quitclaims to _____, the grantee, of _____ P.O. all interest in the following described real estate in the county of _____ in the state of South Dakota __________ Dates this ___ day of _____, 19__.
(Signature)________
(ACKNOWLEDGMENT)
SDCL 43-25-8. Every such instrument, duly executed, shall be a conveyance to the grantee, his heirs and assigns, of all right, title, and interest of the grantor in the premises described, but shall not extend to after-acquired title, unless words expressing such intention be added.
SDCL 43-25-9. The provisions of § § 43-25-5 to 43-25-8, inclusive, do not preclude the use, affect the validity, or control the interpretation of other forms of warranty and quitclaim deeds.
Deeds are traditionally regarded as consisting of a number of formal parts, the first of which is known as 'the Premises.' The premises of a deed, sometimes designated the caption, embrace matters preceding the Habendum clause, such as the recitals of the grantor's intention and motives for his deed, the names, designations, and descriptions of the parties, the consideration expressed for the deed, words of grant, and the description of the property conveyed. In short, it is in the premises of the deed that the property is really granted. 23 Am.Jur.2d 90, Deeds Section 18.
It should be noted at the outset that the list required to be kept by the Register of Deeds and submitted to taxing authorities is a 'list of transfers.' The effect of a particular transfer on the 'ownership' of the described property is a matter of legal opinion. The Register of Deeds is a ministerial officer, and he is not charged with the duty of making legal conclusions as to the effect of a particular transfer on 'ownership' of the described property.
In the factual situation submitted, the document is in the exact form of the Standard Form of Quitclaim Deed set forth in the South Dakota Codified Laws, with the additional provision required to convey after acquired title. The 'premises' of the deed are all contained in the portion of the document set forth above. The two paragraphs which follow, (and precede the date and signatures of the grantors) is surplusage as to the duty of the Register of Deeds to make a transfer list. What, if any, effect such surplusage may have on the ownership of the respective grantees, as between themselves, need not be determined by the Register of Deeds.
The answer to your first question is 'No.'
The Register of Deeds having entered correctly the names of the grantees on the transfer list, it follows that the answer to your second question is 'No.'
Respectfully submitted,
Mark V. Meierhenry
Attorney General
