STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 16, 1969

Paul R. Green
State's Attorney, Kingsbury County
De Smet, South Dakota 57231

OFFICIAL OPINION NO. 69-67

Register of Deeds fee for recording certified copy of Final Decree of Distribution or Circuit Court Judgment or Decree. SDCL 1967 7-9-15 (1, 2 and 3)

Dear Mr. Green:

You have requested my official opinion in determining the proper fee to be charged by a Register of Deeds for the recording of a certified copy of Final Decrees of Distribution, or Circuit Court Judgments or Decrees. I might remark that the same principle governing fees for such instrument will govern any certified copy of an instrument that by law is required to be recorded by the Register of Deeds.

Any public officer, such as a Register of Deeds, must collect the statutory fee, but should neither demand more than, nor less than the fee required by statute. Your question must depend upon a determination of which subsection of SDC 12.0712, as amended (SDCL 1967 7-9-15) specifies the proper fee for recording such certified copies of instruments filed in another public office. You may be interested in knowing that the provisions for a different rate for "standard" and "nonstandard" forms as contained in subsections (l) and (2) of the statute originated in Chapter 221 of the Session Laws of 1931.

My predecessors have consistently held that the fee chargeable under subsections (1) and (2) are based upon the number of words contained in the instrument, and not upon the number of grantors in a particular deed, the number of tracts of land involved, etc. See 1937-38 AGR 507; 1939-40 AGR 115; 1953-54 AGR 373, 1955-56 AGR 108 and 174.

To distinguish between what is a state "standard" form and a "non-standard" form, your attention is called to 1930-32 AGR 644 and 1933-34 AGR 565. A "folio" as used in such statute means one hundred words. (1931-32 AGR 726 and 1935 AGR 128,) In computing the number of words in any particular instrument, when numbers are used instead of words (a good example is the pharse "December 1, 1954"), This office has consistently held that each number standing for a separate word is counted as a separate word, but punctuation marks required for legibility are not counted as words. See: 1911-12 AGR 589; 1917 AGR 458; 1935-36 AGR 128, and 1953-54 AGR 348. Any claim that such fee for recording a certified copy of an instrument by the Register of Deeds is fixed by SDC 12.0712(3) (SDCL 1967 7-9-15(3)) inferentially was held untenable in 1915-16 AGR 537, and 1933-34 AGR 592, and was specifically held groundless in 1949-50 AGR 233. The reason being that this subsection refers to the fee the Register of Deeds is required to collect for furnishing certified copies of instruments in his office.

Your specific question was answered by my predecessor in 1949-50 AGR 233. Your specific question was presented to him and he found that the fee for recording a certified copy of a Final Decree of Distribution or of a Circuit Court Decree or Judgment is governed by SDC 12.0712 (1 and 2), I am in accord with this holding.

You can appreciate that such instruments as Final Decrees of Distribution or certain Circuit Court Judgments or Decrees can only classify as "nonstandard" forms. The Register of Deeds' fee is based on the number of words in such instrument. This can account for the variance of charges you have observed in the various counties within your area relative to recording of certified copies of such Court Decrees and Judgments.

Respectfully submitted,

Gordon Mydland
Attorney General