STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 18, 1968

Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-10

Fee on real estate transfers imposed by Chapter 27, Laws of 1968. Declaration of fee charged on instrument and ill records of Register of Deeds. Person filing instrument must claim exemption.

Dear Miss Larson:

Many requests in regard to the mechanics involved in Chapter 27 of the Session Laws of 1968 have been received by this office. In order to consolidate such requests, I am taking the liberty of answering those questions presented to me in an official opinion issued to you, as Secretary of State of South Dakota.

Among the questions heretofore received are the following:

"1. Under Section 2 of such Act, must the Register of Deeds show the amount of such fee charged on each individual transaction in the record books in his office?

"2. In recording such instrument subject to such real estate transfer fee, should the amount of fee collected appear on such recorded instrument in the records of the Register of Deeds?

"3. Section 2 requires that the Register of Deeds: 'shall cause the amount of the fee so collected to be impressed by stamp in red ink on the face of the deed after recordation.'''

Would the use of a rubber stamp on a red ink stamp "paid" in substantially this language: "TRANSFER FEE $,----- PAID," with the Register of Deeds, or his deputy, filling in the amount so collected by use of red ink pen, comply with such statutory requirement?

"4. Section 3 provides: 'Each transfer of title not subject to the fee as provided in section 6 of the Act, shall have the words "exempt from transfer fee" stated thereon.'''

Who affixes this statement to the instrument-the Register of Deeds or the person presenting such instrument for filing and recordation?

QUESTION 1: Section 4 of the Act provides for the transfer of the collected fees, on a quarterly basis, by the Register of Deeds to the County Treasurer. Such section also provides that the Register of Deeds shall "keep such records as may be prescribed by the State Auditor General."

It is my opinion that in the first instance, when the Auditor General prepares the directions as to what records need be kept, that each Register of Deeds must comply therewith.

SDC 12.1713 requires each Register of Deeds to keep a fee book. I doubt if the Auditor General, even if he so desired, could override this statutory requirement. Common sense would tell us that when a public officer collects moneys for the public in conformity with statutes, and thereafter remits the same to the County Treasurer, that the public officer should keep some record of the amount of money so collected.

Question No.1, in my opinion, must be answered YES. The fee book of the Register of Deeds, irrespective of any further direction by the Auditor General, must show the amount of money actually collected in pursuance to the direction of this statute.

QUESTION 2: It might be argued that because the state requires the amount of fee charged to be impressed upon the instrument "after recordation," limits the showing of the fee paid to just that instrument.

Certified copies of instruments recorded with the Register of Deeds are admissible in evidence in judicial proceedings. It can be envisioned that there may be proceedings where the amount of fee so paid might be important and the original instrument (so recorded) is lost.

It is my opinion that the amount of fee so collected should be noted on the recorded instrument placed in the official books of the Register of Deeds.

QUESTION 3: Although a literal interpretation of the provisions of the second paragraph of Section 2 indicates that not only the statement, but the amount of the fee collected must be impressed by a stamp upon the instrument, after the recordation, it is my opinion that adopting the policy suggested of having a stamp, used with a red ink pad, and filling in the actual amount of the fee so collected, would substantially comply with the statutes and at most could be considered an irregularity, and not a fatal defect, to the filing and recordation of such instrument.

If a rubber stamp is available which contains substantially the language used, and which contained movable numbers which could show the actual amount of fee collected such a stamp perhaps would be preferred as such literally complies with the provisions of the statute.

However, if such a described stamp cannot be obtained, or is of an exorbitant price, the failure to use the same, in my opinion, would not render all filed and recorded instruments defective.

QUESTION 4: Consideration of other provisions of the statute is required to answer this question.

Section 6 sets forth various transactions which are exempt from the fees imposed by the Act. Some of such exemptions should be patent and apparent from the instrument itself. Others may not be so apparent, and in some instances may be known only to the parties to such instrument.

Section 5 provides for a penal offense for any person who wilfully falsifies the value of the transferred realty and upon which declaration an insufficient fee is paid on such transfer.

It seems apparent if a transaction is declared exempt when in fact it is not, that an insufficient fee would be collected so that the penal statute might apply.

It is my opinion the person presenting such instrument for filing and recording by the Register of Deeds has the duty to make claim that such instrument is exempt from the fee imposed in pursuance to the statute.

It is my opinion that the person presenting such instrument for filing and recording, rather than the Register of Deeds, has the duty of placing the statement "exempt from transfer fee" upon such instrument.

Respectfully submitted,

Frank L. Farrar
Attorney General