February 16, 1983

Mr. Craig M. Eichstadt 
Deputy State's Attorney 
Aurora County Courthouse 
Plankinton, South Dakota 57368

Official Opinion No. 83-10

Transfer fees on sheriff's deeds

Dear Mr. Eichstadt:

You have requested an official opinion concerning the following factual situation:

FACTS: 

SDCL 43-4-20 through 43-42-6 requires that a transfer fee, in the amount of 50 cents for each $500.00 of value or fraction thereof, upon the privilege of transferring title to real property in the State of South Dakota, be paid by the grantor.  This fee is to be paid at the time when any Deed transferring title is offered for recordation.  SDCL 43-4-25. 

Various definitions are set forth in SDCL 43-4-20, among them definition of the word 'Deed' as any instrument for the purpose of transferring or conveying the fee title to real property.  Various exemptions are set forth in SDCL 43-4-22, among them the following: '(3) solely in order to provide for or to release security for a debt or obligation.'

Based upon the above factual situation you have asked the following question:

QUESTION: 

Is the transfer fee provided for in SDCL 43-4-21 required upon the filing with the Register of Deeds of a Sheriff's Deed obtained after mortgage foreclosure, and after expiration of the period for redemption?  If the answer to this question is yes, may the transfer fee be taxed as a cost at the time of the mortgage foreclosure sale, or in some other manner recovered  from the mortgagor?  If the fee may not be recovered from the mortgagor, is the Sheriff or the mortgagee required to pay it?

SDCL 43-4-21 reads as follows: 

A fee is hereby imposed at the rate of fifty cents for each five hundred dollars of value or fraction thereof upon the privilege of transferring title to real property in the state of South Dakota, which fee shall be paid by the grantor.

SDCL 21-47-13 reads as follows: 

Whenever an action shall be brought for the foreclosure or satisfaction of a mortgage, the court shall have power to render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment, and the costs of the action, and to order and decree a sale of the mortgaged premises, or such part thereof as may be sufficient to pay the amount adjudged to be due, and costs of sale, and shall have power to direct in what parcels the premises shall be offered, and the order in which they shall be offered and further to direct that if there be no bid for any parcel or parcels offered, such parcel or parcels may be sold with any other parcel not yet sold, in one parcel; and shall have power to order and compel the delivery of the possession of the premises to the purchaser; but in no case under this chapter shall the possession of the premises so sold be delivered to the purchaser or person entitled thereto,  until after the expiration of the period of redemption.

SDCL 21-47-24 reads as follows: 

At the expiration of the time for the redemption of such mortgaged premises, if the same be not redeemed, the person or officer making the sale, or his successor in office, or other person appointed by the court, must make to the purchaser or purchasers, their heirs or assigns, or to any person acquiring the title of such purchaser, by redemption or otherwise, a deed or deeds to such premises which shall vest in the purchaser, or other party entitled thereto, the same estate that was vested in the mortgagor at the time of the execution and delivery of the mortgage, or at any time thereafter; and such deed shall be as valid as if executed by the mortgagor and mortgagee, and shall be a complete bar against each of them, and against all the parties to the action in which the judgment for such sale was rendered, and against their heirs respectively, and all persons claiming under such heirs.

SDCL 21-48-21 reads as follows: 

If such mortgaged premises be not redeemed, it shall be the duty of the officer or his successor in office, or some other person appointed by the circuit court for that purpose, to complete such sale, by executing a deed of the premises so sold to the original purchaser, his heirs, or assigns, or to any person who may have acquired the title and interest of such purchaser by  redemption or otherwise.

It is my opinion that the transfer fee in SDCL 43-4-21 is required.  The sections in SDCL 21-47 and 21-48 state that the transfer fee is taxed as a cost and recovered from the mortgagor. The specifics are done by order of the court.

Respectfully submitted,

Mark V. Meierhenry
Attorney General