November 23, 1982

Mr. Dennis D. Evenson 
Deuel County State's Attorney 
Clear Lake, South Dakota 57226

Opinion No. 82-63

Powers of Register of Deeds Relative to the Compilation of Chattel Abstracts

Dear Mr. Evenson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The Deuel County Register of Deeds prepares what is referred to as a chattel abstract.  The instrument has no statutory provision, however, the preparation of the chattel abstract is addressed in the instruction manual for the Register of Deeds.  The Deuel County Register of Deeds charges a fee to the persons or companies requesting the abstract.  Since there is no particular statutory provision for the preparation of chattel abstracts and the Register of Deeds does this on a voluntary basis, she retains the fee that she collects for the chattel abstract.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  May the Register of Deeds prepare a chattel abstract where there is no statutory provision for the preparation of the chattel abstract? 

2.  May the Register of Deeds retain the fee which she receives for the preparation of the chattel abstract? 

3.  If the answers to questions 1 and 2 are yes, may the Register of Deeds use the stationery for the county for billing and preparation of the chattel abstract and can she prepare this abstract during the business hours?

There is indeed no statutory provision regulating the preparation of a  'chattel abstract.'  Several previous Attorney General opinions have held that a Register of Deeds may legally prepare chattel mortgage abstracts.  1939 A.G.R. 411; 1933 A.G.R. 592; 1924 A.G.R. 320.  You should note the emphasis placed on the word 'mortgage.'  Your request concerns 'chattel abstracts' and makes no reference to chattel mortgages.  The distinction is critical to providing answers to your questions.

The only definition of a 'chattel abstract' in available publications is found in the Uniform Accounting Manual For South Dakota Counties which is published by the South Dakota Department of Legislative Audit.  Presumably this is the 'instruction manual for the Register of Deeds' referred to in the statement of facts section above.  According to that source, a 'chattel abstract' is 'a complete list of any and all mortgages, liens, financing statements or other instruments noting indebtedness against the properties both real or personal of any individual.'  It is clear this definition goes far beyond the type of instrument the above Attorney General opinions dealt with. Those opinions concluded that a Register of Deeds could privately compile chattel mortgage abstracts because the licensing provisions regulating abstracters applied only to the compilation of abstracts of title to real estate not personal property.  Also see, 1935 A.G.R. 439.  Legislative Audit's definition of a 'chattel abstract,' however, is not confined to indebtedness against an individual's real property.  Therefore, to that extent Legislative  Audit's definition cannot be legally followed by a Register of Deeds unless that official is properly licensed as an abstracter.  See generally, SDCL ch. 36-13 dealing with abstracters of title.

In addition, it is now the duty of a Register of Deeds upon receipt of a $4.00 fee to furnish data regarding Uniform Commercial Code financing statements.  SDCL 57A-9-403(5).  U.C.C. financing statements have replaced chattel mortgages.  The above Attorney General opinions, consequently, are no longer operative.  Any other information affecting title to real property cannot be provided by a Register of Deeds without being licensed as an abstracter.  The enactment of the U.C.C. has effectively emasculated a Register of Deeds' power to privately prepare chattel mortgage abstracts. Therefore, the answer to your first question is NO.

IN RE QUESTIONS 2 AND 3:

Since the answer to Question No. 1 is no, Questions 2 and 3 need not be answered.  Finally, it must be emphasized that the Department of Legislative Audit's definition of a 'chattel abstract' is both misleading and inaccurate. To include instruments affecting real estate title in a definition of 'chattel abstracts' is a contradiction in terms.

Respectfully submitted,

Mark V. Meierhenry
Attorney General