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AGO 1958 No. 166 - February 26, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

MORTGAGES ‑- RECORDING OF SATISFACTION OF MORTGAGE BY THE STATE OF WASHINGTON DOES NOT REQUIRE A FILING FEE.

HIGHWAYS ‑- RECORDING OF SATISFACTION OF MORTGAGE BY THE STATE IS NOT SUBJECT TO PAYMENT OF COUNTY FILING FEE.

FEES ‑- STATE HIGHWAY DEPARTMENT ‑- NOT REQUIRED TO PAY COUNTY FILING FEE FOR RECORDING SATISFACTION OF MORTGAGE.

Recording of satisfaction of a mortgage by the state of Washington does not require payment of county filing fee.

                                                                  - - - - - - - - - - - - -

                                                                February 26, 1958

Honorable William A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                      Cite as:  AGO 57-58 No. 166

Dear Sir:

            By letter, previously acknowledged, you have requested the advice of this office on a question which we paraphrase as follows:

            Is the satisfaction of a mortgage on property condemned by the state an "instrument of the state" which is therefore not subject to the assessment of fees upon filing with the auditors of the several counties?

            Your question is answered in the affirmative.

                                                                     ANALYSIS

            RCW 36.18.140 provides, in part, as follows:

            "All salaried county officers shall charge and collect . . . all the fees now or hereafter allowed by law, paid or chargeable in all cases except such fees as are a charge against the county or state. . . ."

             [[Orig. Op. Page 2]]

            It is the well established law of the overwhelming majority of jurisdictions in the United States that the interest of the mortgagee in lands under condemnation is superior to that of the record owner.  This is also the law in Washington, although this state has adopted the "lien" rather than the "ownership" theory of mortgages.  Cochran v. Cochran, 114 Wash. 499.  This is consistent with the case of North Coast R. Co. v. Hess, 56 Wash. 335, wherein the court said that the lien transferred from the property to the award in condemnation, and as a consequence it was error to distribute the award to the owner before the disposition of encumbrancer's liens.

            Under the principles above stated, then, condemnation by the state is not a situation in which the purchaser has a choice of assuming a mortgage or taking property subject to a mortgage.  It is abundantly clear that the state cannot take property subject to a mortgage, paying the record owner the fair market value and permitting him to satisfy the existing mortgage, for the lien must be extinguished before disbursement of the award.  This is the effective holding ofNorth Coast R. Co. v. Hess, supra.  Neither is it precisely the assumption of a mortgage, for such assumption must be clear and unequivocal.  Peoples Savings and Loan Association v. Cram, 172 Wash. 117.  It is evident that the intent and purpose of satisfying mortgages is not to benefit the owner, but to give the condemner the enjoyment of an unencumbered estate.

            In previous opinions of the office of attorney general construing RCW 36.18.140, it has been held that public officers may demand and collect fees only as expressly authorized by statute, and that the counties and the state are exempt from payment of such fees to salaried county officers.  AGO 1909-10 page 70 [[1909-10 OAG 70 to State Board of Control on August 18, 1909]]; Opinion to L. V. Murrow, August 9, 1939.

            The rule is also well stated in 46 C.J., Officers, § 244, p. 1017, as follows:

            "Fees are only collectible when expressly authorized by law, . . ."

            and at 46 C.J., § 250, p. 1019, as follows:

            "Statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government, . . ."

            We are not aware of any statutory authority for the collection of filing fees for recording of instruments herein questioned.

             [[Orig. Op. Page 3]]

            Accordingly, it is our conclusion that the opinion of this office to the Honorable L. V. Murrow, dated August 9, 1939, to which you refer, contains a correct statement of the law that the satisfaction of mortgages on property under condemnation involves the use of an "instrument of the State of Washington" which must be recorded without the exaction of filing fees.

            We trust the above will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JAMES R. CUNNINGHAM
Assistant Attorney General

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