AUTHORITY TO FILE DEFECTIVE INSTRUMENTS -- COPIES, PHOTOSTATS

COUNTY AUDITOR ‑- FILING OF INSTRUMENTS ‑- DUTY ‑- AUTHORITY TO FILE DEFECTIVE INSTRUMENTS ‑- COPIES, PHOTOSTATS.

The county auditor is under no duty‑-that is, cannot be compelled by mandamus‑-to file an instrument not executed in accordance with statutory requirements, including purported copies of validly executed instruments.  He may be liable for damage resulting from refusal to file properly executed instruments.  He may file any instrument even though defectively executed, without liability, but should warn person filing of the defect.

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                                                                   June 15, 1954

Honorable Robert S. Campbell, Jr.
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                                   Cite as:  AGO 53-55 No. 272

Dear Sir:

            By letter as previously acknowledged, you have requested the opinion of this office upon several questions arising from doubt as to the duties of the county auditor with regard to the filing of various documents.  You have set forth the following situations, inquiring in each case whether or not it is the duty of the auditor to file the document:

            1.  A chattel mortgage is received with all appropriate signatures merely typed in, the document not being certified by another auditor as a true copy.

            2.  A warranty or quitclaim deed with all signatures typed in, and uncertified, is received.

            3.  A document purporting to be a photostatic copy of a fully signed deed is received.

             [[Orig. Op. Page 2]]

            4.  A conditional sales contract is received with all signatures typed in.

            5.  A document purporting to be a photostatic copy of a conditional sales contract is received.

            6.  A chattel mortgage is received either without the signature or the seal of a notary upon the affidavit of good faith.

            7.  A labor lien claim is received, sworn and verified by the claimant, but not signed by the attorney for the claimant.

            8.  A labor lien claim is received, either without acknowledgment by the claimant, or without the seal or signature of the notary.

            You also inquire as to what the auditor should do if such documents are presented and filing is not required by the law.

            Our conclusions may be stated as follows:

            1. The auditor is under no duty to file any of the documents except that described in (7.) above, and cannot be compelled to do so.

            2. The auditor will incur no liability for filing or recording a defectively executed or acknowledged instrument.  He may be liable for resulting damage if he refuses to record an instrument which is required by law to be recorded by him.  In the cases described above where no duty to file exists, the defects should, of course, be pointed out so that they may be cured.

                                                                     ANALYSIS

            It might be appropriate first to set out the language of the Supreme Court inRehm v. Reilly, 161 Wash. 418, at 424 and 425:

            "* * *  The only thing placed of record after the conveyance to Swain for Reilly was the so-called copy of the unrecorded deed.  The county auditor no doubt was quite right in accepting and recording anything which might be handed to him for that purpose.  It is not for him to attempt to determine what is recordable and what is not.  Our statutes specify what  [[Orig. Op. Page 3]] instruments shall be recorded, and when an instrument recordable under the statute is filed for record, it becomes notice as the statute provides; but the recording of anything not specified by the statute is, generally speaking, a mere nullity, and no one is required to take notice of it.

            "Certainly the statutes do not authorize the recording of a copy, and more certainly a copy which bears no evidence that there ever was an original in existence.  * * * the paper which was filed failed to disclose the existence of a duly executed deed, anything tending to show the delivery of such a deed, or any fact which would put one upon inquiry and lead to the ascertainment of the truth."

            The foregoing sets the tenor of any remarks which this office could make as to the filing of copies purporting to represent original documents.  We think the same rule would hold true as to photostatic documents, when not certified by an auditor as a true copy of the original.  RCW 65.04.040 provides for the use of photographic process by the auditor, but we have found no other provision which would authorize filing in the first instance of a photostatic copy.

            The matter is further clarified by the case of Eggert v. Ford, 21 Wn. (2d) 152, decideden banc, in which it was held that a document purporting to affect title to real property was not required by the statutes to be filed by the auditor when it lacked an acknowledgment; and that mandamus would not lie to compel filing.  It was said that the instrument simply was not what it purported to be until it had been acknowledged, and hence without acknowledgment was not the instrument which the law commanded the auditor to file.  That decision considered the effect of what was prior to RCW 65.08.030 1953, stating that instruments recorded, although defectively executed or acknowledged, would impart notice to third persons.  The court held that the statute represented simply a legislative recognition of the fact that faulty instruments do find their way into the auditor's records on occasion, and an attempt to mitigate the possible hardship resulting therefrom.  That statute dated from 1929, and was on the books when Rehm v. Reilly, supra, was decided.  It was recently re‑enacted [[reenacted]]by section 1, chapter 115, Laws of 1953, without change except from "was recorded" to "has  [[Orig. Op. Page 4]] been recorded;" and we do not think its effect has been changed thereby from that given it by the court in theEggert case.

            A deed is not the instrument it might appear to be until acknowledged properly(Eggert v. Ford, supra), nor is a conditional sales contract valid until properly signed(Kennery v. Northwestern Junk Co., 108 Wash. 656), nor is a chattel mortgage until acknowledged and verified (Myers-Sheply Co. v. Milwaukee Grain Elevator Co., 124 Wash. 583), under the respectively appropriate statutes, RCW 64.04.020 for deeds, RCW 63.12.010 for conditional sales contracts, and RCW 61.04.020 for chattel mortgages.  The auditor's duty to file or record such instruments in each case, we think, under the construction ofEggert v. Ford, relates only to the statutory instruments.  It was so held in that case despite the language of what is now RCW 65.04.010, stating that a recording officer upon tender of proper feesshall

            "* * * record in his office any instrument authorizedor permitted by this act to be so recorded."  (Emphasis supplied)

            The court plainly decided that no duty existed as to defective instruments.  Applying the same rule to RCW 63.12.020 on conditional sales contracts, we reach the same result:  filing is required only for "such memorandum," referring to that described in RCW 63.12.010.  Again, as to chattel mortgages, the same result obtains.  The auditor under RCW 61.04.030, as amended by § 3, chapter 214, Laws of 1953, is required to file upon receipt of a chattel mortgage and payment of fees.  The underscored phrase clearly describes the subsisting chattel mortgage or certified copy thereof as provided for by RCW 61.04.020.

            We must conclude that in situations (1.) through (5.) the auditor has noduty to file the typewritten, uncertified copy, or a photostatic copy.  Apparently, however, a defective instrumentmay be filed, under the statement of the court inRehm v. Reilly, supra.

            In the situation described in (7.) above, examination of the statutes discloses that the notice of lien claims to be filed under RCW 60.04.060 (mechanic or materialman's lien), RCW 60.12.040 (farm labor lien), RCW 60.16.020 (orchard laborer's lien), RCW 60.20.030 (nursery stock lien), and RCW 60.24.050 (lumber or timber lien) require only the signed and acknowledged statement of the lien claimant himself, although the notice may be verified by another including his attorney.  In situation (7.), therefore, the instrument is complete,  [[Orig. Op. Page 5]] and under RCW 60.04.070, RCW 60.12.070, RCW 60.16.020, RCW 60.20.040 or RCW 60.24.100 the auditor must file the instrument.

            As to situation (6.), the Myers-Sheply case supra, holds that the chattel mortgage is not valid until acknowledged and verified.  Technically, it would seem that if either the seal or the signature of the notary is missing on the acknowledgment the instrument is defective.  RCW 42.28.060 provides that except in the case of oaths to be used in court, if

            "* * * the notary public shall sign any instrument officially, he shall, in addition to his name and the words 'notary public,' add his place of residence and affix his official seal."

            The cases are at variance as to the effect of the absence of seal, signature, or place of residence.  InState v. Epstein, 138 Wash. 118, it was held that the absence of a seal on the notarization of a bulk sales affidavit prevented an action for perjury thereunder.  Early decisions, never overruled, hold that a lien claim is invalid where the notary's seal is absent.  Gates v. Brown, 1 Wash. 470;Stetson & Post Mill Co. v. McDonald, 5 Wash. 496.  The courts have distinguished other cases in order to achieve substantial justice, holding that an unsealed notarization is good between the original parties.  SeeMeloyitch v. Tacoma, 135 Wash. 533; Bloomingdale v. Weil, 29 Wash. 611 (Notarization in New York).  We think, however, that in view of the requirement of RCW 42.28.060, above, the auditor would be justified in refusing to file a chattel mortgage lacking either seal or signature.

            In situation (8.), a labor lien claim, not acknowledged by the claimant or an authorized person on his behalf, would fall within the reasoning set out above, and filing could not be compelled.  The same is true where the notarization was faulty due either to the absence of the seal or of the signature of the notary, under the Gates and Stetson & Post cases, supra.

            In all cases it should be remembered, however, that we have discussed only theduty of the auditor to file the particular instrument, the test of which being whether or not mandamus will lie to compel that result.  Apparently the statutes would not prevent filing in these situations, although the act might have no legal effect.  For your information we have attached a copy of AGO No. 53-55 No. 184,  [[Orig. Op. Page 6]] written for the prosecuting attorney, Walla Walla County on December 22, 1953, indicating that no liability is incurred by the auditor for filing a defectively executed or acknowledged instrument.

            We hope the foregoing will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General