Untitled Texas Attorney General Opinion ( 1939 )

3%~ ATTORZNEY GENERAL
OF TEXAS
Honorable Stanley Tlmmins
County Attorney
Marshall, Texas
Dear Sir: Opinion No. O-1520
Re: Should a release of a deed of trust
or mortgage be filed by the county
clerk in the Deed Records or the'~
Deed of Trust or Mortgage Records?
We have your letter of recent date submitting the
above questlon for an opinion by this department.
There being no question as to a release of a mortgage
or deed of trust being entitled to be recorded, Article 6626,
R. C. 9. of Texas, 1925, Pegram v. Owens, 64 T. 47’5, if properly
acknowledged or proved as provided by law, we .get
. into the prln-
clpal question at once.
In your letter you set out in full Article 6601,
R. C. 9. of Texas, 1925, which we quote:
"All deeds of trust, mortgages or judg-
ments which are requtred to be recorded Fn
order to create a judgment lien, or other in-
struments of writing intended to create a lien,
shall be recorded in a book or books separate
from those in whichedeeds or other conveyances
are recorded."
This article was passed, Acts 16th Legislature, 1879,
as Article 4304 of the 1879 Revised Civil Statutes, which took
effect September 1, 1879.
As it relates to your question, it is significant
that Article 6601 was passed many years after the general regis-
tration laws which were passed, Acts 1836, pi 155; P.D. 4979;
G. L.;vol. 1 p:1215, and Acts 1846, pa 236; P. D. 5001; G. L.,
Vol:2, p. 1542, and whidh have remained unaltered since that
time, in so far as they affect the question submitted by~you,
exceBt for the-special provisfon.contained in Article``6601.
Articles 6591-6596, and Article 6626, R..C. 9. of Texas, 1925.
Section 35 of the Act of 1836 provides:
Honorable Stanley T1mmlns, page 2 0-1520
"The clerks of the county courts shall
be the reborders for their respective counties,
and it‘shall be their dittyto record all deeds,
conveyances, mortgages and other liens, and all
ether instruments of writingrequired by law to
be recorded in.thelr offices, which are pre-
sented to tiem, provided e . s .'I
Nothing Is said In the Act of 1836 with regard to the manner of
recording to be used by the clerk.
Sections 1 and 4 of the Act of 1846 provides:
f,s e . That the clerks of the county
courts of the several counties of this State
Shall be the recorders for their respective
counties; they shall provide and keep In their
offices well bound books, In which they shall
record, In a falr'and legible hand, all lnstru-
tiefits
of writing authoriz6d or required to be
recorded in the recorder's office of their
respective counties, in the manner herelnafter
provided. . O *"
,Ia D * that It shall be the duty of each
recorder to i?ecordin ,thebooks provide&for
his office, all deeds, mortuaaes,,convtiyhnces,
deeds of trust, bonds, covenants. defeasances,
6r~otheF‘insti?ument3of wr.lting of or cbn-
cei'lllngariylands, and tenementi,/or goods and
chattels, or movable property'of any descrlp-
tion, in his county, which shall be proved or
acknowledged according to law, and delivered
to him to be recorded In his office."
Substantially the same language is used in'~Artlcles
6591 and 6626 of the 1925 Revised Civil Statutes cls was used in
Sections 1 and 4 of the Act of 1846. It Is to be noted that
Sections 35, 1 and &‘quoted above arJe~
silent as to whetherthe
clerk should record t,hefristrumentshained,all in one bobk, or
whether he should record themeitiseparate books.- Books are only
rgferred to in Sections 15, 16 and 17 of the Act, which sections
have to do with indexing.
In vieVdof the failure of the Legislature and the
Congress to ptiovidefor a separate record of Instruments intend-
ed to create a lien in 1836 or 1846, and In vfew of the fact tkst
%he~Legislature dfd so provide irithe rbvisloiiof 1879, we must
ascribe sbme purpose or intent to Its latter action. Then the
question arises, did the Legislature intend that the, "separate
record" referred to by you as the Deed of Trust or Mortgage Record
-- -
Honorable Stanley Tlmmlns, page 3 0-1520
be devoted'exclusively to the recording of instruments intended
to beBh3 a lien, that is, separate from the book.contalnirg
conveyances. In our opinion, that was its Intent-t;and this con-
cluslon Is supported by the following statement made by the
court In the case of Lewis v. Phillips, 90 S.W. (2d) 310, 312::
”. . . .the~county clerk is re.quiredto
record deeds of trusts, mortgages, .judgmentsre-
corded for the purpose of creating a lien, or
botherinstruments of wrlting intended to create
a lien in a book or books separate from those in
which deeds or other conveyances are recorded.
Rev. St. Art.'4304. This s'catut'econtemplates
that liens shall be recorded separately from
absolute conveyances, but not from each other....."
Our conclusion as to the intent of'the Legislature Is
further supported by the lmpllcation to be drawn from Article
5523,-R. C. 9. of Texas,~1925, which Is a limitation statute;
that'artlcle provides that extensions of-liens created by mort-
gages or deeds of trust shall be "filed'and recorded in the'
manner prov3.dedfor the acknowledgment and record of conveyance
of real estate," which of course refers to the Deed Records.
The Legislature evidently intended that nothing but the lnstru-,
ments intended to create the lien, and not those which extend-
ed or extinguished it should be filed In the "separate books."
Another reason for holding that releases of mortgages
and d-eedsof trust should not be filed in the Deed of Trust OF
Mortgage"Records Is that such a release has the effect of and Is,
in its nature, a deed or convevance. As said by the court in
the case of Baldwin V* Drew, is0 9-W. 614.
"Under the common law, conveyances are
classified, first, as original or primary con-
veyances, which are t.hoseby means whereof the
benefit or estate is created or first arises;
and, second, derivative or secondary conveyances,
whereby the benefit or estate originally created
is enlarged, restricted, transferred or extin-
guished. OrigInal conveyances are the following:
Peoffment, gift, grant, lease, exchange an.d
partition. Derivatives are release, confirma;
tion, surrender, assignment and defeasements.
Blackburn, Vol..1, pp- 339, 310.
On this point see also 18 C. J. 153; Harrison v. Boring, &+ Tex.
255, 262; Smith, et al, v. Cantrel, et al, 50 9. W. 1081.
Therefore, it is our opinion, and you are so advised,
- -
Honorable Stanley Tlmmlns, page 4 o-1520
that releases of mortgages and deeds of trust should not be
county clerk in the Deed of Trust or,Mortgage
Pil--ed.by-the Re-
cords, but belnu'ln their nature conveyances, should be filed
in the Dead Records.
The question submitted by you'and the answer given
go*merely-to-the,proper procedure.to be follo%ieSby'the-'coiintg
clerk. Article 6601 is merely dlredtorg. Kehnard v:Mabry';,
78'.Ter.151,~14 9.W; 272. -The bffect oi'the filing or regls-
tratlon of the release'would~remaln unchanged, regardless of ~'
whihh of the books or re%ords under discussionthe county clerk
might use 1n:recordlng same. Article 6596; David v. Roe (Clv.
App.) 271 S.W. 196.
Trusting that the above satisfactorily answers your
inquiry, we are,
Your2 very truly
ATTORNEY GENERAL OF ~TEUS
By s/James Noel
James Noel
Assistant
JN:LW:wc
APPRC!lRDNGV 20, 193q
s/Gerald C: Mann
ATTORNEY GE@RAL OF TEXAS
Approved Opinion Committee By s/BwB Chairman