Eggert v. Ford , 21 Wash. 2d 152 ( 1944 )

¹ Reported in 150 P.2d 719. The appellants, as relators, applied to the superior court of Pierce county for a writ of mandamus to compel the county auditor to record a written instrument showing their interest in certain Pierce county lands. A general demurrer was sustained. The relators refused to plead further, and the cause was dismissed. The demurrer admitted allegations briefly summarized in the following paragraph:

On November 17, 1916, Jerry P. Eggert executed an instrument denominated "Declaration of Trust," declaring that he had taken title to certain Pierce county lands therein described for convenience only, and that, in fact, he held an undivided one-third thereof for the use and benefit of Carl H. Eggert and an undivided one-third for the use and benefit of Henry L. Eggert, the remaining one-third being his own property. The instrument was not in any way acknowledged, but Mr. Eggert's signature was certified by a witness.

Jerry P. Eggert died in August, 1942. In January, 1943, the beneficiaries presented the instrument to the respondent, Joseph E. Ford, auditor of Pierce county, and, tendering the proper fee, asked that it be placed of record. The auditor refused to record the instrument, for the sole reason that it was not acknowledged as required by statute.

The only question presented here is: Was the respondent's demurrer properly sustained?

[1] Since mandamus will lie against an officer in his official capacity only to enforce a duty pertaining to his office (State ex rel. Bloedel-Donavan Lbr. Mills v. Clausen, 122 Wash. 531,211 P. 281), the first step in considering the problem presented is to inquire what duties as to recording instruments affecting title to real property are imposed upon county auditors by our statute law. The general duties of county auditors are set out in Rem. Rev. Stat., § 10601 [P.C. § 1640], and, in so far as they are material to the present inquiry, are defined as follows:

"He must, upon payment of his fees for the same, record separately in large and well-bound books:

"(1) Deeds, grants and transfers of real property, mortgages and releases of mortgages of real estate, powers of attorney to convey real estate, and leases which have been acknowledged or proved: . . .

"(7) All such other papers or writings as are required by law to be recorded and such as are required by law to be filed if requested so to do by the party filing the same."

It is said by the appellants in their brief that the foregoing statute "places the duty upon the County Auditor to record all instruments coming within its general description." If it is meant by this that it is the auditor's duty to record all instruments purporting to affect title to real estate or purporting to convey real estate, even though unacknowledged, we think the statement is manifestly too broad, for it is provided in Rem. Rev. Stat., § 10550 [P.C. § 1908-21], that:

"Every conveyance of real estate, or any interest therein, and every contract operating or evidencing any encumbrance upon real estate, shall be by deed: . . ."

The next section of the statute (§ 10551 [P.C. § 1908-22]) provides:

"Every deed shall be in writing, signed by the party bound thereby, and acknowledged by the party before some person authorized by this act to take acknowledgments of deeds."

We do not construe subd. (1) of § 10601 as making it the duty of a county auditor to record unacknowledged instruments affecting the title to real property. Until such instruments are acknowledged, they are not what they are called or purport to be. For example, an instrument, in every other respect fully satisfying the requirements of a deed, except the acknowledgment of the grantor, is not yet a deed, and a statute requiring an auditor to record deeds does not make it his duty to record that instrument. Nor is the duty to record the instrument involved in this cause imposed by subd. (7) of § 10601, since it is not an instrument which the law requires to be recorded. It may be, however, that the duty to record may be imposed by the general recording statute, for § 10 of that statute (Laws of 1927, chapter 278, p. 673; Rem. Rev. Stat., § 10596-10 [P.C. § 1914-10]) provides that:

"A recording officer, upon payment or tender to him of the lawful fees therefor, shall record in his office any instrument authorized or permitted by this act to be so recorded."

The term "recording officer" is expressly defined in § 4 of the act as meaning "the county auditor of the county." If the appellants are entitled to the writ by virtue of this act, it must be found that the declaration of trust presented to the respondent auditor is an instrument authorized or permitted by the act to be so recorded.

Only those parts of the act will be quoted which are material to the inquiry. Subdivision (3) of § 1 reads, in part, as follows:

"The term ``conveyance' includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned or by which the title to any real property may be affected, . . ."

The declaration of trust involved in this act, therefore, undoubtedly purports to be a conveyance, as above defined.

Section 2 of the act reads as follows:

"A conveyance of real property, when acknowledged by the person executing the same (the acknowledgment being certified as required by law), may be recorded in the office of the recording officer of the county where the property is situated. Every such conveyance not so recorded is void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration from the same vendor, his heirs or devisees, of the same real property or any portion thereof whose conveyance is first duly recorded. An instrument is deemed recorded the minute it is filed for record."

It appears that the only conveyances "authorized or permitted" by this section to be recorded, and, therefore, the only conveyances which the auditor is directed by § 10 to record, are those "acknowledged by the person executing the same (the acknowledgment being certified as required by law)." The appellants say of the general recording act:

"Nowhere is there a prohibition against the recording of other instruments nor any authorization to the County Auditor to decline the recording of instruments not executed in accordance with the provisions of Chapter 278 of the laws of 1927."

[2] This is quite true, but completely irrelevant. A writ of mandate may not issue to an officer commanding him to do a thing merely because he is not forbidden to do it, but only to command him to do an act which it is his official duty to perform.

A great number of the states have recording statutes similar to our own, yet no case has been cited to us, other than People exrel. Consumers' Brewing Co. v. Fromme, 35 A.D. 459, 54 N.Y. Supp. 833, wherein a recording officer has been successfully mandamused to record an instrument affecting the title to real property. In that case, such an instrument was presented to the register or recording officer which he refused to file, because it did not bear the right amount of stamps required by the United States war revenue act of 1898. The real gist of the decision is, we think, contained in the following sentences of the opinion:

"A failure to comply with the War Revenue Law is a matter with which the register has nothing to do. The duty of the register is to record or file in his office those instruments or papers which, by the laws of the State, are entitled to be recorded or filed."

In our own researches, we have come upon another New York case wherein a writ of mandamus was issued. The case (People ex rel.Oaklawn Corp. v. Donegan, 226 N.Y. 84, 123 N.E. 71) is, however, clearly authority for the position taken by the respondent here. Furthermore, the Donegan case was decided by the court of appeals, while that cited by the appellants was decided by an intermediate court. A deed was executed by four grantors. The acknowledgment of one of them was not sufficient under the statute, because it was taken by an officer of another state who neglected to attach a certificate of his authority and as to the genuineness of his signature, as required by the New York statute. The register refused to record the instrument, on the sole ground that it was not properly acknowledged, and the matter finally reached the New York court of appeals. The general recording statute was evidently of the same permissive class as our own, for the opinion in the case begins as follows:

"Section 291 of the Real Property Law (Consol. Laws, c. 50) provides that a conveyance may be recorded on being duly acknowledged by the person executing the same." (Italics ours.)

(Our statute reads: "A conveyance . . ., when acknowledged by the person executing the same . . ., may be recorded," etc.)

The court held that, since the acknowledgment as to one of the grantors was defective, the record would not be notice to subsequent purchasers as to him, and that, if he had been thesole grantor, the instrument could not be lawfully recorded. It held, however, that, since three of the grantors had acknowledged the instrument, it could be lawfully recorded as to them. It was held that the writ should issue for that purpose, but that, since the recording officer had acted in good faith, no costs should be levied against him, and it was expressly provided that the register should not be required to index the conveyance against the grantor whose acknowledgment was not in proper form.

[3] It is further contended, however, that Rem. Rev. Stat., § 10599 [P.C. § 1908-28], which is § 8 of chapter 33, Laws of 1929, p. 34, and, therefore, a later enactment than the general recording act, impliedly recognizes that instruments having defective acknowledgments, or no acknowledgments at all, are entitled to record. The section reads as follows:

"Every instrument in writing purporting to convey or encumber real estate situated in this state, or any interest therein, which has been recorded in the auditor's office of the county in which such real estate is situated, although such instrument may not have been executed and acknowledged in accordance with the law in force at the time of its execution, shall impart the same notice to third persons, from the date of recording, as if the instrument had been executed, acknowledged, and recorded, in accordance with the laws regulating the execution, acknowledgment and recording of such instrument then in force."

We are of the opinion that this section in no way enlarges the auditor's duties, as expressed in § 10601 [P.C. § 1640], chapter 278, p. 670, Laws of 1927. As we understand the argument to the contrary, it is contended that § 10599, above quoted, passed at the next session of the legislature, recognizes that instruments may be recorded, even though defectively acknowledged, and, therefore, modified and liberalized the general recording act of 1927. It is urged that § 10599 must be read and construed in connection with the general recording act, and it is said, in effect, that, when we find the 1929 legislature passing an act regulating the effect of recording defectively acknowledged instruments, it is a fair inference that it supposed it had authorized the recording of such instruments when it passed the general recording act two years before.

To the foregoing contention, we think there are several sufficient answers. The exact language of § 10 of the general recording act is that the auditor shall record "any instrument authorized or permitted by this act to be so recorded," (italics ours), and those are without doubt only those instruments which the preceding § 2 says "may be recorded"; that is to say, conveyances ". . . acknowledged by the person executing the same (the acknowledgment being certified as required by law)." Section 10599 does not purport to enlarge that class. It does not deal with what may be recorded, but with the effect of recording after recording has been accomplished. The title of the act in which it is found (Laws of 1929, chapter 33, p. 31), does not in any way indicate that it was enacted to regulate the recording of instruments. It reads as follows:

"AN ACT relating to conveyances and encumbrances of real estate, authorizing certain officers to take acknowledgments, prescribing forms, and repealing certain acts relating thereto."

Neither does the actual content of the act exhibit anything in the least way repugnant to the general recording statute. Section 1 requires every conveyance of real estate to be by deed. Section 2 requires deeds to be in writing and acknowledged. Sections 3, 4, 5, and 6 relate to the taking of acknowledgments, and prescribe what officers may do under various circumstances. Section 7 validates all instruments previously executed in accordance with the provisions of the act. Section 8 (the section under discussion) provides that those not so acknowledged, if they do get of record, shall nevertheless impart constructive notice. Section 9 provides a form for warranty deeds; § 10, for bargain and sale deeds; § 11, for quitclaim deeds; § 12, for mortgages; § 13, a form for individual acknowledgments; § 14, for corporate acknowledgments; and § 15, the final section, repeals a great number of former statutes, none of which had anything to do with recording. In our opinion, it cannot reasonably be contended that anything in the chapter indicates an intention to modify the general recording act. It is urged that we should find an implied modification by resorting to liberal construction, but, to so hold, the court would clearly be compelled to leave the realm of construction and enter that of judicial legislation.

There is a very obvious and compelling reason for the passage of such legislation as § 10599. The statutes in a great majority of states have required acknowledgments as a prerequisite to recording, and, in such states where there is no statute of the type of § 10599, it has been the universal holding that the filing of an unacknowledged conveyance does not give constructive notice. Patton, Titles, p. 172, § 38; 5 Tiffany, Real Property (3rd ed.), p. 19, § 1264; 1 Jones, Mortgages (8th ed.), p. 852, § 613; 2 Devlin on Real Estate (3rd ed.), p. 1179, § 645; notes, 19 A.L.R. 1074; 72 A.L.R. 1039.

It has even been held that an unacknowledged instrument will not impart actual notice to a purchaser who sees the instrument on the record. One has only to glance at the A.L.R. notes,supra, to realize the grief and hardship which have been caused by the lack of such statutes as § 10599; for, under such circumstances, conveyances have been very generally declared not to have imparted any notice if in any way defective. See, for example, Waskey v. Chambers,224 U.S. 564, 56 L. Ed. 885, 32 S. Ct. 597, where the instrument had but one witness, while the statute required two; People ex rel.Oaklawn Corp. v. Donegan, 226 N.Y. 84, 123 N.E. 71, where there was no showing that a foreign notary was authorized to take acknowledgments; Edwards v. Thom, 25 Fla. 222, 5 So. 707, where the grantor's wife properly acknowledged, but he merely signed, the instrument. There are an astounding number of similar cases cited in the notes referred to.

It is conceded by both parties, and everybody knows, that defectively acknowledged conveyances, and even conveyances which do not purport to have been acknowledged at all, frequently get of record. Some auditors receive and record any instrument presented. Others, no doubt, might refuse to record a conveyance when an acknowledgment is wholly lacking, but accept for record one purporting to be acknowledged, although he believed the acknowledgment defective, thus properly giving it the benefit of the doubt.

It is reasonable to suppose that the legislature knew the commonly known fact that, in one way or another, instruments do get of record, though not acknowledged as required by law, and, therefore, enacted § 10599 to avoid the hardships that would be bound to occur if it were not provided that such instruments should impart constructive notice. So far from being a vain and useless act, the enactment of § 10599, which everyone rightly denominates a curative statute, was an imperative necessity. That this is so may be seen by examining the experience of other states having general recording statutes such as our own. This may be quickly and readily done by referring to the authorities assembled in the notes in 19 A.L.R. 1074 and 72 A.L.R. 1039.

In deference to those who so think, it may be conceded that to allow the wholesale recording of every instrument presented for record may be a better policy than that which the legislature has seen fit to adopt; but a discussion of that matter has no place here, since the court has no legislative power, but is strictly limited to enforcing the law as it finds it. It is inescapable that § 2 of the general recording act (Laws of 1927, chapter 278, p. 670) provides that only conveyances of real property, "when acknowledged by the person executing the same (the acknowledgment being certified as required by law), may be recorded," and by § 10 makes it the duty of the county auditor to record only those instruments "authorized or permitted by this act to be so recorded." That language is not ambiguous, and leaves no room for construction.

We are besought, however, to hold that § 10599, a portion of an act which, neither in title nor in content, has anything whatever to do with what may be recorded, enlarges the class of instruments which are "permitted to be recorded" by the general recording act. This § 10599 is interpolated in a long act (Laws of 1929, chapter 33, p. 31), expressly reenacting the time-honored, formal requirements for all sorts of documents affecting the title to lands. Like all the rest of the chapter, it has nothing whatever to do with what may be recorded. The section itself deals only with the notice that will be given by an instrument which does not comply with the requirements of the other paragraphs of the act, if, as frequently happens in some way or another, such an instrument does get of record. Plainly, to hold that § 10599 enlarges the general recording act and makes it the duty of the county auditor to record unacknowledged conveyances would be to insert into that section something which is not there. To do so would constitute as plain an example of judicial legislation as can well be imagined.

[4] Since mandamus will lie against an officer in his official capacity only to enforce a duty pertaining to his office, and we cannot find that it is the duty of a county auditor to record a wholly unacknowledged instrument, purportedly affecting the title to real property, the judgment and decree appealed from must be affirmed. It is so ordered.

STEINERT, BLAKE, JEFFERS, MALLERY, and GRADY, JJ., concur.