Letter Opinion 1970 No. 106

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                                                                  August 4, 1970
 
 
 
Honorable Granville Egan
Prosecuting Attorney
Ferry County
Republic, Washington 99166
                                                                                                             Cite as:  AGLO 1970 No. 106
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question pertaining to the recording of an instrument of conveyance with a County Auditor where the legal description of the subject property contained in the instrument is illegible.
 
                                                                     ANALYSIS
 
            In connection with your request, you have indicated that your auditor had been relying upon AGO 53-55 No. 184 [[*sic (to Prosecuting Attorney, Walla Walla County on December 22, 1953)]], copy enclosed, in connection with instruments of this type.  Of course, as you correctly pointed out, all that was concluded in this previous opinion was that a county auditor will incur no liability by reason of recording a defectively executed or acknowledged instrument.  The factor of illegibility of the legal description of the subject property was not involved in this previous attorney general's opinion.
 
            However, we do note from our review of this opinion the reliance which was placed upon the observations made by the Washington court in Rehm v. Reilly, 161 Wash. 418, 424, 297 Pac. 147, respecting the functions of a County Auditor with respect to the recording of instruments of conveyance.  Here, the court said:
 
            ". . .  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 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  [[Orig. Op. Page 2]] recording of anything not specified by the statute is, generally speaking, a mere nullity, and no one is required to take notice of it."
 
            In other words, as we view it, the function of a County Auditor in accepting and recording an instrument of conveyance which is presented to him for recording is a purely ministerial function; if the instrument offered is one of those which is a function of the County Auditor to receive and record (i.e., a deed, mortgage, etcetera) then he must receive and record it.  A supplementary question of whether there is some defect in the instrument which will preclude it from having the legal effect intended, either as between the primary parties to the transaction or to third parties subsequently dealing with the same property, is a judicial question which is not appropriate for the County Auditor to attempt to resolve.
 
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General