RECORDS ‑- DUTIES OF COUNTY AUDITOR ‑- LIABILITY FOR RECORDING DEFECTIVELY ACKNOWLEDGED INSTRUMENTS

RECORDS ‑- DUTIES OF COUNTY AUDITOR ‑- LIABILITY FOR RECORDING DEFECTIVELY ACKNOWLEDGED INSTRUMENTS

A county auditor will incur no liability by reason of recording a defectively executed or acknowledged instrument.

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                                                               December 22, 1953

Honorable Murray E. Taggart
Prosecuting Attorney
Walla Walla County
Denny Building
Walla Walla, Washington                                                                                                              Cite as:  AGO 53-55 No. 184

Attention:  Herbert H. Freise, Deputy

Dear Sir:

            We have your letter of December 3, 1953, in which you refer to an instance in which the county auditor recorded an instrument on which the notary public who acknowledged it had impressed a seal of a town rather than her notarial seal.  You request the opinion of this office as to the responsibility of a county auditor for accepting such a defective instrument for recording.

            It is our opinion that a county auditor incurs no liability by reason of recording a defectively executed or acknowledged instrument.

                                                                     ANALYSIS

            RCW 65.08.030 as amended by chapter 15, Laws of 1953, provides as follows:

            "An instrument in writing purporting to convey or encumber real estate or any interest therein, which has been recorded in the auditor's office of the  [[Orig. Op. Page 2]] county in which the real estate is situated, although the instrument may not have been executed and acknowledged in accordance with the law enforced 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 the instrument then in force."

            InEggert v. Ford, 21 Wn. (2d) 152, the court held that mandamus will not lie to compel the county auditor to record an unacknowledged instrument.  But the court did indicate that if a county auditor does record a defectively executed or acknowledged instrument, that the effect of the statute (now RCW 65.08.030) is to impart the same notice to third persons as if such instrument had been properly executed and acknowledged.  InRehm v. Reilly, 161 Wash. 418, the court said at page 424:

            "* * * 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.  * * *"

            RCW 65.04.110 lists the acts and omissions for which a county auditor may be liable in damages in connection with his duties as recording officer of the county.  Recording a defectively executed or acknowledged instrument is not included.  It is our conclusion that a county auditor will incur no liability by reason of recording a defectively executed or acknowledged instrument.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General