State ex rel. Ashton v. Register of Deeds

Berry, J. Mary Jane Ashton, being owner in fee of certain real estate in the city of St. Paul, on September 21, 1877, conveyed the same to the plaintiff, by warranty deed, duly executed and acknowledged; and on October 24, 1877, J. H. Ashton and others, having an interest in certain real estate in said city, conveyed the same to the plaintiff, by a quitclaim deed, also duly executed and acknowledged. Neither of the deeds having been recorded, the plaintiff, on September 10,1879, presented the same to the defendant, as register of deeds, at his office, for record, tendering the proper fees. Neither of the deeds had indorsed or noted upon it any statement or certificate in relation to taxes or assessments, either of the auditor of Ramsey county or of the city treasurer of St. Paul. For want of such statement or certificate, the register refused to receive or record the deeds. The plaintiff there [524] upon sued out an alternative writ of mandamus, requiring, the defendant to receive and record the deeds, or to show cause why he had not so done. The respondent answered, setting up, among other things not here important, the facts above stated as to the lack of a statement and certificate. The answer was held to show no legal excuse for his refusal to receive and record the deeds, and the writ was accordingly made peremptory. Laws 1878, c. 1, § 106, (Gen. St. 1878, c. 11, § 106,) enacts that “when any deed, plat of any town site, or instrument affecting the same, or any other conveyance of real estate, is presented to the county auditor for transfer, he shall ascertain from the books and records in his office if there be delinquent taxes due upon the land described therein, or if it has been sold for taxes; and if there are delinquent taxes due, he shall certify to the same; and upon the payment of such delinquent or other taxes that may be in the hands of the county treasurer for collection, he shall transfer the same, and note upon every deed of real property so transferred, over his official signature, ‘taxes paid and transfer entered;’ or, if the land described has been sold or assigned to an actual purchaser for taxes, ‘paid by sale of land described within;’ and unless such statement is made upon such deed or other instrument, the register of deeds shall refuse to receive or record the same. A violation of the provisions of this section by the register of deeds shall be deemed a misdemeanor, and, upon conviction thereof, he shall be punished by a fine not less than one hundred dollars, nor exceeding one thousand dollars.” Sp. Laws 1874, c. 1, subch. 7, tit. 1. § 73, (p. 79,) provides that “the register of deeds shall not record any deed from a private person or private corporation unless there be endorsed on such deed a certificate of the city treasurer that all assessments for local improvements have been paid; and any violation of this provision by the register of deeds shall be a misdemeanor, and be punishable by a fine not exceeding double the amount of the unpaid assessment.” [525] The question for us to determine- is whether the register of deeds of Ramsey county can be compelled to receive for record and to record deeds of real estate, not having upon them the county auditor’s statement and' the city treasurer’s certificate, thus provided for by law ? It cannot be doubted that it is -competent for the legislature, in the exercise of its general legislative authority, to provide for the manner of transferring title to real estate, and for the registration of conveyances thereof. For the latter purpose it may establish a registry- office, and require books to be kept, in which such conveyances may be recorded. It may also provide for a register of deeds, whose duty it shall be to receive for record and record conveyances of real estate, for certain prescribed fees. It may also prescribe the duties of such register, the manner in -fthich, and the terms and conditions upon which, he shall discharge such duties. To this end it may provide what instruments he shall record, and how they shall be executed and authenticated, by acknowledgment or otherwise, to entitle them to record; and because the constitution imposes no restriction upon the authority of the legislature in the matter, we can see no reason why it is not competent for the legislature to prescribe any other rule, regulation or condition with reference to the registration of conveyances of real estate, which, in its wisdom, it may see fit to enact, provided only that such its action is legislative. It is therefore competent for the legislature to enact, as it has done in the statutes -before quoted, that no register of deeds shall record any deed not having thereon the county auditor’s statement and the city treasurer’s certificate, as therein prescribed: That it 'is the duty -of the register of deeds to obey the law follows as a matter of course. He is a creature of the statute, and his powers and duties are such as the statute prescribes, and no others. ' These conclusions are not at all affected by the position taken by plaintiff’s counsel, that the constitution (article 1, § 15) declares all lands within this [526] state to be allodial; that therefore the owner has a right to transfer his land, and his grantee to receive such transfer; and that the statutory provisions quoted have the effect to deprive a purchaser of the privilege and .right of perfecting his title by recording his deed under this statute; or by the further position that the effect of these statutory provisions is to compel a purchaser to pay taxes, without having an opportunity to contest their validity, or that they impose what is, in effect, a penalty for non-payment of taxes. Whatever else these considerations may tend to show, they do not in. anywise tend to show that it is the duty or the right of the register to disobey the law. The order allowing a peremptory mandamus is accordingly reversed.