AGO 85-41.

• Court: North Dakota

North Dakota Attorney General Opinions 1985. AGO 85-41. Office of the Attorney General State of North Dakota Opinion No. 85-41Date Issued: November 1, 1985Requested by: Lee A. Christofferson Rolette County State's Attorney--QUESTIONS PRESENTED-- Whether a county register of deeds may refuse to file a Declaration of Land Patent document. Whether the Declaration of Land Patent enclosed with your inquiry is a valid document and, if so, the effect of such document on other parties holding interest to the real property (e.g. mortgagee, lienholder).--ATTORNEY GENERAL'S OPINION-- It is my opinion that a county register of deeds may not refuse to file a Declaration of Land Patent unless it is not properly acknowledged or otherwise proved pursuant to N.D.C.C. § 47-19-03. It is my further opinion that the validity of the Declaration of Land Patent enclosed with your inquiry and its effect on other parties holding interest to the real property is a question to be determined only be reviewing all other documents in the chain of title and rendering an opinion on the effect of the Declaration of Land Patent. The Attorney General cannot provide such an opinion in regard to private real property. --ANALYSES-- I. Your questions concern the recording of a Declaration of Land Patent which is not a patent. The document in question is essentially an affidavit or sworn statement. There are two chapters of the North Dakota Century Code that specifically relate to the recording of documents in the register of deeds offices in North Dakota counties. N.D.C.C. Ch. 11-18 governs the register of deeds. It specifies the register's duties and responsibilities in regard to the recording of documents. N.D.C.C. Ch. 47-19 concerns record title. It specifies the documents entitled to be recorded and the requirements for recording instruments in the register of deeds offices. To determine whether a Declaration of Land Patent may or must be filed in the office of the register of deeds, we must review these two chapters for the requirements contained therein. N.D.C.C. § 47-19-01 states:

47-19-01. INSTRUMENTS ENTITLED TO RECORD.--ANY instrument affecting the title to or possession of real property may be recorded as provided in this chapter. [Emphasis supplied.]

N.D.C.C. § 11-18-09 provides the method by which the register of deeds is to accept instruments. N.D.C.C. § 11-18-11 specifies how the register of deeds is to record the document after being entered in the reception book. Both N.D.C.C. §§ 11-18-09 and 11-18-11 use the phrase (or its equivalent), 'affecting the title to or creating a lien upon real estate.' The initial test for determining whether or not an instrument may be recorded is whether it affects the title to, the...