The facts are stated in the majority opinion. The applicable sections of the statute are also quoted therein. I cannot refrain, however, from again quoting Rem. Rev. Stat., § 10599, which is § 8, chapter 33, p. 34, Laws of 1929, and 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."
Such a section as the foregoing is not new to the statute law of this state. Rem. Bal. Code, § 8784, reads as follows:
"Every instrument in writing purporting to convey or encumber real property, which has been recorded in the proper auditor's office, 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."
The section last quoted was § 2323 of the Code of 1881, and was in effect even prior to that date.
The basic question to be decided concerns the duty or right of the county auditor to accept for filing for record in his office, or to refuse to accept the same, a document concerning or affecting the title to real estate in his county which he is requested to accept for filing and record, the proper fee being tendered.
It is admitted that the document which the auditor was requested to accept for record purported to affect the title to real estate in Pierce county, and that the document was not, by the grantor therein, acknowledged before a notary public, or other officer authorized to take acknowledgments. *Page 163
In the recent case of State ex rel. McCaffrey v. SuperiorCourt, 20 Wash. 2d 704, 149 P.2d 156, the question presented was the right of the county auditor to refuse to accept for filing a declaration of candidacy for a public office which it was contended was, and which the auditor held to be, void on its face for the reason that it showed that the declarant, at the time he tendered the declaration, was not, under the law, eligible to fill the office for which he sought to declare his candidacy. This court directed that a writ of mandate issue, requiring the auditor to accept and file the declaration. In the course of the opinion, we said:
"The auditor was, however, only an administrative officer, in so far as the filing of declarations of candidacy and the preparation of ballots are concerned. He had no power to determine the complex judicial question affecting relator's eligibility."
In the course of the opinion, this court cited the case ofState ex rel. Boze v. Superior Court, 15 Wash. 2d 147,129 P.2d 776, in which we said:
"The determination of the eligibility of candidates for elective office, under the provisions of our constitution, constitutes the exercise of judicial power."
The court also cited the cases of State ex rel. McAulay v.Reeves, 196 Wash. 1, 81 P.2d 860, and State ex rel. Huff v.Reeves, 5 Wash. 2d 637, 106 P.2d 729, 130 A.L.R. 1465.
In the McCaffrey case, the defect, if any, in the tendered declaration of candidacy appeared on the face of the declaration, and this court, without determining whether or not the declaration of candidacy was valid, held that the auditor could not determine its validity or invalidity, and should be required to accept and file the declaration.
While in the case at bar the declaration of trust sought to be recorded was manifestly not acknowledged before a notary public, border line cases frequently exist in which the question of whether or not a deed or other instrument has been acknowledged in compliance with the statute presents legal difficulties. In a deed the grantors may be named as John Wilson Brown and Sarah Jane Brown, his *Page 164 wife; one grantor may sign J. Brown and the other Mrs. J.W. Brown; the names may appear in the certificate of acknowledgment in different forms. Many similar questions may be imagined. If the auditor can refuse to accept for record one instrument, probably he may exercise his judgment in refusing to accept others.
It is conceded that a county auditor may accept for record and record such an instrument as is here in question, or any other instrument purporting to affect real estate within his county. Once accepted and recorded, an instrument falling within the terms of Rem. Rev. Stat., § 10599, supra, constitutes constructive notice to third persons from the date of the recording.
The effect of the majority opinion is to allow county auditors to accept for record or reject such instruments at mere whim. The auditor of one county may accept them; the auditor of the adjoining county may refuse to accept them. An auditor may accept them one day and refuse them the next, and accept them again the third day. He can accept them from one person and refuse them from another, the section of the statute above referred to at all times operating to make such instruments, when recorded, constructive notice to all persons concerned.
Section 10599 was enacted subsequent to Rem. Rev. Stat., §§ 10550, 10551, quoted in the majority opinion, and it seems to me the section last enacted enlarges the scope of the prior statute. Certainly the enactment of § 10599 was a vain and useless gesture if county auditors may refuse to accept for record such instruments as are referred to in that section.
Section 10599 is a curative statute, designed to operate both retrospectively and prospectively, and is based upon the assumption that legal documents purporting to affect the title to real estate, but irregularly executed, will be recorded.
The duties of a recording officer are generally ministerial in their nature. Throop on Public Officers, p. 705, § 742. In so far as his duties are ministerial, an auditor has no *Page 165 authority to use judicial or other discretion in passing upon the validity of any instrument tendered to him for record.
In the case of Bliss v. Tidrick, 25 S.D. 533, 127 N.W. 852, the supreme court of South Dakota said:
"Upon the trial of this cause the respondent offered in evidence the record of the above purported administratrix's deed for the purpose of proving such deed. The appellant objected to its receipt in evidence upon the ground that such deed was absolutely void upon its face, that, therefore, it was not entitled to record, and, not being entitled to record, the record thereof was not competent evidence to prove the deed. This objection was overruled, and the record received in evidence. We think the ruling of the court was correct. Appellant cites in support of his position the case of Stone v. French,37 Kan. 145, 14 P. 530, 1 Am. St. Rep. 237; and, while there are some statements by way of obiter contained in the opinion which taken by themselves would seem to sustain appellant's position, yet a reading of such opinion shows clearly that all the court held therein was that the recording of a void instrument could give to it no validity, and therefore innocent purchasers relying upon the record of same could acquire no rights under the recording acts. It did not hold that the record of such instrument could not be received in evidence. Conceding that this instrument was void on its face, it would stand before us the same as any other deed clearly void upon its face, and this court has frequently held, and it has become the established law of this state, that a deed void on its face is yet color of title sufficient for the purpose of founding a claim by adverse possession. . . . It necessarily follows, we think, that such a deed is entitled to record."
The recording of an instrument which constitutes color of title may be important under the statutes of this state in certain cases.
The county auditor is not concerned with the validity or invalidity of a deed or an instrument of similar tenor tendered to him for record. The validity of any such instrument may be decided at any time in a proper action by any interested party.
In the case of Bernard v. Benson, 58 Wash. 191, 108 P. 439, it was held that the record of an executory contract for *Page 166 the sale of real estate constituted constructive notice of the contents of the contract, under the recording acts, although the statute did not specifically provide for the recording of such instruments. In the course of the opinion, the court said:
"Section 8784 [Rem. Bal. Code] provides that, `every instrument in writing purporting to convey or encumber real property,' which has been recorded in the proper office, shall import notice to third parties. It is true, contracts for the sale of real estate are not expressly mentioned in the recording statutes, but we think they are included within the meaning of the words, `deeds, grants and transfers of real property.' They are within the spirit of the statute, liberally interpreted. 2 Am. Eng. Ency. Law (2d ed.), § 78. In construing a statute, all acts in pari materia will be read together, and where the meaning of a statute is not clear or it is ambiguous, obscure, or indefinite in any respect, contemporaneous construction may also be resorted to in arriving at the intention of the law makers. We think we may properly take judicial notice of the fact that it has been the custom in this state to record such instruments. The construction contended for by the respondents would be productive of great mischief."
This court may take judicial notice of the fact that for many years it has been the custom in this state to file for record affidavits concerning titles to real estate. Such affidavits have been filed by the thousand, and fill a useful purpose in conveying information as to the identity of prior owners of real estate, their status as to whether married or not married, and, if married, to whom. We are not concerned with any question concerning the legal effect of such affidavits when recorded, but, if brought to the attention of any person, they may constitute actual notice of some statement which might be matter of importance. It would seem probable that, if the appellants here had embodied in an affidavit a copy or the substance of the instrument which they sought to file for record, the auditor would have accepted and recorded the affidavit, while refusing to accept for record the instrument itself.
In the case of Rehm v. Reilly, 161 Wash. 418, 297 P. 147, 74 A.L.R. 350, this court held that the recording by *Page 167 the county auditor of a copy of a deed was unauthorized and did not impart constructive notice of the deed. The opinion clearly and correctly stated the law. It is interesting to note that by way of dicta, and referring to the recording of the copy of the deed, this 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 recording of anything not specified by the statute is, generally speaking, a mere nullity, and no one is required to take notice of it."
This language, of course, referred to the effect of the recording of a mere purported copy of a deed.
In his argument respondent carefully points out the distinction between the matter of the notice given by the recording of a certain instrument and the right to record the same. Respondent, however, then proceeds to confuse these two matters, and cites authorities in which the effect of a certain instrument was considered, and not the question of the right to have such an instrument recorded.
It is true, as contended by respondent, that the right to record is purely statutory. At common law there was no officer whose duty it was to record instruments. The use of indentures partially compensated for the lack of an office of public record. If it be argued that the right to record, being a statutory right, should be strictly construed, it should be remembered that the strict construction of recording statutes applies to the effect of the record of an instrument, but not to the right to have an instrument recorded.
Respondent cites the case of Kenyon v. Knipe, 2 Wash. Terr. 422, 7 P. 854, attributing to the court the following: "A deed not duly acknowledged and authenticated is not entitled to be recorded." Examination of the record in the case cited discloses that the above quotation is taken from the argument of counsel and not from the opinion of the court. *Page 168
The consequences of the result reached by the majority in the case at bar may be far-reaching. At this time millions of Americans are serving abroad in our armed forces, and it may well be frequently necessary for individuals so serving to execute deeds, mortgages, and similar instruments.
Our army is governed by the articles of war, which are, of course, statutes enacted by the Congress. The 114th article of war, 10 U.S.C.A. (Sup.), § 1586, reads as follows:
"Any officer of any component of the Army of the United States on active duty in Federal service commissioned in or assigned or detailed to duty with the Judge Advocate General's Department, any staff judge advocate or acting staff judge advocate, the President of a general or special court-martial, any summary court-martial, the trial judge advocate or any assistant trial judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant, assistant adjutant or personnel adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of military administration; and shall also have the general powers of a notary public in the administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents and all other forms of notarial acts to be executed by persons subject to military law: Provided, That no fee of any character shall be paid to any officer mentioned in this section for the performance of any notarial act herein authorized."
A comparable provision is found in the navy articles, which govern the navy. 34 U.S.C.A., § 217; 34 U.S.C.A. (Sup.), §§ 217a, 217a-1. Congress has enacted these statutory provisions for the benefit and protection of the members of our armed forces. Such an individual on duty with the army serving in a foreign country, or if in the navy upon a warship at sea, will generally be unable to acknowledge formally a deed or other instrument affecting real estate before a person authorized to take such acknowledgments other than an officer given such authority by the articles of war or navy articles. Such an officer, of course, *Page 169 has no official seal, and all he can do is certify, over his signature, with his rank and status, that the individual signed and acknowledged the instrument before him, and certify the facts in the usual form of acknowledgment. In such a case no court can certify that the officer taking and certifying the acknowledgment has authority so to do, as no court would have the information, as required by Rem. Rev. Stat., §§ 10560, 10561 [P.C. § 1908-24].
The majority hold that a county auditor may refuse to accept such an instrument for filing and record, leaving the interested persons without a remedy.
It may be said that an auditor would not so refuse, but that begs the question, as such a matter should not rest upon the discretion or good will of the auditor. It must always be remembered that that officer is not at all concerned with the validity or nonvalidity of any instrument presented to him for record. The legal effect of such an instrument can be decided at any time in a proper proceeding by any interested party. That is no concern of an auditor.
Respondent emphasizes the need for a uniform practice throughout the state in connection with the matter of recording or nonrecording of such instruments. It is apparent, however, that the result sought by respondent will produce not uniformity, but confusion, since the acceptance of irregular instruments for record will be optional with each auditor, and will generally depend upon the attention, or nonattention, or disposition of the particular deputy to whom the instrument happens to be tendered. The practice, then, will vary not only as between counties, but from day to day in each particular county.
The principle adopted by the majority will not necessarily result in keeping invalid instruments off the record, but will undoubtedly result in preventing the record of many valid deeds which actually convey title. A deed which has been fully executed but never delivered may, through mistake, inadvertence, or the illegal act of some person, be recorded, while a deed, the acknowledgment to which is in some manner defective, may, as between the *Page 170 parties, convey title and still be kept off the record, to the detriment of innocent persons.
The recording of an instrument is a service for which the person asking that service pays; presumably the fee charged for the recording compensates the county for the expense of the operation.
In my opinion, the court should give full force and effect to Rem. Rev. Stat., § 10599, supra, there being no statute forbidding the recording of such an instrument as that which is the subject matter of this action, and the section last referred to clearly contemplating that such an instrument not only may be, but as I construe the statute, should be, recorded when that process is requested.
For the reasons stated, I dissent from the conclusion reached by the majority, it being my opinion that the writ should issue.
SIMPSON, C.J., concurs with BEALS, J.