Opinion letter to the Honorable Gerald Kiser

\ Opinion ·No. 408 Answered by Letter (Step~) Honorable Ge~ld Kiser Prosecuting Attorney Ola~ Count1 Ltberty, Missouri Deax- Mr. Kiaera ,. - Opinion No. 22 (1964) F l L E 0 ~.2, This is ln "aponae to )'OUl' request tor an opinion ot this of'tice, which request rea® 1n part as follows: "Th1s 1a to request your opinion con- cernlng recording ot certain 1nstt'Uments. u Attached het>eto you will find a copy ot a document which baa been presented to our Reoorde~ ot Deeds to be tiled. He hae rece1 vea a number ot theae. You will note that the second paragr-aph ot this do<Jument rete~s to a note above d~"Bcribed. "Our Recorder j,e oonoeme<l with whether or not the or1s1nal ot thie note ahould be presented to lW\1 fo'C comparison and iden~1tica-ion at the time the document 1a reco~ed. It Should be noted. that in addition to what appears en the document aent to you,_ a l esal deecl"1pt1on ot tbe property !s usua1ly tape~ to the document. " The aam_ple agreement attached to your letter 1& set out 'below: Honorable Gerald Kiser '' AOREEMEN'l' "In couideration ot the extension or crec11t aa ev1.denoed by a ·note tor j622.g[ ot even date herew1 th, g1 ven by the under- signed pa7able to Your, .Dank ot Kansas C1 ty, Mo repreeent!hi coat ot improve- menta Fo"tbe .tollowtns deacrtbea p~pert7 in Clal County, state ot ~ -me undersigned agree that they w11l not sell or convey sa1d proper')' w1 $bOut t1ret pq1ng the balance ot said loan 1n tull, and that aaid p~pert7 and their interest tbe·rein; eball stand as security for the entorceJ&ent ot t.bia Agreement. "Tbie ag~ement aball enure to the beneti t or ~ &ubaequ.ut olftlet- and bolder of the note above described. "IN WITNESS WHBRJO', the undereign.ed have set their banda tbi.a J!!! ·da7 o'f Septenaber 19§1. "STATE OP MIISQUBI COUlfl'Y OP CUY J!obn Roe M!rf Roe "Be 1 t "~tembered tbat on this d&7 Sept,, 3.1 A. D., 1~, bet"ore the undersigned, a notat-7 pu'tiiic .. in and tor tile Aid county and state aforesaid came John Roe and ~ rtoe who are pe~aonall7 lmotft1 to me to ~e ~e persons .no executed the within inatru- men't ot wr1 t1ng ana euch pereone duJ.7 aokn()wledged tbat tb.e7 executed the same as their tree act and deed. Honorable Gerald Kiser "IN 'l'BSTIJI)NY WBBRBOP, I have hereunto set rq band and at'fixed '1117 aeal the day and year last above written. ~Doe otaii PUbllc" In the premises we believe that this situation is pro- vided tor by Section 443.050, 1963 Cum. SUpp., which reads in part aa tollowa • "1. In au cities in this state which now have or 111&1' hereafter have six hundred tho~aand inhabitants or more, and 1n all counties ot claaa one and two, when any mortgage or deeCI or trust or other instru- ment mtended to create a lien upon real estate to aeo~ tbe payment of a debt or obligation evidenced by an instrument or instruments 1n wri t1ng, ahall be filed tor record, the instrument or inatrumenta representing the principal ot au.ch debt or obl1gat_ion or &n7 part thereof ahall be presented to the recorder ot deeda at the time ot such filing tor record, or in case the mortgage or deed ot trust or other instrument 1s to be tiled 1n more than one count1, then to the recorder of the county where first tiled_. and the recorder shall, tor the compensation of twenty-ti ve cents tor each ot the first tour ot such 1nstru- menta identified by h1m and ten cents for each additional instrument identified by him, stamp or write upon each such instrument evidencing principal so secured an identification thereof aa being a note, bond or other evidence ot debt described by such mortgage, deed ot trust or other 1natl'UIIlent ot secur1ty. 11 Since Clq CoW'lty 1s a county of the second class1 the torego1ng would seem to require recording "the 1natrument • • • represent~ the principal or sucll debt or obligation • • • • " it the ••agreement 11 set out above may be characterized u "any mortgage or deed of trust or other instrument intended to create a lien upon real estate to secure the payment ot a debt or obligation •••• n -3- Honorable Gerald Kiser W1 thout deciding whether the sample agreement set out above does 1n tact create a Uen upon tlle real estate 1n ques- tion, we are of the opinion that the agreement 1s clearly "intended to create" such an encumbrance . There tore. your question as to whether the original note should be presented to the recorder at the tilDe that tbe agree- ment is preaented tor recording is answered in the attirmative. AJS:lt Very truly- yours. THOMAS P. IAGIBrON Attomey General