Could a South Carolina register of deeds rely on an affidavit when recording satisfaction of a lost mortgage?

Plain-English summary

In 1999, Georgetown County's register of deeds asked about recording satisfaction of a mortgage whose original instrument had been lost or destroyed. The Attorney General's office said a statutory change allowed the recording officer to rely on the affidavit required by §29-3-330(c) when the satisfaction instrument and affidavit complied with that subsection. The officer no longer had to determine independently whether the person executing the satisfaction was the current holder.

The letter explained that an older AG opinion had placed that checking duty on the recording officer. It read the added language on proving the holder's signature and the affidavit requirement as changing the result. It also said the satisfaction and affidavit had to be properly indexed. The answer was limited to documents meeting the statute's conditions.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the register of deeds have to verify the current holder independently? A: The AG said no, when the satisfaction instrument and affidavit complied with §29-3-330(c). It read the required affidavit as something the officer could rely on in that situation.

What did the affidavit need to address?
A: The quoted subsection required the signer to swear that the signer, or the person represented, was the bona fide owner and holder at the time of satisfaction. The affidavit had to be recorded with the satisfaction.

Did the opinion remove indexing requirements?
A: No. It expressly said the instrument and affidavit still had to be properly indexed.

Why did this answer differ from an earlier AG opinion? A: The office said the later statutory language concerning proof of the owner's or holder's signature supported reliance on the affidavit, changing its earlier view of the officer's duty.

Background and statutory framework

The opinion focused on part (c) of §29-3-330 for a lost or destroyed mortgage and compared part (d)'s instruction to record a presented instrument or counterpart. It identified §§29-3-350 and 30-9-40 for indexing. It did not decide whether any particular affidavit was truthful.

Citations and references

Statutes: §29-3-330(c) and (d); §§29-3-350 and 30-9-40.

Official title

Concerning the effect of S.C. Code Ann. §29- 3-330 (Supp. 1998) concerning satisfactions of mortgages.

Requester

The Honorable Wanda F. Prevatte, Register of Deeds

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-9-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99july9prevatte.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

July 9, 1999

The Honorable Wanda F. Prevatte
Register of Deeds
P. 0. Drawer 1270
Georgetown, South Carolina 29442
Dear Ms. Prevatte:
You have asked for an opinion concerning the effect ofS.C. Code Ann. §29-3-330 (Supp. 1998) concerning satisfactions of mortgages. This statute provides as follows, in paragraph (c):
[when a mortgage or other instrument referenced therein is] " .. .lost or destroyed it may be satisfied, either by the owner and holder of the instrument. .. by an instrument in writing ... and in addition the person executing the satisfaction shall make an affidavit that he or the person he represents is at the time of the satisfaction a bona fide owner and holder of the mortgage .... The affidavit must be recorded with the satisfaction .... The signature of the
.... owner or holder may be proved in the manner provided above or also may be acknowledged [as provided in this statute].

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A previous opinion of this Office had concluded that the recording officer should determine whether the mortgage satisfaction has been executed by the current holder of the mortgage (Ops. Atty. Gen. No. 92-61(October20, 1992)); however, since that opinion was issued, the addition of language to §29-3-330( c) regarding proof of the signature of the owner or holder, together with the existing language of that part, indicates a legislative intent that the recording officer may now rely upon the affidavit under the circumstances described in part

REMBEKT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLL1,\18IA, S.C. 29211-1549

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TELEPHONE:

803-734-3970

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F.\CSIMILE: 803-253-6283

The Honorable Wanda F. Prevatte
Page2
July 9, 1999
(c) of that statute. 1 This conclusion is consistent with language in part (d) of §29-3-330 regarding instruments recorded in counterparts which is that " ... [u]pon presentation of the instrument of satisfaction, release or discharge, or a counterpart of it, the officer or his deputy having charge of the recording ofinstruments shall record same"2 • Accordingly, the recording officer no longer must determine whether the satisfaction has been executed by the current holder when the instrument and affidavit comply with §29-3-330(c). Of course, the instrument and affidavit must be properly indexed. See §§29-3-350 (Supp. 1998) and 30-9-40 ( 1991 ).

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Yours very truly,
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A

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Assistant Deputy Attorney General
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REVIEWED AND APPROVED BY:

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ttJ;C. Williams, III
Deputy Attorney General

The "... primary function in interpreting a statute is to ascertain the intention of the legislature." South Carolina Department of Highwys and Public Transportation v. Dickinson, 288 S.C. 134, 341 S.E. 2d 134 (1986). "Where the terms of a statute are clear and unambiguous, there is no room for interpretation and we must apply them according to their literal meaning." Id. 1

"In construing statutory language, the statute must be read as a whole and sections which are part of the same general statutory law must be construed together and each one given effect, if it can be done by any reasonable construction." State v. Alls, 500 S.E. 2d 781 (1998) 2