3%~ ATTORZNEY GENERAL OF TEXAS

Honorable Stanley Tlmmins CountyAttorney Marshall, Texas
Dear Sir: OpinionNo. O-1520 Re: Should a release of a deed of trust or mortgage be filedby the county clerk in theDeed Records or the'~ Deed of Trust or MortgageRecords?
We have your letter of recent date submittingthe above questlon for an opinionby this department.

There being no question as to a release of a mortgage or deed of trust being entitled to be recorded,Article 6626, R. C. 9. of Texas, 1925, Pegram v. Owens, 64 T. 47’5,if properly acknowledged or proved as provided by law,we get into the prlnclpal question at once. . .
In your letteryou set out in full Article 6601, R. C. 9. of Texas, 1925, which we quote:

"Alldeeds of trust, mortgages or judgments which are requtred to be recorded Fn order to create a judgment lien, or other instruments of writing intended to create a lien, shallbe recorded in a book or books separate from those inwhichedeeds or other conveyances are recorded."

This article was passed, Acts 16th Legislature, 1879, as Article 4304 of the 1879Revised Civil Statutes,which took effect September 1, 1879.

As it relates to your question, it is significant that Article 6601 was passed many years after the general registration lawswhich were passed, Acts 1836, pi 155; P.D. 4979; G. L.;vol. 1 p:1215, and Acts 1846, pa 236; P.D. 5001; G. L., Vol:2, p. 1542, and whidh have remainedunaltered since that time, in so far as they affect the question submittedby~you, exceBt for the-specialprovisfon.contained inArticle~~6601. Articles 6591-6596, and Article 6626, R..C. 9. of Texas, 1925.

Section 35 of the Act of 1836 provides:Honorable Stanley T1mmlns, page 2 

### 0-1520

"The clerks of the county courts shall be the reborders for their respective counties, and it‘shallbe their dittyto record all deeds, conveyances,mortgagesand other liens, and all ether instrumentsofwritingrequired by law to be recorded in.thelroffices,which are presented to tiem, provided e . s .'I Nothing Is said In the Act of 

### 1836with regard to the manner of recording to be used by the clerk.

Sections 1 and 

### 4 of the Act of 

### 1846provides: f, s e .That the clerks of the county courts of the several counties of this State Shallbe the recorders for their respective counties; they shallprovide and keep In their officeswell bound books, In which they shall record, In a falr'and legible hand, all lnstrutiefits of writing authoriz6d or required to be recorded in the recorder's office of their respective counties, in the manner herelnafter provided.

. O *"

,I a D *that It shallbe the duty of each recorder to i?ecord in ,thebooks provide&for his office, all deeds, mortuaaes,, convtiyhnces, deeds of trust, bonds, covenants.defeasances, 6r~otheF‘insti?ument3 of wr.lting of or cbncei'lllng

ariylands, and tenementi,/orgoods and chattels, or movable property' of any descrlption, in his county,which shall be proved or acknowledgedaccording to law, and delivered to him to be recorded In his office." Substantially the same language is used in'~Artlcles 6591 and 

### 6626of the 1925 Revised Civil Statutes clswas used in Sections 1 and 4 of the Act of 

### 1846. It Is to be noted that Sections 

### 35, 1 and &‘quotedabove arJe~ silent as to whetherthe clerk should record t,hefristruments hained,

all in one bobk, or whether he should record themeitiseparatebooks.- Books are only rgferred to in Sections 

### 15,16 and 

### 17 of the Act, which sections have to do with indexing.

In vieVd

of the failure of the Legislature and the Congress to ptiovide for a separate record of Instruments intended to create a lien in 

### 1836or 

### 1846,and In vfew of the fact tkst %he~Legislaturedfd so provide irithe rbvisloii of 1879, we must ascribe sbme purpose or intent to Its latter action. Then the question arises, did the Legislature intend that the,"separate record" referred to by you as theDeed of Trust or Mortgage Record-- -

Honorable Stanley Tlmmlns, page 

### 3 0-1520

be devoted'exclusively to the recording of instrumentsintended to beBh3 a lien, that is, separate from the book.contalnirg conveyances. In our opinion, that was its Intent-t; and this concluslon Is supportedby the following statementmade by the court In the case of Lewis v. Phillips, 90 S.W. (2d) 310, 

### 312::

”

. . . .the~countyclerk is re.quired to record deeds of trusts,mortgages, .judgmentsrecorded for the purpose of creating a lien, or botherinstruments of wrlting intended to create a lien in a book or books separate from those in which deeds or other conveyances are recorded. Rev. St. Art.'4304. This s'catut'e contemplates that liens shall be recorded separately from absolute conveyances,but not from each other....."

Our conclusion as to the intent of'the Legislature Is further supportedby the lmpllcationto be drawn from Article 5523,-R. C. 9. of Texas,~1925, which Is a limitation statute; that'artlcleprovides that extensionsof-liens created by mortgages or deeds of trust shall be "filed'andrecorded in the' manner prov3.dedfor the acknowledgmentand record of conveyance of real estate," which of course refers to theDeed Records. The Legislature evidently intended that nothing but the lnstru-, ments intendedto create the lien, and not those which extended or extinguished it should be filed In the "separatebooks."

Another reason for holding that releases of mortgages and d-eedsof trust should not be filed in theDeed of Trust **OF** Mortgage"Records Is that such a release has the effect of and Is, in its nature, a deed or convevance. As saidby the court in the case of Baldwin V* Drew, is0 9-W. 

### 614.

"Underthe common law, conveyances are classified, first, as original or primary conveyances,which are t.hose by means whereof the benefit or estate is created or first arises; and, second, derivative or secondary conveyances, whereby the benefit or estate originally created is enlarged, restricted, transferred or extinguished. OrigInal conveyances are the following: Peoffment, gift, grant, lease, exchange an.d partition. Derivatives are release, confirma; tion, surrender, assignment and defeasements. Blackburn,Vol..1, pp- 339, 310.
On this point see also 18 C. J. 153; Harrison v. Boring, &+ Tex. 

### 255,262;Smith, et al, v. Cantrel, et al, 50 9. W. 1081.

Therefore, it is our opinion, and you are so advised,- -

Honorable Stanley Tlmmlns,page 4 

### o-1520

that releases ofmortgages and deeds of trust shouldnot be Pil--ed.by-the

county clerk in theDeed of Trust or,Mortgage Records,but belnu'ln their nature conveyances, should be filed in theDead Records.

The question submittedby you'and the answer given go*merely-to-the,properprocedure. to be follo%ieSby'the-'coiintg clerk. Article 6601 is merely dlredtorg. Kehnard v:Mabry';, 78'.Ter.

151,~ 14 9.W; 272. -Thebffect oi'the filing or reglstratlon of the release'would~remalnunchanged, regardless of ~' whihh of the books or re%ords under discussionthe county clerk mightuse 1n:recordlngsame. App.) 

### 271S.W. 196. Article 6596;David v. Roe (Clv.

Trusting that the above satisfactorilyanswers your inquiry,we are, Your2 very truly
ATTORNEY GENERAL OF~TEUS

By s/JamesNoel James Noel Assistant
JN:LW:wc

APPRC!lRD

NGV 20, 193q s/Gerald C: Mann ATTORNEY GE@RAL OF TEXAS
Approved Opinion CommitteeBy s/BwB Chairman