3%~ ATTORZNEY GENERAL 

OF TEXAS 

Honorable Stanley Tlmmins 

County Attorney 

Marshall, Texas 

Dear Sir: Opinion No. O-1520 

Re: Should a release of a deed of trust 

or mortgage be filed by the county 

clerk in the Deed Records or the'~ 

Deed of Trust or Mortgage Records? 

We have your letter of recent date submitting the 

above questlon for an opinion by 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 letter you set out in full Article 6601, 

R. C. 9. of Texas, 1925, which we quote: 

"All deeds 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, 

shall be recorded in a book or books separate 

from those in whichedeeds or other conveyances 

are recorded." 

This article was passed, Acts 16th Legislature, 1879, 

as Article 4304 of the 1879 Revised 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 laws which 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 remained unaltered since that 

time, in so far as they affect the question submitted by~you, 

exceBt for the-special provisfon.contained in Article~~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‘shall be their ditty to record all deeds, 

conveyances, mortgages and other liens, and all 

ether instruments of writingrequired by law to 

be recorded in.thelr offices, which are presented to tiem, provided e . s .'I 

Nothing Is said In the Act of 1836 with regard to the manner of 

recording to be used by the clerk. 

Sections 1 and 4 of the Act of 1846 provides: 

f, s e . That the clerks of the county 

courts of the several counties of this State 

Shall be the recorders for their respective 

counties; they shall provide and keep In their 

offices well 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 shall be the duty of each 

recorder to i?ecord in ,the books 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 ariy lands, and tenementi,/or goods and 

chattels, or movable property' of any descrlption, in his county, which shall be proved or 

acknowledged according to law, and delivered 

to him to be recorded In his office." 

Substantially the same language is used in'~Artlcles 

6591 and 6626 of the 1925 Revised Civil Statutes cls was used in 

Sections 1 and 4 of the Act of 1846. It Is to be noted that 

Sections 35, 1 and &‘quoted above arJe~ silent as to whetherthe 

clerk should record t,he fristruments hained, all in one bobk, or 

whether he should record theme iti separate books.- 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 1836 or 1846, and In vfew of the fact tkst 

%he~Legislature dfd 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 the Deed of Trust or Mortgage Record 
-- - 

Honorable Stanley Tlmmlns, page 3 0-1520 

be devoted' exclusively to the recording of instruments intended 

to beBh3 a lien, that is, separate from the book.contalnirg 

conveyances. In our opinion, that was its Intent-t; and this concluslon Is supported by the following statement made by the 

court In the case of Lewis v. Phillips, 90 S.W. (2d) 310, 312:: 

” . . . .the~county clerk is re.quired to 

record deeds of trusts, mortgages, .judgments recorded for the purpose of creating a lien, or 

bother instruments 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 supported by the lmpllcation to be drawn from Article 

5523,-R. C. 9. of Texas,~ 1925, which Is a limitation statute; 

that'artlcle provides that extensions of-liens created by mortgages or deeds of trust shall be "filed'and recorded in the' 

manner prov3.ded for the acknowledgment and record of conveyance 

of real estate," which of course refers to the Deed Records. 

The Legislature evidently intended that nothing but the lnstru-, 

ments intended to create the lien, and not those which extended or extinguished it should be filed In the "separate books." 

Another reason for holding that releases of mortgages 

and d-eeds of trust should not be filed in the Deed of Trust OF 

Mortgage"Records Is that such a release has the effect of and Is, 

in its nature, a deed or convevance. As said by the court in 

the case of Baldwin V* Drew, is0 9-W. 614. 

"Under the 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 of mortgages and deeds of trust should not be 

Pil--ed.by-the county clerk in the Deed of Trust or,Mortgage Records, but belnu'ln their nature conveyances, should be filed 

in the Dead Records. 

The question submitted by you'and the answer given 

go*merely-to-the,proper procedure. to be follo%ieSby'the-'coiintg 

clerk. Article 6601 is merely dlredtorg. Kehnard v:Mabry';, 

78'.Ter. 151,~ 14 9.W; 272. -The bffect oi'the filing or reglstratlon of the release'would~remaln unchanged, regardless of ~' 

whihh of the books or re%ords under discussionthe county clerk 

might use 1n:recordlng same. 

App.) 271 S.W. 196. 

Article 6596; David v. Roe (Clv. 

Trusting that the above satisfactorily answers your 

inquiry, we are, 

Your2 very truly 

ATTORNEY GENERAL OF ~TEUS 

By s/James Noel 

James Noel 

Assistant 

JN:LW:wc 

APPRC!lRD NGV 20, 193q 

s/Gerald C: Mann 

ATTORNEY GE@RAL OF TEXAS 

Approved Opinion Committee By s/BwB Chairman