61 Op. Att'y Gen. 189 (1972)
 
61 OAG 189   190   191   END

Wisconsin Attorney General Opinions

10 April 1972.

Register of Deeds.
Correction Of Records

Register of deeds does not have authority
to correct original recording of deed
made by predecessor.

F.R. SCHWERTFEGER,
Corporation Counsel, Dodge County

61 OAG 189   190   191   END

You request my opinion whether the register
of deeds has authority to correct the
original recording of a deed running from
Dodge County to others and recorded in 1943.

It is claimed that the deed covered Lots 185,
186, and 187, and that the typist omitted Lot
185 in the official record.

Here the deficiency appears to be in the
recording and not in the document
left to be recorded.

Section 818.07, Stats., (formerly 235.65)
provides that the circuit or county court may
make an order correcting an erroneous
description in a conveyance.

I am of the opinion that the present register
of deeds is without authority to correct the
original record which is of such long
standing.

Section 59.51, Stats., sets forth the duties
of registers of deeds, and there is no
mention therein or in any other statute, of
which I am aware, which would permit
correction of the original record by the
register of deeds at the present time.

A register of deeds has only those powers
granted by statute or necessarily implied.

In 23 OAG 563 (1934), it was stated that the
register of deeds did not have authority
to correct errors in documents
which had been recorded.

In 27 OAG 671 (1938), it was stated that
the register of deeds did not have
authority to redraft plats for
the purpose of correcting them.

At pages 671, 672, it was said:

   ... The correction or alteration of a
   public record by the recording officer
   is without authority of law,

   Jennings v. Dockham,
   99 Mich. 253,
   58 N.W. 66,

   except that a recording officer, while
   in office, may correct mistakes which he
   had made in not complying with the
   duties under the statute. . . .

   People v. Hartquist,
   315 Ill. 228,
   146 N.E. 140.

   The errors in the plats to which you
   have referred did not arise because of
   any mistakes or omissions on the part of
   the register of deeds in performing his
   duties under the law.

61 OAG 189   190   191   END

   Changes in public records may be made
   only by or under official authority.

   The interests of individuals, as well as
   the whole public, require that public
   records should never be altered unless
   the power as well as the right to alter
   or amend is clearly shown. . . . .

In 45 Am. Jur., Records and Recording,
Section 71, 1971 Supplement, p. 25,
it is stated:

   . . . Thus, a number of decisions
   support the view that a recording
   officer, while still in office, is
   authorized in law to alter or amend his
   records of transfers or encumbrances of
   property, by correcting errors which he
   has made, so as to make the records
   conform to the facts. . .

   And it has been expressly held in
   several cases that it is the recorder's
   duty to correct errors whenever he
   discovers them from data in his office.

   It seems, however, that a recorder's
   authority to correct errors in the
   records is limited to the period
   in which he is in office.

   The authority being incidental to
   the office, it ends with the
   termination of the office.

   Furthermore, it seems that another
   officer than the one who made the
   original record cannot correct an
   error discovered after the latter
   has ceased to be an officer.

Even under such liberal interpretation,
a subsequent recording officer could not
alter records made by his predecessor.

While not directly in point here, it is noted
that Section 943.38(1)(b), Stats., provides a
criminal penalty for one who falsely alters a
public record with intent to defraud.

As you have concluded, a partial remedy is
available through rerecording the original
document.

RWW:RJV

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