MORTGAGES
While the Commissioners of the Land Office are required to record Releases of Mortgage under provisions of 46 O.S. 15 [46-15] (1977) and 64 O.S. 52 [64-52](i) (1971), they are not required to pay a filing fee by virtue of 64 O.S. 153.1 [64-153.1] (1971). That fee shall, however, be payable by the mortgagor. The Attorney General has considered your request for an opinion wherein you ask the following question: "Are the Commissioners of the Land Office required to pay a filing fee for the recording of a Release of Mortgage?" As you point out in your request for an opinion, the Legislature recently adopted two new statutes, 46 O.S. 15 [46-15] and 46 O.S. 16 [46-16] (1977), which generally control mortgages: "46 O.S. 15 [46-15] — The holder of any mortgage on real estate shall release such mortgage within thirty (30) days of payment of the debt secured by the mortgage and shall file the release with the appropriate county clerk. If the holder fails to do so, after being requested by the mortgagor, his agent or attorney, he shall forfeit and pay to the mortgagor one percent (1%) of the principal debt per diem from and after the expiration of such thirty (30) days to be recovered in a civil action in any court having jurisdiction thereof, but such request must be in writing and describe the mortgage and premises with reasonable certainty. 46 O.S. 16 [46-16] — A mortgage on real property may be released by written instrument, duly signed and acknowledged and recorded in the office of the county clerk as register of deeds. Provided, however, this act shall not apply to any real estate mortgages or marginal releases now of record." These sections provide the mortgagee shall have the duty to release the mortgage. This is entirely consistent with the existing law which controls the Commissioners of the Land Office. This law is found in 64 O.S. 52 [64-52](i) (1971) which reads in part: "When a loan is liquidated, the Commissioners of the Land Office shall issue a release of their mortgage to be filed and recorded in the office of the county clerk, at the expense of the mortgagors." Recognizing that the Commissioners of the Land Office have the duty to record the Release of Mortgage, your question is whether the Commissioners are required by law to pay the fee involved in the filing of such a Release of Mortgage. 64 O.S. 52 [64-52](i) as quoted above provides that the filing shall be "at the expense of the mortgagors." This would indicate that the mortgagor is responsible for paying the necessary fee. In addition, 64 O.S. 153.1 [64-153.1] (1971) provides as follows: "All instruments, except mortgages, vesting any right, title or interest in lands or minerals and mineral rights, in the Commissioners of the Land Office, and all instruments to adjust any defect or irregularity in or to remove any cloud on the title on such lands or minerals or mineral rights owned by the State, and all notices and orders issued by the Commissioners of the Land Office and proofs of publication thereof shall be filed and recorded by the proper officers of all counties of the State of Oklahoma at the request of the Commissioners of the Land Office without any filing or recording fee being charged therefor." Under this provision, a Release of Mortgage will not be charged to the Commissioners of the Land Office. This is consistent with the prior section requiring the mortgagors to bear the expense. It is, therefore, the opinion of the Attorney General that your question be answered as follows: While the Commissioners of the Land Office are required to record Releases of Mortgage under provisions of 46 O.S. 15 [46-15] (1977) and 64 O.S. 52 [64-52](i) (1971), they are not required to pay a filing fee by virtue of 64 O.S. 153.1 [64-153.1] (1971). That fee shall, however, be payable by the mortgagor. (DON McCOMBS, JR.)
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