Question Submitted by: The Honorable Dorothy D. Conaghan, Oklahoma House of Representatives
1982 OK AG 46
Decided: 03/05/1982
Oklahoma Attorney General
Cite as: 1982 OK AG 46, __ __
¶0 The Attorney General is in receipt of your request for an opinion, wherein you ask the following questions:
"1. May a policy of title insurance be written based on an examination of copies of the documents found in a search of the title record by a licensed and bonded abstracter, but which is not part of a bound abstract of title?
"2. Is this acceptable if the documents are certified to by the abstracter?
"3. If this procedure is acceptable with a certification by the abstracter, what must the certificate include?"
¶1 Title 36 O.S. 5001(C) (1980), requires that every policy of title insurance and certificate of title issued by a company authorized to do business in the State of Oklahoma, be countersigned "by some person, partnership, corporation or agency actively engaged in the abstract of title business in Oklahoma"; or by an Oklahoma attorney who has been appointed as an agent of a title insurance company. Your first question turns on the provision which immediately follows:
". . . provided that no policy of title insurance shall be issued in the State of Oklahoma except after examination of a duly certified abstract of title prepared by a bonded and licensed abstracter as defined herein." (Emphasis added)
¶2 Under 36 O.S. 5001(C), no policy of title insurance may be issued in this State except upon an examination of a "duly certified" abstract of title, and the abstract of title certified must be prepared by a bonded and licensed abstracter. May a policy of title insurance be issued upon an examination of instruments purportedly reflected in the title record, but which are not encompassed by an abstracter's certificate?
¶3 The above-quoted proviso contained in subsection C has been addressed in two previous Attorney General Opinions. Opinion No. 78-151, issued June 6, 1978, concluded that the Legislature:
". . . intended by the provisions of 36 O.S. 5001(C) (1971), that all policies of title insurance be issued only after an examination of a duly certified abstract of title prepared by a bonded and licensed abstracter. All such examinations of abstract, as defined above, shall be conducted by a licensed attorney prior to issuance of the policy of title insurance."
¶4 In Opinion No. 80-104, issued July 23, 1980, the Attorney General held that:
". . . no policy of title insurance may be issued in the State of Oklahoma except upon an examination of a duly certified abstract of title prepared by a bonded and licensed abstracter fully reflecting the instruments examined."
¶5 The express language of 36 O.S. 5001(C) manifests a legislative intent that no policy of title insurance be issued in this State except upon an examination of an abstract of title which is duly certified by the bonded and licensed abstracter who prepared it. Your first question turns upon two terms embodied within that proviso: "duly certified" and "abstract of title."
¶6 The term "duly certified" means properly, regularly, and according to law. It implies "the existence of every fact essential to perfect regularity of procedure." Putnam v. Bussing, 221 Iowa 871, 226 N.W.559, 562 (1936). In Welborn v. Whitney, 190 Okl. 630, 126 P.2d 263 (1942), the Supreme Court of Oklahoma adopted the following definition of the term "duly":
"A more succinct definition is found in 19 C.J., p. 833, as follows: 'The word has acquired a fixed legal meaning, and when used before .J any word implying action, it means that the act was done properly, regularly, and according to law, or some rule of law. It does not relate to form merely, but includes form and substance, and implies the existence of every fact essential to perfect regularity of procedure.' 28 C.J.S., Duly, p. 585." (Emphasis added) 126 P.2d 266.
¶7 Title 1 O.S. 1 (1975), provides in pertinent part:
"It shall be unlawful for any person, firm or corporation to hold themselves out as abstracters and to engage in the business of abstracting title to real estate in any of the counties of the State of } Oklahoma, without first having executed and filed with the county clerk of the county in which said person, firm or corporation intends to engage in the business of abstracting, a bond, to be approved by the Board of County Commissioners of said county, with three or more good and sufficient sureties residing in the county and worth not less than double the amount of the bond over and above all debts, liabilities and exemptions, or a duly authorized guaranty company, in the sum of Five Thousand Dollars ($5,000.00), conditioned that he will properly demean himself in the business of abstracting, and will pay all damages that may accrue to any person by reason of any incompleteness, imperfections or error in any abstract furnished by him, and will in no way mutilate, deface or destroy any of the records of the several offices to which he may have access, and that he will not in any way interfere with, hinder or delay the several county officers in the discharge of their duties while using said records in the prosecution of said business of abstracting . . . The person, firm or corporation who shall execute and file said bond of Five Thousand Dollars ($5,000.00), for said purpose shall, together with the sureties thereon, be liable on said bond to the State of Oklahoma in the penalty of One Hundred Dollars ($100.00); and to any county or person who shall be in any way damaged by any mutilation, injury or destruction of any record of the several county offices to which he may have access, to the amount of damage actually done said county or person; and to any person or persons for whom he may compile, make or furnish ab stracts of title, and to any person who may be misled to his damage by reason of such imperfect or false abstract, to the amount of damage done to said person or persons by any incompleteness, imperfection or error made by said person, firm or corporation in compiling said abstract." (Emphasis added).
¶8 Mere filings of public record do not comprise a duly certified abstract of title. Under 1 O.S. 1 (1975), the abstracter's bond protects against "any incompleteness, imperfection or error" made by an abstracter "in compiling said abstract." The above-quoted proviso set forth in 36 O.S. 5001(C) must be viewed in the context of that protection. A "duly certified abstract of title" is one encompassed by the compiling abstracter's certification that the entries comprising it are complete and free of imperfection or error. The requirement that a "duly certified abstract of title" be examined is not satisfied merely by a search of the title record. Nor is it satisfied by any examination of documents which may have been conducted as an incident to such search. The proviso framed by 36 O.S. 5001(C) mandates that an examination be conducted "of a duly certified abstract of title." Implicit in that language is a requirement that the abstract be framed by the abstracter's certificate. The abstracter certifies the abstract of title, not individual documents. Anything less will fail to comply with the affirmative requirements of 36 O.S. 5001(C). Attebery v. Blair, 244 Ill. 363, 91 N.E. 475, 478 (1910), defines the term "abstract of title" as follows:
". . . An abstract of title is, in a legal sense, a summary or epitome of the facts relied on as evidence of title, and it must contain a note of all conveyances, transfers, or other facts relied on as evidences of the claimant's title, together with all such facts appearing of record as may impair the title. Heinsen v. Lamb, 117 Ill. 549, 7 N.E. 75. It should contain a full summary of all grants, conveyances, wills, and all records and judicial proceedings whereby the title is in any way affected, and all incumbrances and liens of record and show whether they have been released or not...." (Emphasis added). 91 N.E. 478.
¶9 Under 1 O.S. 1 (1975), a duly certified abstract of title is one which is complete and free of imperfection and error. The abstracter's certificate is made "in connection with" such an abstract of title, 1 O.S. 9 (1971), which is effectively compiled thereby. The abstracter's function is to make such abstracts, not examine individual recordations which might be includable as entries therein. The exclusive privilege granted to abstracters to perform that function, 1 O.S. 2 (1971), is treated as a business affected with a public interest. Application of Richardson, 199 Okl. 406, 184 P.2d 642, 644 (1947).
¶10 Title 36 O.S. 5001(C) (1980), requires an examination of a duly certified abstract of title as prerequisite to the issuance of a title insurance policy in the State of Oklahoma. It is not satisfied by an examination or certification merely of copies of documents found in a search of the title record. The function of the abstracter is to prepare and duly certify the abstract of title required to be examined. The abstracter does nothing else under the pertinent proviso of 36 O.S. 5001(C). This determination is dispositive of question two as well as question one. Question three is rendered moot thereby.
¶11 It is, therefore, the official opinion of the Attorney General that your questions be answered as follows:
1. Title 36 O.S. 5001(C) (1980), requires an examination of a duly certified abstract of title as prerequisite to the issuance of a title insurance policy in the State of Oklahoma, and this statutory requirement is not satisfied by an examination or certification merely of copies of documents found in a search of the title record.
2. Title 36 O.S. 5001(C) (1980), contemplates that bonded and licensed abstracters discharge solely the function of preparing and duly certifying the abstracts of title required to be examined.
JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
JOHN PAUL JOHNSON
ASSISTANT ATTORNEY GENERAL
| Cite | Name | Level |
|---|---|---|
| None Found. |
| Cite | Name | Level | |
|---|---|---|---|
| Title 1. Abstracting | |||
| Cite | Name | Level | |
| 1 O.S. 1, | Repealed | Discussed at Length | |
| 1 O.S. 2, | Repealed | Cited | |
| 1 O.S. 9, | Repealed | Cited | |
| Title 36. Insurance | |||
| Cite | Name | Level | |
| 36 O.S. 5001, | Certificates of Authority - Persons not Deemed Title Insurers - Issuance of Commitment and Policy - Previously Issued Policies - Information for Filing with County Clerk - Contact Information - Rule-Making Authority | Discussed at Length | |