California Code of Civil Procedure Section 1170 Interpretation
Civil Code section 1170 provides that, "an instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the recorder's office, with the proper officer, for record."
This provision was originally enacted in 1872. According to the literal language of the statute, "recordation" is considered complete when the subject document is "deposited" with the proper official.
Civil Code section 1170 does not always govern, however. Whether it applies depends on the purpose of the "recordation" requirement in Civil Code section 683.2.
Although Civil Code section 1170 does not give us a precise definition of "deposit" or tell what formality is required, the statutory history is instructive.
As originally enacted in 1872, Civil Code section 1170 provided that, "An instrument is recorded when duly acknowledged or proved, certified, and deposited in the Recorder's office with the proper officer, and by him filed for record, by noting thereon such filing, with the minute, hour, day and year thereof, and subscribing the same." (Civ. Code, 1170, West's Ann. Cal. Codes, Historical Note, p. 168.)
In the 1873-1874 session, the Legislature amended the statute.
The amendments deleted the requirement that the recorder must endorse the exact time of filing on recorded documents, "so as to make recording effective upon deposit in the recorder's office." (Ibid.; see also, Amends. to Cal. Codes 1873-1874, Cal. Civ. Code, ch. 612, 138, pp. 226-227.)
The requirement of endorsing the document with the time of deposit was restored in 1907 when the Legislature amended the then-existing Political Code. (Former Pol. Code, 4137; see Stats. 1907, ch. 282, 1, p.395.)
This provision became section 27320 of the Government Code in 1947.
The California Supreme Court held in Dougery v. Bettencourt (1931) 214 Cal. 455, 6 P.2d 499, that Civil Code section 1170 did not apply where the purpose of a recordation requirement is to give constructive notice to the world of the fact or content of a recorded document. (Id. at p. 463, 6 P.2d 499.)
Unless the actual indexing and filing has been completed, a "recorded" document cannot give such constructive notice.
Therefore, the Supreme Court decided, mere deposit is not sufficient where the purpose of the recordation requirement is to give constructive notice; actual recordation must be completed.
" Section 1170 of the Civil Code was never intended to apply to those situations where the recordation of the instrument was intended as constructive notice to third persons." (Id. at p. 464, 6 P.2d 499..)
By contrast, Civil Code section 1170 does apply where "the object of the statute in requiring . . . recordation was not to give third parties constructive notice; but was to make the act public and irrevocable." (Dougery v. Bettencourt, supra, 214 Cal. 455, 465, 6 P.2d 499.)
That is, if "'the evident purpose of the statute requiring recording is to make the instrument a matter of public record, or when the recording of an instrument is an essential step in perfecting some right or completing some act . . . such as a declaration of homestead, or an assignment for the benefit of creditors, the depositing of the instrument in the recorder's office is sufficient . . . .'" (Id. at p. 463, 6 P.2d 499..)
The purpose of the recording requirement in Civil Code section 683.2, subdivision (c), is more closely analogous to perfecting a right or merely making a public record of the instrument, rather than providing constructive notice to third parties.
The purpose of Civil Code section 683.2 is to "prevent fraud" or to prevent secret suppression of what would otherwise be actual severance, and not to provide record notice to purchasers of the state of title. ( Estate of England (1991) 233 Cal. App. 3d 1, 6, 284 Cal. Rptr. 361.)
Therefore, "deposit" is sufficient to accomplish the statutory objective.