2005 Regular Session
To: Judiciary A
By: Representative Fillingane
AN ACT TO AMEND SECTION 89-5-33, MISSISSIPPI CODE OF 1972, TO REQUIRE INDEXING INSTRUCTIONS FOR DEEDS OF TRUST; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 89-5-33, Mississippi Code of 1972, is amended as follows:
89-5-33. (1) The clerk of the chancery court shall provide a general index, direct and reverse, on which shall be entered, in regular alphabetical order under the appropriate letter, the name of each maker of the instrument and the name of each person to whom made; and in like alphabetical order under its appropriate title shall be entered the name of each person to whom the instrument is made and the name of each person by whom made. A general index, both direct and reverse, of mortgages and deeds of trust on land shall be kept separate from the general index to other records which the chancery clerk is required to keep, and he shall make the proper entries in it as he is required to make in the other general index. Immediately on receipt of any instrument to be recorded, the clerk shall make these entries in the appropriate general index and, after recording the instrument, the book and page in which the record is made shall be noted opposite each name thus placed in such general index, both direct and reverse.
(2) The clerk of the chancery court shall maintain a sectional index to instruments describing land which are also entered in the general index. Each entry shall state the name of each maker of the instrument, the name of each person to whom made, and the date, type of instrument and the appropriate reference where recorded. Opposite each such entry, the sectional index shall indicate the location of the land described in the instrument (a) by quarter section or governmental lot or other applicable subdivision of each section, township and range established by governmental survey, or (b) by lot number for platted subdivisions, official surveys, and unofficial subdivisions and surveys commonly in use. The clerk may elect to keep the sectional index by quarter-quarter section rather than by the quarter section, but shall not require a preparer's indexing instruction to describe the quarter-quarter section. Except as otherwise provided in this section, every instrument describing land and required to be entered in the general index shall also be entered in the sectional index. In the event of conflict between the general and the sectional indices, the notice imparted by the general index shall prevail except to the extent the land is described by lot number for platted subdivisions, official surveys and unofficial subdivisions and surveys commonly in use, the sectional index shall prevail.
(3) Every surveyor or other person who prepares a legal description of land or who prepares an instrument utilizing an existing description and every person who prepares a deed of trust shall (except as herein provided) include an indexing instruction which shall state the section, township and range and one or more quarter sections or governmental lots or other applicable subdivisions of each section in which the land is located. The preparer, at his option, may elect to note the quarter-quarter section in which the land is located, but shall not be required to do so. However, if the section or quarter sections or governmental lots or other applicable subdivisions of the section cannot feasibly be determined by such surveyor or other person, the indexing instruction shall contain a statement to that effect and shall then state all of the sections and quarter sections or governmental lots or other applicable subdivisions of the section in which the described land could possibly be located. The indexing instruction shall be distinctly set apart in the instrument so as to be readily apparent to the chancery clerk. A chancery clerk shall refuse to accept delivery of an instrument which does not contain the indexing instruction required in this section unless the instrument otherwise discloses the information required to be included in an indexing instruction. To be accepted for recording, and instrument shall state the name, address and telephone number of the person, entity or firm preparing it. The fact that the indexing instruction or preparer information may be omitted, incorrect, incomplete or false shall not invalidate the instrument or the filing thereof for record. The chancery clerk shall enter the instrument in the sectional index according to the indexing instruction, or equivalent information if accepted for filing without an indexing instruction, and shall make no entries under any other quarter sections or governmental lots or subdivisions of the section. Notwithstanding the foregoing, the following kinds of instruments shall be indexed as stated:
(a) Instruments describing land by reference to officially platted subdivisions or to official surveys or to unofficial subdivisions and surveys commonly in use will not require an indexing instruction and shall be indexed in the general index and the sectional index for such subdivision or survey without further requirement.
(b) Instruments describing land or interests in land solely by reference to previously recorded instruments or affecting previously recorded instruments shall not require an indexing instruction and need not be entered in the sectional index but shall be entered in the general index and noted on the margin of the previously recorded instrument. Instruments describing land or interests in land by specific description of certain parcels and, for other parcels, by reference to previously recorded instruments, shall be entered in the sectional index according to the indexing instruction for the specific description and also noted on the margin of the previously recorded instrument, in addition to the general index.
(c) Instruments containing blanket descriptions of all land within a stated geographic area without specific description shall be entered in a separate part of the sectional index or in an index of indefinite records or an index of blanket conveyances in addition to the general index.
(d) Instruments describing land in irregular sections (all or any part of a section not capable of being divided into quarter sections for indexing purposes) shall be entered in the general index and in an appropriate sectional index maintained by the chancery clerk. The indexing instruction, however, shall be proper and complete if it states no more than the number of the irregular section or sections in which the land is located or, as above provided, in which the land could possibly be located. When an instrument describes land within an irregular section according to officially platted subdivisions or to official surveys or to unofficial subdivisions or surveys commonly in use, it shall be indexed in the sectional index for such subdivisions or surveys.
(4) When an instrument has been restored to service from microfilm or other archived record, the chancery clerk shall enter a notation on the margin stating that it is a substituted record and stating the date on which it was restored to service. Such marginal notation shall then constitute notice that the general index must be examined for instruments filed prior to such date which may have been noted on the margin of the original record but do not appear on the margin of the restored record.
(5) The clerk of the chancery court shall enter instruments in the sectional index by the end of the twentieth day the office is open following the day on which the instrument is filed, except for records of tax sales.
(6) If the chancery clerk elects to abbreviate the names of parties to an instrument in the indices, the clerk shall maintain a list of standard abbreviations used for that purpose and shall adhere to such list.
(7) The clerk of the chancery court shall not correct or alter an entry made in any index, whether kept manually or by computer, unless the date and time of the change is clearly disclosed on the revised record.
(8) If insufficient space is available for making entries on the margin of a recorded instrument, the chancery clerk may enter on the margin a reference where a continuation sheet is located.
(9) Except as expressly provided herein, nothing contained in this section shall be construed to modify the requirements of other statutes regarding the duties of the clerk of the chancery court to index and record instruments affecting the title to land. SECTION 2. This act shall take effect and be in force from and after its passage.