Lyman v. Thorn

Potter, Chief Justice. The agreed and only question to be determined in this case is whether the sheriff is entitled to the statutory fee or commission prescribed for collecting money on a sale of property on execution, where the property is purchased — 328 — by the judgment creditor, and the amount of the bid or purchase price is credited on the execution and judgment without the payment of any money. The action was brought by John M. Thorn to recover such fee alleged to be due him as sheriff of 'Crook County upon a sale of certain real estate and personal property under an execution issued upon a judgment against the McLaughlin Tie and Timber Company and in favor of William H. Lyman, the defendant in the action and plaintiff in error here. The cause was heard in the district court upon an agreed statement of facts resulting in a judgment for the plaintiff in the sum of $1,077.50, the full amount of the claim. The case is here on error. The judgment includes $7.50, the fees allowed for making the 'levy, advertising the property for sale and executing the sheriff’s deed, and the right of the sheriff to recover that amount for such services is not denied, but is admitted by the pleadings and the statement of facts. The controversy relates only to the sum of $1,070, which was alleged to be due as commission on the amount for which the property was sold. Briefly stated, the agreed facts are as follows:' The judgment upon which the execution was issued was for the sum of $339,412.88. Pursuant to the execution and a levy thereunder, the sheriff offered at public sale' and sold certain real estate of the judgment debtor situated in Crook County in this state, and also property described in the petition in this action as “Camp Ten” belonging to the said judgment debtor “and all of the buildings used in connection with the same,” and all the right, title and interest of the said judgment debtor in and to the railroad and railroad right of way extending from Nahant, South Dakota, into Crook County, Wyoming, with all of the appurtenances thereto belonging and all leases and lease-hold interests. At said sale the judgment creditor, the defendant below and plaintiff in error here, was the only bidder, and all of the property was sold to him for the total sum of $105,000. No money was paid to the sheriff on the sale, and no certificates of indebt — 329 — edness or negotiable paper were transferred to the said judgment creditor on account of the sale,, but a certificate of sale.was issued to him as the purchaser, and the amount of said bid and purchase price was credited upon the judgment and execution. Thereafter in due course of law a sheriff’s deed to the property aforesaid was executed and delivered to said purchaser, and he thereupon became the owner and has since sold large portions of said property. It is admitted by the agreed statement that the. amount of the sheriff’s commission, if he is entitled to any, would be the sum of $1,070 claimed by him. The commission is claimed under Section 1214, Compiled Statutes, 1910, which, omitting the provisions not here involved, reads as follows: “The sheriff in addition to his annual salary shall be entitled to receive from the party for whom the service is rendered in civil cases, the following fees, which in all cases must be paid in advance, if demand be made therefor: * * * * making levy under execution, or other process where levy is required, one dollar; * * * * commission on money collected on execution or other final process, where the same is collected without sale of property, for the first five hundred dollars, two per cent; for the second five hundred dollars, one per cent; for all over one thousand dollars, one-half of one per cent; where collection is made upon a sale of the property, the commissions allowed shall be as follows: On the first five hundred dollars, four per cent; on the second five hundred dollars, two per cent; on,all over one thousand dollars, one per cent; for advertising property for sale, one dollar and fifty cents; when executing deed when necessary to be made by sheriff upon any real property (including acknowledgment) , five dollars.” The question, therefore, is whether under the circumstances of the sale aforesaid any money was collected, within the meaning of the statute entitling the sheriff to the commission allowed where collection is made upon a sale of property. The legal effect of the transaction in the case of a sale made as aforesaid is certainly a collection of the amount — 330 — of the bid. Such amount will be endorsed on the execution and credited thereon and on the judgment as money made or collected by the sale, and the judgment which is for money will be satisfied to that extent. Although the amount of the bid is not paid to the sheriff in cash, except, it may be, the costs and expenses of the levy and sale, that is because the purchaser as judgment creditor would be entitled to have it returned to him, and for convenience the formality of actually paying and returning the money is dispensed with. We believe that to be the usual practice here as well as in other states, and it is not regarded as improper though without express statutory authority. It seems to be recognized if not impliedly authorized by one of the sections of the redemption statute of 1895 (Comp. Stat. 1910, Sec. 4734), which provides that the certificate of sale shall describe the lands or tenements purchased, and the sum paid therefor, “or if purchased by the plaintiff in the execution, the amount of his bid.” (And see also Sec. 4735.) But such method of completing the sale does not result in nothing being made or collected on the execution. On the contrary, the transaction is treated as though the money had been paid to the officer and returned to the creditor, and there may even be an interchange of receipts waiving the formality of passing the money from one to the other and back again. A bid of a certain sum of money — as in this case one hundred and five thousand dollars — means the amount in money. Unless the bid means that there would be no authority to accept it. The officer is commanded by the execution that of the goods and chattels of the debtor he cause to be made the money specified in the writ, and, for want of goods and chattels, that he cause the same to be made of the lands and tenements of the debtor. (Comp. Stat. 1910, Sec. 4690.) Lands and tenements upon which an execution is levied must be appraised at the real value thereof in money. (Comp. Stat. 1910, Sec. 4698.) And it is provided that the property shall not be sold for less than two-thirds of such — 331 — appraised value. (Id., Sec. 4700.) It is provided in Section 4703 that if the sheriff collect lipón an execution any part of the judgment without the sale of real estate,'he shall pay the same to the judgment creditor or his attorney upon demand therefor at his office, and in Section 4705 that when lands and tenements are levied on and sold, the officer, on making the sale, may retain the purchase money in his hands until the court examines his proceedings, when he shall pay the same to the person entitled thereto agreeably to order of the court. We think a comment necessary as to Section 4705. As found in the Compiled Statutes, and the previous Revision of 1899, that section is either incomplete or incorrect because omitting some of the words of the section as enacted and found in Revised Statutes of 1887, and which had not been stricken by any express repeal or amendment. (See Rev. Stat. 1887, Sec. 2744.) As now printed, the section would seem to provide that if the court shall find the sale to have been made in conformity to the provisions of the code, the clerk shall be directed to make an entry on the journal that the court is satisfied of the legality of such sale, and that' the officer, on making the sale, may retain the purchase money, etc. But it should read immediately following the words “legality of such sale,” as follows: “and that the officer make to the purchaser a deed for the lands and tenements; and the officer, on making the sale, may retain the purchase money,” etc. The words “and that the officer make to the purchaser a deed for the lands and tenements” are omitted, the result, we think, of a mistake in copying or printing the section as found in the 1887 revision. They may have been omitted upon the theory that the provision for a deed was changed or repealed by the redemption statute of 1895 providing for first issuing a certificate of sale. (Comp. Stat. 1910, Secs. 4733-4744.) But if so, the provision as to the retaining and paying over'of the purchase money by the officer should not be made a part of the sentence providing for the making of a journal entry confirming the sale; that sentence then — 332 — should end with the words “legality of such sale.” Said provision as to retaining and paying over the money is an independent affirmative provision, intended to confer authority on the officer at the time of making.the sale to retain the money, and to require him afterwards upon confirmation of the sale to pay the money to the person entitled thereto. The Supreme Court of Ohio has had occasion to speak of the effect of an execution sale of property to the judgment creditor, without the payment of any money except the costs, in a case where the question of sheriff’s fees was not involved. In the case referred to (Sparrow v. Hosack, 40 O. St. 253), it appeared that after levy on certain land of the judgment debtor a part of the judgment was. paid and the fact entered on the court journal, but a vendi afterwards issued for the full amount without crediting or mentioning the partial payment, whereupon the land was sold to the judgment creditor for a sum less than the original amount of the judgment, but much in excess of the balance dire thereon, the creditor paying the sheriff the costs only. He was sued for the amount of the purchase price in excess of the balance that had been due on the judgment, as' for money had and received for plaintiff’s use, by one who had become the owner of the land holding under the judgment debtor through conveyances with usual covenants of warranty. The court held that the plaintiff in the action was entitled to recover, since the defendant had received the equivalent of money for.which he should have accounted, and in discussing the question the court said: “Sparrow occupied a double relation. As purchaser he was bound to pay the full amount of his bid, and if he had been such merely he could not have practiced this fraud. As judgment creditor he was bound to pay only the costs, if his judgment equaled or exceeded his bid;, and only because he was such creditor he was enabled to and did deceive the sheriff. The vendi was a means to an end. Its .sole object was to provide payment of the judgment. It commanded the sheriff to make the original amount in full. — 333 — And the actual transaction operated a collection to the full value of the land and the payment of the same, less costs, over to the creditor. It was as effectually and precisely done as if Sparrow, the purchaser, had counted down the amount of his bid on the day of sale, and the sheriff on confirmation had counted back the same, less costs, to Sparrow, the creditor. In legal effect this was done.” The statute of Ohio provides for a commission or poundage on an execution levied on real estate on “moneys actually made and paid to the sheriff,” and declares further that when such real estate is bid off and purchased by a party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claims of such party. And it is held under that statute that the sheriff cannot charge poundage where the property is purchased, without paying any money except costs, by one entitled to the whole of 'the proceeds, although not a party to the suit. (Major v. International Coal Co., 76 Ohio St. 200, 81 N. E. 240.) But where the statute, as in this state, provides merely as to commission, where property is sold, that the officer shall be entitled to the specified commission on money collected upon the sale, we think it should not be construed as denying the right to the commission under the circumstances of the sale involved in this case, on the ground that the money was not actually paid into the sheriff’s hands. The decisions are not harmonious on the question, though the conflict is chiefly the result of difference in the statutes considered. Counsel for plaintiff in error relies upon the following cases: Peery v. Wright, 13 Utah, 480, 45 Pac. 46; Coleman v. Ross, 14 Ore. 349, 12 Pac. 648; State v. Prince, 9 Wash. 107, 37 Pac. 291; State v. Pugh, 9 Wash. 694, 38 Pac. 79; Vance v. Bank of Columbus, 2 Ohio 214; Fiedeldey v. Diserens, 26 O. St. 312; Berry v. Kiefer, 38 Okl. 377, 133 Pac. 1126; Dawson v. Grafflin, 84 N. C. 100. The Ohio cases and the North Carolina case cited are not in point; they decide a different question which need not — 334 — be considered, and upon -which also there is some conflict in the authorities, viz.: the right of the sheriff to a commission where, after execution has-been issued and either before or after levy the- amount of the judgment is- paid to the judgment creditor by. the debtor. In Vance v. Bank, supra, it appearing that the money had been so paid and that no property had been sold under the execution, the commission was disallowed. In Fiedeldey v. Diserens, supra, it appeared that there had been a sale to a third person, but before it was confirmed the debtor had paid to the creditor the amount of the judgment and thereupon the court set the sale aside; and in that case also the commission was disallowed. In Dawson v. Graffling, supra, the point decided was that the sheriff was not entitled to a commission on money paid to the plaintiff by the defendant after levy, where there had been no sale under the execution. In the Oregon and Washington cases cited and relied on by plaintiff in error, the property levied on was sold to the judgment creditor and his bid credited upon the judgement without the payment of any money to the sheriff, as in the case at bar. That was the situation also in the Oklahoma case of Berry v. Kiefer, supra. But the statute construed in the Oregon and Washington cases differs materially from the statute of this state on the subject. By the Oregon statute a commission was allowed on “money actually made on any process and returned to the clerk”; and the statute in Washington allowed a percentage “on all moneys actually made and paid to the sheriff;” The decisions in those states denying the right to the commission appears to have been based upon the peculiar language of the statute. Referring to the Oregon statute, the Supreme Court of that state, in the case cited, said in substance than to entitle the sheriff to a commission the money must have been actually made and returned- to the .clerk, and the language used in the statute in expressing those conditions was further commented on as follows: “Of course, if the statute -plainly allows it, we have nothing to do with the — 335 — question as to whether it (the commission) is reasonable or not; but in cases of doubt it might be very material to consider the consequences of a particular construction. But in this case there can be no doubt of the legislative intent, and that was not to allow commissions unless the money was actually, not figuratively or constructively, received on the process, and then paid over to the clerk. Unless this language is to receive this interpretation, its careful and studied use by the legislature is without meaning and without effect.” And in State v. Prince, supra, the Supreme Court of Washington said that by the clause allowing a percentage on all moneys actually made and paid, “the legislature seems to have recognized that a sheriff might serve executions and execute orders of sale so that the same might be satisfied and performed without actually receiving any money, as in this instance, and meant to exclude all such cases, and to prohibit him from charging any commission therefor.” The statute of Oklahoma provides for charging a commission “for collecting money on sale,” and it is construed in Berry v. Kiefer, supra, as not permitting the charge when the judgment creditor is the purchaser, and the amount of his bid is credited on the judgment. But it was so construed in view of the other provisions of the statute prescribing fees for serving an order of sale, making return thereof, summoning appraisers and appraising the property, selling the property or offering it for sale, as well as for making the deed. And the court said that for every service required a specific sum was provided as compensation; that when no money is collected no service is rendered for which the commission could be charged, for it was contemplated by the charge to reward the officer for receiving the money, and compensate him for his liability in holding and accounting for the same. No specific fee for summoning appraisers or for conducting the sale is provided by our statute, which, in that respect, differs from the Oklahoma statute. But we cannot agree with the view expressed in the cases denying the officer’s right to the commission under the con — 336 — ditions stated, that it is allowed only as compensation for receiving and accounting for the money. We think it is intended also as compensation for the risk and liability otherwise incurred by the levy and sale. The commission is prescribed for money collected on the'sale of personal as well as real property, and since nothing is otherwise allowed the officer for keeping and caring for personal property levied on, except his actual and necessary expenses (Comp. Stat. 1910, Sec. 1215), he would receive no compensation for the risk and liability assumed by holding and selling such property, which might be considerable, as in the case of live stock or other property requiring care and attention, unless entitled to the prescribed commission; and it is not impossible that the creditor might become the purchaser and have the amount of his bid credited on the execution and judgment. While we think that the provision for the commission in our statute, in the absence of any other provision qualifying it or limiting its operation, is to be construed as allowing the commission under the circumstances of the sale in question, and that such construction is sustained by the weight of authority, the legislature seems to have recognized the right to the commission in such case by providing in Section 4740, Compiled Statutes, 1910, found in the article relating to the redemption of lands sold on execution, that no commission on the amount of the redemption money shall be allowed the officer receiving the same, but the usual commission shall be allowed the officer selling the property on the excess over the amount of the redemption money. The last clause evidently refers to a second or subsequent sale upon redemption by a judgment creditor provided for in Sections 4736, 4737 and 4738. As previously stated, the certificate of sale on execution is required to state the sum paid, or if the lands be purchased by the creditor, the amount of his bid. (Id., Section 4734.) And Section 4735 provides that the judgment debtor may redeem within six months from the sale by paying to the purchaser, or the — 337 — sheriff'or other officer who made the sale, the sum paid on the purchase price, or the amount given or bid if purchased by the plaintiff in the execution. Section 4740 seems to contemplate that whether the property has been sold to a third person or the judgment creditor, the officer will have received his commission, and to intend that he shall not be allowed another commission on the redemption money representing the amount of the purchase price with interest. To hold that he is not entitled to a commission'on the sale when sold to the plaintiff in the execution by crediting the price on the judgment without actually-handling the money, would, result in view of -Section 4740, in not allowing him any commission, although upon redemption the entire amount of the purchase price should be paid to the plaintiff in money passing through the sheriff’s hands. We doubt if any such result was intended. As above stated, we believe the weight of authority sustains. the right to the commission upon the facts in this case, where the provisión therefor is no more specific than in our statutes as to the service or collection for which it is allowed. (Sharvey v. Central Vermillion Iron Co., 57 Minn. 216, 58 N. W. 864; Litchfield v. Ashford, 70 Ia. 393, 30 N. W. 649; Jurgens v. Hauser, 19 Mont. 184, 47 Pac. 809; Roberts v. Ingalls, 36 Nev. 325, 135 Pac. 927, 48 L. R. A. (N. S.) 542, Ann. Cas. 1915c, 1119; Arnold v. Dinsmore, 3 Cold. (Tenn.) 235; Kelly v. Barnet, 24 Cal. App. 119, 140 Pac. 605.) The statute of Minnesota allowed the sheriff a commission or percentage for “collections on executions, when the same is collected or settled after levy.” Construing that statute, it was held in Sharvey v. Iron Co, supra, that there was a collection within the meaning of the statute, entitling the sheriff to the percentage where lands were levied upon and sold to the judgment'creditor, and the execution was returned with the amount of the bid credited thereon.' The reasons for the conclusion were stated in the opinio» by Gilfillan, Chief Justice, as follows: — 338 — “When an execution creditor bids upon the property levied on, he bids as any one else does, except that, if it be struck off to him, to avoid circuity of action, and as matter of convenience, he is not required to go through the ceremony of paying the money to the sheriff and receiving it back from him. But he is presumed, as any one else would be, to bid the property off at what he deems to be its value; and there is secured to him, by means of the execution and sale, the amount of the bid, less the fees and expenses, by acquiring the title to the property if the sale become absolute, and by actual receipt of the money if there be redemption. Whatever he acquires by the execution and sale is to be deemed a collection, not only as between him and the judgment debtor, but as between him and the sheriff. If this were not so, execution creditors might in many cases profit by defeating the sheriff’s just claim to fees. In this case' the property was struck off to defendant at $250,000. Suppose a third person had bid that amount, and the defendant had bid $50 more, that being the highest bid, the sheriff would have been obliged to strike off the property to it, and, if he were not entitled to fees because the defendant bid off the property, it would make a very handsome profit by its raise of $50.” The statute of Tennessee considered in Arnold v. Dinsmore, supra, provided a fee for collecting money on executions,‘without making any other provision where land levied upon is bid in by the execution creditor; the court said : “No 'money,’ in the language of the statute, was collected; but the land sold was voluntarily accepted by the creditor, in lieu of the money, and thereby, under our practice, the execution satisfied. The sheriff did all he was commanded to do by law. He could not do more under his process.Every duty and responsibility enjoined by it were assumed and faithfully discharged; and we think, by a fair and just interpretation of the statute, he is entitled to compensation for his services. The execution creditor was not bound to bid in the land. He did -it at his own .option, and it is to — 339 — be presumed, for his own interest. Strictly, the sheriff might have demanded of him, as of any other purchaser, the payment of his.bid, at which the land was struck off, and returned it with the fieri facias, into court, when it would have been paid over by the clerk to the judgment creditor. Biut, such has not been our practice, and we have no disposition to disturb it. It. has been sanctioned■ by long usage, and it is doubtlessly often convenient and highly beneficial to both parties.” In Litchfied v. Ashford, supra, under a statute declaring the sheriff entitled to charge and receive a fee according to percentage on the amount, “for collecting and-paying over money,” he was held entitled to the percentage upon the amount of a sale where the judgment plaintiff became the purchaser and the amount of his bid was not paid to the sheriff, but credited on the j udgment. Referring to a former statute expressly allowing a commission where the property was purchased by the execution plaintiff, and construing the later statute then under consideration, the Iowa court said: “It appears that by the previous legislation a sale of property to the plaintiff in execution was regarded as a collection made by the sale, and it is so in fact. The sale pays the debt. Now, when the nineteenth general assembly fixed the fees for collection, and omitted to except a collection, made by a sale to the plaintiff in execution, we think the legislative intent was to allow the percentage in all cases where the act of the sheriff amounted, in effect, to a collection.” The question here-presented was decided in the Montana case of Jurgens v. Hauser, supra, and in the Nevada case of Roberts v. Ingalls, supra, under a statute providing a commission for receiving and paying over money on execution or other process where lands or personal property have been levied upon and sold, and in each case the sheriff was held entitled to the commission, the court refusing to follow a previous decision to the contrary under an identical statute in the case of Peery v. Wright, supra. Although the precise question was not involved in the California case of Kelly v. — 340 — Barnet, supra,' the remarks of the court stating the reasons for the decision in that case are pertinent. The action was to compel the sheriff to execute and deliver a certificate of sale to the plaintiff as the purchaser at a sale of real estate on execution. The execution was issued upon a judgment in favor of the plaintiff, and he was the only bidder at the sale. He bid the full amount of his judgment and costs, and tendered the sheriff a receipt for such amount with the sum of $25 to cover the costs and expenses of the sale, and thereupon demanded that a certificate of sale be issued to him. The sheriff declined to issue the certificate for the reason that his commission on the .sale amounting to over $200 had not been paid. The contention of the plaintiff was that he was not required to pay the amount of his bid in cash, but that, in lieu thereof, he was entitled to hand, the sheriff a receipt in full of the amount due on the judgment, and that the sheriff was not therefore entitled to charge or receive commissions. The California statute referred to in the opinion (Pol. Code, Sec. 4300b) allows the sheriff a commission “for collecting money on execution." The plaintiff’s right to a certificate of sale under the circumstances was denied by the court on the ground that, although a judgment creditor who bids in the property for the amount of his judgment, may, as a. matter of convenience, arrange with the officer to have him accept a receipt for the amount of the bid instead of the cash, the officer is not bound to do that, but may require the successful bidder in every instance to pay the amount of his bid in cash, and the court said that the sheriff evidently took that position because of plaintiff’s claim that he had no right to charge the commission. Having concluded that the sheriff is entitled to recover the commission claimed by him, the judgment will be affirmed. Affirmed. Beard, J., and Scott, J., concur.