Gilman v. D. V. R.

Miller, Ch. J. Without intimating any opinion as to whether the parties who made the motion have such interest in the matter in controversy as that they could projjerly make such motion or not, we come directly to the merits of the controversy. The agreement is to accept a fixed sum by the sheriff in lieu of the legal fees for services to be performed. The statute prescribes what fees the sheriff is to receive for collecting and paying over money on execution, which is a certain per cent upon the sum collected and paid over by him. It further provides that where the property sold on execution is purchased by the plaintiff therein, only one-half of the rate fixed by the law can be charged by the sheriff. Section 8840 of the Code, which is Sec. 4167 of the Revision, pi’Ovides, that “ any officer who willfully takes higher or other fees than are allowed-by law, is guilty of a misdemeanor, and may be fined therefor a sum not less than ten nor more than fifty dollars.” With this provision of the statute as the law of this State, if not without it, it is very manifest that if the sum agreed to be paid to the sheriff in this case should exceed the legal fees, the agreement would be void as being contrary to the statute, and would not be enforced by the [204] courts; for, although the statute does not in terms prohibit the making of such an agreement, yet, by imposing a penalty for taking higher or other fees than are allowed by law, it implies a prohibition, and a contract to pay higher or other fees than those fixed by the statute, is therefore void. Reynolds v. Nichols (& Co., 12 Iowa, 398, and cases cited in the opinion of Weight, J.; Pike v. King, 16 Id., 49; Springfield Bank v.Merriolc, 14 Mass., 322; Holman v. Johnson, 3 Term R., 23; White v. Bass, 3 Cush., 448; Bussell v. Degrand, 15 Mass., 39. Upon the face of the agreement it is not certain whether the sum agreed to be paid would or would not exceed the iegal fees for the services to be performed, and this could only be made certain by proceedings to happen after the making of the contract.. It would depend upon the amount of the sale of ' the property whether the legal fees of the sheriff would amount to more or less than the sum he had stipulated to accept. The law will not take notice of the value of the railroad in respect to the sum it will sell for on execution, in order to determine the question touching the validity of the contract in question. It being clear, therefore, that if the sum to be paid the sheriff under an agreement should be greater than the legal fees the contract would be null and void, it would seem to follow as a logical sequence that if from the contract it be uncertain whether the sum to be paid be greater or less than the legal fees, and might be greater, depending upon the amount for which the property should sell on execution, the agreement would, upon -principle, be likewise void. If the legal fees could have been less in any event than the sum agreed to be paid for the services of the sheriff, the legal effect upon the agreement is the same as if it had been certain that they would be less, for the agreement was either valid and binding at the time it was entered into, or it was invalid, and did not depend for its validity upon the amoupt of the bid at the sale, or-upon the contingency whether the plaintiffs in execution, or third persons, should become the purchasers-: If,- therefore, the contract be held valid when it depends upon [205] these contingencies, then in one contingency an illegal contract would be held valid, as where the fees upon the sale would amount to less than the sum agreed to be paid for the same .service. We are of opinion, for the reasons before stated, that the agreement in question is void because in violation of the statute and against public policy. In support of our view see the following cases: Tappan v. Brown, 9 Wend., 175; Smith v. Weldon, 10 Penn. St., 39; Warner v. Grace, 13 Minn., 487; Lewis v. Lenox, 2 Bill., 454; Grant v. McLester, 8 Geo., 553; Outen v. Rodes, 3 Marsh., 433; Gray v. Hook, 4 Comstock, 449; Dodge v. Stiles, 26 Conn., 463; Hatch v. Mann, 15 Wend., 45; Hall v. Gavitt, 18 Ind., 390. II. We are also of opinion that the agreement is incapable of being enforced by either party, for the reason that it is without consideration, as shown by the evidence introduced on the motion, but we forbear any discussion of this, point as being unnecessary, the views already expressed being decisive of the case; see, however, Folk v. Smith, 13 Md., 85. AFFIRMED.