Sharvey v. Central Vermillion Iron Co.

Gilfillan, C. J. The corporation defendant owned a judgment against the Iron & Land Company of Minnesota, caused execution thereon to be issued to the county of St. Louis, and delivered it for execution to plaintiff, who was sheriff of that county, and gave him a list of lands of the judgment debtor on which to levy. He levied on the lands in the manner provided by statute, advertised and sold them, said defendant bidding them in, and plaintiff returned the execution with the amount of the bid credited on it. The question is, was he entitled to receive from said defendant the percentage on the amount bid as upon a “collection on“ execution,” under 1878, G. S. ch. 70, § 11? Was it a collection within the meaning of that statute? We think it has always been the general understanding of the bar that such is the case. 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. There was a collection, within the meaning of the statute. Order affirmed. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 864.)