Soderberg v. King County

• Decision Date: 23 July 1896
• Citation: 45 P. 785,15 Wash. 194
• Court: Washington Supreme Court
• Parties: SODERBERG v. KING COUNTY.

45 P. 785

15 Wash. 194

SODERBERG v. KING COUNTY.

Supreme Court of Washington

July 23, 1896

Appeal from superior court, King county; R. Osborn, Judge.

Action by Walter H. Soderberg against King county, in the state of Washington. Judgment for defendant, and plaintiff appeals. Reversed.

Lindsay King & Turner, for appellant.

A. W Hastie and W. W. Wilshire, for respondent.

GORDON J.

Appeal from judgment of the superior court of King county in favor of defendant. This action was brought by plaintiff, as assignee of divers persons, judgment debtors in various foreclosure proceedings, claiming to be entitled to a surplus arising upon each of such foreclosure sales. There are 35 separate and independent causes of action, all based upon similar facts, and governed by a common rule of law. The aggregate amount claimed is $2,004.84. There was no redemption in any case, and the plaintiff in each of the foreclosure actions became the purchaser. From the record it appears that the amount claimed as surplus in each case was the sum claimed by the sheriff as fees and commission in conducting the sale, and that the sheriff thereafter paid into the treasury of the respondent county the several amounts, under the mistaken belief that it was his duty to deduct a commission from the amount bid in the respective cases, and turn the amount so collected or deducted into the county treasury, as he is by law required to in all cases where fees as compensation for official services are received by him.

Two principal defenses are urged: First. That the sums claimed by plaintiff were not surplus, to which the plaintiff's assignors were entitled, but constituted a fee or commission which the officer making the sale claimed the right to charge, and which the purchaser at the sale knowingly paid to such officer as a commission charge on said sale; and that "neither the appellant nor his assignors had or has any interest in or concern with the money or transaction, but the same is a matter between the purchaser and the sheriff." The second ground of defense is "that the sheriff's payment to the county of this indebtedness due from him to either the county or the appellant's assignors was voluntary, with full knowledge of all the facts, under a claim of the county to payment in its own right, and not in any wise as the agent of or pretending to be authorized to receive the same for or on behalf of appellant's assignors; that the county claimed said payment as creditor of the sheriff on account of his liability to the county for all fees and commissions received by him; that the sheriff was indebted for the amounts herein claimed as surplus, either to the county as for commissions or to the respective judgment debtors as for surplus; and that his payment of this indebtedness to the county, an independent claimant, in preference of the respective judgment debtors, also independent claimants, does not invest appellant, as assignee of said judgment debtors, with a right of action against respondent for the amounts of these payments, upon a money demand, as for money had and received or otherwise, although it may be true that of right the sheriff should have made such payments to appellant's assignors."

It becomes necessary to ascertain whether appellant's assignors were entitled to the respective sums claimed from the sheriff conducting the sales. Counsel for respondent do not seriously contend that they were not, and this court held in State v. Prince, 9 Wash. 107, 37 P. 291, that a sheriff was not entitled to a commission upon the sale of mortgaged premises under a decree of foreclosure where the property was bid in by the plaintiff for the amount of the mortgage debt. It matters not that the officer believed that he was by law entitled to and required to retain a commission upon such sale, and that this opinion was concurred in by the bidder, because, in contemplation of law, the property is sold for the highest sum bid, and the law makes the application of the purchase price. To give effect to what is asserted to have been the intention of the purchaser, viz. that a portion of the sum bid by him was in payment of a commission which the sheriff conducting the sale demanded, and which the bidder supposed he had a right to demand, would be in effect, to give such purchaser a preference at the sale, and would be to permit the bidder and the officer to control and apply the proceeds of the sale. He bids a lump sum for the property, not a certain sum for the land, and an additional sum as and for costs and commission. The reasons which induced him to make the bid are quite immaterial, and cannot be inquired into. He is conclusively presumed to know the law. Were the rule otherwise, how could it be ascertained that the actual purchaser was the highest bidder? The amount claimed by appellant as a surplus in one of these causes of action is about $500. The logic of respondent's position is that the purchase price in that case was theoretically $500 less than the amount actually bid. Who can say that this $500 might not have deterred some other bidder, who likewise would be presumed to know the law, but might well be ignorant of what was really intended by the rival bidder? There is one sufficient answer to this. That is that the judgment debtor is entitled to an accounting for the sum actually bid as the purchase price of the property sold, and that the law directs how the purchase price shall be applied. Therefore it is not competent to inquire the reasons which may have actuated the purchaser in making his bid. It cannot be told that he would have received the property had his bid been less than it actually was. ...