June 14, 1977

Mr. Lyle W. Swenson 
Davison County Sheriff 
Post Office Box 819 
Mitchell, South Dakota 57301

Official Opinion No. 77-51

Sheriff's fees: foreclosure by advertisement of a real property mortgage when the purchaser is the mortgagee

Dear Sheriff Swenson:

You have requested an official opinion based on the following facts:

FACTS: 

The Mortgagee-Bank instituted foreclosure by advertisement proceedings against the Mortgagor of certain real property situated in Davison County pursuant to SDCL 21-48.  The sale was duly advertised, and was held on the steps of the Davison County Courthouse on April 18, 1977.  The only bid received was from the Mortgagee-Bank in the amount of $13,463.48.

The question presented is:

QUESTION: 

To what fee is the sheriff entitled for foreclosure by advertisement of a real property mortgage when the purchaser (and sole bidder) is the Mortgagee- Bank?

Fees and traveling expenses receivable by sheriffs are governed by SDCL 7- 12-18. the following three subdivisions are pertinent to your inquiry:
    
SDCL 7-12-18.  The sheriff shall be entitled to charge and receive the following fees and traveling expenses: 
     
(1) to (28) . . . 
     
(29)  His commission on all money received and disbursed by him on execution or order of sale, order of attachment, decree or on sale of real property or personal property, shall be, for each dollar not exceeding four hundred dollars, six cents; for every dollar above four hundred dollars, and not exceeding one thousand dollars, three cents; for every dollar above one thousand dollars, not to exceed fifteen thousand dollars, two cents; but in no case less than a sum of ten dollars such commissions to be included as a part of the cost of execution, order of sale, order of attachment, decree, or on sale of real or personal property, to be paid by redemptioner in all cases of redemption; 
     
(30)  In all cases in the circuit court where persons in whose favor the execution or order of sale is issued shall bid in the property sold on execution or decree, the sheriff or officer making such sale shall receive the following compensation:  If the amount for which the property is bid in shall be one thousand dollars or less, the sum of ten dollars and no more; if the amount for which the property is bid in be more than one thousand dollars, the sum of twenty dollars and no more; 
     
(31)  The sheriff making a sale of real property under a foreclosure of mortgage by advertisement shall receive the same fees as for the sale of real property under a judgment of foreclosure and sale of real property;

It is my opinion that SDCL 7-12-18(30) is controlling in the fact situation which you presented.

First, SDCL 7-12-18(30) is a very specific statute, limited in application to those cases “where persons in whose favor the execution or order of sale is issued shall bid in the property sold on execution or decree.”  It is a well- settled rule of statutory construction that when two statutes are in apparent conflict, the more specific statute is controlling.  1A Sutherland, STATUTORY CONSTRUCTION § 23.16 (4th Ed. 1972).

Secondly, court decisions in other jurisdictions have generally disallowed percentage commissions in cases where the Mortgagee-Bank is the purchaser at the foreclosure sale.  80 C.J.S., Sheriffs and Constables, § 221b.  The percentage commission is not chargeable on account of the sale alone, but only in the event that the sheriff actually “received and disbursed” (SDCL 7-12-188 (29)) the proceeds of the sale.  In those cases in which the purchaser is the Mortgagee-Bank, there is no actual receipt or disbursement of funds.  There is merely a paper transaction in which the sheriff incurs no risk or responsibility for handling the money.  He is, therefore, entitled only to a fee (if one is set by statute) for his services in conducting the sale.  Investors' Mortgage Co. v. Prejean, 8 La.App. 46 (1928); Trumbull Savings and Loan Association v. Jones, 27 Ohio N.P., N.S. 469 (1929); Berry v. Kiefer, 133 P. 1126 (Okl. 1913); Peery v. Wright, 45 P. 46 (Utah 1896); State ex rel. Thompson v. Prince, Sheriff, 37 P. 291 (Wash. 1894), contra, Sharvey v. Central Vermillion Iron Co., 58 N.W. 864 (Minn. 1894).

Furthermore, if SDCL 7-12-18(30) is interpreted to apply only to foreclosures by judicial action (SDCL 21-47) “in the circuit court,” and not to foreclosures by advertisement (SDCL 21-48), SDCL 7-12-18(31) is not given effect.  SDCL 7-12-18(31) requires that in all cases, the sheriff is to receive the same fee in a foreclosure by advertisement as he would be entitled to receive for a foreclosure by judicial action in the circuit court.

In my opinion, the only interpretation which can reconcile these three subdivisions is: 
    
SDCL 7-12-18(29) sets the sheriff's fee in foreclosure actions in all cases except where the purchaser at the foreclosure sale is the mortgagee.
    
SDCL 7-12-18(30) sets the sheriff's fee in the specific case where the purchaser at the foreclosure sale is the mortgagee.
    
SDCL 7-12-18(31) requires that in all cases the sheriff's fee for foreclosure by advertisement be the same as the sheriff's fee for foreclosure by judicial action.

Based on the foregoing, it is my opinion that in a foreclosure by advertisement of a real property mortgage when the purchaser and sole bidder is the Mortgagee-Bank, the sheriff is entitled to recover the sum of “twenty dollars and no more” when the amount for which the property is bid in is more than one thousand dollars ($1,000).

Respectfully submitted,

William J. Janklow
Attorney General

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