December 13, 1982

Mr. John R. Steele 
Aurora County State's Attorney 
Plankinton, South Dakota 57368

Official Opinion No. 82-67

Sheriff's Commission on Sale of Real Property

Dear Mr. Steele:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

The Aurora County Sheriff conducted a foreclosure sale of a tract of farm land in Aurora County pursuant to a special execution issued by the court as a result of a civil action to foreclose a first mortgage brought by the holder of the first mortgage.  At the sale, the property was purchased by a person not a party to the foreclosure action.  The Sheriff collected, at the time of the sale, in addition to the amounts required by the Court, the commission provided for by SDCL 7-12-18(22) and duly remitted the same to the County Treasurer pursuant to SDCL 7-12-25.  The Sheriff then returned the special execution, fully satisfied. 

The holder of a second mortgage on the property has not given notice to the Sheriff of its intention to redeem the property.

Based upon the foregoing factual situation, you have asked the following question:

QUESTION: 

Does SDCL 7-12-18(22) require the payment of a second commission at the time of redemption or merely the reimbursement of the commission paid at the time of the foreclosure sale?

SDCL 7-12-18(22) states: 

(22)  For 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, for each dollar not exceeding four hundred dollars, nine cents; for each dollar above four hundred dollars, and not exceeding one thousand dollars, five cents; for each dollar above one thousand dollars, not to exceed fifteen thousand dollars, three cents; but in no case shall the commission be less than a sum of fifteen dollars.  The commissions shall 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, and the commission shall be paid by the redemptioner in all cases of redemption, except in cases when the sheriff has an execution in his possession and the party for whom the execution was issued or otherwise authorized party receives the amount or any part of the money owed pursuant to the execution or distress warrant the sheriff is entitled to his commission as stated above, to be paid by the party for whom the execution or distress warrant was issued or otherwise authorized party that received the money;

Under the factual situation above, where the sheriff has deducted the commission from the proceeds of the sale pursuant to SDCL 21-47-18 and 7-12-18 at the time of sale and prior to any redemption proceedings, the redemptioner is not required to pay the sheriff a second commission under SDCL 7-12-18(22)  at the time of redemption.  Rather, the redemptioner is required to reimburse the purchaser for the commissions paid at the time of sale as dictated under SDCL 21-52-13.  Since the initial commission costs are part of the cost of sale they must be covered by the redemptioner as required under SDCL 21-52-13(5). The statutory provisions viewed as a whole, however, do not require the redemptioner to pay the sheriff another commission. If the Legislature wanted the redemptioner to pay a second commission to the sheriff, they could have explicitly stated so within the provisions of SDCL 7-12-18(22).  Absent a specific grant from the Legislature to charge, the sheriff is without authority to collect any other commission at the time of redemption.

Respectfully submitted,

Mark V. Meierhenry
Attorney General