Soderberg v. King County

Citations

• 15 Wash. 194
• 33 L.R.A. 670
• 45 P. 785
• 1896 Wash. LEXIS 161

Syllabus

<p>MORTGAGE FORECLOSURE SALE — SHERIFF’S COMMISSION — WHEN SURPLUS— PAYMENT. BY SHERIFF TO COUNTY — RIGHT OF JUDGMENT DEBTOR TO RECOVER — ASSUMPSIT.</p> <p>A sheriff is 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, although the officer and the purchaser may have intended that a portion of the sum bid should be in payment of a commission demanded by the officer.</p> <p>Where the sheriff upon making a foreclosure sale has been paid by the bidder, who was the plaintiff in the action, a certain sum as commission, such sum constitutes a surplus in the hands of the sheriff, which it is his duty to pay over to the judgment debtor.</p> <p>Assumpsit will lie against a county for the recovery of sums charged by the sheriff as commissions upon foreclosure sales and by him mistakenly paid into the treasury, when such sums constitute a surplus in his hands to which the judgment debtor is entitled.</p> <p>Want of privity between the parties is no obstacle to an action for money had and received.</p> <p>A payment by the sheriff into the county treasury of a surplus arising from a foreclosure sale, made without the knowledge or consent of the judgment debtor, cannot be considered as a voluntary payment by the latter.</p>