Powell v. Davis , 119 Miss. 175 ( 1918 )

TIoldeN, J.,

delivered the opinion of the court,

By a decree, in a partition proceeding, certain lands of the estate of Van C. Davis, deceased, were ordered sold and the proceeds distributed amongst the appellees, co-owners. The land was incumbered-by a prior mortgage lien for five thousand dollars and interest, executed by the deceased Davis in favor of the Grenada Bank. The decree ordering the sale provided that the purchaser at the sale should pay all cash, or he could assume the indebtedness to the bank, which amounted to five thousand, one hundred dollars including interest, and pay the difference or balance in cash. The holder of the mortgage, Grenada Bank, was not made a party to the proce'eding, but itdseems that the bank made some kind of an outside oral promise that it would’ accept payment of the mortgage debt in advance of its maturity. The appellant, M. E. Powell, clerk of the chancery court, was appointed commissioner to make the sale. The land was ’duly sold in accordance with the decree and was purchased by the appellee Mrs. Maggie M. Davis, at the price, and bid, of seven thousand, six hundred dollars; she electing to assume the mortgage indebtedness- of five thousand dollars principal and one hundred dollars interest, totaling five thousand, one hundred dollars, and pay the difference of two thousand, five hundred dollars in cash. The commissioner’s report of the sale and his deed of conveyance to the purchaser recited the consideration of two thousand, five hundred dollars in cash and the assumption of the indebtedness of five thousand, one hundred dollars to the mortgage bank, and the decree confirming the sale also recited this fact. The commissioner, appellant Powell, in settling with the distributees retained, as his commission for making the sale, one per cent., or seventy-six dollars, on the entire sum of seven thousand, six hundred dollars. Appellees protested against paying the commission on more than two thousand, five hundred dollars, the amount of cash realized and coming, into the hands of the commissioner by and under the sale. The chancellor decreed that the commissioner was only entitled to his commission on two thousand, five hundred dollars, the amount of cash realized by the sale of the land; and from this order the commissioner, Powell, appeals here.

Section 1866, Hemingway’s Code, section 2185, Code of 1906, provides that commissioners making sales under a decree shall he allowed the same fees as are allowed sheriffs under excution. Section 1857, Hemingway’s Code, section 2176, Code of 1906, providing fees for sheriffs, reads:

“On all money made by virtue of any decree, execution, attachment, or other process, the following commissions : to wit: On all sums over two hundred dollars, . . . one per centum.”

The appellees, co-owners, rely upon two propositions to sustain their case: First, that the commissioner could only retain commissions “on all money made by virtue of any decree,” as allowed sheriffs under the statute referred <to, and that two thousand, five hundred dollars cash' .paid by the purchaser at the sale in this case was the only “money made by virtue of the decree,” and that the amount of commission is fixed by the' amount of cash, or “money” coming into the hands of the commissioner by virtue of the sale; second, that the decree ordering the sale in this case provided that the purchaser might pay all cash including the amount of the mortgage indebtedness, or he might assume the mortgage indebtedness and pay the difference in cash at the sale, and this alternative was allowed the purchaser, and that the purchaser elected to assume the mortgage indebtedness and pay two thousand, five hundred dollars, the difference, in cash to the commissioner, and therefore, as there was no realization of seven thousand, six hundred dollars by the commissioner in the sale, but two thousand, five hundred dollars being the amount in fact realized by the commissioner, the ■commission on this latter amount only is allowable.

The appellant, Commissioner Powell, contends that the sale to the purchaser was made at a price and hid of seven thousand, six hundred dollars, and that he is entitled to his commission on this sum, even though five thousand, one hundred dollars of this amount was never paid to him hut was assumed by the purchaser in accordance with the decree ordering the sale.

Counsel for appellant cites the case of Wynne v. Railroad Co., 45 Miss., 569, in support of his position, and we are inclined to agree with counsel for appellant that the rule announced in that case sustains his contention, in that, it is not always necessary, in legal contempla^ tion, that the actual cash money be physically placed in the hands of the commissioner by the purchaser at such sales before the commissioner is entitled to his commission on the amount for which the land was sold; because it often occurs that no actual cash is paid into the hands of the commissioner at such sales, yet he would be entitled to his commission on the amount realized by the sale. And so the statute,, providing that a commission shall be allowed “on all money made” does not limit the compensation of the commissioner to his per centum commission on the actual money paid into his hands, but the commission is allowable upon the amount realized, “or money made,” by and under the sale of the particular property decreed to be sold. We think the Wynne v. Railroad Case, supra, goes to the extent we have indicated, and, if the case before us rested solely upon the proposition that only cash money coming into the hands of the commissioner at the sale is to measure the commission allowable to the commissioner, the appellant would be entitled to a reversal. But the other contention made by the appellees, that the five thousand, one hundred dollars, due the mortgagee bank, being assumed by the purchaser according to the decree, was no part of the amount realized by the commissioner at the sale, is, in our judgment, sound and must be maintained here.

The fees of a commissioner for selling lands under a decree, as here, are to be fixed upon the basis of a commission upon the amount realized by the sale of the interest of the co-owners in the property, and not otherwise. In this case the prior mortgage lien was not affected by the decree or the sale, because the mortgagee hank was not made a party to the proceedings and, consequently, was in no wise hound by the decree or the sale. It is plain that the decree of the court intended to merely order the sale of the interest of the co-owners in the land, and nothing more. The bank’s interest was not sold, nor was the mortgage foreclosed. This interest in the land owned by the appellees was, we may say, an equity; it was a fee or interest in the land subject to the payment of the five thousand, one hundred dollars mortgage indebtedness due the bank, and this interest of appellees was all that the court did or could order sold, and. was sold, by the commissioner for the sum of two thousand, five hundred dollars, which was paid to him in cash. And two thousand, five hundred being the only sum that was realized by the sale of the interest of appellees, it is the amount upon which the commissioner should be allowed his commission for making the sale. The five thousand, one hundred dollars did not come into the hands of the commissioner, nor was he the channel through which it was to be paid. The fact that the decree provided the purchaser might assume the mortgage debt of five thousand, one hundred dollars and pay the balance of the purchase price, or two thousand, five hundred dollars, which was done by the purchaser, is pertinent here only in indicating that the court intended to decree, and did order, that only the interest of the appellees in the land was to be sold by the commissioner. However, neither the decree nor the sale could alter the fact that the mortgage lien was paramount and could not be disturbed or affected by the decree or the sale because the mortgagee bank was not a party to the court proceedings. The mortgage lien still exists, so far as we know. Therefore the thing, the property, ordered sold in this case, was nothing' more than the interest of the appellees in the land, which was subject first to the satisfaction of the mortgage lien. This interest of the appellee, then, was all that was sold by the commissioner, .and two thousand, five hundred dollars was all that he realized ■by such sale, was the only “money made,” and upon which amount he is entitled to his compensation of one per centum commission.

Plausible arguments are made and apt illustrations given by counsel with reference to the working of this rule when certain cases may arise thereunder. For instance, counsel for appellant, hy illustration, claims that in a sale in this case, if the property only brought five thousand, two hundred dollars, the commissioner would receive practically nothing for his services for making the sale, and that this would be unjust in view of the responsibility and amount of work necessary to be done on the part of the commissioner. We think that such a case might arise where the compensation of the commissioner would not he adequate for his services,- hut this is always a chance to. be taken where the measure of compensation is fixed upon a contingent basis. But the rule contended for by appellant would also work great injury to the co-owners in a case where they were the owners of a small interest in property which was heavily incumbered with prior mortgages. If the commissioner in such case were allowed his commission on the total amount of all the mortgage indebtedness, and the amount realized by. the commissioner on the sale of their interest in the property was small, then the commissions on the total indebtedness against the property would consume the entire amount realized by the sale of the interest of the co-owners, and they would receive nothing for their interest in the land, because the mortgage creditors could not be held to pay any part of the commission as they were not parties to the proceedings.

The decree of the lower court is affirmed.

.Affirmed.