199 La. 786

#### PRUDENTIAL INS. CO. OF AMERICA v. FLOURNOY, Sheriff.

No. 36274.

Supreme Court of Louisiana.

March 2, 1942.

Dissenting Opinion March 12, 1942.

Wilkinson, Lewis & Wilkinson, of Shreveport, for plaintiff-appellant.

J. Bennett Johnston, of Shreveport, for defendant-appellee.

FOURNET, Justice.

The Prudential Insurance Company of America having foreclosed via ordinaria against the Alexandrine Courts, Inc., ón its first mortgage, and the property having been adjudicated to it at the sheriff’s sale, instituted this suit against J. Howell Flour-noy, the sheriff of Caddo Parish, to recover the sum of $2,027.25, paid to the sheriff under protest, claiming that this amount was an overcharge or in excess of the sheriffs fee authorized by Section 1 of Act No. 203 of 1898, as amended by Act No. 167 of 1928. From an adverse judgment in the lower court, the plaintiff has appealed.

The Prudential Insurance Company of America, as the holder of a $482,000 first mortgage against the Alexandrine Courts, Inc., obtained a judgment recognizing its first mortgage and had the property of the corporation seized, advertized, and sold under a writ of fieri facias to satisfy the same. At the sale by the sheriff, the insurance company itself bid in the property for two-thirds of its appraised value, or $235,000, which amount was credited against the writ of fieri facias and the judgment obtained by the plaintiff. The plaintiff and the sheriff were unable to agree with respect to the fee or amount of compensation due the sheriff for making the seizure and sale of the property, the amount claimed to be due by the sheriff being *2%*on the first $500 and 1% on any excess of that amount on the price of the adjudication of the property sold, or the sum of $2,355; that claimed to be due by the plaintiff being 1% on the first $1,000, half of 1% on the next $4,-000, a fourth of 1% on the next $8,000, and an eighth of 1% on the balance, or the sum of $327.50. The plaintiff, therefore, paid the amount of $2,355 under protest and entered into an agreement with the sheriff that the difference between $2,355 and $327.50, or $2,027.25, would be held by the sheriff pending the final determination of the dispute.

The object of Act No. 203 of 1898 is to provide a general fee bill or bill of *59costs regulating and fixing the fees and compensation allowed sheriffs, etc., and to provide for the collection of the same. The pertinent part of Section 1 of this act reads:

> “That the Sheriffs throughout the State of Louisiana, ‘the Parish of Orleans excepted/ shall be entitled to demand and receive the following fees and compensation of office and no more in all civil matters, to-wit:

> ******

> “For making an actual levy or seizure of property under execution or order of seizure and sale without sale, one dollar, $1.00.

> “And two per cent on the first Five Hundred Dollars, and one per cent on any excess of said amount collected and paid over to the party causing the execution or order of seizure and sale to issue or to the party adjudged to be entitled thereto in case of contest over the proceeds.”

The Court of Appeal for the First Circuit in a decision rendered on January 5, 1928, in the case of Investors’ Mortgage Co. v. Theriot, 7 La.App. 397, interpreted this section to mean that the sheriff was entitled to his commission only on the amount actually collected by him from the purchaser and paid over to the seizing creditor and was not entitled to collect any fee or commission on the amount retained by the adjudicatee to liquidate first and second mortgages resting on the property. The same Court of Appeal reaffirmed this interpretation in the case of Investors’ Mortgage Co. v. Prejean, 8 La.App. 46, decided on February 15, 1928. The Louisiana Legislature, meeting in May following these decisions, adopted an act introduced by counsel for the defendant in the Prejean case, being Act No. 167 of 1928, amending and re-enacting Section 1 of Act No. 203 of 1898. The pertinent portion of the new act reads as follows: “And two per cent on the first five hundred dollars, and one per cent on any excess of said amount, on the price of adjudication of property sold, under actual levy or seizure of property under execution or order of seizure and sale, provided that when the price of the adjudication includes a mortgage or mortgages against the property sold which are assumed by the purchaser, or when the purchaser retains in his hands the amount necessary to pay such mortgage or mortgages, the fees or commission on that part of the price of the adjudication so assumed or retained by the purchaser and not paid to the Sheriff by him, shall be one (1) per cent of the first One Thousand Dollars ($1,000), one-half of one percent on the next Four Thousand Dollars ($4,000), one fourth of one per cent on the next Eight Thousand Dollars ($8,000), and one eighth of one per cent on the balance.”

Thus it may be seen that by the Act of 1928 the legislature not only changed the amount upon which the sheriff’s fees are to be computed from that “collected and paid over to the party causing the execution,” to “the price of adjudication of property sold,” but it also included an additional clause excepting from the operation of this general provision those cases where the ad-judicatee either assumes a ranking mortgage or mortgages or retains an amount sufficient to liquidate such mortgage or mortgages. In such cases the act provides for a different computation in arriving at the fees to be allowed the sheriff.

The language used in the Act of 1928 is clear and unambiguous and, we think, in the light of the history of the act amended thereby (Act No. 203 of 1898) was enacted for the purpose of allowing the sheriff a commission or fee not authorized under the act prior to its amendment, that is, on the amount of ranking mortgages which, under the express provisions of the Code of Practice, Articles 679, 680, 684, 706, and 709, the adjudicatee is not only authorized to retain but the receipt of which the sheriff is without right to exact. For a thorough analysis of these articles of the Code of Practice and the jurisprudence thereunder, see Investors’ Mortgage Co. v. Theriot, supra.

In the instant case the property was sold free and clear of all mortgages for cash, after all of the formalities of the law had been complied with. It necessarily follows that there were no prior mortgages resting against the property that could have been assumed by the adjudicatee and therefore no necessity for retaining any funds from the price of the adjudication to pay such mortgages. The fact that the seizing creditor here was not called upon to pay to the sheriff the amount actually bid in cash for this property is of no moment, for the adjudicatee did, in effect, pay this amount over to the sheriff, since the writ of seizure and the judgment obtained by the plaintiff were both credited to the extent of the amount of the bid. To hold otherwise *60would be to defeat the very purpose of the act, for the adjudicatee, by agreement with the' seizing creditor, could pay the amount of the bid direct to the seizing creditor and, in every case, thus eliminate the sheriff’s right to the larger fee allowed under the general provision of the act.

For the reasons assigned, the judgment of the lower court is affirmed, at appellant’s cost.

O’NIELL, Chief Justice

(dissenting).

The Prudential Insurance Company of America obtained a judgment against a corporation named Alexandrine Courts, Inc., for $482,000, plus interest and attorneys’ fees, all secured by first mortgages on real estate belonging to the corporation. The sheriff seized the mortgaged property and advertised it for sale, for cash, in execution of the judgment. At the sale the property was adjudicated to the seizing creditor, the Prudential Insurance Company of America, for $235,000, being two-thirds of its appraised value. There being no pri- or mortgage or lien on the property, the $235,000, less the court costs, of course, was retained by the purchaser in part satisfaction of its mortgages, which were recognized in the judgment. The insurance company and the sheriff could not agree upon the method of computing the sheriff’s fee or commission “on the price of the adjudication”. According to the statute on the subject, a sheriff’s commission for making a sale is two per cent on the first $500, and one per cent on any excess, of the price of the adjudication, provided that when the price of the adjudication includes a mortgage or mortgages against the property sold by the sheriff, which are assumed by the purchaser, or when the purchaser retains in his hands the amount necessary to pay such mortgage or mortgages, the commission on that part of the price of the adjudication so assumed or retained by the purchaser — and not paid to the sheriff— shall be one per cent on the first $1,000, one-half of one per cent on the next $4,000, one-fourth of one per cent on the next $8,-000, and one-eighth of one per cent on the balance.

The insurance company contended that, inasmuch as the price of the adjudication, $235,000, was rightfully retained in its hands to satisfy — as far as it would satisfy — the judgment secured by its mortgages on the property — and as no part of the price except the costs of court was paid or payable to the sheriff — his commission should be one per cent (or $10) on the first $1,000, plus one-half of one per cent (or $20) on the next $4,000, plus one-fourth of one per cent (or $20) on the next $8,000, plus one-eighth of one per cent (or $277.50) on the remaining $222,000, — making a total commission of $327.50. The sheriff contended that the commission should be computed the same as if the property had been adjudicated to a third party for cash, — and as if the adjudicatee had paid the price of the adjudication, $235,000, to the sheriff in cash, — and as if he in turn had paid the money over to the Prudential Insurance Company of America. Hence the sheriff claimed as his commission two per cent (or $10) on the first $500, and one per cent (or $2,345) on the remaining $234,500, — making a total commission of $2,355. The judge of the district court decided that the commission should be $2,355, and the Prudential Insurance Company of America is appealing from the decision.

The statute on the subject is Section 1 of Act 203 of 1898, as amended by Act 167 of 1928; which fixes the fees or compensation allowed to the sheriffs throughout the state (except in New Orleans) for their services in civil matters. The pertinent part of the section is the paragraph in which, after the statement that the sheriff’s fee shall be $1 for levying a seizure, is added the commission for selling the property seized. Before it was amended this paragraph was as follows: “And two per cent on the first Five Hundred Dollars, and one per cent on any excess of said amount collected and paid over to the party causing the execution or order of seizure and sale to issue or to the party adjudged to be entitled thereto in case of contest over the proceeds.”

As amended by the act of 1928 the paragraph is as follows: “And two per cent on the first five hundred dollars, and one per cent on any excess of said amount, on the price of adjudication of property sold, under actual levy or seizure of property under execution or order of seizure and sale, provided that when the price of the adjudication includes a mortgage or mortgages against the property sold which are assumed by the purchaser, *o.r when the purchaser retains in his hands the amount necessary to pay such mortgage or mortgages,*the fees or commission on that part of the price of the adjudication so assumed *or retained by the purchaser and not paid to the*
      *61
      *Sheriff by him,*shall be one (1) per cent of the first One Thousand Dollars ($1,000), one-half of one percent on the next Four Thousand Dollars ($4,000), one fourth of one per cent on the next Eight Thousand Dollars ($8,000), and one eighth of one per cent on the balance.” [The italics are by me.]

Before the statute was amended the sheriff’s commission was computed only on the “amount collected and paid over” by him. If the purchaser assumed a mortgage on the property, or retained the price of the adjudication — or any portion thereof — to satisfy a mortgage on the property, the sheriff received no commission on the amount so retained by the purchaser. It was so decided by the Court of Appeal for the First Circuit, in the case of Investors’ Mortgage Co. v. Theriot, 7 La.App. 397, in January 1928, and again in Investors’ Mortgage Co. v. Prejean, 8 La.App. 46, in February 1928. One of the attorneys for the plaintiff in the latter case was the State Senator who introduced in the session of the Legislature which convened in May of that year the Senate Bill No. 195, which)became Act 167 of 1928, by which Section 1 of the act of 1898 was amended. There is no doubt, therefore, that the two cases of the Investors’ Mortgage Company are what brought about the amendment of the statute, so as to allow the sheriffs a commission — not as large as the commission allowed on money received by him in cash as the price or as a part of the price of an adjudication — but nevertheless a commission — -on any amount retained by the purchaser to satisfy — in whole or in part — a mortgage on the property sold by the sheriff. The amendment did not change the rate of the commission allowed on the “amount collected and paid over” by the sheriff to the seizing creditor. The rate on that amount remains the same as it was in the act of 1898; that is, “two per cent on the first five hundred dollars, and one per cent on any excess of said amount”. All that the amendment of the statute does is to allow the sheriffs an additional compensation, in the form of a lower rate of commission on any part of the “price of the adjudication” that is not paid or payable in cash to the sheriff but is retained by the purchaser to satisfy a mortgage on the property.

I consider it a mistake to construe the amendment of the statute so as to allow the higher rate of commission on all of the price of the adjudication except such amount as may be retained by the purchaser to satisfy a *prior*mortgage, or *ranking*mortgage. The amendment does not limit the lower rate of commission to the amount retained by the purchaser to pay or satisfy *prior*mortgages, or *ranking*mortgages. Nothing is said about *prior*mortgages, or *ranking*mortgages. By the amendment it is declared that the lower rate of commission shall apply when the price of the adjudication includes *a mortgage or mortgages*on the property, assumed by the purchaser, or when the purchaser retains in his hands the amount necessary to pay such mortgage or mortgages. In any such case the lower rate of commission is allowed on that part of the price of the adjudication so assumed *or retained by the purchaser and not paid to the sheriff by him.*It seems to me that, if the lower rate of commission is not applicable to an amount retained by a purchaser in satisfaction — or part satisfaction —of his own mortgage, — as in this case,— there is unnecessary repetition in the provisions describing the instances in which the lower rate of commission shall be applied. In the phrase “or when the purchaser retains in his hands the amount necessary to pay such mortgage or mortgages”, the word “pay” should be construed as meaning “satisfy”, or “extinguish”, in a case where the purchaser retains an amount necessary to pay his own mortgage. The phrase “the amount necessary to pay such mortgage or mortgages” is merely the measure of the amount on which the lower rate of commission is applicable, because that amount is not paid or payable to the sheriff, but is retained by the purchaser. The quoted phrase does not mean that the amount retained by the purchaser must be actually paid by him to a third party — and not retained in payment or part payment of a mortgage due to the purchaser himself — in order that the lower rate of commission shall be applicable. There is no reason why the phrase should have such a narrow construction, — or why such a distinction should be made between a purchaser who retains an amount to pay a mortgage held by a third party, and a purchaser who retains an amount to pay or satisfy — in whole or part — a mortgage held by him. Of course, if the letter of the law did not admit of any other construction, we would be obliged to so construe it, no matter how unreasonable the conse*62quence might be; but it is not violative of the letter of this law to say that the word “pay” means “satisfy”, or “extinguish”, when the payment is to be made to one’s self — so to speak.

I consider it a mistake to say that the construction which I give to this statute would defeat its purpose, — or to say that under this construction a purchaser at a sheriff’s sale could pay the price direct to the seizing creditor, with the latter’s consent, and thereby deprive the sheriff of the larger rate of commission allowed by the statute on such amount as the sheriff has the right to receive in cash and to pay over to the seizing creditor. The sheriff can protect himself from any such unfairness to him, by refusing to sign or deliver the deed -until the price of the adjudication is paid, in a case where the purchaser has no right to retain the price or any part of the price of the adjudication.

The Attorney General’s office — of so-called Department of Justice — rendered and published an opinion on this exact question, on the written request and for the official guidance of the Sheriff of Lincoln Parish, on July IS, 1936. See Report & Opinions of the Attorney General, 1936-1938, p. 899. The question propounded by the Sheriff of Lincoln Perish was precisely the same question that is presented in this case; and the answer was exactly contrary to the prevailing opinion in this case. That is admitted frankly in the written opinion rendered by the judge of the district court in this case. The opinions of the Attorney General, of course, do not control the courts, even on questions of such general importance as we have in this case. But when an opinion rendered by the Attorney General is a reasonable interpretation of a statute affecting one of the public officials in each and every country parish in the state, — and when the opinion has been officially published and presumably acquiesced in for six years, — it is entitled to great weight. I assume that the opinion of the Attorney General in this instance has been acquiesced in, not only by the sheriffs throughout the state, but also by the Legislature, — especially in view of the fact that the Attorney General is in close touch with the Legislature, being — by Section 31 of Article 3 of the Constitution— one of the three members of the Legislative Bureau. I respectfully submit therefore that the opinion rendered and published by the department of justice on this question should prevail as long as the Legislature does not see fit to make another amendment of the law. My own interpretation of the statute — independent of the opinion emanating from the office of the Attorney General — is that the judgment appealed from should be reversed.