The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1896-07-30
COUNTY MUST PAY.
urylas in Foreclosure Sales
Wrongfully Withheld.
rrysasAL OF sopERsERo CASE.
nrnme Court eays fhe County, Liz
n individual, Cannot Retain
Money Not Its Own.

EGteY ruling OF fhk supreme court 10
ne case entitled Walter H. sodsFberg ys.
Xinw County. the county viii be obliged 70
- : sum IN excess OF ss.1oc. the agxrs-
ests Of claims arising - surplus 10 GER
1etn foreclosure sales. 6odsreerg sued 40
eresxnee Of Judgment debtors. fhirfy-fivs
a number. There was no redemption In
nnv case, and the plaintiff Ia each Of the
foreclosure actions became the purchaser.
FROM the record IL appears that the
nmoun. claimed as surplus In each case
Vas the sum claimed by the sheriff IS fees
ara commission In conducting the sale.
ana that ths sheriff thereafter paid into
TIE treasury the several amounts under
the mistaken bxlief that II was his duty
= dedust . commission from the amount
IA in the respective cases and turn the
amount 50 collected or deducted into the
county treasury as required by Law in all
eases where fees IN compensation for on
1t&l services are received.
Al tbs hearing OF the case which came
On for trial before Judge Osborn the
county successfully opposed 6oderbsres
oonteEticn or two principal dsfsnsfx. II
uns urged that the sums claimed were not
surplus 10 which the assignors we're en-
ttIed. but constituted fee or commits
sion which the officer making fhs sale
claimed the right TO charge and which the
purchaser knowingly paid and that
otlthsr 6oderbere nor his assIgnerr had
: my interest In the several transactions.
+ Which we're matters between the pur-
& ehassrs and the sheriff. THE second
ground OF defense was that the sheriff 5
& Dayfnens 10 the county was voluntary.
with full knowledge OF the facts. As
y the first question the supreme court
nnya:
1T matters not that the officer believed
that he gas by law entitled 10 and re-
qatred to retain q comm iswon upon such
sale. and that this opinion was con-
cured In By the bidder. beoaase In con-
4 1cmpiafion OF law the property Is sold
fof the highest sum bid and the law
0nkes tbs application 10 the purchase
1vj3e- To give affect to what II asserted
- have been the intention OF the pur-
ehAeer, viz, that a portion OF the sum
~ BY him WAS in payment OF a commits
otCn which the sheriff conducting the sale
1emanded and which the bidder supposed
y had right TO demand. would be In ef-
&t<f 10 give such purchaser . preference
IL the sale. and would be to permit the
otddcr and tho officer TO control and apply
the proceeds Of the sale. The
amount claimed by appellant a. . sur
D1us In ouo OF these causes OF action In
obout 500. The logic OF the respondents
position u that the purchase price In
ohat cAse was theoretically 500 less than
che amount actually bid. Who can say
that this 500 might not have deferred
pome other bidder who likewise would be
psssunsd to know the law. but might well
BE- ignorant OF what was really Intended
BY the riva, b.ddlr7 Our conciu-
uou IL that the sum claimed constituted
surplus in the hands Of the sheriff which
4 was ~ duty 10 have paid to the judy
nent debtor"
Answering the second question as 10
whether assumsit WI lie against The conn-
~ for the recovery Of such surplus which
the sherin has wrongfuliy paid into tho
treasury. the court Gays II In not pretend
~ that the respondent has any legal
right 10 the moneys IN controversy. The
county received the moneys without right
or consideration. and 70 retain The sums
would be inequttable. Under saoh circum-
stances the law implies promise OF res
tuition for the benefit OF the rtghtfui
owner. The decision continues:
Nor can the plaintiffs right OF action
Be defeated upon the ground OF voluntary
payment made TO respondent by the
sheriff As regards the plaintiff or his as
signor1 the payment is not 10 be consid-
cred a voluntary payment. II was made
without their knowledge or consent" The
epsnion points out that II is well settled
In an action for money had and received.
which anyone holds In his hands though
not entitled to IL, that want OF prsuty
b<tween the parties IL no obstacle 10 the
action. There II no reason. says the
court. why the common obligation 10 do
justice which is binding upon individuals
b not equally applicable to a county.
The opinion was written by Justice Cor
don. and was concurred I'm by Justice
AnderS and Justice Dunbar.
Another action OF similar import II
pending In reference 10 surplus paid to
the county clerk. The amount involved
4 ahastt a