Williams v. McLendon

The opinion of the court was delivered by

Mr. Justice Pope.

The title given to the appeal is misleading. There was no action between these parties. It seems that under the decree of his honor, Judge Izlar, in the action of John Kuker, as plaintiff, against W. M. Perry et al., as defendants, B. McLendon, as sheriff of Florencé County, in this State, sold a tract of land, which was purchased by George W. Williams at the price of $500. When the said Williams applied to the said McLendon, as sheriff, for the execution of the title to him for such tract of land, the said McLendon declined to do so unless he would first pay his bill of costs of $13.25. To this payment Williams demurred, unless the sum of $6.25 for commissions were stricken therefrom, tendering his costs less this last named sum. McLendon, as sheriff, stood upon his rights, demanding his entire bill of costs. Thereupon in the action aforesaid of Kuker v. W. M. Perry et al., a rule was issued against such McLendon, as sheriff, requiring him to show cause why he refused to make the title to Williams. His return to the rule set up his rights to these commissions. After a hearing was had, Judge Norton passed an order making the rule absolute, denying the.se commissions to the said sheriff. From this order the said McLendon, as sheriff, now appeals to this court upon the single ground that it was error of law for the Circuit Judge to deny these commissions to the said sheriff.

1 There is no question that, under the repeated adjudications of this court, when one asserts his right to costs, he must, in order to establish such claim, refer to a statutory provision setting up such claim. The appellant recognizes this rule in its fullest extent, and alleges that under section 746 of our civil statute law (1 Revised Statutes), he bases his claim. This section reads as follows: “All judicial sales shall be made by the sheriff, unless otherwise provided by law. In all such sales made by him his fees shall be the same as allowed by law on sales under execution. * * *” The commissions embraced in the bill of costs tendered to Williams, the purchaser, were intended to be such fees as allowed by law to a sheriff on sales under execution. The respondent, however, refers to section 8561 of our “Civil Statute Laws” (1 Rev. Stat.), which provides that the sheriff shall be paid “for selling land under decree of court, in lieu of commissions and all other charges, except for advertising, two dollars. * * *” The history of this section 2561 seems to be about this: In 1870 (see 14 Stat., 324), the sheriff was required to make all sales of real and personal property ordered to be sold by the courts of common pleas and courts of probate, with the same fees therefor as was allowed under execution; and in 1878 (see 16 Stat., 629), this was so altered that for sales of land under decree of the probate court, the sheriff for selling land was allowed two dollars, in lieu of commissions and all other charges except for advertising. But in 1880 (see 17 Stat., 300), the word “probate” was stricken out, and sheriffs were required to accept two dollars for a sale of land under the decree of any court, in lieu of all commissions and other charges except for advertising.

The provisions of both the act of 1870 and that of 1880, supra, were retained in the act of the legislature known as the General Statutes, passed in 1882. In 1891 (see 20 Stat., 1250), the legislature provided that sheriffs of Lancaster, Georgetown, Charleston, Chester, Beaufort, and Lexington Counties shall be entitled to charge and receive the same commissions on moneys received and paid out arising from sales of property under a decree*of the court as are now allowed the clerks of court in similar cases. The provisions of these acts above referred to are incorporated in the Revised Statutes of 1893, as sections 746 and 2561 thereof. It is contended that there is an incompatibility between these sections, viz: that while the section 746 allows the sheriffs the same fees for selling land under the decree of court as are provided when he sells property under the usual execution against property, on the one hand, and that which restricts his fees for such sales to two dollars under section 2561. One of the principles governing courts in the construction of apparently divergent statutes seeming to relate to the same subject matter, and of the same date, is to first seek a construction that will give them both effect, if such course can be consistently taken. With this principle in view, an examination of these statutes will show that the latter act, section 2561, relates to the selling of land by the sheriff, as an auctioneer under a decree of court, and for this service his fee is restricted to two dollars. But when the sheriff under a decree of the court both sells the laud and then receives or collects the proceeds of such sale, this section 2561 does not provide the fees for such joint act, but section 746 is intended to supply the compensation for such services. It seems to us, therefore, that the Circuit Judge was in error, and the sheriff is entitled to his fees here contested.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause is remanded to the Circuit Court, where the rule prayed for by the relator shall be discharged.