
    Miller, State Revenue Agent, v. Gore et al.
      
    
    (Division A.
    Feb. 21, 1927.
    Suggestion of Error Overruled April 18, 1927.)
    [113 So. 203.
    No. 25747.]
    1. Counties. State revenue agent may recover excessive sum loaned by board of supervisors out of county sinking fund (Iieni-ingway’s Code, sections 3704, 7056).
    Under Laws 1912, chapter 234 (Hemingway’s Code, section 3704), attempt to loan by board of supervisors out of county bond-sinking funds in an amount nearly double the assessed value of security given therefor is unauthorized and illegal, and under Code 1906, section 4738 (Hemingway’s Code, section 7056), state revenue agent had authority to sue for and recover on behalf of county the sum so loaned.
    2. Counties. State revenue agent held entitled, to commission on amount paid after action to recover illegal loan by supervisors from county sinking fund (Hemingway's Code, section 7066).
    Under Code 1906, section 4748 (Hemingway's Code, section 7066), relative to compensation of state revenue agent, he is entitled to recover twenty per cent, commission on bringing suit to recover moneys illegally loaned by board of supervisors, notwithstanding SFScüt'í&íi was ma(ie into county treasury before determination of action.
    3. CouNnns. Defendants, in suit by state revenue agent to recover 3- GoEfeW-io^fWSlüntiiJMn§u%M iftfHoWWW sWSM%r^cm& %M%hi^eMMbMmníWalM. doard °? ^ervisors, held
    
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      Gwtrer ■& Smith, for appellees. Cutrer & Smith, for appellees.
    
      Reporter’s Note: All briefs missing from the record. Reporter's Note: All briefs missing from the record.
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the court, the court.

“SSQQSQCQI-ít-j Ootf ocMiB' - £®®®4h RRg§RR©© i. [t . g-íc-fc? j^O CD(_rjj^c~bc"b-¡-Ssseasg&bd»' ©©©ffiWK RCDRRSRhT. pgcfe^oCrfafryrlopBRi 532 ©hjnfsRR R^ ppoc¿r pt 1£>ppppgrroQ&i «i ~ cnári-HFc+e-fi Wi ii i wí-ft iuppgy?n u w ¡n ricx» ©p-pí»&?Tivcid®© i tt , pjj c+tr-lp-j p£ ®pLpP 0$ decree be entered in favor of the complainant and against all the defendants for the said sum, with accrued interest and attorney’s fees as provided in the note; and that the deed of trust executed by the defendants W. E. Gore and wife be foreclosed and the proceeds of the sale applied to payment of such decree.

All the defendants filed a demurrer to the bill of complaint, which was overruled as to the defendants W. E. Gore and Mrs. Bessie G. Gore and sustained as to the members of the board of supervisors. From this order sustaining the demurrer, an appeal was prosecuted to this court, but this appeal was afterwards dismissed. After the demurrer was overruled as to the defendants W. E. Gore and wife, they paid into the county treasury the amount of the said indebtedness, with accrued interest, and thereupon filed an answer to the bill of complaint admitting the correctness of the indebtedness sued for, but averring that the same was not due at the time the suit was filed, for the reason that after the maturity of said note, the board of supervisors, for a valuable consideration, duly made and entered an order extending the due date of the said indebtedness to the 8th day of April, 1925. The answer denied all charges of collusion in the negotiations for the loan, and all illegality in the consummated loan, and charged that the indebtedness sued for had been paid in full before the same was due.

The principal and interest of the indebtedness having been paid into the county treasury, through the board of supervisors, the suit proceeded to a final hearing upon the claim of the complainant, the revenue agent, for the commissions of “twenty per cent, of all amounts collected and paid over by him” allowed him by law, and also a reasonable attorney’s fee for collection as provided in the note given to evidence the loan. The court below denied any recovery and dismissed the bill, and from this decree the complainant prosecuted this appeal.

In passing upon the correctness of the action of the-court below in denying a recovery of the commissions allowed by law to the revenue agent, it will be necessary to first determine whether or not the revenue agent had the right to institute and maintain this suit at the time it was instituted. If this question is answered in the affirmaive, then the right of the revenue agent to recover this commission from the appellees is established by former decisions of this court.

This loan was effected in September, 1919, out of the courthouse and jail bond sinking funds; and at that time the authority of the board of supervisors to issue such bonds and to create a fund for the retirement of the same and to loan such sinking fund was found in chapter 234, Laws of 1912 (section 3704, Hemingway’s Code), which, among other things, provided that:

“Whenever said sinking fund shall accumulate to an appreciable amount before the time for the redemption of said bonds, the board of supervisors may loan such accumulation at a rate of interest not less than six per cent, and on such terms and for such time not longer than the date fixed for the maturity of said bonds as they see fit, such loans to be secured upon improved real estate at one-half of its assessed value, and upon abstract of such real estate as-provided for the loan of funds arising from the sale or lease of sixteenth section, lands. ”

While there was some proof tending to show that the value of the security given for the loan here involved was appraised at thirty thousand dollars by a committee of the board of supervisors, the proof was positive and undisputed that-the assessed value of the real estate covered by the deed of trust together with forty acres of additional land, was only six thousand two hundred twenty-four dollars. The amount of the loan and allowance out of this bond sinking fund was ten thousand five hundred dollars, or nearly double the assessed value of the security given for the loan. This was in plain contravention of the express provision and limitation of the statute authorizing the loan of these funds, which only permitted a loan of not exceeding one-half of the assessed value of the se-

gsi si 1< (ives ,11m Saves -.lira By suit m By,suit-, in, and indepi ana mde t (section 7C > (section.. ZC Lemmgway ej, which e state or air _ v_ . us, x-iLemi-ngwayis ,CodeN'wbici* le "power ancT makes r;°JiisJdnty to 'Broceen tie lower anq makes r; his .duty tQ-,.prqceed xe proper conrt tor al past-due omrgations be iroper court, Tor all past-due obligations eqnefss -or any character ■‘■whatever oto? to edness.. oTj.any cliaracter wnatever owing to HO \T-L ; CAil county.

.rom them :rom tnem .. Taw on a, BY law __quir ng a:ter tie mstr;t „on a uxc caj. .ter t. _ _ _ icons' altar tie mstr eesmic me .ioarq or „ees and tne Board-oT-mg anc Being active, mg' and Being active, tne revenue agent, tb tne revenue a§e,nu, tin supervisors, palq íúto t, supervisoxs, paid inte ■ crpal or tne’ sum suec cipaLojE the sum, suec. crued thereon at sis crued tnerepn at sn governin'- - goYernn; Action eCtlOn ti au, iodei, which per cent per, per s1 colfec j. coliec ntlon or ntion o: ¿Laving reached the’7 conclusion that ;,ie revenue agent , Haying reached the conclusion that tie revenue agent nad the ngpt to institute anq maintain tie suit to recover lad the right to, institute and maintain the suit, to recover ,rom the uppeilees the amount or his unauthorized al-:rom the appellees the, amdunh oT- his unauthorized al-owance ourof the puilic runds, r; necessarily follows tówance • out-, on the public .fundsh r;, necessarily, ToIIows mom prior qecisions^o:; this court that, under-the tacts romtpnor decisions on this court that: under, the Tacts anqciTCumstaiices here involved, he is ehtitleq to recover and crrcnm^ianges hpre involved, he is .entitlednto recover - - -* it. ’commission apowegg u.,eommissiQn allowed ,h__ ed anq paid over by him. ¿ed and, paid oy-his suit -against is suit against im im supervisors, anc PsftVM ist the apt v,^+o it was pew upervisors: and while it was -pene - 7 ■‘prosecuted hy the complaman f prosecuted, BY the ¿qomplainpnt; ap ielleei throu e county treasur lie c5unty,treasury ,t hr, together with tj cor, together with t_ er ’cent, per annum. ,oqe ode- <x:. . rovic Ps: .oil o, — t (section e ioarq ot ,tne Board -ol he enure pnn-lie entire prm-ne interest ache ¿pterast, ac-0 statute per,annum. The statute the revenue agent is f section VCiiUC CVCi iZ/TT p lO venue agent is 3-, Hemingway ;s y, Hemingway s vide

levee aimer •'■-rq ioarq s levee board oil account o tu accoun y the s * Y, the * sa;-sa, state'nor any wOT mi be cnargeaDie with an any investigation or suit' municipalit ■ tees or exp 7, or r, or mses mses lenses, aiw feecsPTOseWitfe .....aryh&ut he shall Be entitle,, sation tor pis services anq ex sation "' of al. amounts collected, and paid over .. nurciase money of an lanqskpiq m lor urchase money pi all lands Bid m Tpr nd sotq py the lanq commissioner.;. tees or-exi aqe or insfitutec ade.or instituted not receive any __nohrepeive any o retain, as turf compen-unl as Tull compen-fc wfenrv per centum ffWinc he1:s^a^e<: he state entum . or the oTrthe by him By him

pi me cu__ __ Miller v. Henry, 139 Miss. 651, 103 So. 203, the eSenteq, sair* imsented; er v. ... ,, ..er v. -TIem~V, h l&cnssmr ' *“ íscussin! "Ww, Toe ¿ the’ exact the exact iiiss. i ffiss. ques dues i^l’ 181 lo. noil as now non as now

-,wg !fíe’ Adams v. Bolivar County, 75 Miss. 154, 21 So. 608. , , > in-2^sr^ve*f« .at reve entit entit olivar Coimtw.. 75 Miss, ue agent, paving given ue .agent, having given d to& pis’ comprnismion d to his compensation whether suit had been brought or not, if his investigation was the cause of the money being paid over by the defaulting taxpayer, and that the revenue agent could not be deprived of his commissions-, by the defaulting officer paying the money into the treasury. Under the statute, the revenue agent is entitled to recover for the state eighty per cent, of the amount due by the defaulting officer, and for himself twenty per cent, of the amount. The state has no interest in his commission of twenty per cent. Appellee had no right to pay the five hundred dollars into the state treasury. In fact it would have been more regular under section 4730, Code of 1906 (section 7057, Hemingway’s Code), if the entire amount had been paid over to the revenue ag’ent. He was authorized to collect it with or without suit, and, when collected, his interest in the collection was twenty per cent, of the amount. . He was not required to pay the whole amount into the state treasury, and then make claim against the state, if that could be done for his commission of twenty per cent. Appellee, by paying into the state treasury appellant’s commissions, did not acquit himself of his obligation under the law to appellant. He was due to pay that to appellant and no one else.”

The only remaining question is whether or not the ap-pellees were liable for a reasonable attorney’s fee for collection as provided in the note executed by them at the time of the consummation of this unauthorized loan. The appellees were charged with notice of the provisions of the statute authorizing the loan of these sinking funds and of the want of authority in the board of supervisors to make the loan in question, and, having participated in this unauthorized and illegal act and having received the funds upon insufficient security, they are now estopped to take advantage of the said unauthorized and illegal action of the board of supervisors in making said attempted loan, or to assert to their own advantage the invalidity of the note evidencing the indebtedness, or the security given therefor. Consequently, it having become necessary to employ counsel to file suit and carry on litigation for the recovery of this unauthorized loan, we think the appellees became, and are, liable for a reasonable attorney’s fee, as provided in the note, to be recovered by the revenue agent for and on behalf of the county. The evidence is that ten per cent, of the amount sued for,and paid into the treasury as a result of the suit would be a reasonable attorney’s fee.

The decree of the court below dismissing’ the bill of complaint will therefore be reversed, and a decree entered here awarding the revenue agent twenty per cent, on thirteen thousand and thirty dollars and fifty cents paid into the county treasury, as compensation, and also ten per cent, of said sum as attorneys’ fees.

Reversed, and decree here for appellant.  