47 Mo. App. 514 | Mo. Ct. App. | 1892
Defendant was trustee in an ordinary deed ■ of trust on real estate, given to secure the payment ■ of money. Default having been made in the pay- . ment of the debt, the trustee advertised and sold ithe land pursuant to the terms of the deed of trust;. 'Plaintiff had become the assignee of the grantor in the •deed of trust, and as such was entitled to receive the surplus left out of the proceeds of the sale, after the payment of the charges and expenses made or sustained
The only question in this case is as to the right of the trustee, after taking out his expenses and his ■commissions, to retain the further sum of $25 as attorney ’s fee for the firm of Flower & Baird, of which firm he was a member.
The suit was originally instituted before a justice of the peace where plaintiff obtained judgment for $25. Defendant appealed to the circuit court, where plaintiff ■again had judgment for $25 and he now brings the case here by appeal.
I. The judgment in this case was clearly for the right party, and will be affirmed. It may be well claimed that, had defendant Flower employed some attorney in no way connected with himself, even then he ought not to be allowed for an amount paid for writing the notice of sale. In that event such expense might well be regarded as needlessly incurred. Even where the trustee is allowed for such expenditures as this, it must appear that they were necessary, and that such costs and charges were made in good faith, ‘ ‘ with an eye
The deed of trust under which defendant was acting only authorized him to pay out of the trust fund the necessary and reasonable charges and expenses including the expense of advertising, etc. We all know-how simple and easy the task is to write the notice of sale by a trustee under the ordinary terms of a deed of trust to sell land in payment of a debt. And to allow this claim, thus made by defendant trustee, who, himself a lawyer, yet lets the job to his partner, would be to encourage rather than condemn bad faith in the trustee, who is supposed to look with an “eye single to the best interests ’ ’ of his grantor.
But still more than this ; even conceding the neces-, sity of employing an attorney to draw up the notice of sale, still this will not sustain the defendant in himself performing the service at the expense of the estate. For his services, the law has n¿tade provision in the way of a commission, which this defendant received. See Gamble v. Gibson, 59 Mo. 593.
“This rule is so strict,” says Wagner, J., in the above case, “that it has been held that, if the trustee has a partner and employs such partner, no charge can be made by the firm.” See two authorities cited in this Gamble case, bottom page 593; also, Morgan v. Hannas, 49 N. Y. 667. The rule is the same whether the trustee assumes to employ himself as attorney or engages the firm of which he is a member. In either case the claims for such extra compensation will be disallowed. Collins v. Carey, 2 Beav. 128. Trustee only can be allowed “costs out of the pocket” in such cases. Christopher v. White, 10 Beav. 523.
Judgment affirmed.
