Dеfendant 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- . mеnt 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 prоceeds 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 ■agаin 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 еxpenditures as this, it must appear that they were necessary, and that suсh costs and charges were made in good faith, ‘ ‘ with an eye
The deed of trust under which defendаnt was acting only authorized him to pay out of the trust fund the necessary and reasonable charges and exрenses 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 clаim, thus made by defendant trustee, who, himself a lawyer, yet lets the job to his partnеr, would be to encourage rather than condemn bad faith in the trustee, whо is supposed to look with an “eye single to the best interests ’ ’ of his grantor.
But still mоre than this ; even conceding the neces-, sity of employing an attornеy to draw up the notice of sale, still this will not sustain the defendant in himself perfоrming 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 reсeived. See Gamble v. Gibson,
“This rule is so strict,” says Wagner, J., in the above case, “that it has bеen 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,
Judgment affirmed.