Pringle v. Winston-Salem Building & Loan Ass'n
108 S.E. 914
N.C.
1921
Check Treatment
Clark, C. J.

Ch. 146, Laws 1915, and amendments, now C. S., 2591, was intended for the protection of mortgagors where sales are made under а power of sale without a decree of foreclosure by the court. In the latter cases there was always an equity to decree a resale when a substantial raise in the bid, usually 10 per cent, had been deposited in court. There being no such protection as to mortgages with power of sale, this statute was passed to extend to mortgagors, whose property had been sold under power of sale withоut a decree of foreclosure, the same opportunity of a resale when there has beеn an increased bid of 10 per cent when the bid at the first sale did not exceed $500, and of 5 per cent when thе bid of the first sale was more than $500.

This statute has been construed at this term, In re Sermons, ante, 122, not to require a report to the clerk of every sale made under a mortgage with power of sale, but that in all such cases if the prescribed amount of the raise in bid is guaranteed, or paid, to the clerk he shall require the mortgagee or trustee to advertise and resell on 15 dаys notice. In short, the condition of a mortgagor in a mortgage ‍​‌​​​‌‌‌​​‌‌​​‌‌​‌​​‌‌​‌​​‌​​​‌​​‌‌​‌​​​​​​​​​‌‌‍with a .power of sale is assimilated to thе condition of property sold under a decree of foreclosure so far as the right to set aside the bid at the first sale and to require a resale. Therefore, the decisions upon the right of the commissioner to commissions on a sale under a decree of foreclosure is applicable in thesе cases.

In Pass v. Brooks, 118 N. C., 398, it was held that after the trustee had advertised, but before the sale day the trustor, with the knowledge аnd consent of the trustee, paid off the debt and interest and costs of *318 advertisement, tbe trustee was not ‍​‌​​​‌‌‌​​‌‌​​‌‌​‌​​‌‌​‌​​‌​​​‌​​‌‌​‌​​​​​​​​​‌‌‍entitled to any commissions. In Fry v. Graham, 122 N. C., 773, where tbe trustee in a deed of trust witb power of sale advertised tbe land for salе but tbe sale was postponed, and before tbe day of tbe adjourned sale tbe debt was paid in full, it was beld tbe trustee could not recover commissions on tbe amount of tbe debt, but was entitled to a just allowance for time, labor, services, and expenses, and tbat these could be assessed in an action by tbe trustеe for tbe same. In tbe present case tbe matter being before tbe clerk under C. S., 2591, by virtue of tbe order оf resale made by him, we are of opinion tbat these charges can be assessed by tbe clerk, subject to review on appeal, or by tbe judge in this proceeding, as in Fry v. Graham, supra.

In Whitaker v. Guano Co., 123 N. C., 370, it was beld tbat where there is no sale а just allowance can be allowed tbe ‍​‌​​​‌‌‌​​‌‌​​‌‌​‌​​‌‌​‌​​‌​​​‌​​‌‌​‌​​​​​​​​​‌‌‍commissioner for bis time, labor, and expenses. All these cases cite Boyd v. Hawkins, 17 N. C., 336. In Turner v. Boger, 126 N. C., 303, tbe above three cases were cited, and tbe Court affirmed tbe dissenting opinion in Cannon v. McCape, 114 N. C., 584, in which it was pointed out tbat originally, “when property was levied on and advertised for sale under ‍​‌​​​‌‌‌​​‌‌​​‌‌​‌​​‌‌​‌​​‌​​​‌​​‌‌​‌​​​​​​​​​‌‌‍execution, if pаyment was made before sale, tbe sheriff was allowed no commission on tbe sale. Dawson v. Grafflin, 84 N. C., 100, and it took a statute to change this (Code; 3752), but there has been no statute as yet extending this rule to trustees or mortgagees when tbe debtor pays before sale. It is to be feared tbat such practice, if adopted, will result in oppression.”

Tbe order of resale vacated tbe first sale absolutely, and under tbe above authorities tbе trustee, at most, would be entitled only to an allowance for bis trouble and expenses of advertising, which last has been paid into tbe clerk’s office. Tbe trustee claims tbat be was entitled to 5 per cent upon tbe $3,000 which tbe land brought at tbe vacated sale. Tbe question is not before us whether if tbe sale bad not beеn set aside tbe trustee would have been entitled to commissions on tbe $3,000 ‍​‌​​​‌‌‌​​‌‌​​‌‌​‌​​‌‌​‌​​‌​​​‌​​‌‌​‌​​​​​​​​​‌‌‍or only upon tbe amount collеcted and paid over on tbe indebtedness, in analogy to tbe sale by tbe sheriff upon execution who receives commissions not upon tbe price tbe property has brought, but only upon tbe amount collеcted, C. S., 3908, or like tbe allowance to an administrator who, in selling land under a decree to make assets, is entitled to commissions only on so much of tbe proceeds of tbe sale as is applied to tbe indebtedness of tbe intestate, and there are other instances. In Smith v. Frazier, 119 N. C., 158, it was beld tbat formerly no commissions were allowed commissioners for making sale under judicial decree, but only a just allowance for time, labor, and expenses and a decree allowing 5 per cent on tbe purchase price instead of on tbe amount of debt collected, was reversed. This was cited and approved in Turner v. Boger, *319 126 N. C., 303, wbicb intimated that by analogy to sales in partition the allowance (even when the sale is not set aside) might follow the rate allowed by that statute, now C. S., 3896, Ray v. Banks, 120 N. C., 389; Williamson v. Bitting, 159 N. C., 321.

Though this matter is not strictly before us, and we do not decide it, it would seem that the spirit of the statute is to protect mortgagors like defendants in executions against the payment of commissions on more than the debt that is collected by the sale.'

The restraining order against the resale was proрerly continued, and the amount of allowance to the trustee for his labor and trouble can be fixed by thе judge at the final hearing, or if so advised, application for such allowance can be made by the trustee to the clerk, with the right of appeal.

Affirmed.