Johnson v. Glenn

Bryan, J., delivered the opinion of the Court. A mortgagewas made in the year eighteen hundredand seventy-nine, by Helen W. Johnson to John C. Backus, to secure the payment of eleven thousand dollars. By mesne conveyances, in course of time, it became vested in John Glenn, Junior, and George Whitelock, the appellees. The assignees have made sales of the mortgaged property, and the only question in this case is whether they are entitled to commissions for making the sale.

In case of default the mortgagee, or John Glenn, his attorney, was authorized, by the terms of the mortgage, to sell the property and apply the proceeds of sale, in the first place, “ to the payment of all expenses incident to such sale,” and afterwards to the money ³⁷⁰ due on the mortgage, etc. The power to sell is derived exclusively from the agreement and contract of the parties to the mortgage. It is made effectual by section six of Article sixty-six of the Code of Public General Laws, and by the same enactment it passes to the assignees of the mortgage. Whatever rights the mortgagee or his assignees have in the premises arise from and depend upon the stipulations contained in the mortgage. We must look to that instrument to ascertain their character and extent.

If, therefore, the words, “ all expenses incident to such sale,” include commissions, the assignees are entitled to receive them,- but not otherwise. The assignees, in making the sale, were acting for their own interest. But they are nevertheless entitled to all expenses which were reasonably necessary and proper to enable them