McCullough v. Pierce

Bartol, C. J., delivered the opinion of the Court. It appears from the record in this case that a bill was filed by William G. Carter, the holder of a junior mortgage, for the sale of certain mortgaged real estate of Evan Lewis. George W. Pierce, the appellee, was the holder of a prior mortgage of the same property and was made a party defendant in the cause. A decree was passed for a sale, the appellant, who was complainant’s solicitor, was appointed trustee to make the sale, and the terms of sale prescribed by the decree were “ one-third of the purchase money to be paid in cash on the day of sale, and the balance in two equal instalments in six and twelve months ⁵⁴³ from the day of sale, to he secured by the bonds or notes of the purchaser, with approved security, bearing interest from the day of sale.

On the 12th day of August 1875, the trustee reported that he had sold the property, on the 5th day of August 1875, for $6278.25 to William G. Carter, the complainant, who “ offered ready to comply with the terms of sale, when required to do so by the trustee.” This sale was finally ratified on the 13th day of December 1875. On the 28th day of July 1877, the trustee filed a petition setting forth that the purchaser had paid, on the 18th day of September 1875, to the trustee $1524.23, on account of the purchase money, and that he had failed to pay any part of the balance of the purchase money, or to comply with the terms of sale as prescribed by the decree, and prayed for an order of re-sale, &c. On the 21st day of December 1877, an order of re-sale was passed, and on the 26th day of February 1878, the trustee reported that he had, on that day, re-sold the property to George W. Pierce, the appellee, for $2000. This sale was finally ratified May 1st 1878, and the cause was referred to the auditor, who stated an account on the 12th day of June, 1878, allowing to the trustee, Full commissions on $6278.25 the amount of the first sale as reported....:.........................$296.13 Commissions on $2000, amount second sale......... 122.50 Solicitors’ fee in the case.................................. 10.00 Fee as counsel for complainant....................... 30.00 As solicitor in proceedings for re-sale................ 10.00 .

Making in 'all for fees and commissions...............$468.63 The auditor’s account was ratified on the 17th day of June 1878, and on the 24th day of the same month, a petition was filed by the appellee excepting among other ⁵⁴⁴ things.to the allowance of commissions in the auditor’s account as excessive, and also objecting to the allowance of fees to the solicitor in excess of those allowed by law. This petition was answered by the trustee September 28th 1878, and by an order of Court passed June 23rd 1879, the petition was dismissed ; afterwards, on the same day, it was agreed between the solicitors that “ the order of June 23rd 1879 should be rescinded and stricken out, and the case disposed of upon its merits as if the order had not been passed.” And on the 1st day of August thereafter, in accordance with the agreement, the order of June 23rd 1879, was rescinded and the cause set down fob hearing on a day therein named, and the parties proceeded to take testimony. Upon the hearing the Circuit Court decided that the trustee should be allowed commissions only on the sum actually received by him on account of the first sale, and full commissions on the amount of the re-sale, and that the appearance fee awarded him by the auditor in the proceedings for the re-sale should be disallowed. On the 16th day of June 1880, the auditor stated an account in conformity to this decision; exceptions thereto were filed by the appellant; and the Circuit Court by its order passed on the 21st day of June 1880, sustained the exceptions filed by the appellee to the auditors’ report filed on the 12th day of June 1878, and rejected the said report, and overruled the exceptions filed hy the appellant, trustee, to the auditors’ report and account of June 16th 1880, and ratified and confirmed the same.

From this order the present appeal was taken. By an agreement filed in the case it was admitted, that the proceeds of sale as originally made and reported by the trustee would have been sufficient, if the terms of sale had been complied with, to pay all expenses, all prior incumbrances, and the mortgage debt of the, appellee in full; and that the sum received by the trustee on account of first sale ⁵⁴⁵