#### JOHN C. PASS v. A. L. BROOKS, Trustee.

Deed of Trust — Sale Tinder Deed of Trust — Payment of Debt Before Sale by Trustee — Trustee's Commissions.

Where a deed of trust provided that, in ease of sale thereunder, the trustee should receive 5% commission on the sale as a compensation for making the sale, and also that, if the grantor should discharge the debt before the sale, the land should be reconveyed to him, and the trustee advertised the sale, but before sale day the trustor, with the knowledge and consent of the trustee, paid off the debt and interest and the expense of advertisement, and demanded his bond and trust deed; Held, that, the debt having been paid, the trustee was not entitled to commissions.

Civil aotioN, tried before bis Honor, Judge Starbueh, a jury trial being waived, at Special Term, in January, 1896, of PersoN County Superior Court, upon an agreed state ■ of facts, which were, substantially, as follows :

The plaintiff executed a deed to defendant in trust to secure a debt of $4,000, with power to sell upon default in payment of the bond at maturity, after advertising as prescribed in the deed, and upon sale to make title and apply the proceeds, “ first retaining 5 <f0 commission on the sale of the whole of said land as a compensation for making such sale, out of the proceeds of such sale,” with a provision for reconveyance if the debt should be paid off by the plaintiff before such sale. Default was made and the defendant advertised. The plaintiff, before sale day, with the knowledge and consent of the trustee, paid the debt, interest and cost of advertising the sale, and demanded his bond and deed of trust, which was refused on the ground that his. *398commissions were not paid. The defendant claimed 5$ 'commissions on $4,017.77 and the right to sell for his commissions. He was enjoined from selling and ordered to reconvey, the court holding that he was not entitled to the -commissions named in the deed. Defendant appealed.

Messrs. Boone, Merritt <& Bryant, for plaintiff.

Messrs. W. W. Kitchin, J. W. Graham and Shepherd c& Busbee, for defendant (appellant).

Faircloth, C. J.:

The sole question is whether the trustee is entitled to 5% commissions according to the 'agreement set out in the deed. ¥e think he is not. The ■contract was that he should have 5% for the sale of the land, for making such sale, out of the proceeds of such ■sale. No such sale was had, by reason of the debtor being paid the debt, interest and cost of advertising before sale day, as was stipulated in the deed he "might do. The condition on which the commissions were to become due has not been performed, and although it’ was prevented by the plaintiff,- it was his right and duty to pay off his debt at his pleasure, and it was contemplated by the express terms of the deed that he could do so. Executors, guardians and administratoi’s are allowed commissions by statute. At common law a sheriff could not demand commissions, although the debtor paid the creditor the amount of the judgment after he had received the ■execution and made his levy. He was allowed to do so at first under .the Act of 1784 — now in The Code, Section 3752. There is no similar statute as to trustees. Courts may make such reasonable allowance to trustees as seems proper under the circumstances, when they see fit to do so. The rule was stated in Boyd v. Hawkins, 2 Dev. Eq., 336, to be “ a just allowance for time, labor, services and 'expenses, under all the circumstances that may be shown *399before a master.” The present case is distinguishable from Cannon v. McCape, 114 N. C., 580, by the terms of the contract in the two cases.

Affirmed.