{ "id": 8659455, "name": "M. E. TURNER, Administratrix of Joseph Turner, et al. v. M BOGER, Trustee of Joseph Turner", "name_abbreviation": "Turner v. Boger", "decision_date": "1900-04-03", "docket_number": "", "first_page": "300", "last_page": "303", "citations": [ { "type": "official", "cite": "126 N.C. 300" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "119 N. C., 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654576 ], "opinion_index": 0, "case_paths": [ "/nc/119/0157-01" ] }, { "cite": "123 N. C., 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659255 ], "opinion_index": 0, "case_paths": [ "/nc/123/0368-01" ] }, { "cite": "122 N. C., 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661994 ], "opinion_index": 0, "case_paths": [ "/nc/122/0773-01" ] }, { "cite": "118 N. C., 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653335 ], "opinion_index": 0, "case_paths": [ "/nc/118/0397-01" ] }, { "cite": "114 N. C., 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651049 ], "opinion_index": 0, "case_paths": [ "/nc/114/0580-01" ] }, { "cite": "120 N. C., 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658143 ], "opinion_index": 0, "case_paths": [ "/nc/120/0389-01" ] }, { "cite": "120 N. C., 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657230 ], "opinion_index": 0, "case_paths": [ "/nc/120/0286-01" ] }, { "cite": "95 N. C., 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274508 ], "opinion_index": 0, "case_paths": [ "/nc/95/0462-01" ] }, { "cite": "117 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652966 ], "opinion_index": 0, "case_paths": [ "/nc/117/0235-01" ] }, { "cite": "112 N. C., 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651687 ], "opinion_index": 0, "case_paths": [ "/nc/112/0671-01" ] }, { "cite": "111 N. C., 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651306 ], "opinion_index": 0, "case_paths": [ "/nc/111/0340-01" ] } ], "analysis": { "cardinality": 366, "char_count": 6471, "ocr_confidence": 0.384, "pagerank": { "raw": 3.75919122728853e-07, "percentile": 0.8955975811717208 }, "sha256": "53305f8405f84073e188ed7d776cd2641b3939d7cb0b40ee892cf1acd0822de5", "simhash": "1:c1a39d8a8b84b61d", "word_count": 1126 }, "last_updated": "2023-07-14T20:36:28.883277+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. E. TURNER, Administratrix of Joseph Turner, et al. v. M BOGER, Trustee of Joseph Turner." ], "opinions": [ { "text": "Clark, J.\nIn 1887 the plaintiff\u2019s intestate executed a deed of trust to the defendant to. secure a debt to defendant\u2019s wife, in which it is stipulated that in case sale should be made under the trust, \u201cout of the moneys arising from such sale the said Martin Boger, trustee, or legal representative, shall pay the principal and interest of the indebtedness hereby secured, together with all legal costs and reasonable charges in executing this trust, including an attorney\u2019s fee of 5 per cent.\u201d After the death of the plaintiff\u2019s intestate, an action was begun by plaintiffs for partition of certain land named in the trust deed, in which the trustor had owned a part interest only,, and for a sale of all the land embraced in said deed to make assets to pay debts, including the lien on the debt secured by the trust. This the defendant, who' was also defendant in that proceeding, resisted, claiming the right to sell under the deed of trust, and by a consent jrrdgment it was decreed that the defendant should sell the land embraced in- the- trust deed, and o-ut of the proceeds pay \u201csaid debt and interest, and all legal and necessary expenses of said sale.\u201d The lands have since been sold by the defendant, and after allowing him all \u201cexpenses\u201d for advertising,traveling, etc., but not including above 5 per cent for attorney\u2019s fees, there was a balance due of $235.14, which the plaintiff tendered in legal money before the bringing of this action, and paid the same into- the Clerk\u2019s office to abide the result of this action, and which the' defendant has since received, without prejudice, to be held as a credit, or as payment in full, according to- the decision of the Court as to his right to collect the 5 per cent for attorney\u2019s fee. This presents the sole question for consideration.\nA stipulation in a promissory note \u201cthat in case this note is collected by legal process, the usual collection fee shall be due and payable,\u201d was held contrary to public policy, and invalid, in Tinsley v. Hoskins, 111 N. C., 340. This has since been reaffirmed in Brisco v. Norris, 112 N. C., 671; and in Williams v. Rich, 117 N. C., 235, such reservation was held not only invalid, but -evidence of usury. If this stipulation is contrary to public policy in a note which has to. be collected by aid of the courts, for a stronger reason the stipulation would be invalid in a mortgage- or deed of trust where the opportunity for oppression is greater.\nIt is true that a stipulation for compensation to the trustee for making sale, in addition to actual expenses, if reasonable, would be sustained, (though if a cloak for usury it would not be, Arrington v. Jenkins, 95 N. C., 462; Hollowell v. B. & L. Association., 120 N. C., 286), and if the rate of compensation is not specified, probably by analogy, the commission allowed for making sale in partition (The Code, sec. 1910, Bay v. Banks, 120 N. C., 389), would be reasonable, but in this trust deed the stipulation is not only for expenses and reasonable charges in executing the trust (i. e. commissions), but that 5 per cent attorney\u2019s f ee shall be added thereto. The consent judgment eliminated the provision for commissions 'to trustee, by stipulating that only \u201clegal and necessary expenses\u201d of sale should be charged, and all such expenses claimed by defendant have been paid.\nThe answer avers that the 5 per cent was charged for \u201cservices of defendant\u2019s attorney, and that they were reasonable and just.\u201d Probably they were', but they must be paid by the defendant, at whose request they were rendered, and can not be charged against the debtor, who is only liable for the debt, interest, actual expenses of sale, as advertising and the like, and a reasonable compensation to trustee for his time and trouble in making the sale' \u2014 say not to exceed 2 per cent, (Code, 1910), and by the consent judgment only the expenses were to be charged, omitting compensation to trustee, who was acting for his wife, and therefore was more like a mortgagee.\nIn Cannon v. McCape, 114 N. C., 580, the amount of the commission was not discussed, but the right to receive it, when a sale was not made, and even on the point decided, it has been virtually overruled in Pass v. Brooks, 118 N. C., 397; Fry v. Graham, 122 N. C., 773, and Whitaker v. Guano Co., 123 N. C., 368; thus sustaining the dissenting opinion in Cannon v. McCape, and in Smith v. Frazier, 119 N. C., 157, 5 per cent commissions in foreclosure proceedings were held excessive and disallowed.\nUpon the facts agreed, judgment should have been rendered in favor of plaintiff for the surrender and cancellation of the trust deed, and for costs.\nEeversed.", "type": "majority", "author": "Clark, J." } ], "attorneys": [ "Messrs. Armfield '& Turner, for appellants.", "No counsel contra." ], "corrections": "", "head_matter": "M. E. TURNER, Administratrix of Joseph Turner, et al. v. M BOGER, Trustee of Joseph Turner.\n(Decided April 3, 1900.)\nDeed of Trust \u2014 Attorney Fee \u2014 By Whom Paid.\n1. A stipulation, in a deed of trust, among other charges, \u201cincluding an attorney's fee of 5 per. cent,\" will not he sustained.\n2. The debtor is only liable for the debt, interest, actual expenses of sale, as advertising, and the like, and a reasonable compensation to trustee for his time and trouble in making sale, say not to exceed 2 per cent. Code, 1910. The trustee pays his own attorney.\nCivil ActtoN by administratrix and heirs-at-law of Joseph Turner, for partition of certain lands, and sale to close mortgage on other lands belonging to the intestate, transferred from the Clerk and heard before TimberlaheJ., at February Term, 1900, of Iueubll Superior Court.\nThe case was compromised in every particular, save one. The deed of trust, or mortgage,, contained the usual condh t-ions for foreclosure, and in case of sale, the following: \u201cAnd out of the moneys arising from such sale, the said Martin Boger, trustee, or legal representative, shall pay the principal and interest of tbe indebtedness hereby mentioned to be secured, together with all legal cost and reasonable charges in executing this trust, including an attorney\u2019s fee of 5 per cent.\u201d\nThe only question presented to his Honor was: Is the. 5 per cent attorney fee charged and mentioned in the deed of trust void as against public policy ? If it is, nothing is due the trustee \u2014 if it is not, the debt due him is $316.65, subject to a payment of $235.74.\nHis Honor sustained the charge, and rendered judgment in favor of trustee for $376.65, subject to the credit of $235.74.\nPlaintiffs excepted and appealed.\nMessrs. Armfield '& Turner, for appellants.\nNo counsel contra." }, "file_name": "0300-01", "first_page_order": 338, "last_page_order": 341 }