#### CYNTHIA PRINGLE et al. v. WINSTON-SALEM BUILDING AND LOAN ASSOCIATION et al.

(Filed 2 November, 1921.)

1. Mortgages — Deeds in Trust — Powers of Sale — Resale—Statutes.

A sale of land under tlie power in a mortgage or deed of trust is given tlie same status as if made under a judgment or decree of court, by tbe provisions of C. S., 2951, requiring tbe sale to be kept open for ten days and a resale ordered by tbe clerk of tbe court if within that period a raised bid has been offered in compliance with tbe statutory provisions.

2. Same — Clerks of Court — Jurisdiction.

C. S., 2951, does not require that all sales of land under mortgage or deed in trust be reported to tbe clerk of tbe court, but only when an advanced bid has been made and is properly safeguarded or paid into tbe office of tbe clerk of tbe court.

3. Same — Judicial Sales — Commissions—Allowances—Costs.

Upon tbe ordering by tbe clerk of tbe court of a resale of lands sold under the power contained in a mortgage or deed of trust, C. S., 2951, tbe original sale, under tbe power, becomes a nullity, and that part of the instrument providing a certain per cent as selling. commission to the mortgagee or trustee is inoperative; and in lieu thereof be is entitled only to tbe costs and expenses of tbe sale and such sum to compensate him for bis services actually rendered as may be approved by tbe clerk, subject to review on appeal, or by tbe court direct where a restraining order has issued.

4. Mortgages — Deeds of Trust — Sales—Commissions.

Where lands bave been sold under a mortgage or deed of trust, senible, the per cent stated therein as commissions is allowable in conformity with tbe spirit of our statute, only on tbe amount of money collected and paid over on tbe indebtedness, and not upon the price tbe land may bave brought at tbe sale. C. S., 2951.

Appeal by ’Watson, trustee, from Webb, J., at May Term, 1921, of EoRSYth.

On 18 January, 1919, tbe plaintiffs executed to Watson, trustee for Winston-Salem Building and Loan Association, a deed of trust to secure $800. This debt not being paid at maturity, upon tbe request of tbe *317beneficiary the trustee advertised the property for sale, and on 9 May, 1921, sold it for $3,000. Pursuant to C. S., 2591, an advance bid being filed with the clerk, on 12 May he ordered a resale, which was advertised to take place 4 June, 1921. After the resale was ordered, on 3 June, 1921, the plaintiffs tendered to 'Watson, trustee, the amount due on the note and the cost of advertising the two sales, amounting to $735.10, but declined to pay the trustee a commission of $150, which he demanded as 5 per cent upon the $3,000 bid, and on the same day paid into the office of the clerk of the Superior Court said sum of $735.10, and upon a summons issued procured a temporary restraining order against a resale, which was later continued to the final hearing by Webb, J., who also refused the prayer of the defendant Watson to dismiss the action, and he appealed.

Jones & Clement for plaintiffs.

Manly, Ilendren & Womble for defendants.

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 a 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 without a decree of foreclosure, the same opportunity of a resale when there has been an increased bid of 10 per cent when the bid at the first sale did not exceed $500, and of 5 per cent when the 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 days notice. In short, the condition of a mortgagor in a mortgage with a .power of sale is assimilated to the 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 these 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 and consent of the trustee, paid off the debt and interest and costs of *318advertisement, 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 sale 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 trustee for tbe same. In tbe present case tbe matter being before tbe clerk under C. S., 2591, by virtue of tbe order of 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 a 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 payment 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 tbe 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 been set aside tbe trustee would have been entitled to commissions on tbe $3,000 or only upon tbe amount collected 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 collected, 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 properly continued, and the amount of allowance to the trustee for his labor and trouble can be fixed by the 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.