Loftis v. Duckworth

Waleek, J., after stating the case: The ruling of the court-" was clearly right. It is not- necessary that we should review the cases decided by this Court in regard to the question of commissions allowable to a trustee acting under a power of sale. Those cases were cited to us, but they involved questions different from the one presented in this record. They are collated and discussed by Clark, Jfor the Court, in Turner v. Boger, 126 N. C., 300. The trustee accepted the trust, and is, therefore, bound by the terms of the deed. Although the expression, “the commission of the trustee on the amount herein secured shall be deemed to' be due and payable,” is found in that part of the deed which relates to an advertised sale which is not made, it was evidently the intention of the parties to fix thereby the amount of the commissions in any event, whether the sale should be made or not. The subsequent expression, when providing for the distribution of the purchase money, namely, “and apply the proceeds of sale to the discharge of said debt and interest on the same, and to the payment of the expenses of this trust, including five per cent, commissions to the trustee," necessarily refers to the clause immediately preceding it and which we have already quoted. We must construe the deed as a whole, not omitting .any one of its provisions, and with a view of ascertaining the true meaning of the parties. So considering it, we are convinced that there was no error in the judgment of the court. There was no point made as to the defendant’s right to retain the actual expenses of the sale, though no provision is made for [345] their retention in the judgment. If necessary, the latter may be modified to include them in the amount to be retained by the defendant. We think the rate of commissions was reasonable. Affirmed.