Elkin v. Rives

Whitfield, O. J., delivered the opinion of the court. In those cases in which a dry, naked trustee has been allowed attorneys fees for services, such as Lowries appeal, 1 Grant, Cas. 373, and Babcock v. Hubbard, 56 Gonn., 284, 15 Atl. 791, the professional services have usually been rendered in litigating cases or in conducting suits. In both the cases referred to, the trustee had been employed as attorney before he acted as trustee, and was a mere holder of legal title. In all the other cases that we have been able to find, trustees have been denied compensation for professional services. See Underwood & Hill on Trusts & Trustees, p. 317, note 1, and the authorities cited at the foot of p. 318. Ordinarily what takes place in execution of the power of sale by the trustee in pais would not require anything more than action by the trustee as such. [747] True, suit might be brought to foreclose in chancery. The personal liability on the note might .also be enforced by suit. But as well stated in Thompkins v. Drennan (Ala.), 10 South., 688, “there is an independent field of operation” in the exercise of the power of sale, and in the exercise of the right to sue on the note. Looking at what was done here, we think the appellee should be limited to reasonable compensation as a trustee. Reversed and remanded.