
    *Hogan v. Duke & als.
    January Term, 1871,
    Richmond.
    Absent, Joynes and Christian, Js.
    
    1. Deed of Trust — Debt Uncertain — Sale Improper. — It is improper, in a trustee in a deed to secure a debt, to make a sale so long' as it remains uncertain what amount is due on account of the debt; and if the amount due is uncertain, or if credits properly applicable thereto be not so applied, it is his duty before making a sale, to ascertain the amount to be raised by the sale, and to bring a suit in chancery to procure a settlement by a commissioner for that purpose, if necessary; or if he fails to do • this the debtor may do it, and in the meantime enjoin the sale.
    
      2. Injunction Dissolution.  — On a bill to enjoin a sale of land by the trustee, the answer denies all the grounds of equity stated in the bill; and there is no proof to sustain them. The court may dissolve the injunction and dismiss the bill; or it may dissolve the injunction and have the sale made and the proceeds distributed under its direction.
    3. Same — Same—Equity Jurisdiction. — In such case, the trustee having- been declared a bankrupt, it was especially proper for the court to retain the cause, and have the trust administered under its direction, and to require the trustee to give security for the faithful performance of his duties.
    4. Deed of Trust -Decree for Sale Should Follow the Deed. — The decree . for the sale of the property should be according- to the terms of the deed.
    5. Same-Sale — Expenses.  —It was proper to allow compensation for the services of an auctioneer in making the sale ordered by the court, and also the expense of a former advertisement of the sale of the property by the trustee, which had been enjoined by the debtor, and the injunction dissolved.
    
      6. Same — Account Decreed — Order for Partial Payment of Debt. — Though the court decreed an account involving a few items to a small amount, it was not error to direct the payment of so much of the debt secured by the deed as might be safely paid, leaving enough to meet any possible amount which could be reported as due on that account to the debtor.
    *This is an appeal from a decree dissolving an injunction to a sale under a deed of trust, and directing the sale to be made. The appellant, Hogan, who was plaintiff in the court below, in his bill, which was filed on the 9th day of September, 1868, among other things alleges that on the 22d day of October, 1865, he purchased from the appellee, Duke, a tract of land in Henrico county for the sum of four thousand dollars, of which he paid two thousand dollars cash in gold, and for the remaining two thousand dollars he executed two bonds, each for the sum of one thousand dollars, with interest from the 1st day of March, 1866, and payable respectively in one and two years from that day; and to secure the payment of said bonds as they became due, he conveyed the said land by deed of trust to Joseph J. White as trustee: that on the 1st day of March, 1867, the first bond became due, and on the 23rd of the same month he paid $800, on the 23rd of the next month, April, $150, and on the 23rd of the next month, May, $150, which said three payments were in full of the said first bond, and left a balance of $34 44 to be credited on the second bond: that he is entitled to other credits on the second bond, ‘4 as follows, to wit, eight bushels of seed oats, three barrels of Irish seed potatoes, a lot of lumber and other articles, which the said Duke promised to credit on the said second bond, but has failed to do so:” that having fully paid the said first bond, he is entitled to the possession of the same, but the said Duke refuses to deliver it up; and that the said Duke is now again, for the fourth time, attempting to sell the said land under the said deed of trust; his object in doing so, being, because at the depreciated value of the land in this State, the property can be bought in by the said Duke, or by some of bis friends, at a price which will be utterly inadequate to its value, and he or they will purchase the same for about one-third of its value. The plaintiff ^therefore prays that said Duke, White and others be made defendants to the bill; that said sale be enjoined, and for general relief. These are all the allegations of the bill which are deemed to be material.
    'The deed of trust is exhibited with the bill. After reciting' that Hogan is indebted to Duke in “the sum of $2,000, evidenced by two bonds for one thousand each, dated the same day with this deed, payable in gold coin, as follows, to wit: one bond, payable in gold, on the first day of March, 1867, one other bond, payable in gold, on the first day of March, 1868, both bonds bearing interest from the first day of March, 1866, till paid,” the deed proceeds to convey the land to the trustee for the security of the said bonds. The trust is thus declared in the said deed: “That, should the said Hogan fail and make default in the payment of said bonds, or either of them, as they respectively fall due, and the interest thereon, then said Joseph J. While shall advertise the said tract of land in a newspaper, published .in the city of Richmond, for not less than ten days, and sell the same, on the premises, at public auction, for so much in cash as may be necessary to satisfj' the costs and expenses of sale, and to pay so much as may be'then due on said bonds, or either of them, and upon a credit corresponding with the time of payment of either of said bonds not then due; and as to the residue, upon such credit as the said Hogan may prescribe, or, in default of such direction, as the said trustee may think proper; such credit payments to be properly secured by a lien on the property sold.”
    On the same day on which the bill was filed, to wit: the 9th of September, 1868, an injunction was awarded accordingly, by an order of a judge in vacation, and was perfected by the execution of the bond required by the'order; and thus the sale, which was to have been made on that day, under the deed of trust, was arrested.
    *In October, 1868, the defendant Duke filed a demurrer and answer to the bill. The cause assigned for demurrer is, that the bill on its face presents no case for relief, by injunction or otherwise. The respondent, in his answer, states, among other things not matérial to be here mentioned, that he admits the purchase of said tract of land in 1865, though it was in fact made about the last of April in that year, and not in October, as stated in the bill. “He admits that he (said Hogan) paid $2,000 on account of §aid purchase monej' in cash, in United States currency, and not in gold, as alleged in the bill; and that he executed his two bonds', for $1,000 each, and a deed of trust on the land to secure the same, as stated in the bill. The said bonds carried interest from the 1st day of March, 1867 (1866?), and were payable in gold, one on the 1st March, 1867, and the other on the 1st March, 1868. He admits the payment, on account of the first bond, of $800 in currency, on the 23d March, 1867, for which said Hogan holds the receipt of your respondent. And your respondent took from him two mules at the price of $150 each,” and “agreed to allow the said sums of $150, the price of said mules respectively, as payments On said bonds, as of the dates specified in the said bill, and so stated in the advertisement of the said land by the trustee.” “He admits that these sums will overpay the first bond and interest by a small amount, which should be credited against the interest then due on the second bond. It is not true that this respondent ever refused to deliver to said complainant the 'first bond; for, as before stated, he has never been able to get the said Hogan to a settlement, nor has the said Hogan ever asked him for said bond.” “It is not true that the complainant is entitled to a credit upon the said second bond for the price of the ‘eight bushels of Seed oats, three bushels of Irish seed potatoes, a lot of lumber and other articles,’ as stated in *his said bill; nor is it true, that this respondent ever promised to credit the said bond therefor. This claim' was asserted by the complainant, in another suit between these parties,' hereinafter alluded to, and still pending in this court, and was disallowed, there being no evidence to sustain it. In fact, the complainant is indebted to respondent on other accounts than on account of said bonds, to wit: for groceries, wood, &c., to an amount equal, within a few dollars, to the amount due him for the lumber, potatoes and oats. These small accounts between them were utterly independent of the transactions for the land, and were never understood by either party to have any connection with said bonds.
    “It is true that your respondent has attempted to assert his rights under said deed of trust, by causing the trustee to advertise the land on three occasions. The first advertisement was stopped at the request of said Hogan, upon the payment of the said $800 on the first bond, though he has failed up to this time to pay the sum of about $21, due for said advertisement, which is justly chargeable to him, and which he has agreed to pay. Upon the second advertisement, which was made during the month of May last (1868), for default of payment of the balance due on both said bonds, the said Hogan applied for and obtained an injunction. This respondent filed his answer, and upon a hearing thereof upon the bill, answer and evidence, among which was the deposition of said Hogan himself, the judge of this court, in June last, dissolved said injunction; and, though time was given him for the purpose, no appeal was taken from said decision. Your respondent here refers to the record of said cause, now remaining in this court, and to all the proceedings therein, from which it will appear that the same grounds, with reference to the state of indebtedness between the parties, were relied upon by the complainant, *and that his claim, as above stated, was then disallowed by the court.
    After waiting a considerable time, and no appeal being taken from said decision, this respondent, for the purpose of getting his money, again advertised the property to be sold on the 5th day of September (1868), on which day, at the request of complainant, the sale was postponed to the 9th of September, when the bill was filed in this suit and an injunction obtained, as aforesaid, a few hours before the sale was to have been made. In this bill he relies, to a great extent, upon the same grounds which he relied upon in the former suit pending in this court, concerning which your respondent has already answered. Your respondent, now proceeding to answer the other allegations of the said bill, denies that he has attempted to sell the said land under said deed of trust, with any view of buying it himself. His real and only purpose is to get his money, due him by said Hogan on said bonds, of which he has stood, and now stands, sorely in need. The respondent then proceeds to answer other allegations of the bill, which are hereinbe-fore omitted because deemed immaterial, and the answer thereto is also omitted for the same reason.
    Three depositions were taken and filed in the cause by the plaintiff, but none by the defendants. These depositions proved none of the allegations of the bill which can afford any ground for equitable relief. One of the witnesses testifies that he owed Hogan four dollars for rent, which sum Duke, who owed witness, promised to pay for him. But it does not appear that there was any understanding “of the parties, or promise by Duke, that this amount should be credited on the bond of Hogan. Besides, it is not a matter put in issue by the pleadings in the cause: though the plaintiff will have the benefit of it, if he is entitled to it, in the account *to be settled under the decree made in the cause, ■which will now be noticed.
    The cause came on to be heard on the 7th of November, 1868, on the bill taken for confessed as to all the defendants except Duke, on his demurrer and answer, and the plaintiffs joined in the demurrer and general replication to the answer, on the exhibits and depositions, and on the motion of the defendant Duke to dissolve the injunction, and was argued by counsel. On consideration whereof, the court decreed that the injunction be dissolved, so far as the same conflicts with the subsequent provisions of the decree; that the defendant White, the trustee named in the said deed, “after having first given bond before the clerk of the court in the penaltj- of $2,000, with security to be approved by said clerk, payable and conditioned according to law, shall make sale of the real estate specified in said deed, after advertisement according to its terms, for cash as to so much as may be necessary to defray the usual costs and expenses of such sale (including the legal commissions of the trustee and the usual charges of an auctioneer to make said sale, and the cost of advertising this sale and a former sale which was enjoined in this court, and the injunction subsequently dissolved), and also a fee, not exceeding ten dollars, for preparing a deed to the purchasers of said real estate, and the cost of stamping the same, and to pay the amount claimed to be due to the said Duke on account of the bonds specified in said deed of trust, after deducting therefrom the various credits specified in the advertisement for the sale of said property which was arrested by said inj unction ; an extract of which advertisement is filed as an exhibit with the bill.
    11 As to the residue of the proceeds of sale: the same shall be made upon such terms as the said Hogan may prescribe, and, in default of such direction, as the said ^trustee, or other person executing this decree may think just and reasonable ; all such credit payments to be properly secured by a lien on said property. Out of the cash payment, the said trustee, or other person executing this decree, shall be authorized to pay the said commissioner’s and usual auctioneer’s and advertising charges above-named, and the said charges for preparing and stamping the deed to the purchaser, and also to pay to the said Duke the sum of nine hundred dollars, on account of the amount claimed by him to be due from said Hogan to him on the bonds secured by said deed; it appearing manifest to the court that he is certainly entitled to receive at least that sum on account thereof. The residue of said cash payment the said trustee, or other person acting, shall deposit in one of the banks of this city, to the credit of this cause, and file a certificate of such deposit with the clerk, and shall make report of his action in the premises, returning therewith a statement of all payments made by him under authority of this decree, and the vouchers for such payments, and a statement showing the whole amount of cash received by him, and shall also return any securities taken by him for the residue of said purchase money over and above the amount paid him in cash, as above described.
    “In the event that the said White shall not give the security required by this decree, and proceed to act under the same, within ten days from the date of this decree, the court” further decreed “that the sheriff of this county, who is hereby appointed a commissioner for the purpose, shall proceed to make the sale hereinabove directed, and in all respects to act in the premises in the place and stead of the said White, trustee as aforesaid, in the same manner and to the same extent as herein above directed.
    “And the court” further decreed “that one of .the commissioners take an account of any matters of ^indebtedness existing between the plaintiff, Hogan, and the defendant, Duke, which are referred to in the 'pleadings in this cause, independent of the said bonds, so as to ascertain whether the said Duke be indebted to the said Hogan on account of the said matters, and the amount of such indebtedness, if any; and shall enquire whether said other matters have, by any agreement between the said parties, or otherwise, any connexion with the said bonds specified in said deed, and shall also state any account showing what may appear to be due to the said Duke on said bonds after the payment to him of the said sum of nine hundred dollars, as herein above directed; all which accounts and enquiries the said commissioner was directed to state and make report,” &c.
    And the court reserved, until the coming in of said report, the decision of all questions in the cause not covered by the decree.
    Erom this decree the said Hogán applied for and obtained an appeal to this court.
    Spalding and Gregory for the appellant.
    Young for the appellees.
    
      
      Judge Joynes was sick, and Judge Christian had decided the case in the Circuit court.
    
    
      
      Deed of Trust — Debt Uncertain — Sale Improper.— In Hartman v. Evans, 38 W. Va. 679, 18 S. E. Rep. 814, the court said: “In deeds of trust, especially those of long standing, where the amount due and to be raised by a sale is uncertain, (Hogan v. Duke, 20 Gratt. 244, 353,) where there are various deeds of trust or other incumbrances, (Horton v. Bond, 28 Gratt. 815; Cole v. McRae, 6 Rand. [Va.] 644,) where the legal title is outstanding, (Rossett v. Fisher, 11 Gratt. 492, 498,) where there is a cloud upon the title, (Lane v. Tidball, Gilmer, 130,) or, in conclusion, any impediment to a fair execution of the trust, the trustee, who is the agent of both parties, and bound to act impartially between them, may and ought of his own motion to apply to a court of equity for his own safety, as well as for the interest of those concerned, to remove the impediment and direct his conduct; and if he should fail to do this, the party injured by his default has an unquestionable right to do so. Rossett v. Fisher, 11 Gratt. 492, 498, opinion of Judge Moncure, who refers to 1 Lomax, Dig. 322-326; 1 Tuck. Comm. bk. 2, pp. 101, 106; Quarles v. Lacy, 4 Munf. 251; Gay v. Hancock, 1 Rand. (Va.) 72; Chowning v. Cox, Id. 306; Gibson v. Jones, 5 Leigh 370; Miller v. Argyle, Id. 460; Wilkins v. Gordon, 11 Leigh 547. See opinion of same judge in Hogan v. Duke, 20 Gratt. 224, 253. See opinion of Burks, J., in Horton v. Bond, 28 Gratt. 815, 822, where the same principle is applied to decrees of sale. See also, Schultz v. Hansbrough, 33 Gratt. 567, 576, (opinion of Burks, J.).”
      In Shurtz v. Johnson, 28 Gratt. 661, the court said, “In a deed of trust to secure the payment of ’ debts, the trustee is the agent of both parties, debtor and creditor, and should act impartially between them; and in making sale of the trust subject he should use all reasonable diligence to obtain the best price. And if there be any cloud hanging over the title or uncertainty as to the amounts of the debts secured, or of prior incumbrances, or any other impediment to the fair execution of the trust which cannot be otherwise removed the aid of a court of equity should be invoked by him to remove the impedi-mentbefore sale: and if he fail or refuse to resort to the court for that purpose, the parties in interest who may be injured by his default, :whether debtor, secured creditor, or subsequent encum-brancer, may apply to the court for relief. Rossett v. Fisher, 11 Gratt. 492, and cases there cited; Hogan v. Duke & als., 20 Gratt. 244.” See also, Rohrer v. Travers, 11 W. Va. 153, where the principal case is distinguished.
    
    
      
      Injunction — Dissolution.—In Moore v. Steelman, 80 Ya. 340, the court said: “It necessarily follows that the injunction was properly dissolved. The settled doctrine is, that where a motion to dissolve is on the bill and answer, and the answer denies all the equity of the bill, the injunction is dissolved, of course, except when from the bill and answer, special reasons may appear for continuance. 1 Barton’s Chy. Pr. 414; Hoffman v. Livingston, 1 Johns. Chy. R. 211; Mintun v. Seymore, 4 Johns. Chy. R. 497; Hayzlett v. McMillan. 11 West Va. 464; Deloney v. Hutcheson, 2 Rand. 183; North’s Ex’r v. Perrow, 4 Rand. 1; Hogan v. Duke, 20 Gratt. 244.”
      See also, Motley v. Frank, 87 Va. 435, 13 S. E. Rep. 26. and Ingles v. Strans, 91 Va. 225, 21 S. E. Rep. 490 ; Thomas v. Rowe (Va.), 22 S. E. Rep. 159, all citing and following the principal case as authority on this point.
    
    
      
       Same — Same—Equity Jurisdiction. —For cases in which a court of equity after dissolving the injunction. retained the cause and had the trust executed under its direction, see Robinson v. Mays. 76 Va. 715; Michie v. Jeffries, 21 Gratt. 316.
      In Anderson v. Phlegar, 93 Va. 422, 25 S. E. Rep. 107, the court said: “This brings us to the only remaining question that need be considered, and that is, whether or not it was error in the court below to dissolve the injunction and dismiss the cause, instead of retaining it with the view of supervising the administration of the trust?
      “It is true, that, whether a court on dissolving an injunction to a sale under a trust deed, should dismiss the bill, or retain it with the view of supervising the administration of the trusts, lies within the discretion of the court. Hogan v. Duke et als., 20 Gratt. 244; Robinson v. May’s Trustee, 76 Va. 708; Muller’s Adm'r v. Stone, 84 Va. 839. But whether this discretion has been soundly exercised depends upon the facts and circumstances of the particular case. There is no suggestion in the record here that there are any other liens on the land than those mentioned in the bill and answers. Therefore there existed no good reason for an account of liens before a sale by the trustee, but there being a conflict between the parties to the canse as to their respective rights and interests, the court should have decided the issues between them, and then decreed a sale of the property and directed the application of the proceeds. Muller’s Adm’r v. Stone, supra.”
      
    
    
      
       Deed of Trust — Sale—Expenses.—See principal case approved in Womack v. Paxton, 84 Va. 24, 5 S. E. Rep. 550.
    
   MONCURE, P.,

after stating the case, proceeded:

The demurrer to the bill was not expressly sustained or overruled. But it was impliedly overruled by the decree which was made in the cause, without taking any of the demurrer. I think it was properly overruled. There are allegations in the bill, which, if conceded to be true, entitle the plaintiff to relief, and the demurrrer concedes them to be true, for the purpose of the question it propounds to the court, whether they can entitle the plaintiff to any relief?

These allegations are, 1st. That the plaintiff is entitled to other credit on the second bond, over and above the sum of $34 44, overpaid pn the first bond, *as follows, to wit: “8 bushels of seed oats, 3 barrels of Irish seed potatoes, a lot of lumber, and other articles, which the said Duke promised to credit on the said second bond, but has failed to do so;” 2dly. That the plaintiff, having fully paid off and discharged the first bond, is entitled to the possession of the same, but the said Duke refuses to deliver it to him; and, 3dly. That the object of the said Duke, in now again, for the fourth time, attempting to sell the said land, under the said deed of trust, “is because, at the depreciated value of land in this State, the said property can be bought in by the said • Duke, or by some of his friends, at a price which will be utterlj’ inadequate to its value, and that he or they will purchase the same for about one-third of its value.”

In regard to the first of these allegations, there can be no doubt but that it is improper in a trustee to make a sale upder a deed of trust, executed to secure the payment of a debt, so long as it remains uncertain what amount is due on account of said debt. And if it be uncertain what is the amount of the debt due, or what is the amount of the credits properly applicable thereto, but not so applied, it is the duty of the trustee, before making the sale, to ascertain the amount to be raised by the sale, and to bring a suit in chancery to procure a settlement, by a commissioner for that purpose, if necessary. Or, if the trustee be about to make the sale, without performing that duty, the debtor may himself bring a suit in chancery for such a settlement, and in the the meantime to enjoin the sale.

The bill does not allege a refusal or failure, on the part of the creditor, to give any other proper credit on the bonds, than the credit here claimed for seed oats, potatoes, lumber, and other articles: and, in regard to this credit, the claim asserted in the bill is very vague. There is no account of the items of the claim filed with the bill, and none of those items are set out in the *bill,' but 8 bushels of seed oats, and 3 barrels of Irish seed potatoes'. The remaining subject of the claim is, “a lot of lumber and other articles.” If we are to judge of the amount or value of the lumber and other articles, here referred to, from the quantity and character of the items specified, the whole claim appears to be comparatively small. The bill does not allege any attempt by the plaintiff to have a settlement of these matters with Duke, or any refusal of Duke to settle them. On the contrary, it alleges that he promised to credit them, but has failed to do so. Non constat, that he was not willing to credit them, and did not intend to credit them, 'when the balance due on the bonds was ready to be settled, either by the debtor or out of the proceeds of the trust sale of his property. The presumption is, that Hogan knew the amount of the credit which he claimed, and could easily ascertain the balance which he owed, and, if he wished to prevent the sale, he had only to tender the amount of that balance to Duke. But he made no such tender. And it is really difficult to perceive any just ground of complaint on this score that he has. His complaint seems to be narrowed down to this: that Duke promised to credit the amount due for the oats, potatoes, lumber and other articles on the second bond, but failed to do so. Such is the allegation of the bill, and, if it makes out any case at all for equitable relief by injunction, it barely does so. And now let us see how the answer treats this allegation.

Duke, in his answer, says: “It is not true that the complainant is entitled to a credit upon the said second bond for the price of the ‘eight bushels of seed pats, three bushels of Irish seed potatoes, a lot of lumber, and other articles,’ as stated in his said bill; nor is it true that this respondent ever promised to credit the said bond therefor. This claim was asserted by the complainant in another suit between these parties, hereinafter alluded to, and still pending in this court, and was disallowed, there being no evidence to sustain it. In fact, the complainant is indebted to respondent on other accounts than on account of said bonds, to wit: for groceries, wood, &c., to an amount equal, within a few dollars, to the amount due him for the lumber, potatoes and oats. These small accounts between them were utterly independent of the transactions for the land, and were never understood bjr either party to have any connection with said bonds.”

Here, then, is a positive denial in the answer of the only material allegations of the bill on this subject, and there is not a particle of proof in the record to sustain these allegations, or either of them.

2dly. In regard to the allegation of the bill, that Duke refused to deliver to Hogan the first bond, which has been duly discharged, Duke, in his answer, says: “It is not true that this respondent ever refused to deliver to said complainant the first bond: for, as before stated, he has never been able to get the said Hogan to a settlement, nor has said Hogan ever asked him for said bond. ’ ’ There is not a particle of proof in the record to sustain the allegation of the bill on this subject.

3dly and lastly. In regard to the allegation of the bill that it is the complainant’s object to have the land sold at a sacrifice, that he or some of his friends may purchase it at about one-third of its value; Duke, in his answer, says, he “denies that he has attempted to sell the said land under said deed of trust with any view of buying it himself. His real and only purpose is to get his money due him by said Hogan on said bonds, of which he has stood, and now stands, sorely in need.” There is no proof in the record to sustain the allegation of the bill on this subject.

In regard to the small sum of four dollars, which the evidence introduced by Hogan shows was assumed to *be paid him by Duke for Bridgwater, it is outside of the pleadings in the cause, and there is no evidence to show that it was agreed by Duke to credit it on the bond of Hogan.

Such being the pleadings and the proofs in regard to the only grounds of equitable relief relied on in the bill, when the cause came on to be heard on the bill, answer, exhibits and proofs, the court might, with propriety, have wholly dissolved the injunction and dismissed the bill: and this court could not have said, on an appeal from such a decree, that it was erroneous.

Instead of doing so. however, the Circuit court only dissolved the injunction so far as it, conflicted with the provisions of the decree, which the court proceeded to make for the sale of the property and disposition of the proceeds of sale; in other words, for the execution of the trust of the deed, under the superintendence and by the direction of the court.

It was perfectly competent for the court to pursue this alternative course; and it seemed to be proper in this case to do so, for the reason, if no other, that it appeared from the evidence that the trustee named in the deed was “not a responsible man, having lately taken the benefit of the bankrupt law.” Certainly it was for the benefit of Hogan that the court should pursue this course, and he has no cause to complain of it unless there be something objectionable in the details of the decree. And now let us see whether such is the case or not.

The decree directs the trustee named in the deed, after having first given bond with approved security before the clerk of the court in the penalty of two thousand dollars, payable and conditioned according to law, to make sale of the real estate specified in said deed. Thus far there can be nothing objectionable, and there is no objection to this part of the decree. It was proper that the trustee selected by both parties should ^execute the trust; provided he would give security, which, his having become a bankrupt, made necessary, and provided the trust was executed under the supervision of the court.

The decree then directs the sale to be made, “after advertisement according to” the terms of the deed, “for cash as to so much as may be necessary to defray the usual costs and expenses of said sale (including the legal commissions of the trustee, and the usual charges of an auctioneer to make said.sale, and the cost of advertising this sale and a former sale which was enjoined in this court and the injunction subsequently dissolved), and also a fee, not exceeding ten dollars, for preparing a deed to the purchaser of said real estate, and the costs of stamping the same, and to pay the amount claimed to be due to the said Duke, on account of the bonds specified in said deed of trust, after deducting therefrom the various credits specified in the advertisement for the sale of said property which was arrested by said injunction; an extract of which advertisement is filed as an exhibit with the bill. ’ ’

I can see nothing objectionable in this part of the decree. The advertisement should of course be according to the terms of the deed; and according to those terms it was proper to require so much of the purchase money to be paid in cash as might “be necessary to satisfy the costs and expenses of sale, and to pay so much as might then be due on said bonds, or either of them.” This is all which this part of the decree requires. It is objected that the “costs and expenses of said sale” are to include, among other things, “the usual charges of an auctioneer to make said sale, and the cost of advertising,” not only the sale directed by the decree, but “a former sale which was enjoined in this court and the injunction subsequently dissolved. ”

It is said that the charges of the auctioneer ought to be paid by the trustee out of his own commission, *which is allowed him for selling the property and other services in executing the trust; and if he chooses to employ an auctioneer to make the sale for him, the expense thus incurred is on his own account. The compensation allowed by law to a trustee is for his usual and proper services. A trustee who makes a sale generally employs somebody to cry the sale, and a reasonable charge for that service has always been allowed as a part of the expenses of executing the trust. An auctioneer in a city has facilities for making a sale which others have not, and more is generally realized to the owner of the property by employing an auctioneer to sell it, than the amount of the usual charge for doing so. I believe the invariable practice has been to allow the usual and reasonable charge of an auctioneer in such cases, as part of the expenses of executing- the trust. The service of the auctioneer not being considered as embraced in the usual and proper services of the trustee for which his legal commission is allowed him. Of course the court will take care not to^make an unreasonable allowance on account of the service of the auctioneer. The amount to be allowed is not fixed by the decree. The cost of advertising the sale under the decree is a proper charge; and so also is the cost of advertising a former sale which was enjoined and the injunction subsequently dissolved. Besides the costs and expenses of sale, which are all specially enumerated and seem to be unobjectionable, the cash payment of the proceeds of sale is required to be sufficient ‘ ‘ to pay the amount claimed to be due to the said Duke on account of the bonds specified in said deed, after deducting therefrom the various credits specified in the advertisement for the sale of said property which was arrested by said injunction; an extract of which advertisement is filed as an exhibit with the bill.” These credits thus specified were $800 on the 23rd of March, 1867, $150 on the 23rd of April, 1867, and $150 *on the 23rd of May, 1867, being all the credits claimed by Hogan, except the credit claimed for oats, potatoes, lumber and other articles, which credit was denied by the answer and not sustained by any evidence as aforesaid. And the amount of the two bonds subject only to these credits specified in the advertisement being the amount then due on account of the trust debt according to the pleadings and proofs in the cause, it was required by the terms of the deed -of trust that that amount should be provided for in the cash payment to be made by the purchaser at the sale. There was no uncertainty as to the amount of the cash payment to be so made. It could be made certain by a simple statement from materials furnished by the decree. Still less was there any uncertainty as to the amount necessary to be paid to prevent any sale at all under the trust deed or under the decree. That amount was the balance, due on the trust debt, and expenses already incurred in the part execution of the trust. The debtor Hogan had a right to pay that amount and prevent a sale at any time before it was made, and thus avoid any further expense. The decree did not expressly recognize this right, but that was unnecessary, as the right clearly existed, independently of the decree. The debtor made no tender of the debt or offer to pay it.

As to the residue of the said proceeds of sale, the decree directs that “the same shall be made upon such terms as the said Hogan may prescribe; and in default of such direction, the said trustee, or other person executing the decree, may think just and reasonable; all such credit payments to be properly secured by a lien on said property. ” This part of the decree is in strict conformity with the deed, and no objection is made to it.

“Out of the cash payment” the decree provides that “the said trustee, or other preson executing, the decree, ’''shall be authorized to pay the said commissioner’s and usual auctioneer’s and advertising charges above named, and the said charges for preparing and stamping the deed to the purchaser, and also to pay to the said Duke the sum of nine hundred dollars, on account of the amount claimed by him to be due on the bonds secured by said deed, it appearing manifest to the court that he is certainly entitled to receive'at least that sum on account thereof. The residue of said cash payment the said trustee, or other person acting, shall deposit in one of the banks of this city to the credit of this cause, and file a certificate of such deposit with the clerk, and shall make report,” &c.

This portion of the decree is objected to, because it directs a sum of money to be paid to Duke out of the cash payment of the proceeds of sale before it is ascertained precisely what will be due to him, which can only be ascertained by the settlement in the latter part of the decree directed to be made of other matters of account between Hogan and Duke, independent of the said bonds. And the question is asked, How did the court arrive at the sum of nine hundred dollars as the proper sum to be paid to Duke out of the cash payment?

The court did not say, and did not intend to say, that $900 was the precise balance which would be due by Hogan to Duke on account of the bonds, but only that at least as much as that amount would be due, even after deducting any balance which might be found due by Duke to Hogan on the settlement of the account directed to be settled in the latter part of the decree. This estimate of $900 leaves two or three hundred dollars of the cash payment to meet the possible balance due! to Hogan on that account. I think this was an ample provision for such a contingency. But if no provision at all had been made for it, Hogan would have had no good ground of complaint on that score, *since, according to the pleadings and the proofs in the cause, he is entitled to no credit on that account. This portion of the decree, therefore, is for the benefit, and not to the prejudice of, Hogan.

The decree then provides, that in case White, the trustee, shall hot give the security required by the decree, and proceed to act under the same within ten days from its date, the sheriff of the county, who is appointed a commissioner for the purpose, shall proceed to make the sale therein directed, and in all respects act in the premises in the place and stead of said White, trustee, in the same manner and to the same extent as thereinbefore directed. This portion of the decree is not objected, to, and seems to be unobjectionable.

Then the court decrees “that one of the commissioners take an account of any matters of indebtedness existing between the plaintiff, Hogan, and the defendant, Duke, which are referred to in the pleadings in this cause, independent of the said bonds, so as to ascertain whether the said Duke be indebted to the said Hogan on account of said matters, and the amount of such indebtedness, if any; and shall enquire whether said other matters have, by any agreement between the said parties or otherwise, any connexion with the said bond specified in said deed; and shall also state an account, showing what may appear to be due to the said Duke on said bonds, after the payment to him of the said sum of $900,” as therein before directed; “all which accounts and enquiries the said commissioner shall state and make report to the court,” &c.

No objection is made to this portion of the decree; but it is contended by the counsel of Hogan that the accounts thereby directed should be taken before any sale of the property is made, and not after such sale. The answer to this view has already, in effect, been made, that there is nothing in the pleadings and proofs which requires a settlement of these accounts; and the *portion of the decree which directs such a settlement, even though it be made after the sale, is for the benefit, and not to the prejudice of, Hogan.

The decree concludes by reserving, until the coming in of the report, all questions in the cause not covered by the decree.

Before I close my opinion in this case, I suppose I ought to notice what was said in the argument as to the said bonds being payable in gold. One of the counsel of Hogan argued that the bonds were probably not so payable; and that, for that reason, the one which has been discharged has not been surrendered, and they were not exhibited with the answer nor filed in the cause by Duke. I do not think there is any just foundation for this argument. The deed of trust speaks a plain language on this subject. It states that the two bonds are “payable in gold coin, as follows, to wit: one bond payable in gold on the 1st day of March, 1867; one other bond payable in gold on the 1st day of March, 1868.” It is not pretended that there was any fraud in procuring this deed, or any mistake in its execution ; nor is there any complaint made of it in the bill in this respect. On the contrary, the bill alleges that the first payment of $2,000, for the land bought by Hogan of Duke, was made in gold; though the answer denies that the said payment was made in gold, and avers that it was made in United States currency. But the answer avers that the two bonds for the deferred payments were payable in gold: and the deed of trust executed and acknowledged by Hogan fully sustains the answer in this respect. It seems, therefore, that these bonds are payable in gold; and that payment in gold might have been exacted by the creditor. Instead of that, however, he has received in currency all the payments which have been made on account of the purchase money of the land, and expects to receive, and is willing to receive in currency, the balance due him on that ^account, as his counsel announced in the argument. If the decree had expressly directed the balance to be paid in gold, I do not see how it could have been considered erroneous on that ground. But it says nothing about gold, and all other payments having been made and received in currency, the manifest intention of the creditor was to receive the balance in currency. In this view of the case, the decree is palpably for the benefit of Hogan.

At all events, I see no error in it to his prejudice, and am for affirming it.

The other judges concurred in the opinion of Moncure, P.

Decree affirmed.  