Browne v. . Lamb ( 1892 )

MacRae, J.

after stating the case: The case stands upon the refusal of his Honor to give the instructions upon the first issue as asked, and his instructions upon the first and second issues as set forth above. And the only question presented us is as to the duty of defendant as trustee under the deed of trust.

The general principles governing all trustees in the administration of the trusts confided to them are too well settled to require the citation of authorities. They are to use diligence and faith; they are not permitted to wrest their opportunities to their own advantage, nor to suffer wrong to be done in the premises to their cesluis que trustent; their compensation is fixed by deed or allowed by order.

The defendant in the case before us was a trustee for sale; his duties were fixed by the deed; he was to reconvey to the trustor upon the payment of the debt secured, and in case of default in said payment, and upon the request of the payees, he was to sell the lands and apply the proceeds of sale: first, in payment of his commissions; next, to the satisfaction of the indebtedness; and the surplus; if any, he was to pay over to the trustor.

Was it incumbent upon the defendant under the terms of this deed to take possession of the land or to enjoin the cut ting of timber by the trustor in possession, or to see to the proper application of the proceeds of sales of timber by him, or to see that the trustor in possession paid the taxes accruing upon the land ?

It seems to have been in contemplation of the parties to the deed that the trustor should remain in the possession and that he might cut the'timber thereon ; for it is provided in the deed that, “ If the said Temple shall make any sale or disposition of the timber of the aforesaid lands, it is hereby agreed he shall apply the proceeds therefrom in payment of the bonds herein received.” That he did remain in possession and cut timber from the land was known to the plaintiffs, and they received at least a portion of the money arising from such sales in payment of the notes, and the defendant seems to have sold the land promptly upon default in payment and request made to him to sell.

We have carefully examined the authorities cited by the diligent counsel for the appellant to support his contention that the trustee was bound to take immediate possession of the land, to prevent the cutting of timber by the trustor, or to see to the application of the proceeds of sale thereof in payment of the debt to plaintiffs, and to see that the taxes were paid, and we find that these authorities simply enunciate the principles relating to the general duties of trustees, or refer to special trusts where other duties were imposed upon the trustees than to sell upon default in payment and request of the payees.

As to the plaintiffs’ contention that by virtue of a distinct agreement, separate from the stipulations of the deed, the defendant undertook in consideration of the $375 he bad already received, to collect the notes without additional charge, it was provided in the deed that the trustee should retain five per cent, as commissions upon the sale of the land by him, and it is not charged that he withheld a greater sum. It was in evidence that the notes were taken out of the trustee’s hands, and that he was requested by plaintiffs to sell the land under the deed which provided for the payment of his commissions upon the sale. We therefore conclude that his Honor properly instructed the jury, that if they believed the evidence they should respond to the second issue, No.

There is no error, and the judgment'must be

Affirmed.