Mercantile Trust & Deposit Co. v. Atlantic & North Carolina Railroad ( 1888 )

MerrimoN, J.

The subject matter of this action is wholly equitable in its nature, the purpose being to have a mortgage of the defendant corporation therein named, which had been in effect discharged by the payment of the debt secured by it, formally discharged by proper acknowledgment of the trustees named in it. The principal parties are the plaintiff and the defendant corporation, and the latter answering confesses the complaint. The appellant, who is one of the trustees of the mortgage, while admitting in his answer that the mortgage debt has been paid, insists that he is entitled to be compensated the sum of five thousand dollars for his services as such trustee, and that he has a lien upon the property embraced by the mortgage, which cannot be discharged until his compensation shall be ascertained and paid. He claims that his lien arises by virtue of the following provision of the mortgage: “ That each of the said trustees shall be entitled to just compensation for all services which he in common with his associates, or either of them, or otherwise, may hereinafter render under the trust created by these presents, which compensation shall be paid by the party of the first part,” who was the.defendant corporation.

This provides for compensation, but there is no provision or clause of the mortgage that such compensation shall constitute a part of the mortgage debt, or that it shall be a lien of any nature upon the property embraced by the mortgage. The most that could be claimed was that the Court, when its aid should be asked, would not, in the exercise of a sound and just discretion, compel the trustees to acknowledge the satisfaction and discharge of the mortgage until reasonable compensation to them should be paid by the mortgagor. The •Court would probably thus protect and help the trustee in a ■case like this, but this source of protection was not a lien on the property; it is simply a power of the Court to compel fair dealing, not to be so exercised as to do prejudice to any party interested. This seems to have been the view taken and acted upon by the Court below. The defendant admitted the plaintiff’s cause of action, and was content that a proper judgment should be entered at the appearance term.

This might be done by consent — indeed, the plaintiff might move, as of right to have judgment, because nothing was left to be tried. The objection and exception of the appellant were therefore unfounded, certainly in so far as they applied to the appellee and the defendant corporation. They consented to and desired the judgment, and do not complain •of the requirement that the bond shall be given for the appellant’s benefit.

The judgment as to the appellant was interlocutory, and the bond required was for his benefit — intended to secure the payment of such sum of money as the Court, on the final hearing, may adjudge due to him for compensation.

The action as to him will be tried in the ordinary course •of procedure. He contends that the Court could not substitute the bond required by the order appealed from for' and thus discharge his lien upon the mortgage property. We need not say that he could or could not. As we have seen, he had no such lien; but if he had, his right remains to be litigated in the further progress of the action.

The error complained of is unfounded, and the exception is not sustained. Let this opinion be certified to the Superior Court, to the end that further proceedings may be had in the action according to law.

Affirmed.