Pass v. . Brooks
Supreme Court of North Carolina
Civil aotioN, tried before bis Honor, Judge Starbueh, a jury trial being waived, at Special Term, in January, 1896, of PersoN County Superior Court, upon an agreed state ■ of facts, which were, substantially, as follows : The plaintiff executed a deed to defendant in trust to secure a debt of $4,000, with power to sell upon default in payment of the bond at maturity, after advertising as prescribed in the deed, and upon sale to make title and apply the proceeds, “ first…
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Civil aotioN, tried before bis Honor, Judge Starbueh, a jury trial being waived, at Special Term, in January, 1896, of PersoN County Superior Court, upon an agreed state ■ of facts, which were, substantially, as follows : The plaintiff executed a deed to defendant in trust to secure a debt of $4,000, with power to sell upon default in payment of the bond at maturity, after advertising as prescribed in the deed, and upon sale to make title and apply the proceeds, “ first retaining 5
1Opinion of the Court
Faircloth, C. J.:
The sole question is whether the trustee is entitled to 5% commissions according to the 'agreement set out in the deed. ¥e think he is not. The ■contract was that he should have 5% for the sale of the land, for making such sale, out of the proceeds of such ■sale. No such sale was had, by reason of the debtor being paid the debt, interest and cost of advertising before sale day, as was stipulated in the deed he "might do. The condition on which the commissions were to become due has not been performed, and although it’ was prevented by the plaintiff,- it was his right and duty…
2Cases cited1 opinion
- Cannon v. . McCapeSupreme Court of North Carolina · 1894
3Cited by4 opinions
- Turner v. . BogerSupreme Court of North Carolina · 1900
- Smith v. . FrazierSupreme Court of North Carolina · 1896
- Fry v. . GrahamSupreme Court of North Carolina · 1898
- Whitaker v. Old Dominion Guano Co.Supreme Court of North Carolina · 1898