#### Ingham *v.*Lindemann.

1. Under the act of 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” mortgaged chattels in pos-, session of the assignor (mortgagor) pass to the assignee and become assets in his hands to be administered, notwithstanding the condition of the mortgage was broken before the assignment. *Lindemann*v. *Ingham,*86 Ohio St. 1, approved.

2- After the sale of such property by the assignee under an order of the probate court, where an action is brought by the mortgagee against the assignee for the conversion of the property to his own use, reasonable attorney fees in defending the trust should be allowed to the assignee from the proceeds of the sale of such property.

8 In determining the amount of such allowance, the court is not concluded by the amount actually paid or by the opinion of witnesses as to the value of the services.

4- No allowance should be made to such assignee for the expense of employing an auctioneer, unless the court directing the sale is of opinion, under the circumstances, that the services of an auctioneer were necessary.

Petition in error to the Probate Court of Hamilton County, and cross-petition in error by defendants in error.

On April 2, 1874, Jacobi & Scboeule executed and delivered to Ingbam *&*Brothers a mortgage upon certain goods and chattels to secure the payment of four promissory notes, for §1,019.89 each, payable with interest at the rate of 8 per cent, per annum, in two, four and eight months respectively, which mortgage was duly filed.

On April 29, 1874, the mortgagors, who retained possession of the mortgaged property, executed and delivered to George Lindemann a deed of assignment, conveying among other things the mortgaged property, in trust for the benefit of their creditors; which trust was duly accepted and administered by George Lindemann under the direction of the probate. court of Hamilton county, in accordance with the statute in such case made and provided.

While the mortgaged property was in the hands of the *219assignee, and before its sale by him, tbe mortgagees notified tbe assignee of tbeir mortgage and demanded1 of bim tbe possession of tbe mortgaged property, wbicb be refused to transfer.

Afterwards, on June 9, 1874, tbe assigneé sold tbe mortgaged property at public auction for tbe sum of $1,767.94

On August 19, 1874, Ingbam *&*Brothers commenced an action in the court of common pleas of Hamilton county against George Lindemann to recover tbe value of tbe mortgaged property, on tbe ground that be bad wrongfully converted the same to bis own use. This action was defended on tbe ground that tbe alleged conversion was tbe due and proper administration of tbe trust aforesaid, in pursuance -of the statute.

That action was finally determined by this court, in favor of tbe assignee, and is reported in 36 Ohio St. 1.

Afterward, on January 12, 1881, tbe final report of tbe assignee came on to be beard in tbe probate court, on exceptions filed thereto by Ingbam & Brothers, and it was found by tbe court that tbe assignee was “ entitled to and should receive an allowance of reasonable attorney’s and counsel fees by bim incurred and paid, in and about defending the said action of said Ingbam *&*Brothers against bim tbe said George Lindemann, in tbe said court of common pleas, and for prosecuting bis petition and suit in error to reverse said judgment of said court of common pleas in tbe district and supreme court,” wbicb amount tbe court found to be $340.00, and ordered tbe balance (less costs on exceptions to report), of said $1,767.94 to be paid to Ingbam & Brothers.

To tbe allowance of attorneys’ fees, Ingham & Brothers excepted. And Lindemann, assignee, excepted to the refusal of tbe court to allow bim from said fund tbe sum of $209.00, amount paid to auctioneers for selling tbe mortgaged property and for fixing tbe attorney’s fee at $340.00, tbe same being less than tbe amount actually paid by bim.

A petition in error and a cross-petition alleging tbe respective matters excepted to have been allowed to be filed by tbe parties—tbe plaintiffs in error claiming- that tbe probate court *220erred in allowing the defendant any sum on account of attorney’s fees, and the defendant claiming that the court erred in not allowing a greater sum, and also in not allowing him fees paid to the auctioneers.

*Yaple, Moos & Pattison,*for plaintiffs in error.

*Follett & Dawson,*for defendant in error.

McIlvaine, J.

The arguments of counsel in this case have brought into review the decision in *Lindemann*v. *Ingham*(36 Ohio St. 1), in which it was held that, under the act of 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” an assignee, who had come into possession of mortgaged chattels after condition broken and had sold the same under an order of the probate court, was not liable, in an action by the mortgagee for converting the property to his own use. That in such case, the right of the mortgagee is transferred to the proceeds, and that the rule of non-liability is the same whether the proceeds of sale were greater or less than the mortgage debt. Without doubting that in the absence of the statute, the mortgagee, after condition broken, would be entitled to the possession of the property as against the mortgagor or his assignee, a majority of the court are still satisfied that by virtue of the statute, the assignee coming into possession of mortgaged property, by virtue of the assignment, has the right to administer the same under the direction of the probate court, whose duty it is, in distributing the proceeds, to adjust priorities of rights.

This construction of the statute being settled, it follows that the assignee should be allowed necessary and reasonable expenses incurred in defending his right to administer the mortgaged property as trust assets. And this principle, applied to the case before us, authorized the court below to allow the assignee a reasonable attorney fee, paid by him in defending the action brought by the mortgagees for the alleged conversion of the mortgaged property by him to his own use; and as between the plaintiffs and other creditors of the assignor, whose representative the assignee is, nothing can be plainer than that *221this expense should be paid from the proceeds of the mortgaged property.

By the cross-petition in error, the defendant claims that, whereas the amount actually paid by him on account of such attorney’s fees was $500.00, which sum, according to the testimony offered, was the fair value of such services, the court erred in allowing him a credit for $340.00 only.

In making a reasonable allowance for attorney’s fees, the court was not concluded either by the amount actually paid or by the testimony offered as to the value of the services. That testimony, as to the value of such services, should be considered by the court, is clear enough, but it does not follow that the court was bound to adopt the opinion of others as to the reasonable value of such services. If the mind of the court was not satisfied by such aid as was thus furnished, it was its duty to resort to such other information as practice and experience afforded, in connection with such proofs, for the purpose of forming its judgment as to the real value of such services. And its judgment, thus enlightened, and free from all suspicions of bias, should not be disturbed.

Nor was there error in refusing to allow to the defendant the compensation by him paid to auctioneers. A trustee, whose duty it is under the direction of a court to make sale of property, should perform the duties of auctioneer himself, unless in the opinion of the court the services of a professional auctioneer are deemed necessary. The presumption is that every one charged, by law, with the performance of a.duty, is capable of performing the same. And where such officer is allowed compensation for the performance of a duty, he must perform it himself, or employ others at his own expense. The suggestion of a usage or custom to the contrary is of no avail. The record does not show the existence of such usage or custom ; but if it did it could not have the force of law, as it is unreasonable that an estate, in ordinary cases, should be twice charged for the same service. It may be, no doubt, that peculiar circumstances will justify, in some cases, the employment of an auctioneer ; but in such cases, the authority to make the employment should be obtained from the court directing the. *222sale. Here no such direction was given, and, it is to be inferred, from tbe refusal to allow tbe expense, that in the opinion of the court, the employment in this case was not necessary.

*Judgment affirmed.*

White, J., dissented,, adhering to his dissenting opinion in the case as reported in 36 Ohio St. 1.