#### ASHEVILLE SAFE DEPOSIT COMPANY, a Corporation, Trustee, v. RUSSELL C. BOYCE.

(Filed 27 November, 1940.)

Appeal and Error § 38—

When tbe Supreme Court is evenly divided in opinion, one Justice not sitting, tbe judgment of tbe lower court will be affirmed without becoming a precedent.

Appeal by defendant from *Sink, J.,*at June Term, 1940, of Meck-leNbueg.

Affirmed.

Tbe plaintiff complained tbat tbe defendant and bis wife executed to tbe plaintiff a sealed promissory note, payable to bearer, in tbe principal sum of $12,941.89, upon wbicb there now remains due $11,658.00, and tbat there has heretofore existed and now exists a default in payment of tbe note according to its tenor.

It is further alleged tbat tbe defendant and bis wife, simultaneously with tbe execution and delivery of tbe said note, executed and delivered a deed of trust to tbe plaintiff, conveying tbe title to certain lands in trust, to secure tbe payment of tbe said note, wbicb said deed of trust contained tbe following provision: “In order to further secure tbe payment of tbe indebtedness described in this deed of trust, tbe grantor has simultaneously herewith executed and delivered to tbe trustee an assignment of tbe rents from tbe above described property and of tbe grantor’s interest in any and all leases of such property or any part thereof.”

Tbe defendant and bis wife, it is alleged, further executed and delivered to tbe plaintiff an assignment of rents, income, and profits from tbe property described, authorizing amongst other things tbe possession of tbe property covered by tbe deed of trust, tbe cancellation of existing leases, and tbe making of new leases, tbe making of collections and tbe institution and maintenance of possessory proceedings with respect to any or all of tbe property in tbe same manner as if plaintiff were tbe absolute owner; and making tbe trustee attorney in fact for all these purposes. Tbe assignment contained tbe following provision: ’ “4. Tbe *782Trustee shall have the right to appoint and employ such agents and attorneys, including either or both of the undersigned, as it may deem desirable in connection with the foregoing and neither the Trustee nor any successor in the trust shall be answerable for the fault or misconduct of any agent or attorney so appointed, provided that such agent or attorney shall have been selected with reasonable care.”

Thereafter, upon an allegation that defendant had proceeded in violation of the contract to collect the assigned rents, the plaintiff brought an action for injunction, which proceeded to judgment. In this action the plaintiff incurred certain costs and became obligated to the attorneys, employed by it in connection therewith in the sum of $250.00. Upon notice to the defendant, the plaintiff trustee filed a motion in the cause praying that the court would authorize and direct it, as trustee, to pay the attorneys’ fees and court costs involved in the action out of the trust funds in its hands.

This motion was allowed and the defendant appealed from the allowance of counsel fees.

*Taliaferro & Clarlcson for plaintiff, appellee.*

*David J. Craig, Jr., for defendant, appellant.*

Pee Cueiam.

The Court being evenly divided, three to three, upon the decision of this case, under our practice the judgment of the court below is affirmed. This constitutes no precedent for the decision of other cases.

Affirmed.

WiNBOENE, J., did not sit on the hearing of this appeal.