The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-06-10
l.. NJ. KUPFER, ADM'X.,

j. ?. beatty, ct al.
From the Chancery Court of Monroe
County. Baxter Mcfarland, Chan
cellor.
Partnership business continued scifhoat
authority By surrariRg partner. Sale Of
books Of account. Compensation Of trustees
for making sales Of land.
COOPER, C. J.:
Appellant filed this bill as administra
trix of her deceased husband, who was
in his lifetime a business partner of
Beatty. The bill charged that Beatty,
after the death of his partner, bought
goods and intermingled them with those
of the partnership, and carried on the
business as before. 1t called for settle
ment of the partnership affairs and an
account as to this business carried on
afterwards. The bill alse alleged that
the firm was the owner of the building
which 1T occupied, that it had bought
this building on credit, executing a deed
of trust to secure the unpaid purchase
money and that it would be better for
all parties that the property should be
sold by a commissioner of the court, and
not by the trustee. The trustee an
swered, and the court finally permitted
him to sen, and he did so, distributing
the proceeds as directed. Appellant
contends that the fee allowed him for
this service was excessive Pending
the suit, the.partnership books of account
were sold by the surviving partner, and
the court approved the sale, charging
| him in the settlement with the amount
realized.
The complainant might have treated
| the action of the surviving partner, in
in.ermingling the goods, as conversion,
and sought an account, charging him
with the value of the stock at the death
of her intestate; but she elected not to
do this. She cannot claim the profits
derived from the business as conducted
by the surviving partner, and at the
same time repudiate that business. As
between complainant and Beatty, we find
no error in the action of the chancellor
save only that the sale of the books
should not have been ratified. The
evidence does not show that the sale was
improperly conducted; but the books
were sold at auction without any infor
nation to the public as to their contents
The valuation which had been put upon
them by Beatty was $75, and at the sale
| hC bDCsiliV tbC puI CHdSeT lOT %. lit
sale should have been annulled, and
Beatty held to account for all collections
on the book debts.
The court erred in allowing the trustee
Murphy, the sum of $25S.25 for his ser
vices in making the sale under the deco
of trust. No attack was made upon the
validity of the deed, and it was only
sought to have the sale made by a com
missioner of the court instead of the
trustee. His defense was not to protect
the trust estate, but to maintain hi;
right to make the sale and receive the
fees for so doing; and the fees charged
by his attorneys for conducting the de
fence were not chargeable on the trust
estate The commissions allowed for the
services which were so chasgeable are
grossly excessive. In the absence Of
agreement, and where nothing unusua
is req uired in making the sale, we know
of no better standard of charges thar
those fixed by law for commissioners il
chancery selling under a decree Of court
Reversed ana remdnded
Clifton & Eckford for appellant
Murphy & Walker for appellees.