While there are a number of cases bearing more or less upon the allowance of commission to an assignee for the benefit of creditors upon a sale, in an action brought by him for that purpose, of unencumbered real estate assigned to him by his assignor, there is a case decided by the Supreme Court of Ohio, directly in point, determining the validity of such allowance under the statutory provisions above referred to which were then incorporated in the above-named sections of the Revised Statutes of Ohio. The decision in that case has never been overruled, modified or questioned, and is the established law of Ohio upon the subject, so it will not be necessary to discuss any other cases bearing on the question.
As appears from the report of the case in the Supreme Court, the case was tried in the Probate Court in which the action to sell the real estate of his assignor was instituted by the assignee, and appealed to the Common Pleas Court. The Common Pleas Court, upon the trial of the appeal, stated its conclusions of fact and law separately. Among the pertinent facts found by it were the following:
The real estate was bid off and purchased at the sale made by the assignee, by one Albert Hughes, who held the first mortgage lien on the real estate, and the same was sold for the sum of $5,900, which was not sufficient to pay the taxes, costs and the mortgage lien of Hughes. The assignee performed services in the sale of the real estate, of the value of $250. In the discharge of the trust, the assignee employed attorneys who rendered services in the action to sell the real estate, of the value of $148, which amount was paid by the assignee to the attorneys, and there were no funds of the assignee with which to pay for the legal services except the proceeds of the sale of the real estate.
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