The surplus which is the subject of this suit, is, without doubt, the properly of the late firm of Seagrave & Steere. It is a portion of the proceeds of their mill estate, which was purchased for the use of the firm, and wholly paid for out of its funds, and greatly enhanced in value by the large expenditures of the firm upon it. This estate was always treated by Seagrave & Steere as a part of their company property; used exclusively in their business ; inventoried as a part of their common stock; insured as the property of the firm; and mortgaged to secure, and assigned to pay, the company’s debts and liabilities. The fact that the legal title to the estate was originally taken in the names of the members of the firm as tenants in common, and when their assignment was released, was returned to them in that character, cannot countervail the decisive presumption aris*60ing from the source of the funds out of which it was purchased, and the purpose for which it was bought, and to which it was applied, that it was intended to be held as partnership property. The copartners are regarded, in equity, in a case like the present, as trustees merely of the legal title for the uses of the firm; and as this title has been sold by the plaintiffs under a power contained in a mortgage, for the 'payment of a debt of the firm, the surplus of the proceeds of sale, in the hands of the plaintiffs, must be applied to those uses. Tillinghast, Receiver, v. Champlin and others, 4 R. I. Rep. 173, 205-213, and cases cited.
The decision of this question decides all the'other questions raised in the case. It denies the claim of the plaintiffs to retain out of the surplus an individual debt, due to them by Josiah Seagrave, one of the copartners, and the claim of his administrator to, and of his widow to be endowed out of, any portion of the same, in derogation of the rights of the creditors of Seagrave & Steere. It affirms the title of Thomas C. Greene to the surplus, as assignee in trust for the creditors of the firm, under a deed of assignment executed to him by Marquis D. E. Steere, surviving partner of the late firm of. Seagrave & Steere, on the fourth day of October, 1861.
Let a decree be entered, ordering the plaintiffs to pay over to said Thomas C. Greene, assignee as aforesaid, the surplus of the proceeds of sale of the mill estate in the pleadings mentioned by them received, after retaining therefrom the amount of the mortgage of Seagrave & Steere, held by them, with the expenses of sale and all just allowances, and deducting therefrom the amount by them paid to Pbetteplace & Seagrave, under the decree of this court, in full of the sum ascertained to be due to them under their mortgage. If the parties cannot agree to these amounts, the case must be sent to a master to settle them.
As the bill is an amicable one, and filed at the request of the parties to ascertain their respective rights to said surplus, let the costs of the plaintiffs, of Pbetteplace & Seagrave, and of Thomas 0. Greene, assignee, be paid out of the same, and let the decree provide, that as to the said Jacob 0. Seagrave and Phebe H. B. Seagrave, neither party shall recover costs.
*61The case came again before tbe court, at its March term at Providence, 1864, upon an agreed statement of facts, made by tbe parties in lieu of tbe report of a master, for tbe purpose of exhibiting to tbe court tbe several allowances claimed by tbe plaintiffs out of tbe surplus in their bands, and tbe objections thereto, and counter claims made by tbe assignee of tbe late firm of Seagrave & Steere. From tbe statement of facts, it appeared, that in addition to tbe amount of their own mortgage, with interest, assigned to them by J. C. Howe & Co., and tbe amount of tbe mortgage of Phetteplace & Seagrave, paid as aforesaid, under an interlocutory decree of tbe court, tbe plaintiff bank claimed to retain out of tbe surplus a considerable amount, arranged in eleven items, embracing the expenses of advertising and selling tbe mortgaged property under tbe power, and making a title thereto to tbe purchaser, which included an item of $800, to A. Fiske and R. "W. Greene, for professional advice and services, about tbe same. Their claim also embraced an item of $781.75, with interest on tbe same, amounting to $10.95, for back premiums of insurance upon tbe mortgaged premises, paid by them on tbe twenty-third day of July, 1861, under circumstances set forth in tbe opinion of tbe court, and another item of $2,812.50, for five per cent, commission on tbe gross proceeds of sale of tbe mortgaged property, secured to them as tbe holders of tbe mortgage under which they sold,- by tbe express terms of that instrument. Tbe bank also claimed to retain, against tbe objection of tbe assignee of tbe creditors, a sum of $545, for tbe services of their counsel, H. W. Gfreene, in preparing, arguing and bringing to a decree, this bill in equity, brought by tbe assent of all parties thereto, for tbe purpose of settling all questions in issue between them, and denied that they were liable to tbe payment of any interest on tbe sum of money, or any portion of tbe same, received by them, and remaining in their bands, as tbe proceeds of sale of tbe mortgaged property. Tbe facts relative to tbe disputed items are sufficiently stated in tbe opinion of tbe court, to render tbe grounds of it intelligible.
B. W. Greene, for the Lime Boch JBanh:— I. The five per cent, commission on the gross amount of the sale, under the power contained in the mortgage, is expressly provided for in the agreement which accompanies, and forms a part of, the mortgage. See exhibit —, annexed to bill. It is the agreed compensation for the services and responsibility in making the sale. II. The credit of $781.75, and the interest thereon, amounting to $10.95, for insurance premium, is explained in the answer of Mr. Angelí, cashier, to the fourth interrogatory. III. The bill of E. W. Greene.. The first item of this account is for professional services, in relation to the execution of the power of sale by the Lime Eock Bank. The remaining charges relate to the present bill in equity. The bill was filed for the benefit of the trust fund in the hands of the bank, and the trust fund has had the benefit of the. proceeding. If we regard the present bill as a mere bill of interpleader, the plaintiffs are entitled to the expenses of counsel fees preliminary to the draft, and for the drawing and the filing of the bill, and the term fees thereon, and for such other professional services as may be necessary to protect the plaintiffs in the prosecution and final determination of the suit. IY. With regard to interest. The court are referred to Mr. John Angell’s (cashier of the Lime Eock Bank) answer to the second interrogatory, for an explanation of this subject:- — “This bank was ready, at any time and without previous notice, to pay the whole balance due whenever ordered by the court, either in funds of this city, New York or Boston, as the sum was held in reserve for payment on demand.” Withregardto the surplus, after the payment of Phetteplace & S.eagrave’s claim, the bank have always been prepared to pay. T. G. Greene, assignee, for the creditors of Seagrave & Steere:— The defendants object to certain charges made by the plaintiffs, as mortgagees of the Uxbridge Woolen Mills, upon the surplus funds in their possession. I. The defendants object to the allowance of the item of $2,812.50, claimed by the plaintiffs as a commission for the sale of said estate. The words of the contract, forming part of the mortgage, are these: — “ And out of the money arising from such sales, the said J. C. Howe & Co. are to retain the amount due to them, whether payable then or maturing and falling due after-wards. Also, five per cent, 'commission on the gross proceeds of all sales, with the cost and charges of advertising and selling the premises, rendering the surplus, if any, to the said Seagrave & Steere.” The defendants contend, that the charge of five per cent, commission was inserted in the contract by way of penalty for the non-performance of the condition of the mortgage, and that a court of equity, on payment of debt and interest, will relieve against such penalty. 2 Story’s Eq. Jur. § 1316; Nicholls v. Maynard, 3 Atk. 519; see Strode v. Parlcer, 2 Vernon, 315 ; opinion Lord Mansfield in Bonifons v. Bytout, Burr. p. 1374; Tallmon v. Truesdell, 3 "Wisconsin, 443. If the parties had intended the commission should be for services in selling the estate, they would have said so in express words. II. The bank loaned their money and not their credit. As between the bank and Seagrave & Steere, the relation was the ordinary one of debtor and creditor. III. The sum charged is too large for the service rendered. The service was a simple one of every day occurrence ; the parties could not have supposed that this sum or commission was for compensation for selling the estate. IV. The original rule was, that the mortgagee should have nothing but debt and interest. Coote on Mortgages, p. 154, side p. 348, 349; French v. Baron, 3 Atk. 120. V. The defendants claim, that the bank should be charged with interest on the surplus moneys received by them. The rule in relation to interest is, “thatwhere a trustee mingles the trust fund with his own, or uses it in his private business, or neglects to invest it when it is his duty to do so, he is liable to pay interest.” Hill on Trustees, p. 532, n. The sum of nearly $24,000 was received by the bank, in October, 1861, and not paid over till the following May, to Phetteplace & Seagrave. A further sum still remains in possession of the bank. Upon this last sum interest should be charged, as the bank have used it in common with their other funds. The defendants claim, interest should be charged upon the sum paid over to Phetteplace & Seagrave, from the time they received it until paid over. YI. The bank cannot rightfully claim that the bill of their counsel, for services in this action, should be charged upon the fund. The bank, in their bill of complaint, claimed an equitable lien upon the funds, and, in the hearing before the master, and in the argument before the court, have acted aud conducted, not as a disinterested stake-holder, but as a party litigating for their own interests. • If the court should come to the conclusion that the plaintiffs are entitled to the five per cent, commission, then the defendants claim that the counsel fees, for services in relation to the sale, are to be paid out of the commission, and not out of the surplus fund. YII. The bank are not entitled to charge against the fund the whole sum paid by them for insurance of the property. They paid the memorandum checks of Seagrave & Steere, after they had failed, and when the bank had every reason to suppose they would have to sell the property at auction. They should, under these circumstances, have procured insurance for a shorter term. Bullock, J.The first item obj ected to, as not a proper charge in full, upon the fund in the hands of the plaintiffs, considering them in the order in which they were presented by counsel at the argument, is the item of $781.75, being the amount of sundry premiums paid for insuring the mortgaged premises. The plaintiffs became the owners of the mortgage, by assignment, on the second day of July, 1858. On the first day of July, 1861, the mortgagors, Seagrave & Steere, effected the insurance in question, for the usual term of one year, the amount of the policies payable, in case of loss, to the plaintiffs. Instead of paying these premiums, Seagrave & Steere gave their memorandum checks for the amounts. Soon afterwards, and in the same month, Seagrave & Steere failed, leaving these checks outstanding and unpaid. One of the insurance companies then gave notice to the plaintiffs, that unless the premiums due to them were paid they should vacate the policy. The plaintiffs, accordingly, on the twenty-third day of the same July, paid the amount *65of the several premiums. After the failure of Seagrave & Steere, the plaintiffs took possession of the mortgaged property, and in the month of September following, sold the same under the power contained in the mortgage. The mortgagors, Seagrave & Steere, agreed to keep the mortgaged premises insured; and in case of not doing so, that the mortgagees might effect insurance thereon at the expense of the mortgagors. The effect of the sale of the mortgaged premises was, to vacate the existing policies, without some new agreement on the part of the insurers, which, it is understood, they declined to make.
It is objected by Steere, surviving partner of Seagrave & Steere, and by his assignee, that they had no notice of this payment by the plaintiffs. If they did not know, it was their own fault. They, or Seagrave & Steere, certainly knew their own checks, given for these premiums, were outstanding and unpaid. The plaintiffs did no more than perform, in good faith, a contract they — Seagrave & Steere — had entered into, relating to the mortgaged property, and for the benefit of the mortgagors as well as of the mortgagees. If the mortgagors would derive any advantage from a partial return of premium, it was their business to endeavor to secure it. It does not appear that they 'did anything. It was due to the insurers that the contract should be executed as made. Besides, in July, 1861, the mortgagees could not tell when the property would be sold. It might remain upon their hands until the policies would expire. The condition of manufacturing industry, at the time, did not favor an early sale. Nor had the mortgagees any interest to charge upon the estate any unnecessary expense. Looking at the transaction, after the event, and we see how a part of the premium money might have been saved; but viewing it as it stood, in July, 1861, immediately after the failure of Seagrave & Steere, and neither they, nor those claiming through them, can properly object to charging upon the property an expense they incurred, in good faith, for its protection, and which the plaintiffs, in like good faith, paid and discharged. This item therefore, with the interest, is allowed.
The bill of A. H. Eiske, of $100, and the first item in the bill *66of R. W. Greene, of $200, for professional services connected with, the sale and transfer of the mortgaged premises, are admitted as just allowances, properly chargeable against the fund in the hands of the plaintiffs.
One of the purposes — if not the main purpose — of the bill, filed by the plaintiffs in this case, was to have the mortgaged property and its proceeds declared to be the individual property of Josiah Seagrave, and the surplus of the proceeds applied to the payment of his individual note of $2,000, held by the plaintiffs. After stating how the fund arose, and what specific liens exist against it, the bill proceeds at once to allege that the mill, its appurtenances, &c., were the property of Seagrave, and not of the firm of Seagrave & Steere; and that, being such, they (the plaintiffs), after the payment of the specific liens, are entitled to deduct from the surplus the amount of his individual note aforesaid, due to them, treating as the fund to be distributed, under the decree of the court, only what moneys may then remain in their hands. The several answers of Jacob T. Seagrave, the administrator of Josiah Seagrave, and of Phebe H. B. Seagrave, his widow, while admitting the validity of the plaintiffs’ mortgage, and that of Phetteplace & Seagrave, and assenting to their payment out of the proceeds of the sale of the properly, do not claim that the same was the individual property of Josiah, and deny any right in the plaintiffs, to apply any part of the fund to the payment of Josiah’s individual note. The answers of the surviving partner — Steere—^and of his assignee, also admit the validity of both of the mortgages referred to, but affirm that the property was, from the first, copartnership and not individual property, and that no part of its proceeds should be applied to the payment of the $2,000 note. The substantial issue before the court, upon the hearing of the bill, was that .raised by the plaintiffs for their own benefit, and in support of which they adduced no sufficient or satisfactory proof. The bill, therefore, was not a bill of interpleader, or a bill in the nature of a bill of interpleader; nor were the plaintiffs pure trustees, but simply prior mortgagees, holding a surplus arising from the sale of the mortgaged property, after the payment of their own lien. We *67see no equity in charging upon this fund, and, through it, upon the unsecured creditors of an insolvent firm, the expenses of trying an issue the plaintiffs raised for their own benefit, and which they failed to maintain by proof, especially in view of the fact that, by the terms of the mortgage and of the agreement collateral thereto, which we shall hereafter refer to, the plaintiffs were amply compensated, by a liberal commission, for all the risk they incurred, and for all the service they rendered. The remaining items, amounting to $545, in the bill of Richard W. Greene, are therefore disallowed as a charge upon the fund.
The next item in dispute is the charge of $2,812.50, the same being the amount of a commission of five per cent, upon the gross proceeds of the sale of the mortgaged property. The agreement, collateral to the mortgage, and under which the original liability of the mortgagees was incurred, contains this stipulation, — that “out of the money arising from” the sale of the mortgaged property, the mortgagees “ are to retain the amount due to them, whether payable then or maturing and falling due afterwards. Also, five per cent commission on the gross proceeds of.” such sale, with the costs and charges of advertising and selling the premises, &c. It appears by this collateral agreement, that Seagrave & Steere, manufacturers, applied to J. 0. Howe & Co., merchants, for a loan of credit, to enable them to conduct their business with greater facility. J. 0. Howe & Co. were to loan their credit to Seagrave & Steere in the form of acceptances, to an amount not exceeding, at any one time, forty thousand dollars, and for the period of five years. Eor this loan of credit, Seagrave & Steere were to pay a commission of two and one-half per cent. They were also to place Howe & Oo. in funds to meet these acceptances, at least one day before they matured. In case they fail to do this, and Howe & Co. are obliged to protect the acceptances, and resort to a sale of the mortgaged estate, then J. C. Howe & Co. were to have additional compensation, by way of this stipulated five per cent, commission. J. C. Howe & Co., under this agreement, were liable, at one day’s notice, to pay large sums of money for Seagrave & Steere. Months might elapse before they were reimbursed. This would incommode men of large *68means. The mortgagees intended to be compensated for this inconvenience and risk, and tbe mortgagors agreed to compensate tbem in this manner. Tbe language of tbe agreement is explicit. Considering tbe nature of tbe business in wbicb Sea-grave & Steere were then engaged, tbe advantage to tbem of having an undoubted credit, tbe responsibility wbicb tbe creditors incurred in advancing tbeir credit to so large an amount, and for so long a time, involving a liability on tbeir part, to protect these acceptances upon one day’s notice of inability, on tbe part of Seagrave & Steere, to protect tbem; and we see nothing so unconscionable in tbe stipulation, that equity should interpose and relieve against it.
On tbe fifteenth and sixteenth days of October, 1861, tbe plaintiffs received from tbe sale of tbe mortgaged estate tbe sum of $56,335.60, and, at tbe same time, applied $25,250 of tbe same to tbe payment of tbe principal and interest due upon tbeir mortgage, leaving a large surplus in tbeir bands; and, on tbe fifty-ninth day of tbe September term, 1861, (wbicb was tbe twenty-sixth day of December, 1861,) by tbeir bill, asked tbe direction of this court in distributing this surplus. On tbe seventh day of May, 1862, under an interlocutory decree entered in tbe cause, tbe plaintiffs paid over to Pbetteplace & Seagrave, tbe holders of tbe second mortgage, a further sum of $23,979.68, adjudged to be due thereupon.
Tbe defendant, Thomas 0. Greene, assignee of tbe surviving partner of Seagrave & Steere, claims, that tbe plaintiffs should be charged with interest upon tbe sums or balances, from time to time, in tbeir bands, after tbe payment of tbe first mortgage. Tbe plaintiffs were prior mortgagees, bolding in trust a surplus to wbicb there were various claimants. They seasonably sought, in tbe proper mode, instructions for its distribution. Tbeir cashier, whose statements are admitted in proof, says that tbe plaintiffs were ready, at any time, and without previous notice, to pay over tbe whole sum due upon tbe second mortgage, whenever ordered by tbe court, and that a- sufficient amount was held in reserve for that purpose. A trustee, who is guilty of no breach of trust, and who does not unreasonably neglect to invest, *69or delay in applying tbe funds to tbe purposes of tbe trust, is not chargeable witb interest. When be mingles tbe trust funds witb bis own, and uses them in business for purposes of gain, tben be may be charged witb interest, as an equivalent for tbe profits presumed to be acquired. Here tbe plaintiffs held in reserve, in tbe nature of a special deposit, a sum sufficient to pay tbe Pbetteplace & Seagrave mortgage, and as to that amount are not liable for interest.
After deducting tbe stipulated commission of five per cent, to which they are entitled, tbe sums paid by them for insurance and interest, and tbe several bills incurred in tbe sale and conveyance of tbe mortgaged property, tbe remaining surplus tbe plaintiffs mingled witb their own funds, and used in their business. They further claimed tbe right to appropriate tbe same, or a part of it, to tbe payment of tbe individual note of Josiab T. Seagrave. They have retained and bad tbe use of this sum for two years and six months and upwards. Under these circumstances they should be charged witb interest upon it, at tbe rate of six per cent, per annum, from tbe time of its receipt.
Tbe items, Nos. 1 to 10 inclusive, in tbe agreed statement of facts, claimed by tbe plaintiffs, are allowed as claimed.
Tbe first charge of item No. 11, being $200, is also allowed ; tbe remaining charges under item No. 11 are disallowed.
Let tbe account be so stated.