delivered the opinion of the court.

One J. Green Smith executed a note and deed of trust on certain lands in favor of Mrs. A. D. Felder and subsequently died. Shortly after the death of J. Green Smith, the beneficiary in the deed of trust directed the trustee to foreclose the deed of trust, the same being then past due. The appellant, J. Q-. Middleton, was appointed administrator of the estate of J. Green Smith, and, upon investigating the affairs of said Smith, discovered there would not be enough personal estate to pay the debts. He thereupon filed a bill of injunction to restrain the trustee from making the sale, attacking the legality of the sale, and the amount due under the deed of trust. A motion was made to dissolve the injunction and evidence taken on the motion, and the chancellor refused to dissolve the injunction but retained it until the final hearing. On final hearing, the chancellor dismissed the bill and allowed ten per cent, attorney’s fees to the attorney for the defendant, that amount of attorney’s fees being stipulated for in the note secured by the deed of trust provided the note was placed with an attorney for collection. The court directed the sale of the property to pay the debt of Mrs. Felder, vand allowed certain other damages.

There is no proof in the record that the note of Mrs. Felder was ever placed in the hands of an attorney for *399collection, and as this was the condition upon which it was agreed to pay the ten per cent, attorney’s, fee, and the contingency not being shown to have arisen which was therein provided for, it was error for the chancellor to allow the ten per cent, attorney’s fees. Consequently that part of the judgment allowing attorney’s fees is reversed, hut the judgment in all other respects will he affirmed.

Reversed in part; affirmed in part.