| Ark. | Jun 21, 1902
This is a suit in ejectment for the possession of land described in the complaint, upon which the plaintiff held a mortgage executed by the defendant and his wife to secure a note for $375, which they had given Samuel M. Jarvis, trustee for the Jarvis-Conklin Mortgage Trust Company, with power in said trustee upon default to sell and convey said land, and, in case of his absence from the state of Arkansas or refusal to act, to appoint some one to act in his place and stead, and in conformity with said power he appointed George S. Evans to act for him. The plaintiff alleges that it became the owner of said land by purchase from the Western Investment Company, which became the owner of the same by purchase at the foreclosure sale under said mortgage made by said George S. Evans, substituted trustee as aforesaid.
Defendants in answer deny plaintiff’s ownership; deny that the Western Investment Company became the owner of said land by purchase at trustee’s sale; deny that George S. Evans sold said land as substituted trustee in the power of sale in the mortgage; deny that they were indebted to the Jarvis-Conklin Mortgage Trust Company; plead usury; and pray judgment.
The court, upon the showing made, transferred the cause to equity, over the objection and exception of the appellee, and proceeded to hear the ease on the qustion of usury, and found and decreed that the contract set up, and sought to be enforced, was usurious and void, from which decree the North American Trust Company appealed, and appellee, having excepted to the court’s action in transferring the cause to equity, prayed a cross appeal.
The proof shows that George S. Evans, substituted trustee, was not present at the sale under the mortgage, but that he was some 18 miles away, and that he did not make the sale, but that it was made by G. M. Grandstaff, sheriff. The power to make the sale was personal to Evans, and could not be delegated to another. “ Delegatus non potest delegare.” Therefore the sale was void, and no title passed by virtue of it. Stallings v. Thomas, 55 Ark. 327.
There was no ground stated or shown for transferring the cause to equity. The suit was in ejectment, at law, and, as we have seen, the alleged sale of the land by the substituted trustee, Evans, was void, and passed no title. The judgment should have been for the appellee at law. We have therefore concluded to affirm the judgment, as a judgment at law.
But, inasmuch as the appellant may have right to proceed in equity, this judgment is without prejudice to his right to do so, if he so elect.
Affirmed as stated above.