55 Ark. 326 | Ark. | 1892
But the word “fail” implies delinquency as well as non-action ; and this could not be ascribed to him unless he ought to have acted. The parties never contemplated that he would act without a request to do it, and the terms of the provision did not make it his duty. He did not fail, within the meaning of the instrument, to sell unless he ought to have sold, and it cannot be said that he ought to have sold unless he was asked to do it and after a reasonable time had not done it.
Having concluded that the substitution was unauthorized, we hold that the sale was void. This makes it unnecessary to determine whether the right of substitution passed by assignment from the beneficiaries named in the mortgage or existed only in them. As the beneficiary who made the substitution purchased at the sale, we are not called to decide how far it was the duty of the mortgagor to give notice of the infirmity in the authority of the person assuming to sell; the purchaser knew the facts as well as the mortgagor, and was not misled by his inaction to believe that the contingency had arisen to justify a substitution,
[Directions for decree omitted.—Rep.]
The court erred in holding that the sale was valid. The judgment is reversed.