Daniel v. Garner

• Decision Date: 10 October 1903
• Citation: Daniel v. Garner, 76 S.W. 1063, 71 Ark. 484 (Ark. 1903)
• Parties: DANIEL v. GARNER
• Court: Arkansas Supreme Court

76 S.W. 1063

71 Ark. 484

DANIEL v. GARNER

Supreme Court of Arkansas

October 10, 1903

Appeal from Lee Circuit Court HANCE N. HUTTON, Judge.

Reversed.

Reversed and remanded.

H. F Roleson, for appellant.

The right to foreclose a mortgage is created by the power contained in the instrument. 55 Ark. 227; 109 Ill: 442. The substituted trustee may act. 2 Jones, Mortr., 1774; 26 Am. & Eng. Enc. Law, 887. The power to appoint a new trustee can only be given by the author of the trust. 1 Perry, Trusts 287; 48 S.W. 127. Unless the trust deed requires it, the reason for the substitution need not be given. 26 Am. & Eng Enc. Law, 899; 125 Ill. 474; 53 Ark. 185.

McCulloch & McCulloch, for appellees.

The statute requiring that a power to convey real estate must be recorded, it must of course be in writing. Sand. & H. Dig., §§ 718, 3480; 22 Ark. 136; 41 Ark. 363; 45 Ark. 309; 2 Kent, 615; Browne, St. Frauds, §§ 14, 15; 1 Am. & Eng. Enc. Law, 952; 67 Ala. 336; 40 Mo. 69; 1 Holt, 141; 9 Wend. 68; 5 T. B. Mon., 184; 29 Me. 148; 17 Ill. 433; 84 Ill. 263. The appointment not being in writing, the sale was void. 55 Ark. 326.

OPINION

BATTLE, J.

Walter Garner and Sarah B. Whittle commenced an action at law against George B. Daniel to recover possession of certain land described in their complaint. They allege that Sarah E. Whittle was their mother, and the owner of the land, and died in possession; that she died intestate, and they are her only heirs at law.

The defendant answered, denying that the plaintiffs are the owners, or entitled to the possession, of the land, and alleging, in part, as follows: "That on the 8th day of June, 1893, Mrs. Sarah Whittle, the mother of complainants, and her husband, J. G. Whittle, who is the father of the plaintiff Sarah B. Whittle and the stepfather of plaintiff Walter Garner, executed a certain deed of trust, conveying said lands to one C. C. Currier, as trustee, to secure a debt due to Mrs. Jean Crawford Bingham, which said deed of trust was duly recorded in the office of the recorder of Lee county, Arkansas. * * *

"That afterwards, on the day of , 1894, said trust deed and the debt secured thereby were by proper indorsements transferred to the defendant, G. B. Daniel, for a valuable consideration, and he became the holder thereof.

"That the debt secured by said trust deed was not paid at maturity, and has never been paid. That, under the provisions of said deed of trust, the holder of the debt secured thereby, in case of the death, absence from the state of Arkansas, refusal or inability to act of said C. C. Currier, was authorized to appoint a trustee in his stead to make sale of said lands, and to carry into effect the power created by said trust deed. And defendant says that said C. C. Currier was a non-resident of Arkansas, and was actually absent from the state of Arkansas, and the defendant, being the legal holder of the debt secured by said trust deed, did, on the day of March, 1900, appoint one G. W. Slaughter as trustee to carry out and enforce said trust (such appointment being made verbally and not in writing) by making sale of said land as provided by its terms.

"And on the 7th day of April, 1900, the debt secured by said trust deed being still unpaid, the said G. W. Slaughter, in pursuance of his appointment and at the request of defendant, did proceed to make sale of the said land at public outcry to the highest bidder for cash at the courthouse door in Marianna, Lee county, Arkansas, the said G. W. Slaughter having first given notice of and advertised said sale in strict compliance with the terms of said trust deed, and having had the same duly appraised as provided by law; and at such sale so made the defendant, G. B. Daniel, bid and offered the sum of six hundred and sixty seven dollars for said lands, and was declared to be the purchaser thereof, such bid being the highest and best bid, and being more than two-thirds of the appraised value of said lands.

"And defendant says that he has fully paid and satisfied said bid, and the said G. W. Slaughter, on the day of , 1900, executed his deed conveying said lands to defendant."

The plaintiffs filed a demurrer to the answer, which the court sustained, and the defendant appealed.

Appellees, Garner and Whittle, contend that the sale made under the deed of trust was void, because the appointment of Slaughter, who made it as trustee, was not in writing. This is not true. The sale was not void. But the deed executed by Slaughter was, he not having authority in writing to execute it. As the land could have been conveyed only by deed, the power of the trustee who made the sale to convey it should have been in writing--should have been created by an instrument of as high a dignity as the conveyance to be made. Johnson v. Dodge, 17 Ill. 433; Watson v. Sherman, 84 Ill. 263; Browne, Statute of Frauds (5th ed.), §§ 14, 15; 2 Kent, Com. (13th ed.), marginal page 614; 2 Jones on Mortgages (5th ed.), § 1889.

Formerly the law required the instrument in writing to be made under seal, because the title to the land could be conveyed only by such an instrument. But the constitution of 1874 provides that, "until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals executed since the adoption of the constitution of 1868." ...