APPEAL from Garland Circuit Court.

J. B. Wood, Judge.

O. F. Smith sued Addie Finley for the possession of lot 6, of block 74, of the Hot Springs Reservation, in Garland County, and claimed title under a deed of trust made by defendant to D. Beitler, trustee, for the benefit of E. Smith, under which there was a sale of the property by R. L. Williams, Sheriff of Garland County, the trustee having refused to act, purchase by O. F. Smith, and a subsequent conveyance made by the Sheriff to him, the appellant.

The deed of trust was filed as an exhibit to the complaint. It bears date September 5, 1885 ; indebtedness, $60; authorizes the Sheriff of Garland County to act in case of the trustee's refusal. The deed of the Sheriff, bearing date July 19, 1887, was filed as an exhibit to the complaint; recites a sale on the 21st day of February, 1887, after publication of notice according to the terms of the deed of trust, the refusal of the trustee to act, bid of appellant of $66.50, etc. This deed was duly acknowledged and both were recorded. The deed of trust bore the following indorsement: “I hereby refuse to act as trustee for the sale of the within described property. D. Beitler, trustee.” The deeds were introduced in evidence on the part of the plaintiff, also the advertisement of sale. The defendant pleaded usury. The original transaction was shown by the evidence to be usurious. Plaintiff introduced in evidence a judgment of Henry James, a-justice of the peace, as follows:

“In Justice Court, Garland County, Arkansas.

“Before H. James, Justice of the Peace.

“E. Smith, plaintiff, J v. V Judgment by confession. “Addie Finley, defendant. J

“ On this, the third day of November, 1886, comes said plaintiff by agent, O. F. Smith, and files before me one promissory note against the defendant for the sum of $60, dated September 5, 1885, and made payable to E. Smith, or order, two months after date, with 10 per cent, interest per annum from maturity until paid, and secured by deed of trust of even date herewith, and the said defendant says that she is indebted to the said plaintiff in the sum of $60, and confesses that judgment may be rendered against her for said amount. It is therefore considered by me that said plaintiff have judgment and recover from said defendant the sum of $60 with all the interest and all the costs in and about this suit expended.

“ H. James, J. P.”

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