Appellants insist, and we agree, that the judgment is wrong so far as it is in appellee's favor if the effect of the deed by Eddins as substitute trustee was to pass the title to the property to the building and loan association. But we think the testimony warranted the finding involved in the judgment that said deed did not have that effect. While the witness Rose, who, as secretary of the building and loan association, acted for it in the matter, testified that King, named as trustee in the deed of trust, refused to act as such, he further testified that he never requested King to sell the property; and King testified that he was never requested and never at any time refused to act as trustee. It is settled by decisions of courts in this state that the power conferred in a deed of trust to appoint a substitute for the trustee named therein can be exercised only when the contingency specified in the deed has happened. Bracken v. Bounds, 96 Tex. 200,71 S.W. 547; Ward v. Forrester, 35 Tex. Civ. App. 319, 80 S.W. 127; Davis v. Hughes, 38 Tex. Civ. App. 473, 85 S.W. 1161; Bemis v. Williams,32 Tex. Civ. App. 393, 74 S.W. 332; Vaughan v. Bailey,11 Tex. Civ. App. 34, 31 S.W. 531; Chestnutt v. Gann, 76 Tex. 150,13 S.W. 274. By the terms of the deed of trust in question, power to appoint a substitute for King was contingent on his failure, refusal, inability, or disqualification to act. There was no testimony tending to show he was unable or disqualified to act, and we think the trial court had a right to conclude from the testimony referred to above that he did not refuse to act, and that his failure to do so was due to the fact that he was never requested to act in the matter.
And we think another reason why the trial court was justified in concluding that the trustee's deed did not devest appellee of the title to the property appears in the testimony showing that the building and loan association on July 27, 1918, had appellee to execute another note in lieu of the one secured by the deed of trust to King and to execute another deed of trust (in which W. R. Grim was named as trustee) on the property to secure the renewal note. With reference to the new note and trust deed, said witness Rose testified:
"I put the first deed of trust in the hands of Graham Williams to foreclose some time prior to July, 1918, and some time in July, 1918, Fayette (appellee) came around, and I made arrangements not to foreclose and phoned them to stop it, and I renewed the note and took a new deed of trust to secure the renewed note."
From the testimony specified we think the trial court had a right to conclude that the parties intended the new note and trust deed to operate as a cancellation of the older ones. Of course, if the new note and trust deed had that effect, the sale by Eddins as trustee under the deed to King was void: It follows *Page 349 from what has been said that we think the first, second, sixth, and eighth assignments of error should be overruled.
It appeared from testimony the trial court heard that the property in controversy was conveyed to appellee December 23, 1914, when he was a single man. Later, but how much later does not appear, he married. His wife died June 5, 1919, leaving a child, Essie Kizer, surviving her. Appellants insist it therefore appeared that the property belonged to the community estate between appellee and his deceased wife, and that Essie Kizer as her only heir owned an undivided one-half interest in same. On that theory appellants insist, further, that as it appeared appellee owned only a one-half interest in the property, it was error to award him the recovery he obtained. But we think we need not determine whether it appeared that Essie Kizer should have been awarded a recovery jointly with appellee or not, for she did not appeal from the judgment and is not complaining of it here. If the judgment is erroneous in that respect, it is no concern of appellants, but is an error Essie Kizer alone could complain of.
Another contention presented by the assignments is that judgment against appellants Clark and the building and loan association was unauthorized so far as it was for rents, because, appellants say, there was no evidence to support it in that respect. We think the contention should be sustained so far as it applies to the building and loan association and so far as it was against Clark for rents in excess of $450. It does not appear from any testimony we find in the record that Clark was ever in possession of the property or had any connection with it until he and Baldwin and Luckey replevied it, except that he contracted to purchase it from the building and loan association and thereafter undertook to convey it to Baldwin. And we have found no testimony in the record, except that of appellee, that Baldwin told him, when he ousted him from the premises, that "he was working for Mr. Andrew Rose, for the Citizens' Building Loan Association," tending to show that the building and loan association ever had possession of the property, or anything to do with ousting appellee therefrom. We do not think the testimony of appellee referred to had any probative force. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533. Rose testified, and was not contradicted, that Baldwin was never an employee of the building and loan association and was not in any sense representing it if and when he ousted appellee from the premises. So far as the testimony shows to the contrary, the only connection the building and loan association had with the matter consisted of its acts in having Eddins to sell the property as substitute trustee, purchasing the property at such sale, and thereafter contracting with Clark to sell it to him.
The contention that the judgment is excessive in that it awarded appellee a recovery of rents for the months of January and February, 1922, in the absence of testimony showing the rental value thereof for those months, has not been considered here, because it was not made in the court below but is presented for the first time in this court.
The judgment will be affirmed so far as it is against the building and loan association and Clark for the land in controversy and so far as it is in favor of appellee against Hardin and Herrington; it will be reformed so as to adjudge appellee recovery against Clark of only $450 as rents, instead of $570, and as so reformed will be affirmed against him; but it will be reversed so far as it awards appellee a recovery of rents against the building and loan association, and so far as it provides that such recovery shall be set off against that awarded said association against appellee, and judgment will be here rendered that appellee take nothing against the said association on account of rents he sued for. The judgment will not be disturbed in other respects.