On Motion for Rehearing.
Appellants, in their motion for rehearing, contend it was conclusively established that the $76.80 note was for interest and the loan was, therefore, usurious. Our attention is called to evidence in the record, not discussed in our original opinion, bearing upon this issue. There was in evidence tw.o deeds of trust executed by Mrs. Carter in favor of Bonner Loan & Investment Company renewing the $800 England note. The loan thus secured was evidenced by first and second lien notes and deeds of trust. The first lien note bore interest at 8% and^ the, second lien note bore interest at 2% and expressly stated therein it was given as part of the interest on the first lien note. Appellants say that this transaction corroborates the testimony of Mrs. Wood and proves that it was the custom and practice of the company to take two deeds of trust in making a loan and that the second deed of, trust was for interest. To our mind, the evidence just as strongly supports thé conclusion that the $76.80 note was not for interest for the reason that the Carter note expressly provided that it was for interest upon the first lien, whereas the England note contained no such provision. Appellants ask us to take judicial notice of the many usury cases reported in Texas wherein it is shown that it was the custom of loan companies to make two notes and deeds of trust evidencing their loans, *782the first representing the principal of the loan' and a part of the interest, and. the second representing the remaining part of the interest.' We áre of the opinion that we cannot take judicial notice of such fact and that we cannot consider it in any way in passing upon the question involved here. We have again examined the record in this case and we feel that appellants did not conclusively establish that the $76.80 note was for interest.
In connection with the points in which it is contended the court erred in finding that the Bonner Loan & Investment Company duly appointed L. D. Head substitute trustee, we failed to state in our original opinion that there is in the record an instrument signed by A. C. Rubey appointing such substitute trustee. The note involved was payable to Bonner Loan & Investment Company. The record discloses that such company was a partnership and that A. C. Rubey was the managing partner. We hold that the appointment of the substitute trustee executed by the managing partner was sufficient, and that the appointment was in all things valid.
There is another reason not discussed in our original opinion which we believe is all sufficient to uphold the judgment of the lower court in this case. The court found that by the execution and delivery of the second deed of trust, Mrs. Elizabeth England made it possible for the trustee to create the appearance of good title in Mrs. R. A. Carter by said trustee's deed. The court concluded, as a matter of law, that appellee Peeks is an innocent purchaser for value of the land involved including the one-half interest in and to the minerals sued for in this suit. The record discloses that Mrs. R. A. Carter bought the land at the trustee’s sale and received a deed thereto. She afterwards conveyed it to E. B. Peeks, father of the appellee W. H. Peeks. W. H. Peeks thereafter, by inheritance and by .deeds from his brothers and sisters, acquired the land and the mineral interest therein. Mrs. England never at any time questioned the validity of the sale under the deed of trust. Appellee Peeks testified that he had no notice of any claim ‘by appellants to the mineral interest in the land other than the record of the conveyance by Mrs. England to John M. Gholson. The deed of trust under which the sale was made was of record at the time John M. Gholson acquired the deed from Mrs. England to one-half of the minerals. We believe that the case of Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675, is in point and supports our conclusion on the question presented here. Judge Alexander, Chief Justice of our Supreme Court, in writing that opinion, said: “It is true that under circumstances such as we have here, those who purchased interests in or took liens on the land in good faith from Mrs. Slaughter after the purported sale to her ■by the substitute trustee acquired good title as against Qualls; but this is so not on the theory that the title actually passed, but rather on the theory that Qualls, by the execution of the deed of trust, made it possible for the trustee to create the appearance of good title in Mrs. Slaughter, and it would be inequitable to permit Qualls now to show otherwise as against those who have purchased in good faith in reliance thereon. Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139, par. 4; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909; Hill v. Moore, 62 Tex. 610; Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87.”
We are of the opinion that Mrs. England, by executing the deed of trust, created the appearance of good title and that she and those claiming under her cannot now attack the trustee’s deed as to an innocent purchaser for value.
After the institution of this suit,, appellee Peeks secured and placed of record a correction deed from C. C. Peeks, et al., covering a 6/10ths interest in the land involved. Appellants contend that appel-lee Peeks cannot recover as to said 6/10ths. interest for' the reason that same was acquired after the institution of this suit. We do not agree with this contention. A plaintiff may amend and place himself in position to avail himself of title acquired *783after the institution of his suit. Ballard, et al. v. Carmichael, et al., 83 Tex. 355, 18 S.W. 734; Collins v. Ballow, 72 Tex. 330, 10 S.W. 248. Furthermore, it was conclusively established that appellee was in possession of the land and had 'been for about 13 years. Appellants showed no title in the land for the reason that they had been divested of their interest therein under the trustee’s deed to Mrs. Carter. “It is * * * well settled that, in an action of trespass to try title, where the plaintiff shows priority of possession of the land involved, and no title is found in the defendant, the plaintiff, by virtue of such possession, is entitled to judgment.” 41 Tex.Jur., 536.
The motion for rehearing is overruled.