On Motion for Rehearing
Appellees, in their motion for rehearing, contend that Claflin & Company and Hecht Bros., the beneficiaries under the deed of trust executed by Dayton, were the owners of the superior legal title to the land involved and that such title passed to them under the deeds executed by Joseph M. Herman, Trustee, to J. Doss Miller, Sr. The trial court found that the superior legal title was transferred to Claflin & Company and Hecht Bros. & Company by conveyance in writing which, though not shown of record, was proved by all of the facts and circumstances in this case. We are of the opinion that the evidence is insufficient to sustain this finding. There is no deed or other conveyance of such superior legal title in the record. There is evidence that search was made for such deed among the papers of J. Doss Miller, deceased, and that it could not be found. There is no evidence that such deed was ever executed. Appellees rely upon long continued possession and use of the land to support this finding. It is true that appel-lees have had possession of the surface of the land for many years. However, the minerals under the land were severed from the surface by the deeds from Fleming to Booth and from Fleming and Booth to Wise. There is no evidence that would put appellants upon notice that appellees were claiming the minerals under the land. Appellees did not drill or cause to be drilled any wells for oil or gas or explore the land in any way for minerals. The appel-lees never gave any oil and gas leases upon the land. The appellants gave several oil and gas leases thereon. There is no evidence that appellants acquiesced in appel-lees’ claim to the minerals. Furthermore, it is just as reasonable to presume that the vendor’s lien notes were transferred to Claflin & Company and Hecht Bros, as to presume that a deed to the superior title was given. At the time the land was sold by the trustee for Claflin & Company and Hecht Bros, they did not purport to own the superior legal title but sold same under the powers given in the deed of trust executed by Dayton. The power of attorney executed by Claflin & Company and Hecht Bros, to Herman “requested and required him to proceed to Texas in person or by agent or attorney to sell the lands either at public or private sale for partition and division as provided in the tefms of the deed of trust executed by Dayton.” Herman was not instructed to “proceed to Texas” and sell the superior legal title held by Claflin & Company and Hecht Bros, in the land, but was instructed to sell the land under the terms of the deed of trust executed by Dayton. Furthermore, Herman did not purport to convey any interest in the land except that which he was empowered by Dayton’s deed of trust to convey, to-wit: *359the surface and a one-half interest in the minerals.
We cannot sustain this judgment under the theory that Claflin & Company and Hecht Bros, were the owners of the su■perior legal title. We have again examined the record and believe that we correctly disposed of this case in our original opinion, and accordingly the motions for rehearing filed by both appellants and ap-pellees are overruled.