On Motion for Rehearing.
Plaintiff in error, in a motion for rehearing filed by him, very earnestly insists that this court erred in the opinion heretofore rendered in holding that Rose, the holder of the note, could delegate the power conferred upon him by the trust deed to appoint a substitute trustee, “without other formality than an appointment and designation in'writing,” and that the fact that the appointment and designation in writing of such trustee was made by an attorney in fact' for Rose did not render the sale by said substitute trustee void. The question presented is not free of difficulty, but we have concluded to adhere to our former holding.
[2, 3] When an agency has in it no element of personal trust and confidence, the rule or maxim, “Delegatus non potest delegare,” does not apply; and it is apparent that this element could not be present when the identity of the person upon whom the power is conferred is wholly unknown at the time the power is granted, and such person only succeeds to the power by reason of his subsequent relation to the subject-matter thereof. There was certainly no element of persona] trust and confidence on the part of the gran*468tor in tlie trust deed in any unknown person who might thereafter become the holder of the note for the security of which the trust deed was executed.
[4] It is well settled that the provisions of a trust deed authorizing the sale of the property of the grantor must be strictly followed in all of their details. Though such details may seem unimportant and frivolous, the grantor in the trust deed having deemed it proper to guard and protect his property by means thereof, for that reason they become important and must be complied with. Bends v. Williams, 32 Tex. Civ. App. 393, 74 S. W. 332.
[5] If it should be held that the provisions of the trust deed required that the holder of the note should personally select the substitute trustee, and he was not authorized to leave such selection to an agent or attorney in fact, we think the record in this case shows that the selection was in fact made by Rose. The instrument executed by Rose, ratifying the appointment of Howard as substitute trustee, set out in our former opinion, and which was admitted in evidence, contains the following recital: “I, the said J. A. Rose, do hereby state, acknowledge, and declare that the said W. J. Howard was appointed, named, and designated as such trustee by me, through my said attorney in fact, J. T. Glaze, and with my full consent and approval, and I do hereby now in all things approve, confirm, and ratify the act of said J. T. Glaze in naming and appointing in my name the said W. J. Howard as such trustee, and declare the said appointment and designation to have been made by me as fully and completely as if I had personally appointed and named him as such trustee, and personally signed the instrument of which the above is a copy, and I do hereby in all things approve and confirm all the acts of said W. J. Howard as such trustee, and in making the sale referred to in the said instrument by which the said J. T. Glaze designated him as such trustee.”
From this statement of Rose it appears that he expressly authorized the selection and appointment of Howard, and while the attorney in fact, Glaze, may have chosen or suggested Howard in the first instance, his appointment was made with the consent and approval of Rose. The selection of Howard having been with Rose’s consent, we do not think the deed of trust required that the instrument in writing evidencing his designation and appointment should be signed by Rose in person, and he was authorized to execute such instrument by his attorney in fact, Glaze. We do not think this holding is in conflict with the decision in the case of Wilder v. Moren, 40 Tex. Civ. App. 393, 89 S. W. 1087. In the case cited the deed of trust required that the writing evidencing the appointment of the substitute trustee should be “signed and acknowledged” by the holder of the note, and it is apparent that a strict compliance with this requirement would forbid the signing and acknowledgment of such instrument by an attorney in fact. In the present case the deed of trust only requires that the appointment shall be made by the holder of the note “without other formality than an appointment and designation in writing.”
We think the rule, “Qui facit per alium facit per se,” is applicable, and the motion, for rehearing is overruled.