In the motion for rehearing filed by appellants it is insisted that this court should have held that limitation commenced to run against the title asserted by Simpson and those that claim under him from the time that he sold the land under the deed of trust and executed the deed to himself. This is based upon the assumption that after the execution of the deed, the trust between Simpson and his principal, the Edinburgh-American Land Mortgage Company, ceased to be express; and the trust, if after that time continued at all, was constructive, accompanied with the proposition that the assertion of right under constructive trusts does not defeat the operation of the statutes of limitation.
In this case we need not decide whether this is or not a correct proposition of law, for, in our opinion, the relationship between Simpson and the appellees that was created by the deed of trust was not changed by the unauthorized sale by Simpson to himself of the trust property. The trust, as between these parties, as created by the deed of trust, was express, and Simpson being named as trustee in that instrument, occupied the attitude of an express trustee. He could not, by virtue of his wrongful conduct, change the relationship between himself and his principal. The illegal and unauthorized sale and purchase by himself at the trustee's sale would not have the effect, as between himself and his principal, of converting his position from that of an express trustee into one in which he is only constructively liable.
It is also insisted in the argument on the motion that this court is bound, by the ruling made in the case of the Edinburgh-American Land Mortgage Company, Limited, v. Briggs, reported in 41 Southwestern Reporter, *Page 530 1036, the contention being that in that case the court held, under facts which the appellants claim are identical with the facts developed in this case, that Simpson was the general agent of the appellees, and by virtue of such authority had the power to sell under deeds of trust and foreclose mortgages in favor of appellees.
It is true we so held in the case cited, and there was evidence in that case tending to show that Simpson had such general authority. There is also evidence in this case which tends to show that Simpson had such general authority; and there is also evidence which shows that his authority was limited in the manner found by us in passing upon the facts of the case at bar.
We do not feel any more bound by the decision reached by this court in the case cited, than would be the case of a trial court in one jurisdiction finding differently from a trial court in another jurisdiction upon the same state of facts. The case cited involved the agency of Simpson and his general power to represent the appellees, and was tried in the District Court of Coleman County. The case at bar was tried in a different court. Because the District Court of Coleman County saw fit to believe, in the case before it, that state of facts which tended to establish the general agency of Simpson, and base its judgment thereon, was not binding upon the court that tried this case, although the facts in the two cases may have been identical. Each of the District Courts before whom these two different cases were tried, had the right to judge of the credibility of the witnesses, and where there was a conflict of evidence, could elect to believe either phase of the case which had evidence to support it. And because the District Court that tried this case exercised its privilege to base its judgment upon evidence which tended to establish that Simpson's agency was limited, would not be ground for setting aside that judgment, because some other court had previously concluded that Simpson's agency was general.
The conclusion reached by this court in the case cited, as well as in the case at bar, was based upon the familiar principle that obtains with us, as well as with other courts of appellate jurisdiction, that where there is evidence to warrant the judgment of the court below, although it may have reached a different conclusion on the facts, this court will follow the conclusion reached and will not disturb the judgment of the trial court.
We do not care to discuss other questions presented, and adhere to the former disposition made of this case. Therefore, the motion is overruled.
Motion overruled. *Page 531