
    ROE v. DAVIS.
    (No. 2381.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    Moetgages (§ 350) — Tbust Deeds — Notice oe Sale — Posting—'“Now.”
    Under Rev. St. 1911, art. 3759, providing that notice of sale under a deed of trust shall be given as “now” required in judicial sales, and Rev. St. 1879, art. 2309, then in force, and providing that the time and place of sale of real estate under execution shall be advertised for at least 20 days by posting notices at three public places in the county, one of which shall be at the door of the courthouse of the county, and under a deed of trust requiring notice of sale to be posted, a trustee, Who made out three notices of sale and posted one on the blackboard at the foot of the stairs in the county building in Texarkana, and mailed one to the sheriff to be posted at the courthouse and to a third person to be posted at another place more than 20 days before date of sale, and he mailed a copy of the notice to the grantor in the deed of trust and his wife, and advertised the sale in a newspaper for three weeks, complied with the statute and the deed, and a sale made pursuant thereto is valid; the word “now” in article 3759 meaning the law in force when the article was enacted.
    [Ed. Note. — For other cases, see Mortgages, C’ent. Dig. §§ 10G3-10G7; Dee. Dig. § 356.
    
    For other definitions, see Words and Phrases, First and Second Series, Now.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. D. Davis against John Roe. There was a judgment of the Court of Civil Appeals (142' S. W. 950), affirming a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Hart, Mahaffey & Thomas, of Texarkana, for plaintiff in error. Rodgers & Dorough, of Texarkana, for defendant in error.
    
      
       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

The plaintiff in error owned the lots in controversy, which are situated in the city of Texarkana — it is unnecessary to describe them more particularly in this statement. He borrowed $675, giving his note, payable to Stewart & Rochelle, to secure which he executed and delivered to the said parties a deed of trust, wherein he appointed W. H. H. Moores as trustee, with power to sell and with the power to appoint a substitute trustee. Subsequently the note was transferred to Mrs. D. Davis, the defendant in error, and Moores having removed from that vicinity, R. P. Dorough was regularly appointed as the substitute trustee. At the time the deed of trust was given, the appellant was the head of a family, and testified that he resided on this property, and claimed it as his homestead in this litigation, but it is unnecessary to make further statement with regard to that matter, as it was a question of fact, which the court decided against him.

The lots embraced in the deed of trust were sold at public sale, and were purchased by Mrs. Davis, to whom the note had been transferred. The appellant instituted this suit to recover the property from Mrs. Davis, and alleged that it was his homestead at the time that the deed was made, and that his wife did not join in the sale, which issue was disposed of as above stated. It was alleged that there was no proper notice of the sale given, as required by the statute, and this is the only question that is now before this court.

The court found that the trustee delivered to the sheriff of that county, a notice of the sale, stating, according to law, the time when and place where it would occur, which was, by the sheriff, to be posted at the county seat. He also sent copy to other persons at different places by mail, requesting that it be posted in a public place at each one of the points,named. The action taken was in time to give notice for more than 20 days prior to the date when the sale should occur. The trustee did not see the notices where they were placed, and relied upon the fact that he had sent them to persons whom he knew and had confidence in, believing that they had posted them according to his instructions. There was no'evidence, further, as to the actual posting of the notices. At the expiration of the time given, the sale was made by the trustee in regular order, and the property was bought in by the defendant in error, Mrs. Davis. The only question presented to this court is the plaintiff in error claims that there was not sufficient evidence to show that the statute had been complied with in giving notice of the sale.

The statute under which the deed of trust was executed and the land sold reads:

“Art. 3759. Real Estate Sales under Deeds of Trust, How Made. — All sales of real estate made in this state under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated. Notice shall be given as now required in judicial sales; and such sales shall be made at public vendue, between the hours of ten o’clock a. m. and four o’clock p. m. of the first Tuesday in any month.”

In Fischer v. Simon, 95 Tex. 239, 66 S. W. 448, the words “now in force” were declared to mean the law in force when article 3759 was enacted in 1889, which law, thus referred to, was article 2309, Digest 1879, which we copy:

“Art. 2309. The time and place of making sale of real estate, in execution, shall be publicly advertised by the officer for at least twenty days successively next before the day of sale, by posting up written or printed notices thereof at three public places in the county, one of which shall be the door of the courthouse of the county.”

The deed of trust provides:

“And it is further specially agreed by the parties hereunto that in any deed or deeds given by any trustee or substitute duly appointed hereunder, and all statements of facts or other recitals therein made as to the nonpayment of the money secured, or as to the request to sell, the time, the place, terms of sale and property to be sold having been duly published, or as to any other act or thing having been duly done by any trustee, or substitute trustee shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals do state facts, and are without further question to be accepted, and we the said grantors do hereby ratify and confirm any and all acts that the trustee or substitute, or his successors in this trust may lawfully do in the premises by virtue hereof.”

Plaintiff next introduced warranty deed executed August 3, 1909, by B. P. Dorough, substitute trustee, conveying lot No. 6 in block No. 66 in the city of Texarkana, Bowie county, Tex., to Mrs. D. Davis, plaintiff, acknowledged August 7, 1909, filed for record September 21, 1909, and recorded October 9, 1909, in volume 54, page 257, Deed Becords of Bowie County, Texas.

The statement of facts contains the following statement:

“Hon. B. P. Dorough, being first duly sworn, testified as follows:
“Direct examination: I am the B. P. Dor-ough who made this deed as substitute trustee. Q. This deed just states that you advertised this property for sale in the manner prescribed by law: Wish you would state to the court how you did advertise it. A. My recollection is, Mr. Thomas, that we made out three notices; I posted one there on the blackboard at the foot of the stairs, in the county building, in Texarkana, and mailed one to Mr. Bochelle, to be posted here at the courthouse, and to Mr. Smith at De Kalb, to be posted at De Kalb; that we mailed a copy of it to John Iioe and Charity Boe, and then advertised it in the Courier for three weeks.”

We deem this as sufficient evidence to prove a compliance with the terms of the deed of trust in advertising the lots, and also to prove a compliance with the statute quoted above. There is no ground for a reasonable doubt that the sale was properly advertised, and the sale made as provided by the deed of trust and the statute.

The judgments of the district court and Court of Civil Ai>peals are affirmed.  