Defendant in error sued Vince Bracken and Albert Bracken in trespass to try title to recover the land in controversy. Albert Bracken pleaded not guilty. Vince Bracken, in addition to his plea of not guilty, specially alleged the facts that will be stated to show the invalidity of plaintiff’s claim of title or as grounds for a decree setting it aside. The evidence showed that prior to August 24, 1895, Vince Bracken was the owner of the land, and that on that day he and his wife executed a deed of trust, to secure plaintiff in the payment of a note, in which H. B. Allen was named as trustee and empowered, upon default in the payment of the note and upon request of Bounds, to sell the property. The deed also provided that, “should the said H. B. Allen from any cause whatever fail or refuse to act or become disqualified from acting as such trustee,” Bounds might appoint a substitute, who should have the power delegated to Allen. The deed further provided that the recitals in the conveyance to the purchaser should be full evidence of the matters therein stated. On the 28th day of March, 1899, the note being past due, W. R. Bounds in writing appointed Edgar W. Bounds, his brother, as substitute for Allen, reciting that Allen, having been requested to sell the land, failed and refused to act. The substitute trustee sold the land and executed to plaintiff, who purchased, a deed reciting the provisions of the trust deed, his appointment in Allen’s stead, and the subsequent proceedings, and conveying the land. The evidence showed that Albert Bracken was in possession claiming the land under a verbal gift from his father, Vince Bracken. One of the grounds of the defense was that the sub*203stitute trustee had no power to sell because the facts had not occurred to authorize his appointment. The facts as to this are contained in the testimony of Allen and of Bounds. The former testified as follows: “I know there was such a deed of trust [referring to the deed of trust introduced in evidence]. I don’t remember, but don’t think I was ever asked to act as trustee, but the deed of trust might have been delivered to me for safe keeping, but I don’t remember now. The first time that I knew of the deed of trust was when Mr. W. R. Bounds requested me not to act as trustee. Prior to the sale of this land, under the deed of trust, Mr. W. R. Bounds called on me and showed me the deed of trust and stated that I was the trustee, and that he wanted the deed of trust foreclosed, and that if it made no difference with me he preferred to have a substitute trustee execute the deed of trust. I told Mr. Bounds that it made no difference with me. I do not remember that prior to said conversation I had any notice of the fact that I had been made trustee in the deed of trust.”
Cross-examined: “At the time inquired about W. R. Bounds was customer of mine and my relations with him were friendly, and he kept valuable papers in my vault. I can not state that said deed of trust was not left with me for safe keeping. I had no objections to W. R. Bounds as one of my customers, and did not make any objections to the fact that I was named trustee in the deed of trust when I became aware of it. After I became aware of my appointment as. trustee I authorized Bounds to appoint a substitute trustee to make the sale. I do not remember whether I was informed by anyone or not of my appointment as trustee in this deed of trust.”
Bounds’ testimony on this point was as follows: “Mr. Allen, who was trustee in the deed of trust, lived at Hubbard City. Edgar W-Bounds, who was appointed substitute trustee, lived in Hillsboro. The distance from Hubbard City to Hillsboro is thirty miles. Mr. Allen is a banker. I did not request Mr. Allen not to act as trustee. I simply went to him and told him that I wanted this matter adjusted and settled off, and told him I had been on a deal with old Uncle Vince to get it settled. I told him I wanted it attended to at once, and told him that if it was all the same with him I would get my brother to attend to it, as he lived there at Hillsboro, and I could send the deed of trust up to him and have him to attend to it at once, and it would save him from having any further trouble with it. And I told him Uncle Vince was a particular friend of his and it might be the cause of him making an enemy out of him, and it might be the cause of Uncle Vince getting mad at him, and if it was all the same I would have my brother appointed, and he said it was all right with him, and that he had mo objections.”
The trial court instructed the jury to return a verdict for the plaintiff, and refused to give a charge requested by defendant to the effect that the sale by Edgar W. Bounds was void.
*204We are of the opinion that both actions of the court were erroneous. The evidence which we have stated shows plainly not only that Bounds never requested Allen to sell, but also that he requested and induced him not to do so. By the deed of trust which created all ¡the rights and powers of Bounds and the trustee over the land Allen was selected as the person to make the sale, and the appointment of another in his stead was authorized only in case of his failure, refusal or disqualification to act. No sale could be legally made, except in accordance with these provisions. The power to appoint a substitute could have no existence until the contingency provided for by the deed had happened. The makers of the deed of trust had the right to select and did select the person to whom they were willing to intrust the execution of the .power created, and Bounds had no right by his own management to deprive them of the services of their selected agent. The power of substitution gave him a remedy only in case the power of sale created for his benefit would be defeated by the action or nonaction of the trustee chosen by Bracken. That he could not, for his own convenience, bring about the condition to authorize himself to select another trustee, seems too plain a proposition to require argument or authority to support it. The mere assent by Allen to Bounds’ suggestion that he should not act can not be held a “failure or refusal” of Allen, in the sense of the deed of trust, without doing violence to its very substance. It is urged that Allen never accepted the trust which the deed sought to impose on him and was therefore never invested with the power; and that for this reason a state of facts existed to authorize the appointment of a substitute. But while an acceptance may have been necessary to impose a duty on him, as trustee, it was not essential to the validity of the instrument. That created a right in Bounds to have the property sold, but only in accordance with its provisions, which required a sale by Allen unless he failed or refused to make it. The fact that Allen had not signified his acceptance did not enlarge Bounds’ rights or powers, whatever might have been the effect of an affirmative and unequivocal refusal to accept. When the time came for action Allen could still have accepted and conducted the sale had he been properly called upon to do so.
It is urged that, by the deed of trust, the deed of the substitute trustee is made evidence of the facts recited in it; and that this imposed upon defendants the burden of showing affirmatively that Allen had not failed or refused to act and that the evidence does not necessitate that conclusion. Whether or not the recitals in the deed of a substitute trustee could be accepted, under such a provision as that contained in the deed of trust before us, as evidence that the facts authorizing the . substitution had occurred, we need not. consider. The deed of the substitute, as stated in the record, contains no recital of those facts; and besides, if the burden was on the defendants as contended, the admitted facts sustain their contention. We do not agree with the contention that the pleading of Vince Bracken did not properly set up the defense *205which we sustain; but, if it were so, Albert Bracken had the right to prove the facts defeating plaintiffs title under his plea of not guilty, and it is therefore unnecessary to dwell longer on this point.
The evidence showing conclusively that the trustee’s sale was void, the judgments below will be reversed and judgment will be rendered for defendants.
Reversed and rendered.