THE SOUTHWESTERN REPORTER, VOLUME 49, CONTAINING ALL THE CURRENT DECISIONS OF THE SUPREME COURTS OF MISSOURI, ARKANSAS, AND TENNESSEE, COURT OF APPEALS OF KENTUCKY, SUPREME COURT, COURT OF CRIM- INAL APPEALS, AND COURTS OF CIVIL APPEALS OF TEXAS, AND COURT OF APPEALS OF INDIAN TERRITORY, PERMANENT EDITION. FEBRUARY 13—APRIL 3, 1899. WITH TABLE OF WRITS OF ERROR DENIED ?? THE SUPREME ?OURT OF TEXAS IN CASES IN THE COURTS OF CIVIL APPEALS. ALSO TABLES OP SOUTHWESTERN CASES PUBLISHED IN VOLS. 145, MISSOURI REPORTS; 100, TENNESSEE REPORTS. A TABLE OF STATUTES CONSTRUED IS GIVEN IN THE INDEX. ST. PAUL: WEST PUBLISHING CO. 1899. CHILDS et al. v. HILL et al. (Court of Civil Appeals of Texas. Dec. 10, 1898.) TRUST DEEDS—FORECLOSURE—ADVERTISEMENT. 1. Act March 21, 18S9, prescribing the time and place of sale of all land thereafter to be sold under power conferred by trust deed, and requiring notice to be given _as now required in judicial sales," and requiring the sales to be made at public venue on specified dates, does not apply to deeds executed before its enactment. 2. Where a trust deed provided for a sale after advertising same in a newspaper "for at least 20 days prior to the day of sale, such publication to be made at least three times during said time," a notice published for 19 consecutive days before sale was insufficient. Appeal from district court, Freestone county; L. B. Cobb, Judge. Action by Sallie Childs, individually and as guardian, against F. E. Hill and others. From a judgment for defendants, plaintiffs appeal. Reversed. Boyd, Compton & Anderson, for appellants. BOOKHOUT, J. This is a suit instituted in the district court of Freestone county by Sallie Childs, for herself and as guardian of the estates of the minors, Elvira, Maud, Alta, and Nellie Childs, against F. E. Hill, In the form of trespass to try title to recover 207 acres of land situated In said county. The defendant vouched In George E. Mann and R. A. Willis, the Independent executors under the will of R. S. Willis, deceased, and answered by a general denial and plea of not guilty. There was a trial before the court, which resulted in a judgment for defendants. From this judgment plaintiffs have duly prosecuted an appeal to this court. The case is brought into this court as an agreed case, under article 1414, Rev. St. 1895. It was agreed that the property was the property of the plaintiff Sal lie Childs, and her deceased husband, M. J. Childs. M. J. Childs executed a deed of trust upon the property to secure R. S. Willis & Bro. In a note executed by him to them for $2,500. M. J. Childs defaulted in the payment of this note, and the substitute trustee sold the property under the deed of trust, and it was purchased by Goldthwaite. The defendants claim title by mesne [sic?] conveyances from Goldthwaite. The only question raised on this appeal is as to the validity of the sale made by the substitute trustee under said deed of trust. The deed of trust was executed on March 5, 1888, conveying the land situated In Freestone county, Tex., to secure a note maturing January 1, 1889, and provided, in case of default in payment of the note, for Ore sale of the property, after "advertising time, place, and terms of sale * * * in a newspaper published In Galveston county, Texas, for at least 20 days prior to the day of sale, such publication to be made at least three times during said time, to sell the same, in accordance with such advertisement, at public auction, in front of the court-house door of Galveston county. In the state of Texas, to the highest bidder for cash," etc. On November 6, 1889, default having been made In the payment of the note, a substitute trustee, who had been duly appointed, after having advertised the property for more than 20 days, by posting notices at three public places in Freestone county, one of which was posted at the court-house door of said county, and also having advertised same In the Fairfield Recorder, a weekly newspaper published In said Freestone county, by an advertisement Inserted on the 18th day of October, 1889, and continued until the day of sale, sold the property before the court-house door of said Freestone county on November 6th, at which sale Goldthwaite became the purchaser, and a deed was executed to him reciting the advertisement in Freestone county, Tex., under which the sale was made. The defendants claim under this deed. On the 21st day of March, 1889, the legislature of Texas passed "An act to prescribe the place and time of sale of all real estate thereafter to be sold under power conferred by any deed of trust or other Hen," by the terms of which act It was provided that all sales thereafter made, under powers conferred by deeds of trust, should be made in the county in which such real estate is situated, and notice should be given as required In judicial sales. This statute was in force when the sale was made under which Goldthwaite purchased, and the substitute trustee, In making the sale, evidently acted under this statute, and not under the power conferred In the trust deed. It has been held that this statute did not apply to sales made under deeds of trust executed prior to Its adoption, and that, In foreclosing such deeds of trust, the trustee must follow the remedy prescribed by the contract. Association v. Hardy, 86 Tex. 610, 26 S. W. 497. The case above cited, we think, is decisive of the case before us. The deed of trust required notices to be published for 20 days in a newspaper published In Galveston county, and the sale to be made before the court-house door of said Galveston county. These requirements were not complied with. Three notices were posted in Freestone county, one being at the court-house door, for 20 days: and a notice was also published In the Fair- field Recorder, a newspaper published In said Freestone county, for 19 days, and the sale took place before the court-house door of said Freestone county. This advertisement was not in accordance with the power conferred in the deed of trust, and the sale made to Goldthwaite was void, and conferred no title upon the purchaser. Association v. Hardy, supra; Fuller v. O'Neil, 69 ???. 349, S. W. 181. The record shows that the appellants proved title to the land in controversy, and, under this opinion, the appellees having failed to show title, the judgment will be reversed, and here rendered for appellants. Reversed and rendered.