GRAVES, Justice.
"This appeal is from a judgment of the district court of Anderson County, Texas, in favor of Joe N. Davis, appellee, and against Maggie James, Maymon Durham, Herbert Durham, and Willie Miers, who were plaintiffs, rendered by the court without the aid of a jury, on the 29th day of May, 1940. The plaintiffs, claiming to be the sole surviving heirs of Sallie Durham, deceased, filed the suit on September 25, 1936, against Joe N. Davis to recover the title and possession of Lots 7 and 8 in Block M of Jackson's Addition to the City of Palestine. The defendant, Davis, pleaded the general denial and plea of not guilty, and filed a cross-action, praying for the title and possession of the land and for judgment against Willie Miers, one of the plaintiffs, in the sum of $121.50 for rentals alleged to have accrued while Miers was in possession of said property and was withholding the same from the defendant. The trial court rendered a "take-nothing" judgment against appellants, who were plaintiffs in the trial court, and rendered judgment in favor of appellee on his cross-action for the title and possession of the premises involved, and for the sum of $30.95 against Willie Miers, as rental, and for costs of suit."
In protest against the judgment so adverse to them below, the appellants, upon a transcript and statement of facts of the trial proceedings, which have been duly permitted to be filed, and upon an affidavit in forma pauperis in lieu of an appeal bond for costs, present to this court in their briefs—oral arguments here having been waived by both sides—their contentions for a reversal in eight propositions of law, which may, in substance, be abridged as follows:
"First. Where three of the plaintiffs execute a deed of trust to J. F. Grigsby, as trustee, on land (town lots) to secure a note executed by them, plaintiffs, to Mrs. Clara E. Davis, afterwards the said trustee on the 6th day of September, 1932, sells said land at trustee's sale and executed a deed to the defendant, son and legatee under the will of Mrs. Clara E. Davis, the plaintiffs bring a suit in trespass to try title, and to set aside the trustee's sale and deed, alleging said sale and deed are void, for failure to comply with the provisions of said deed of trust as to notice to plaintiffs and publication of said sale; the defendant two days before the trial of the cause, without the knowledge of the plaintiffs, takes a deed to himself from T. C. Ritchey, to the land in question, T. C. Ritchey, having on the 30th day of November, 1927, taken a deed to the land from Sallie Durham, the mother of the plaintiffs, the plaintiffs at all times after the date of the deed of Ritchey being in possession of the land, such possession being known to the defendant, the plaintiffs are entitled to show by the testimony of Maggie James, one of the plaintiffs, that the deed executed by Sallie Durham to Ritchey was given to secure a sum of money borrowed by Sallie Durham from Ritchey, and that said sum of money had been paid, for the purpose of showing that the deed was not an outstanding title, and that the defendant acquired no title by said deed from Ritchey.
"Second. Where (reiterating same recitals as in No. 1), the plaintiffs are entitled to show by the testimony of W. R. Petty that T. C. Ritchey admitted and stated to him that the deed to himself, T. C. Ritchey, was executed to secure a sum of money borrowed by Sallie Durham from him, Ritchey, and that the money had been paid back to him, for the purpose of showing that the same was not an outstanding title, and that T. C. Ritchey had no title to convey to the land, and that the defendant acquired no title by said deed from Ritchey.
"Third. Where the plaintiffs are in the actual possession of the land, claiming to be the owners and exercising ownership and control over the same, the defendant takes a deed thereto from T. C. Ritchey, Ritchey never having been in possession of the land nor exercising any character of control thereof, the defendant having actual notice of the plaintiffs' possession and claim of title, the possession of the plaintiffs and their claims of title are notice to the defendant of any claim of title or rights that they have, and by the defendant by his deed from Ritchey acquires no title.
"Fourth. The plaintiffs executed a deed of trust to J. F. Grigsby, as trustee, on land to secure a note executed by them to Mrs. Clara E. Davis; the deed of trust providing, in the event of a sale thereunder, the method and character of advertisement and notice of said sale to be given, and what notice should be given to the makers of said deed of trust, prior to the sale, the trustee sells said land under the powers granted in said deed of trust to and executed a deed to the defendant, but fails prior to said sale to strictly comply with the provision in
said deed of trust, as to the character, nature, and kind of advertisement of said sale, and the notice to be given, the sale made by the trustee and the deed executed by him to the defendant are void and convey no title to him to the land.
"Fifth. * * * said deed of trust provides that after said note becomes due, any part of said note remaining due and unpaid, the trustee, at the request of Mrs. Clara E. Davis, shall proceed to sell the land at public sale. That said trustee, at the request of defendant Joe N. Davis, the son and attorney for Mrs. Clara E. Davis, proceeded to advertise and sell said land to and make a deed to Joe N. Davis, the defendant, said sale and the deed made by the trustee to the land are void and convey no title to the purchaser at such sale.
"Sixth. Where * * *, after said note became due, there being a balance of $31.00 due thereon, the trustee sells said property at trustee's sale, but fails to advertise said sale and give notice of said sale and to give to the plaintiffs the notice of said sale as provided in said deed of trust, the plaintiffs having no kind or character of notice of such sale, and knowing nothing about said sale, and at such sale the land, of the value $500.00, was sold to the defendant for the small and inadequate sum of $40.00, the court should set aside said sale and deed and render judgment for the plaintiffs.
"Seventh. Where plaintiffs borrow $60.00 from Mrs. Clara E. Davis and they are required to execute their note for the sum of $71.00 bearing interest at the rate of ten per cent per annum from the date thereof, and due in two months after date, said note is usurious, and all sums paid thereon must be paid on the principal and when said sum of $60.00 is paid the deed of trust lien given on land to secure the payment of said note is fully discharged, and a sale of said property for usurious interest in part is void and the deed made is void.
"Eighth. Where a judgment is against the great weight and preponderance of the evidence the court should not render a judgment for the defendant, and the cause will be reversed on appeal."
To these presentments the appellee, likewise by brief, responds with counter-propositions bearing the same numbers, respectively, which may be, in material features, condensed this way:
"No. 1. The trial court did not err in refusing to permit Maggie James to testify, in effect, that Sallie Durham borrowed money from one T. C. Ritchey on November 30, 1927, and on that date executed a deed conveying to Ritchey the premises in controversy, which deed was intended to be a mortgage or deed of trust securing the sum so borrowed, and that said borrowed money had been paid in full to T. C. Ritchey and the lien satisfied; because plaintiffs claimed title to the premises through their mother, Sallie Durham, and this was an action by heirs of the decedent, and the proffered testimony of Maggie James was inhibited by R.S., Article 3716.
"No. 2. (a) The trial court did not err in refusing to permit Mr. W. R. Petty, attorney for appellants, to testify to purported declarations of T. C. Ritchey, to the effect that the deed of Sallie Durham in evidence was made to secure money borrowed, and that the money had been paid back; because, the evidence showed that Ritchey was not in possession of the premises at the time the declaration was made; and that the proffered testimony was hearsay. Declarations of a person in disparagement of his title are admissible only if made while the declarant is in possession, and then only in explanation of his possession. Declarations are never admissible to show title, nor the absence of it.
"(b) Because, in a suit by the heirs of a grantor against an innocent holder under grantor's immediate grantee, evidence in the form of declarations by the immediate grantee in disparagement of his duly executed deed to the purchaser is not admissible, and cannot form the basis of findings of fact or of a judgment on such findings. A purchaser from grantee may rely on grantor's deed absolutely alienating title, although grantor continues in possession of the premises.
"No. 3. The fact that appellants were in possession of the premises in controversy and were claiming the same, as against appellee, at the time appellee purchased the premises from T. C. Ritchey for a valuable consideration and received Ritchey's deed, is not effective, in law, to give appellee notice that Sallie Durham's deed to Ritchey was a mortgage, if it was in fact a mortgage; because, appellants were holding possession of said premises as tenants of appellee at...
