delivered the opinion of the court.

Conceding the right of Wilkes, as substituted trustee, he failed to maintain the action by evidence. Its full import is that the horse sued for was embraced in the deed of trust executed by Posey, and that the debt it was given to secure was still unpaid, all of which being true, shows no right to the horse taken by the writ from Gates, who is not shown to have acquired the horse from Posey or any one claiming under him; nor does it appear that his claim arose subsequently to the execution of the deed of trust. Por all that appears, Gates may have been the owner and possessor of the horse' prior to, and at the time of the execution of the deed of trust.

Affirmed.