On Motion for Rehearing. The final judgment in this case denies appellant, Jones, the right to recover upon the note and foreclose the deed of trust, on the one hand, and cancels the note and deed of trust as a cloud upon defendant's title to the land, on the other. A reconsideration of the record forces us to the conclusion that the judgment, in so far as it denies Jones the right to recover, should be affirmed, and that portion which decrees the cancellation of the note and deed of trust must be reversed and remanded for the want of necessary parties. It does not appear from this record that the railroad had been sold, but, by the order of the district court discharging the receiver, he is directed to deliver to the directors and president of the road, as trustees, all the property remaining in his hands undisposed of at the date of the order. If the road was still in the hands of the receiver at the date of the final judgment, he should have been made a party to the suit, and, if the property had vested in the manager and directors of the railway corporation, then by the provisions of Vernon's Sayles' Civil Statutes, arts. 6630, 6631, they, as trustees, were necessary parties defendant before the court could adjudicate the validity of the note and deed of trust. Having arrived at this conclusion, it is necessary for us to dispose of appellant's remaining assignments of error.
It appears from the record that the $28,000 note held by appellant was secured by the collateral note in issue here, and also by a deed of trust upon appellee's land. For the reasons stated in our original opinion, and more fully set out in our opinion in the case of Jones v. Abernathy, 174 S.W. 682 we overrule appellant's first four assignments of error.
The fifth assignment is multifarious, and too general to entitle it to consideration. *Page 686
Appellant requested a special charge upon the issue of waiver by appellee in renewing the note, which was refused. We think the charge does not state the law applicable to the facts. The court did not err in refusing to quash the depositions of Walstadt, Blodgett, Abernathy, and Cooper. It was shown that Correll, the officer who executed the commission, had never acted as attorney for appellee in this case, though he had represented him in other suits. M., K. T. Ry. Co. v. Byas,9 Tex. Civ. App. 572, 29 S.W. 1122.
Appellant urges the proposition that a nonprofessional witness cannot give or state his opinion as to the sanity of a party unless the same is accompanied with a statement of facts upon which the opinion is based. While this is true, we find from an examination of the statement of facts that the rule has been complied with, and the court did not err in overruling appellant's objections.
For the reasons above stated, the judgment is affirmed in part and reversed and remanded in part.
HENDRICKS, J., not sitting.