That a suit may be brought in the name of one person for the use of another is expressly recognized in the statute regulating proceedings in the district court, (Hart. Dig., Art. 701,) [Paschal’s Dig., Art. 10,] and suits of this character are of familiar use when moneyed demands are the foundation of the action. In such cases the allégations of the petition are tantamount to a previous assignment of the debt, and in effect pass the legal title to the judgment, by this admission of record, to the previous equitable owner of the debt. But to engraft such character of suit on our action of trespass to try title seems to us a novelty, which receives no countenance from the principles upon which, in this form of action, suits are founded, or the well-established practice in our courts in suits “ for damages and to try title” to land. If such forms of action are to *157come in use, a new assurance of title to real estate will be sanctioned, contrary .to the letter and spirit of the law regulating conveyances. . We may further remark, that we are left in much doubt by the record whether, after the death of the original plaintiff, Hooper, the suit was prosecuted by and in the name of his administrator, or in that of the alleged beneficiaries and solely for their use.
But as no objection has been made by appellee, either here or in the court below, to the manner in which the suit was brought and prosecuted, we have deemed it necessary to say only so much as we have, that it might not be inferred from our silence that we intended to sanction or encourage the novelty in the action of trespass to try title disclosed in this record.
The proceedings in the county court of Shelby county, for the partition of the Amy Dunman league of land between Hooper and the Dunman heirs, appears to have been begun under the 37th section of the law of 5th of February, 1840. (Hart. Dig., Art. 1031.) This law gave to the probate court authority to order the partition of lands held in common by the succession and the applicant for such partition; hut the court had no jurisdiction in cases for specific performance of contracts, or to hear and determine upon the validity of lands, or other imperfect titles. It was not until the passage of the act of February 2,1844, (Hart. Dig., Art. 1070,) [Paschal’s Dig., Note 487, p. 315,] that the court was invested with that power. Until that time, it was limited merely to making partitions, irrespective of any question of title. It must be held, therefore, that the transcript from the records of the county court of Shelby county, and the deed of the administrator of Amy Dunman, made in pursuance of the order of said court for carrying into effect its decree of partition, cannot be regarded as instruments of title, vesting the land in dispute in Hooper; and, so far as they were relied upon as having this effect, the objection to them was well taken.
*158We think, however, these instruments may have properly gone to the jury, in connection with the bond of Amy Dunman to Hooper for an undivided half of her head-right league of land, for the purpose, if that were deemed necessary, of showing an admission oh the part of the administrator and guardian of the heirs of said Amy that said land had been located and the patent obtained by Hooper, as stipulated in said bond.
In the cases of Croft v. Rains, 20 Tex., 520, and Grassmeyer v. Beeson, 18 Tex., 753, it has been held by this court, that a tenant in common (and in the first case he held only a bond for title) may recover a specific portion of the tract from a trespasser. And, since the seizin of such tenant extends to the entire'tract, there certainly can be no doubt of the correctness of the ruling in our courts,when an equitable title will, sustain this action.
It is urged by appellees that this bond did not authorize a recovery of the land in controversy by appellant, because there was no proof offered that the conditions of the bond had been complied with by Hooper. We have seen that in this they were mistaken. But, if they were not, I can see no force in the objection. If the suit was being prosecuted against any one holding in privity with Amy Dunman, it would be necessary, unquestionably, for the plaintiff to show a compliance with the conditions of the bond to justify a recovery. But this is not the rule when the suit is against a naked trespasser or stranger to the title. Such party may be ejected either by the vendor or vendee. If there are matters of dispute or unadjusted equities between them, he has no interest in them and cannot bring them into controversy. Either party may recover the land from him, and such recovery will inure to the benefit of that one who may he entitled to it upon an adjustment between themselves of their respective equities. (Wright v. Thompson, 14 Tex., 558.)
The affidavit which it is insisted authorized the introduc*159tion in evidence of the copy of the deed claimed to be from the heirs of Amy D unman to Hooper, seems hardly to come up to the requirements of the former decisions of this court. It is said in the opinion in the case of Butler v. Dunagan, (19 Tex., 566) “ There ought to be a strict compliance with the statute, it being in derogation of the common-law rules of evidence. (Crayton v. Munger, 11 Tex., 234.) The affidavit, if made by any person other than a party to the suit, should include the supposition that the party has it in his power to produce the original, which this affidavit does not. It states simply that he, the agent, 6 cannot procure the original.’ ”
The declarations of a party while in possession of land, stating the nature and character of the possession which he claims, and the person under whom he holds, may be given in evidence as a part of the res gestee, accompanying the act of possession and explanatory of it.
The exclusion of proof of the admissions by the Perch-mans, showing under whom they settled upon and occupied the land, was in violation of this well-settled general rule, and therefore improper. That the plaintiff, in his petition, states that he brings suit for the use of these parties would have been a reason for an exception to the petition, or for a motion to have this part of it stricken out, but furnishes no ground for excluding the proposed evidence.
The judgment is reversed, and the cause
Remanded.