It is not our opinion that after the act of 1845, “to authorize the appointment of trustees in certain cases,” (Paschal’s Dig., art. 483, et seq.,) conveyances to trustees for the benefit of churches were ineffectual unless made in compliance with its terms. By such compliance the trustees become a body corporate; without it any person might still convey property to trustees for the use of an unincorporated church, and might provide that on the occurrence of certain events the original trustees, or some of them, should retire and others be substituted. (Lewin on Trusts and Trustees, p. 566; 3 Pet., 99.) We see no reason to doubt that the deed offered in evidence vested in plaintiffs a title sufficient to enable them to maintain their suit.
We are inclined to the opinion that the evidence excluded by the court, as secondary, should have been admitted.
But however that may be, (and as the question will hardly recur, it is not material to decide it,) our opinion is that the affidavits for a new trial show that the defendants’ counsel was misled, by the answers of the witness to his inquiries, previous to the trial, into the belief that there was no written evidence of the contract which he sought to prove by that witness. He appears to have used reasonable care and diligence in informing himself of the facts to which the witness would testify, and to have been misled by the mistake of the witness, the result being the exclusion of testimony material to the defense. Our opinion is that the showing made entitled defendants to a new trial. (Delmas v. Margo, 25 Tex., 1.) Because the court erred in refusing anew trial, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Justice Bonner did not sit in this case.]