On Motion for Rehearing.
The appellees’ very ably written and earnestly presented motion for rehearing has been carefully considered, but the court is unconvinced of error in its former disposition of this cause; its two controlling fact findings — before made as standing out at least conclusively from the undisputed evidence — are vigorously but courteously assailed, mainly upon the contentions that the testimony failed to show the essential in-dicia of a trusteeship in Cooley for others in his tenure of the land, and that appellee Rafferty’s formerly quoted statement that he did so hold it was a mere conclusion and opinion that could not be used as a basis'for that fact finding that it was so held.
The statute itself originally applied herein to these two facts as so found before— Vernon’s Ann.Civ.St. art. 7425a — seems to settle the first of these- presentments adversely to appellees, in that the objective of its language appears to have been to-apply that public policy of the state to just such partially disclosed trusts as the evidence our former opinion sets out shows this one to have been, it being as follows r “[Article 7425a. Conveyance by trustees] Where a trust is created, but is not contained or declared in the conveyance to the trustee, or when a conveyance or transfer is made to a trustee without disclosing the names of the beneficiary, or beneficiaries, the trustee shall be held to have the power to convey or transfer or encumber the title and whenever he shall execute and deliver a conveyance or transfer or encumbrance of such property, as trustee, such conveyance or transfer or encumbrance shall not thereafter be questioned by any one claiming as a beneficiary under such trust or by any one claiming by, through, or under an undisclosed beneficiary, provided that none of the trust property in the hands of said trustee shall be liable for personal obligations of said trustee. (Acts 1925, 39th Leg., ch. 120, p. 305, § 1.)”
In the face of this express declaration, it seems inept to yet argue that the word “trustee” following Cooley’s name in these transactions — and despite the positive statement to the contrary of his partner and business associate in all the transactions to which that characterization applied, the ap-pellee Rafferty — should be held to have been merely descriptio personae.
The objection to appellee Rafferty’s statement, on cross-examination, that Mr. Cooley had not been holding this property for himself alone but there were other people interested in it with him and he held it as trustee, was a mere inadmissible conclusion, is likewise untenable; that witness was not only a party to the suit — he was indeed the main party upon his side of it — but he had been the one most intimately associated with *1117Mr. Cooley in all these transactions, hence knew, if anybody did, the capacity in which Mr. Cooley held and was acting; the statement therefore, unobjected to at any time, was plainly receivable as an admission against interest by a party to the suit. 17 Tex.Jur., p. 543, par. 224, and footnote cited authorities.
Not only so, but he was corroborated in that statement by the only other living member of the triumverate concerned in these transactions between himself and Mr. Cooley, that is, Mr. Bayless, whose testimony with reference to it was also quoted in our former opinion.
The further insistence that there was any lack of necessary pleading in behalf of the appellant of the trusteeship of Cooley and of his having so subjected this property that he held in trust to liability for his personal obligations to the appellee Rafferty, is plainly contrary to the record in the cause; indeed, the appellees themselves made that averment in their own trial pleadings; thus that issue was affirmatively put into the cause by them and was tried out in consonance therewith by both sides, without any objection by either to any of the testimony brought out as responsive thereto (inclusive of Mr. Rafferty’s statement), wherefore they were in no position to complain when it so came out conclusively from all the evidence that Cooley not only had been such a trustee, but had also made the trust property in his hands liable for his personal obligations to Rafferty.
The motion will be overruled.
Overruled.