Appellees’ Motion for Rehearing.
It is urged that the testimony of W. H. Frey, on account of the admission of which we reversed the judgment and remanded the cause on original hearing, was admissible in proof of the alleged conspiracy to defraud on the part of George H. Daggett and Mary H. Daggett to carry the title to the property in the name of Mrs. Daggett, and thus defeat the payment of debts .of George H. Daggett. It is a familiar rule of evidence that in order to make the .declaration or statement of an alleged eoconspirator admissible, when made out of the presence of the party against whom it is offered, proof sufficient to make prima facie showing of the conspiracy must be made by other testimony.
1 R. O. L. p. 521, § 62, says:
“Declarations of an alleged conspirator are not admissible against a coconspirator, in the absence of evidence from which may be inferred the latter’s assent, jointly with the other conspirators, to the existence and execution of the conspiracy, within the statutory period of limitation, unless the statements were made in the presence of those against whom they are offered. The order of proof is not very material; it being discretionary with the court to admit proof of declarations before proof of conspiracy. The prosecutor may either prove the conspiracy, which rendfers the acts and declarations of the conspirators admissible in evidence, or he may prove the acts of the different persons and thus prove the conspiracy. But there must be some tangible, material evidence of conspiracy, or a promise of its production, before the court can properly admit evidence of statements made in the absence and without the knowledge of the party against whom they are offered. The evidence need not be direct, positive, and conclusive; but there should be some evidence, and it is for the court in the first instance to say whether or not it exists. As to whether the declarations of a conspirator are competent to prove the existence and extent of the conspiracy as a foundation for the *203admission of declarations prejudicial to tlie interest of coeonspirators, the courts are not agreed. In some jurisdictions the declarations are held to be admissible for this purpose; in others they are excluded.”
In Sullivan v. Fant, 51 Tex. Civ. App. 6, 38, 110 S. W. 507, 522, writ of error denied, the court said:
“When evidence was developed that was sufficient to show prima facie a conspiracy, a condition of evidence arose which, as a rule of evidence, made the acts and statements of one the acts and statements of the other,- provided the jury believed there existed a conspiracy. Of course, as in agency, it would be necessary for the jury to find the fact, before they could properly consider the statement as binding on defendants, and defendants would have been entitled to a charge to that effect, which was not asked.”
In Fort Worth Livestock Com. Co. v. Hitson (Tex. Civ. App.) 46 S. W. 915,, it is said;
“Nor are the declarations of an alleged co-conspirator admissible against the other until the conspiracy is proved to have existed at the time they were made, by other competent evidence.” N
See, also, Schallert v. Boggs (Tex. Civ. App.) 204 S. W. 1061.
We do not believe prima facie proof of such alleged conspiracy to defraud had already been introduced at the time of the introduction of this testimony, or was subsequently introduced, to make admissible the alleged statements of appellant’s deceased husband. According to the statement of facts, in 1920, when this conversation between witness Frey and Daggett is supposed to hkve occurred, the record title to all of the property in controversy was in Mrs. Dag-gett and her daughter, Dorothy. As stated in our original opinion, all of the property then in the name of Mrs. Daggett was on November 28, 1916, conveyed -by Mrs. Dag-gett, joined by her husband, to Dorothy Dag-gett. ■ On Decefnber 21, 1916, “the land in controversy in Park addition,” not including the business property in’ controversy, was deeded by Dorothy Daggett to Mrs. Daggett; thus apparently leaving title to the business property in Dorothy Daggett, who was not a party to this suit. On March 25, 1921, George H. Daggett executed a deed to his wife conveying “the property in controversy.” But from the explanation given by Mrs. Daggett in her testimony, and not denied by any testimony offered by the plaintiffs below, all of this property was really the separate property of Mrs. Daggett, except that part thereof, the title to which was in the name of Dorothy Daggett. We adhere to our former ruling.
Appellee bank also urges that we should have affirmed the judgment below as to it on the plea and proof of res adjudieata. The bank introduced a judgment for $799.50 rendered by the county court of Erath county in favor of the bank and against George H. Daggett, and foreclosing an attachment lien on the lots in controversy in block 17, in the original town of Henrietta, against George H. Daggett and Mary H. Daggett. It is not shown when this judgment was rendered, although defendant bank pleaded that this judgment was rendered about July 1, 1921. Attached to the defendant’s answer is what purports to be a copy of a default judgment of the Farmers’ National Bank v. George H. Daggett et al., against George • H. Daggett for debt, in the sum of $799.50, with a foreclosure granted against both George H. Dag-gett and Mary H. Daggett. Appellee bank states that Mary H. Daggett appealed from this judgment, and it has been affirmed by the Court of Civil Appeals at San Antonio. There is no proof of this affirmance, but in 252 S. W. 344, appears a case of Daggett v. Farmers’ National Bank et al., from- the county court of Erath County, in which the judgment below was affirmed. We are not advised whether the case contained in 252 S. W. is the same case ds the one mentioned in the statement of facts or not. If so, and the Farmers’ National Bank desire to urge its plea of res adjudieata on another trial, it can do so. But we hesitate to accept as proven this fact upon such meager showing. Especially so, since it appears in .this case that the title to the property foreclosed on was vested at the time of the foreclosure, not in George H. Daggett or Mary H. Daggett, but in Dorothy Daggett.
The case of Quarles v. Eaton-Blewett Co., by this court (210 S. W. 596), upon which ap-, pellees rely to sustain their contention, was reversed and rendered by the Supreme Court in 249 S. W. 465, aá also was the companion case of Quarles v. Hardin by the El Paso Court of Civil Appeals. The Supreme Court’s decision in the last-cited case is found in 249 S. W. 459.
We overrule the mbtion for rehearing.