On Motion for Rehearing.
Appellant insists that what we said in overruling the assignments complaining of the admission of the testimony of Mrs. Eddleman, R. B. Xoung, Jim Armstrong, and Tom'Patil-lo, relative to certain statements made by W. H. Eddleman to the effect that the land in controversy belonged to Mrs. McFarland is misleading, in that it implies that such testimony was introduced after plaintiff had introduced the affidavit made by Eddle-man to the Tarrant county commissioners, the pleadings in the suit by Eddleman and McFarland against the railroad company for grass burned, and the statement made by Eddleman to Jarboe, representing the Dun Commercial Agency.
We have again carefully examined the statement of facts, which shows the following: Mrs. McFarland was the first witness introduced by defendants, and during her direct examination by her counsel she testified, in substance, that ever since her husband took charge of the land he has had exclusive control and charge of it; that until this suit was filed she had never heard of any claim of right in the property by any creditor or any one else; that during all that period she had claimed ownership of the property, and her claim of title had never been questioned by any one, within her knowledge. Following her testimony to that effect she further testified as follows:
“I never knew, or was it ever brought to my attention until after this suit was brought, of any alleged statements by my father with respect to the ownership in him of these lands, as contradistinguished from my ownership; never heard of anything of that kind until after this suit was brought. I have heard something of that sort since, i never authorized my father to make any statement of ownership of this land in him at any time during all these years. I do not see any occasion for any person to have been deceived. As far as I know, we made no statements about the ownership of the land; and there is nothing in the occupancy or use of the land or residence or control over it during all this time that would advertise ownership in my father. I can think of no occasion or anything that was inconsistent with my claim of ownership.”
Oa cross-examination counsel for plaintiff then interrogated her specifically about the allegations contained in the suit against the railroad company for burning grass on the land, also about the statements made by W. II. Eddleman to the Commercial Agency, the payment of taxes by him, and the statements contained in his affidavit made to the Tarrant county commissioners to the effect that he owned the land in controversy. And, in answer to that cross-examination, witness denied any knowledge of those documents or transactions prior to the institution of this suit. That cross-examination and those answers thereto constituted the first specific reference to any of those documents.
F. H. McFarland was the next witness introduced by defendants, and on direct examination by them he was asked for an explanation of the pleadings in the suit against the railroad company for damages for grass burned, and he then gave his explanation as to that. But during this direct examination by defendants he was not interrogated at all relative to the affidavit of Ed-dleman to the Tarrant county commissioners. During cross-examination of this witness by *218the plaintiff, there was introduced in evidence and read to the jury the affidavit of Eddle-man to the county commissioners, and one by F. H. McFarland himself touching the same subject, the pleadings in the suit against the railroad company, and McFarland interrogated about all those documents, and also concerning Eddleman’s written statement to the Commercial Agency.
Eddleman did not go on the witness stand until after the introduction in evidence of all those documents, except the statement to the Commez'cial Agency. When he did take the stand he was cross-examined by plaintiff relative to all those documents, including the statement to the Commercial Agency.
Neither Mrs. Eddleman nor R. B. Young nor Jim Armstrong nor Tom Patillo testified at all until after all those documents were introduced in evidence, except' the one to the Commercial Agency and after the examination of the witnesses above mentioned relative thereto. And the statement to the Commercial Agency was introduced by plaintiff after those four witnesses had testified.
It thus appears that plaintiff alone was responsible for the introduction of all those documents, and that one of the purposes, if not the sole proper purpose,- was to discredit the testimony of witnesses for defendants, and chiefly that of W. H. Eddleman, while F. H. McFarland did testify on his first examination that his wife knew of the affidavit made by her father to the Tarrant county commissioners at the time it was made, and did not object thereto because she was anxious to help the bank, as noted in our original opinion, yet, when recalled to the stand, the witness withdrew that statement, saying that after refreshing his memory he found that he had made a mistake, and further testified that Mrs. McFarland knew nothing about that affidavit made by her father. Mrs. McFarland herself denied knowledge of it also and no other witness testified to the contrary except her husband on his first examination, as above noted.
Under such circumstances, we think it clear that the testimony of Mrs. Eddleman, R. B. Young, Jim Armstrong, and Tom Patillo, the admission of which was assigned as error, was admissible under the rule announced in Ætna Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863, cited in our original opinion.
[11] We are of opinion further that such proof of admissions by Eddleman of title to the land in his daughter was admissible for the further reason that it properly tended to support Mrs. McFarland’s plea of title under the statute of 10-year limitation, since it clearly tended to explain- the character of possession of the partnership of McFarland and Eddleman. Warren v. Frederichs, 83 Tex. 380, 18 S. W. 750; Chew v. Jackson, 45 Tex. Civ. App. 656, 102 S. W. 427; 2 Corpus Juris, p. 271, § 608.
[12] Furthermore, the record shows that the two notes sued on herein were dated June 29, 1915, and that they were renewals of two series of original notes all signed by W. H. Eddleman and cithers, one series being 20 in number, each for the sum of $5,-'000, with interest from date, all dated June 15, 1914, the other series being seven in number, each for $5,000, with interest from date, all dated April 1, 1910. Plaintiff’s claim of a creditor’s lien on the property was through W. H. Eddleman as owner of the title. If Mrs. McFarland acquired title by gift or by statute of limitation of 101 years, such title was complete prior to the inception of any part of plaintiff’s debt, except that title to the Ruland tract by limitation was not then complete. No contention is made that when the several declarations were made by Eddle-man which were testified to by Mrs. Eddle-man R. B. Young, Jim Armstrong, and Tom Patillo, Eddleman was then insolvent; indeed, the evidence shows practically without dispute that on those dates he was not only solvent, but was a rich man. If he was not then insolvent, of course, plaintiff had no creditor’s lien on the land, even if he then owned it; and, as plaintiff’s claim asserted in this suit was through him, declarations now under discussion were admissible against plaintiff because against Eddleman’s interest at the time he made them. Titus v. Johnson, 50 Tex. 242; Snow v. Starr, 75 Tex. 416, 12 S. W. 673; Hancock v. Tram Lumber Co., 65 Tex. 233; Matador Land & Cattle Co. v. Cooper, 39 Tex. Civ. App. 99, 87 S. W. 237.
In addition to the conclusions expressed in opinion on original hearing, we will say further that Mrs. McFarland, joined by her husband, also claimed title under and by virtue of the statute of limitation of 10 years which they specially pleaded. Special issue No-. 2, quoted in full, was as follows:
“Did the defendant Carrie E. McFarland take and hold possession of said lands from and after the date of said gift if you have found that there was a gift?
•“If you find and believe from a preponderance of the evidence that F. H. McFarland, in person or by tenants or employees, took possession of said lands, and held and exercised exclusive care, control, and management thereof, as the property of his wife, and in pursuance of and in reliance upon a gift of the same to her by W. H. Eddleman, if you find such gift was made, you will answer said issue No. 2 in the affirmative. But, unless you do so find from a preponderance of the evidence, or if you believe from the evidence that F. H. McFarland went into possession of said land and held the same as a member of the partnership of McFarland & Co. under and by virtue of an agreement between him and W. H. Eddleman whereby he was to take possession of said lands, and occupy, use, and control the same in conducting the business of said partnership, in either such eypnt your answer to said issue No. 2 should be in the negative.”
*219[13] And tlie findings of the jury in the affirmative in answer to special issues Nos. 1 and 2, which were supported by the evidence, fully sustained that defense as to all the land in controversy, except the Ruland tract, as to which there can be no doubt plaintiff could not recover, since F. H. McFarland paid all the purchase money for it, and Eddleman’s title to one-half interest in it was, in fact, no title at all, and hence not subject to plaintiff’s suit, instituted after its conveyance to Mrs. McFarland. And the judgment of the trial court can be supported for that reason, even though it should be said that it cannot be supported on the claim of parol gift. Roemer v. Meyer (Sup.) 17 S. W. 597; Butcher v. Grant, 143 S. W. 1191.
In the partnership transactions between McFarland and Eddleman, the former made no charge for his services for managing the business; nor did Eddleman make any lease of the land in controversy either in writing or in parol, to the partnership. This statement is added -to avoid any possible inference of facts to the contrary from what was said in the original opinion.
The motion for rehearing is overruled.