On Rehearing. In overruling the motion for rehearing filed by the appellees, the E. G. Hanrick heirs, we submit the following in addition to the findings of fact and conclusions of law stated in our original opinion:
(1) In the pleadings of E. G. Hanrick used at the trial in 1898, and upon which the judgment was rendered as affirmed by the Supreme Court in93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330, it appears that said Hanrick in setting up the rights of Gurley to an undivided one-third interest in the land alleged that Gurley's rights originated in a written contract signed by Edward Hanrick the ancestor in 1861, and, after stating the services rendered by Gurley, this part of the answer concludes with the following paragraph: "Nor has the *Page 728 said Gurley received for his said services since the year 1858 up to this time or for the said lawyer's fees paid by him anything whatever except said one-third interest in said land, all of which is and should be a common burden and charge upon the interest of all the heirs to said estate, and their assigns and should set off to said Gurley before partition among themselves." The answer of the said E. G. Hanrick was adopted by the said appellees as his heirs when they became parties and under which the trial of 1903 was had, eventuating in the judgment which is now attacked by appellees as being void.
(2) The answer of Gurley, filed on the same day that E. G. Hanrick's was filed, August 15, 1895, contains the following paragraph: "And the defendant, E. J. Gurley, comes and specially adopts sections 16 to 18, inclusive, of the answer of his codefendant E. G. Hanrick (being the part of Hanrick's answer setting up his rights), reiterates the same, and alleges that all the facts therein pleaded are true, pleads the same by way of reconvention and cross-bill, and prays for affirmative relief thereon and that his title be quieted, and that he have general relief."
(3) In the answer of said Hanrick after setting out his account for money expended, and for which judgment was subsequently rendered in his favor, and under which what is known as the compensation tract of 1,759 acres was set aside to his heirs, it appears that Hanrick specially pleaded the value of the improvements placed by him upon this tract amounted to $12,275, and this part of his answer concludes as follows: "Wherefore, he says that if it be determined that the plaintiffs or the defendants Brady and O'Brien and wife are entitled to have a partition of said land, that the land so improved and occupied by him be set off to him as a part of his share in said partition, and, if this cannot be done in justice to his cotenants, that he be allowed the value of his improvements."
(4) The answer of said Hanrick concludes with a general prayer for relief as follows: "Whereupon this defendant prays that if upon a partition of the premises in controversy any one or more of the parties defendants hereto or plaintiffs * * * that the lands improved by him be set off to him, and, in case that cannot be done, that he have and recover the value of said improvements from the person to whom said improvements are adjudged, and, as to the taxes and expenses paid by him as above set out, he pleads the same in reconvention against all the parties to this suit, and prays for judgment as to them, and that the same be made a lien upon the shares of the parties to this suit who may recover against him." We make these further findings as furnishing additional support to our conclusion that the judgment of 1903 was responsive to the issues before the court for adjudication as made by the pleadings of the parties, and is neither void nor voidable, as claimed by appellees. It will be seen that E. G. Hanrick in his answer claimed that Gurley had a superior right to one-third of the land, which he claimed should be set off to Gurley before there should be any partition of the land between himself and the other heirs; and in his own behalf set up his improvements upon what is known as the "Compensation Tract," and specially prayed that this tract be set off to him, and in the event any part of the same was set off to any other party to the suit, whether plaintiff or defendant, that he recover the value of his improvements from the person to whom the same might be adjudged, and also prayed for judgment upon his expense account as against all parties to the suit.
While we adhere to our conclusion of law that in a partition suit under the statute referred to in our opinion, it is proper for the court to ascertain and determine the rights of the defendants, and to make partition between them without any special pleading asking for partition, we submit that the answer of Hanrick in this case under any proper rule of pleading was sufficient to raise the issue therein made, and to call for adjudication by the court of the rights with respect thereto, as was done in the judgment of the court in this case. We may ask how could there be a judgment entered in favor of Hanrick for the tract improved by him unless there was a full adjustment of the rights of all other parties to the suit, including Gurley, and it will be noted that the prayer made in behalf of Hanrick for this tract was that if any part of it should be set apart to any other party to the suit, plaintiff or defendant, that he have a judgment for the value of his improvements as against the person to whom the same might be allotted, and in response to this prayer judgment was entered protecting Hanrick's rights with respect to his improvements. Our construction of the statute is not at variance with the decisions which hold that where defendants ask that there be no partition between them that the court should respect their wishes and make the partition in behalf of the plaintiffs, leaving the defendants to hold their lands jointly where this can be done in justice to the rights of all parties. With respect to our ruling that there was no legal evidence before the trial court authorizing it to change the report of the commissioners charging the E. G. Hanrick interest with 1,625 acres conveyed by him and Gurley to Goodrich Clarkson, and that the written contract read in evidence, in which Hanrick gave to Gurley and Goodrich Clarkson one-sixth of his interest in *Page 729 the estate as a fee to represent him in opposition to the claims of the alien heirs was conclusive under the facts in this case, we refer to the decision of our Supreme Court in the cases of Dial v. Crane, 10 Tex. 444, and Sanborn v. Murphy, 86 Tex. 437, 25 S.W. 610, as supporting this ruling.
We have fully considered all matters complained of by appellees in their motion for rehearing, and, finding no merit therein, overrule the said motion.
In response to the motion for more specific instructions filed by appellant, Gurley, we find that we were in error in stating that the report of the commissioners should be confirmed as being based upon a proper adjustment of the equities existing between Gurley and the Hanrick heirs, and we therefore set aside our action in confirming said report in this respect, but we hold that under the agreements made by the parties at the trial and the undisputed evidence the report of the said commissioner should be confirmed and made final in so far as it sets apart land to all other parties to the suit, and in setting apart to Gurley and the Hanrick heirs jointly the land described in Exhibits A and D, to the end that there may be an accounting between them of the amounts received by each from the different sales and transfers therein shown, and that each interest may be charged with its ratable quantity of land in proportion to the division of the proceeds, where there was a division, and that each may be charged with the tract in its entirety where it shall appear that the proceeds from such tract were appropriated by one or the other.
And, if appellant, Gurley, shall be found entitled to any part of the 1,759-acre tract, he should not be charged with the value of any improvements placed thereon since the judgment of February 18, 1903.
In stating the account, the value of the several tracts so set apart to Gurley and the E. G. Hanrick heirs should be determined according to the standard fixed by the decree of 1903, without regard to the amount received therefor at the time the transfer was made, charging the E. G. Hanrick interest with the value of the entire 1,625 acres conveyed to Goodrich and Clarkson as above stated, and charging Gurley with the 4,113 acres on the Zarza grant set apart for his use.
As the case will be reversed for further trial, we find it necessary to pass upon the question presented by appellant, Gurley, as to the action of the trial court in excluding the deeds executed by the Hanrick heirs to L. W. Goodrich, conveying their interest in the 1,759-acre tract, set aside in satisfaction of the moneyed judgment rendered in their favor, and transferring their interest in the said judgment, and in not permitting appellant, Gurley, to testify as a witness in his own behalf as to statements made by and as to transactions with the said E. G. Hanrick. It appears that these deeds were without warranty, and that the parties had agreed that Hanrick and Gurley had disposed of all the lands set apart to them, that neither disputed the validity of any of such sales, and it is thus made to appear that this 1,759-acre tract is made the entire subject-matter of the controversy now before the court for adjudication. It appears from the record that by proper pleading, if such a plea was necessary, appellant, Gurley, had alleged the execution of these deeds to Goodrich, and claimed that the heirs of Hanrick were only nominal parties, having no further interest in this tract of land, or in the judgment of contribution. It appears that L. W. Goodrich had previously intervened in the suit, and at the trial over Gurley's objection and on his own motion and the motion of the Hanrick heirs he was permitted to withdraw from the case. All of these rulings of the court are properly presented by bills of exceptions.
Under the facts shown by the record, we are of opinion that the court erred in permitting appellee Goodrich to withdraw from the case, and in excluding the testimony of appellant, Gurley, with respect to all transactions had between him and E. G. Hanrick, deceased. As all matters at issue center in the 1,759-acre tract, the sale by the Hanrick heirs of their interest in this tract pendente lite rendered them mere trustees for the purchaser for the purpose of conducting the litigation to its final issue in his behalf, as is held in the case of Lee v. Salinas,15 Tex. 495, and, if judgment should be rendered against them, it would not be as heirs of Hanrick in their own interest, but in substance and in effect as trustees for Goodrich. It has been held in a number of cases that, where a party to the record disclaimed all interest in the suit, such disclaimer restored his right to testify, notwithstanding his name may remain technically as a party to the record.
In Oury v. Saunders, 77 Tex. 278, 13 S.W. 1030, it is held that, where it was alleged and shown that an original defendant had pending the suit conveyed all interest which he had in the suit to the plaintiff without warranty, this showing removed the disqualifications of the statute. As our statute (Rev.St. 1895, art. 2300) declares that no person shall be incompetent to testify because he is a party to the suit or interested in the issue tried, we hold that the exceptions declared in article 2302, that in actions by or against executors, administrators, or guardians or the heirs and legal representatives of a decedent neither party shall be allowed to testify against the other as to any transactions with or statements by the decedent or ward, should not be held to apply to a case when the party whose presence disqualifies has parted with all interest in the *Page 730 subject-matter of the suit and has become a mere nominal party, litigating as a trustee for the purchaser. This exception to the statute was intended to protect the estate of deceased persons and minors against possible fraud and wrong, and should not be extended to a case which does not fall within its spirit or intent. As the purchaser Goodrich was a party before the court when the issue was made that the Hanrick heirs were nominal parties, and is made a party to this appeal, we hold that the trial court erred in permitting him to withdraw from the case, and the judgment in this respect will be reversed and said Goodrich reinstated as a party to the record.
In all other respects we adhere to the conclusions announced in our original opinion, and the judgment of the trial court will be affirmed in all respects wherein the same relates to all other parties to the suit except the appellant, E. J. Gurley, and the appellees R. A. Hanrick and Nannie Hanrick Coleman and husband, H. M. Coleman, and L. W. Goodrich, and as to these the said judgment will be reversed, with instructions to the district court of Falls county to proceed with the execution of its judgment of February 28, 1903, in accordance with the rights of parties as set forth in our original opinion and in this opinion, and judgment will be entered accordingly. *Page 768