The opinion
On Motion for Rehearing.
There is a very decided distinction in the-questions presented and raised in the cases cited from this case. It requires an agreement, or something tantamount to one, from a creditor to release his debtor. Hence, the case of Johnson v. Amarillo, 88 Tex. 509 , 31 S. W. 503 , and the other cases cited by appellants are not in point on the question.
It is not denied that the note was in fact what was called a “renewal” note. No significance need be placed to that for it was Rivas’ debt that was discharged, and Rivas was likewise discharged by Frank for he would not permit Rivas to go on the note with Yndo. Frank took Yndo’s note in settlement discharge and acquittance of Rivas’ obligation and Rivas was released and discharged, as Yndo thereby discharged the-debt with his own note and obligation, just the same as though he had paid it in money. That such was the intention of the parties is made too plain by their acts and conduct at the time and by the subsequent dealings between Yndo and Rivas. Besides, it is insisted throughout this case by appellants he (Rivas) was getting an extension of time from Yndo, never from Frank, for with him Rivas had no further dealing — it was a closed incident. Appellant is now urging he (Rivas) was to pay Yndo (not Frank) when he sold the property, and hence the claim of the suspension of limitations.
In regard to Yndo’s forbearance as now insisted, based upon a consideration, we are referred again to Deutschman’s testimony that “Manuel Yndo and A. P. Rivas did make a verbal agreement about 1897, about the time this second note for $2,000 was given. A. P.- Rivas told Manuel Yndo that ‘if you will let me apply this money on some other indebtedness, I will pay you when my property is sold.’ This was about 1896-8. Yndo was telling him he understood he was going to get some money or sell some property, or was going to give a mortgage on some, and he hoped he would take some of that and pay the Frank debt.” In another place in the statement of facts he said: “I was *925 ■representing one-half of the Flores estate and one-half of that went to my client and they were talking to themselves. Yndo asked Rivas to take care of at least a part of the Frank debt and Rivas told him he could not possibly do it out of this money. A .judgment had been obtained against him, and it was a debt of honor, means used by him belonging to minors and he had it to pay, and he said, T want you to know that I am not going to beat you folks.’ ” We re-quote so much from the testimony to fix •date of the supposed agreement, in response to appellants’ request, to show whom Deutschman was representing, as complaint is made that our opinion indicates he was the attorney for Rivas. No such inference ■ought to be drawn, as we stated he filed the ■will of Rivas to be probated.
There was no demand made by Yndo himself or through any attorney, or threat, that he would sue unless he was paid. This conversation is fixed at about 1896, 1897, or 1898, á time antedating the note given, which note was given February 18, 1904, and signed alone by Yndo. We see no reason to ■chánge our views.
It must not be overlooked that there is a •statute of limitations in this state governing the period of time when suits are to be instituted, and such exception as is sought to avoid must be based upon a clear and sufficient agreement and consideration.
Independent of these considerations, we do not believe appellant has shown any right to •subject the property to his debt described in ■the petition referred to in our opinion, wherein it is sought to set the deed aside from Maria Q. Rivas, deceased, which A. P. Rivas conveyed to her on 16th of April, 1888. Deutschman stated Rivas told him during his lifetime that the property belonged to him; was conveyed to her in trust. Jose Delgado likewise stated Mrs. Rivas stated, in effect, she held the property for her husband. Both of these alleged statements were testified to after the death of both parties. We intend only to state the effect, or rather .a brief conclusion from their statements, and none of the so-called corroborating circumstances, as they are of no significance without the declarations.
[6] In the first place, Yndo was a subse-quent creditor, and he would have no claim to subject that property, unless in fact the heirs got it as property of A. P. Rivas, and ■had he attempted to subject the property any ■-time after such statements, still the right to' set aside the deed was barred by the statute -of limitations, for when he gave his note or paid the debt more than ten years had «lapsed after the deed was made.
[7] In the second place, the declarations of the deceased grantor, as detailed, were not admissible in evidence alone to establish a trust, because they belong to the class of self-serving declarations prohibited. Mooring & Lyons v. McBride, 62 Tex. 310 ; Trinity Lumber Co. v. Pinckard, 4 Tex. Civ. App. 671 , 23 S. W. 1015 .
[8] Neither was it admissible to show payment of taxes in husband’s name and claim of property by hiip and assertion of ownership by him to affect his wife’s title. O’Neal v. Clymer, 61 S. W. 547 .
[9] The declarations of Mrs. Rivas alleged to have been made to a single witness, certainly uncorroborated, is not only against the sound policy of the law, but against the decisions of our courts. Keller v. Keller, 141 S. W. 583 .
The testimony of a single witness as to the declarations of a deceased person alleged to be trustee alone is not sufficient against the recitals in a deed purporting on its face to convey a legal title to submit as evidence. Grace v. Hanks, 57 Tex. 14 . This case has been a number of times cited and distinguished from other cases on the subject, but the main doctrine is as shown above. It also holds it may be corroborated in such a way as to become admissible.
The first inquiry then is, if the testimony itself given of the alleged declarations of the deceased husband and wife is competent to establish a trust, was there sufficient evidence tending to substantiate the statements to require the court to submit the issue to the jury?
In other words, was the transaction itself, away back in 1898, when deed was made, intended then to be a trust, and not merely in respect to declarations indefinite as to the time when trust was created? Wagner v. Mary Isensee et al., 11 Tex. Civ. App. 491 , 33 S. W. 155 . The time the several conversations alleged were given and to the date of creation of trust is not fixed at all, with any degree of certainty.
It must not be forgotten that there is no evidence showing the intention of the parties at the time the deed was made that it was to be held in trust. That deed must surely speak in this case with much potency, yea, perhaps, far more than any oral testimony here produced to contradict its recitals, after the cycle of all these years. There was no evidence to,go before the jury of sufficient probative force to establish when the deed was delivered and recorded and legal title placed in Mrs. Rivas that it was to be held in trust and not intended to be her property.
The motion for rehearing is overruled.