The opinion
On Motion for Rehearing.
Appellant urges that, while we may have been correct in our disposition of the assignments directed to the action of the trial court in excluding certain tendered testimony of Ben and Locke Gardenhire, we were wrong in holding that there was no prejudicial error in excluding certain testimony of J. B. Richardson ; that such testimony tended to prove a parol gift. ,
In our original opinion we stated that “declarations and answers made by per: sons deceased are admissible under certain circumstances, namely, to prove pedigree, to prove birth, etc.” We did not state, and do not mean to state, that such evidence is admissible only to prove pedigree and birth, as shown by our discussion of cases holding that they are admissible for other purposes. But we understand the rule to be that the declarations of a third person are admissible against a party whenever privity of estate exists between the declarant and the party. 1 R. G. L. p. 484. But we do not understand that the declarations of a deceased ancestor are admissible in behalf of a party to establish his title to real estate, especially where it is shown that there is no privity of estate between the ancestor and the party seeking to introduce such declarations. In the instant case it was not claimed that the father of the defendant, whose declarations were sought to be introduced, ever owned the land in controversy. The deed to the land was *1082 made by the then owner directly to A. Brown Gardenhire, and years after the passing of the deed the declarations offered were made by the elder Gardenhire, and we do not believe the evidence was admissible, either under the exception discussed or because it was res gestas of the transaction. See 16 Cyc. pp. 985, 986. The case of Lord v. N. Y. Life Ins. Co., 95 Tex. 216 , 66 S. W. 290 , 56 L. R. A. 596, 93 Am. St. Rep. 827 , cited by appellant, involved the delivery of an insurance policy, and the Supreme Court, in an opinion by Judge Brown, said:
“In order to sustain the judgment of the trial court and the majority of the Court of Civil Appeals, the evidence must be sufficient to justify the finding that Richard Lord gave the policy of insurance in controversy in this suit to his sister Kate, and delivered it to her in such manner as to pass the title thereto so that he had no control over the title thereafter.”
The court then held admissible certain declarations made by Lord prior to and at the time of the delivery of the policy to Neil P. Anderson to be cared for for him, and specially held admissible the statement of Lord to Anderson made at the time of delivery to wit: “In this (package) is a policy fofi my, sister Kate,” etc. This testimony was admissible, perhaps, on the ground of res gestaj, and, moreover, it was admitted against the legal heir of Lord, and not in her favor. Therefore it was an admission against the interest of the person in privity with the declarant. The sister was not in privity, but the widow was. We see no reason to change our opinion as to the admissibility of this evidence.
Appellant calls our attention to an error in our original opinion iA stating that the amendment of article 4621, Rev. Stats., was passed in 1918. It should be 1917, and we will correct the date for ttie printed reports. He further urges that at least a large part of the rentals from oil leases came in after the amendment, and therefore became the separate property of Mr. Gardenhire; that Mr. Gardenhire testified that he borrow'ed $2,000 from the Strawn bank to pay the balance on the S. W. V<t of section 49, block 6, Texas & Pacific Railway Company survey. He did,testify:
“That note was made payable to old man Stewart instead of the. bank. I thought I was making a straight loan from the bank. That note has been paid. It was dated March 14, 1913, and due 6 months from date. That is where I got the $2,000 to complete paying out the Lacasa property, and I subsequently paid that note when I got the property from the Gardenhire heirs, and paid $2,000 and got $2,000 from the bank. I paid the bank out of the first lease money I got from that place, and Jim Stewart will hold me up in that. I did not pay it out of .wheat I made on the place. I forget just when I paid that off, but the note will show. It run on interest a. long time when I leased the land. I paid it off shortly after I leased the land; after I leased section 49. I don’t know the date I paid it off. I know I paid' it out of * * * the first lease money I got on that land.”
Appellant urges that from all the evidence in the record it appears that the lease rentals on section 49 were collected in August or September, 1917, and. after the amendment to article 4621, Rev. Statutes, took effect, which seems to have been in June, 1917. But we do not feel justified in concluding, as a matter of law, that the evidence is insufficient to sustain the evident finding of the trial court that section 49 was paid out of rentals collected prior to the amendment of article 4621. The note to the bank was made in 1913, and defendant does not show, either by his testimony or by the testimony of the man from whom he borrowed the money, Mr. Stewart, or from the production of the note itself, when the $2,000 wás paid. While defendant said that Stewart could “hold him up” as to when the note was paid, or it could be proved by the note itself, yet he neither offered Stewart nor the paid note to prove such fact.
On the whole we believe the motion for rehearing should be overruled, and it is accordingly so ordered.