Default was made in the payment of the semiannual interest due on said notes on, to wit, the 14th day of September, 1913, and B. Deutsch thereafter declared said notes due and requested the trustee, A. C. Moser, to sell said property after default had been made in the payment of said semiannual interest. That Tom F. Lewis was requested by B. Deutsch to prepare notices of sale of said property under said trust agreement, and said A. C. Moser, trustee, called at the office of Tom F. Lewis, and signed said notices, and requested said Lewis to post one of said notices at the courthouse door in the city and county of Dallas, Tex., and post the other two of said notices in public places in Dallas county, Tex. That said Lewis posted one of said notices at the courthouse door in Dallas county, Tex., and one on the Hutchins Road in Dallas county, and one on the White Rock Road in Dallas county, and all of said notices were duly signed by said A. C. Moser, trustee, and all of said notices were posted more than 20 days prior to the 4th day of November, 1913, but said trustee did not know where said other two notices were posted, and said notices duly stated the time, place, and manner of making said public sale, and said sale was made by A. C. Moser at the courthouse door in the city and county of Dallas, Tex., on the 4th day of November, 1913, between the hours of 10 o'clock a. m. and 4 o'clock p. m. That said trustee, A. C. Moser, duly made said sale of said property at said time and place and executed a trustee's deed conveying said property to B. Deutsch, who bid in said property at said sale, and said trustee's deed was duly acknowledged on the 4th day of November, 1913, and filed for record on the 4th day of November, 1914, and duly recorded in volume 598, p. 39, of the records of trustees' deeds, etc., of Dallas county, Tex. That on the 12th day of May, 1913, Leopole and Amelie Schwarz executed a deed conveying said property to W. F. Smith, and said Smith assumed the payment of said three notes described in said mechanic's and builder's lien contract, and executed a note of even date therewith for the sum of $485 payable to the order of Amelie Schwarz, and due and payable in monthly installments of $15 each, the first installment being due on or before June 12, 1913, and one installment due on or before the 12th day of each and every month thereafter until paid, and said note bearing interest at the rate of 8 per cent. per annum,

contract, and said note expressly provided that failure to pay any installment of principal or interest when due thereon should at the election of the holder thereof mature same. On the 15th day of May, 1913, Amelie Schwarz and Leopole Schwarz executed a written transfer, conveying said note and the lien securing same on said property to George A. Titterington, and said transfer was duly acknowledged, as required by law, and filed for record on the 21st day of May, 1913, and recorded in volume 583, p. 38, records of deeds, etc., of Dallas county, Tex., and said note was duly indorsed by said Amelie Schwarz and Leopole Schwarz, and made payable to George A. Titterington, without recourse on them. That $30 was paid on said note and credited on same on July 22, 1913. That George A. Titterington had no notice or knowledge of the sale of said property under said deed of trust, until several days after trustee's sale, and after said property had been sold and the deed executed by the trustee on or about November 10, 1913, he went to see B. Deutsch and offered to redeem said property for his said sale and to pay B. Deutsch the amount of his notes and interest and costs of sale, but said B. Deutsch refused to accept same and claimed that he was the owner of said property. Said George A. Titterington made no further inquiry as to whether or not said interest had been paid on said three notes described in said mechanic's and builder's lien contract, at the time same became due on September 14, 1913, except prior to said date he inquired of W. F. Smith if said Smith would pay said interest, and was led to believe by said Smith that said interest would be paid when due.

The prayer of the plaintiff's petition was that the deed made by Moser as trustee be canceled; that plaintiff be allowed to pay off the indebtedness due the defendant Deutsch, together with the expenses of the trustee's sale; and that plaintiff's junior lien on the property involved be foreclosed.

The court held, as a matter of law, that the sale by A. C. Moser, trustee, was valid; that defendant Deutsch by his purchase at said sale acquired a good title to the property in controversy; and that the plaintiff, Titterington, had no right to redeem the same or to foreclose his lien thereon.

The first assignment of error shows the appellant's contention and presents the only question for our decision. This assignment is as follows:

"The court erred in rendering judgment against plaintiff and in favor of defendant B. redeem the property from the trustee's sale Deutsch, and in refusing to allow plaintiff to which was made to B. Deutsch by the payment to him of his debt and interest up to the time of tender; the evidence showing that said defendant had a first and superior valid lien against the land described in plaintiff's petition under mechanic's lien and trust deed, in which

appear from the pleading that by mutual agreement appellees employed appellant to assist them in selling certain farm lands in Kaufman county for which appellees were agents. By the agreement appellees were to divide their commissions with appellant on all sales made to customers introduced, procured, or brought to appellees by the efforts of appellant. Other provisions of the agreement need not be detailed. After the agreement was reached, appellant sued appellees alleging generally that he had earned $250 under his agreement with appellees, which they refused to pay. Appellees, in answer to the suit, admitted the agreement, and alleged in addition that it made a similar agreement with one Holick and others, but had not made an exclusive agreement with any one; also, that a sale of certain of the lands was made to one Kovar upon which there was due either appellant or Holick the sum of $80, and that according to appellees' information and belief Holick was entitled thereto. The money was tendered into court and Holick made a party to the suit. Holick intervened in the suit, either voluntarily or in response to citation, and alleged a contract with appellees similar in all respects with the one between appellant and appellees and that he was the procuring cause of the sale to Kovar since it was through his efforts that the sale had been consummated. There was trial by jury to whom the court submitted two special issues of fact: The first being, "Was the plaintiff John Pulkrabeck the procuring cause of the sale of the 151acre tract to Martin Kovar by Charles C. Cobb by reason of any aid or assistance rendered by him to the said defendants Griffith & Griffith?" and to which the jury answered "No." The second being, "Was the intervener John R. Holick the procuring cause of the sale of the 151-acre tract of land to Martin Kovar by Charles C. Cobb by reason of any aid or assistance rendered by said John R. Holick to the said defendants Griffith & Griffith?" and to which the jury answered "Yes." Upon the jury's findings judgment was rendered that appellant take nothing by his suit against appellees and that intervener Holick recover of appellees the sum of $80, and from which judgment this appeal is taken.

[1] The second, third, and fourth assignments of error challenge the right of appellees to interplead Holick in the suit on the ground that there is no privity of contract between appellant and Holick and on the ground of the partiality of appellees. While we are not unmindful of the rule invoked by the assignment, it has nevertheless been held by our Supreme Court that, "under our blended system, where law and equity are administered by the same court, and the rights of all parties to the suit in the subject-matter thereof may be adjudicated and fully protected," a defendant is entitled to

that "the remedy is so beneficial and so just that any reasonable doubt as to his right to an interpleader will be resolved in his favor." Nixon v. New York Life Ins. Co., 100 Tex. 251-262, 98 S. W. 380, 99 S. W. 403. See, also, Rochelle et al. v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S. W. 543. The rule being as stated and so highly favored by courts, we do not think that appellees should be denied the right to have the rival claimants to the commissions adjust their claims in one suit, merely because appellees assumed the position in their pleading based upon information and belief that Holick was entitled to the commissions. Such pleading does not, in our opinion, constitute such partiality as will prevent the application of the rule. The pleading at most is but the expression of an opinion. Other portions of the pleading are clear in the statement that appellees do not know who earned the commissions, but are willing to pay to whomsoever is entitled thereto and for that purpose tenders the money into court. While it is clearly the duty of a stakeholder to be fair and impartial, it is also his duty to disclose to the trial court all facts possessed in reference to matters in issue, and to do so is not in law a showing of partiality.

[2-4] The fifth and ninth assignments of error attack the action of the court in admitting certain testimony. By bill of exception it is shown that while the trial of the case was in progress T. B. Griffith, one of the appellees, was permitted over objection of appellant, after he had testified that appellant had not in any manner contributed to the sale of the land, to further testify:

"Holick brought Kovar into my office, and I stated to Holick that I wanted to know whether or not Pulkrabeck had sent him in with Kovar, commission to close the deal, and he stated he *** and if not I would pay him half the had not, that he brought him himself. I thereupon told him that I would pay him half of the commission to close the deal."

Appellant was not present when the conversation took place between the witness, appellee, and intervener, Holick. Appellant contends that the evidence detailed was hearsay and self-serving and hence inadmissible. We concur in the contention. The testimony was obviously hearsay (Ross et al. v. Moskowitz, 95 S. W. 86), and its effect was clearly to support the contention of both appeliees and intervener that the latter was the procuring cause of the sale. Save in cases of pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible. The fact, as contended by appellees, that a statement of facts is not in the record, will not support a finding that the admission of the evidence was harmless. Even though there was a statement of facts which disclosed other competent evidence tending to sustain intervener's claim, we would yet be unable to say that the hearsay evidence was harmless. Appellees assumed

ted the debt. Occupying such a position, it is difficult to say exactly how much importance the jury would attach to the statement of appellees that Holick had said that appellant had in no way contributed to the sale of the property to Kovar. Certainly we cannot say it was harmless, particularly in view of the further fact that appellees had testified that they had received no assistance from appellant in the sale of the lands.

[5] In reference to the alleged misconduct of counsel in stating in argument before the jury "that old John Pulkrabeck was a liar," it may be conceded that the language was severe, and might under certain circumstances constitute serious error if permitted, at the same time, in the absence of a statement of facts, we cannot say in this case that it was. Unlike the admission of hearsay evidence, it may be that if all the evidence was before us the remark of counsel could be reasonably deducible therefrom.

The remaining assignments of error have been carefully considered and in our opinion fail to disclose reversible error, and for

that reason are overruled.

Because of the action of the trial court in admitting the evidence of the witness Griffith, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views expressed herein. Reversed and remanded.

The agreement between the widow and the children of a testator, whose will contained a devise of $3,000 to plaintiff's mother for the education of her children, conditioned upon the widow's acceptance of the will in lieu of her community interest, to withhold it from probate and to take agreed shares of the estate, at which time the plaintiff's father stated that the other parties might do as they pleased and not consider his children, and the ratification of such agreement by acting thereunder for 21 years up to the widow's death, did not estop them from claiming title under the will after it had been probated at the instance of purchasers of realty from the estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 555-559; Dec. Dig. 230.] 3. ADOPTION 6-EVIDENCE-INTEREST OF ADOPTED CHILD.

In an action for partition of the estates of a decedent, his wife, and their daughter, evi

In such action, where no such contract of adoption was pleaded, but only a promise to adopt and performance by decedent on the day of his marriage with the child's mother by executing and filing an instrument of adoption whereby she became his legal heir, proof that under whom plaintiffs claim, should have the decedent had intended that the adopted child, same interest in his estate as his own children, could not properly become the basis of a judg ment in plaintiffs' favor.

Cent. Dig. § 11; Dec. Dig. 6.]
[Ed. Note.-For other cases, see Adoption,
Appeal from District Court, Galveston
County; Robt. G. Street, Judge.

Action for partition by Thomas W. Masterson and others against John W. Harris and others. Judgment for defendants, and plaintiffs appeal to the Court of Civil Appeals, which certified questions, answered by the Affirmed. Supreme Court. 174 S. W. 570.

'D. D. McDonald, of Galveston, and Masterson & Masterson, of Houston, for appellants. Edward F. Harris, Harris & Harris, and P. A. Drouilhet, all of Galveston, and W. H. Newton, of San Antonio, for appellees.

McMEANS, J. Appellants, plaintiffs in the court below, brought this suit against appellees, defendants, for partition of the property of the estates of John W. Harris, deceased, Annie P. Harris, deceased, and Rebecca P. Harris, deceased, alleging that appellants and appellees owned in undivided interests the property of the three estates in the proportions set out in the petition. The case was tried before the court without a jury, and resulted in a judgment for defendants from which the plaintiffs have appealed.

This case was submitted to this court on December 21, 1911. Thereafter, after mature consideration, we concluded to certify to the Supreme Court two questions raised by appellants by appropriate assignments of error, a decision of which we then thought would practically settle the case, and we see no reason now for changing the conclusion then reached. The statement of the case embraced in our certificate is a sufficiently clear statement of the issues presented by the pleadings of the parties and the facts proved at the trial, and we now here adopt and copy the same as a part of this opinion:

"The plaintiffs are the sole devisees under the will of Mrs. Annie Masterson, who died in 1900, leaving a will duly probated (except that one of the plaintiffs is sole beneficiary under the will of one of such devisees). fendants, John .W. Harris and Mrs. Cora Dav