¶1 ON MOTION FOR REHEARING.
¶2 It is insisted that the authorities cited in support of the proposition, that, in a case like the one we are considering, the failure by the trustee to join the beneficiaries is such error that it will be noticed when first mentioned on appeal, is not sustained by the authorities cited. Says Chief Justice Hemphill, in the case of Anderson v. Chandler, 18 Texas, 436: “In Horner v. Moor, cited 5 Burr, 2614, the rule seems to be that the non joinder of defendants could only be taken advantage of by plea in abatement, except where it is shown in the petition that the parties omitted are living, and that they sealed the bond, and as the abatable matter then appears on the face of the petition, it is not necessary that it should be pleaded in abatement. … But though it appear that there is much reason in the proposition that where the plaintiff shows that there is a co-obligor who is not sued, and gives no reason why he is not made a party; advantage might be taken of omission, in arrest of judgment or in error, yet it seems that this has not been held in any case to which we have been referred, unless the further .fact should appear on the petition that the joint obligor was alive.”
¶3 In the case of Ebell v. Bursinger, 70 Texas, 120, it is true that the question of lack of necessary parties was sprung after a judgment by *377 default in the lower court, in the motion to set aside the judgment, but in passing upon the question, the Supreme Court, through Judge Gaines, says: “The authority granted to the trustee in the present case to receive rents for the use of the cestui que trust, and in his discretion to sell the property, the proceeds to go to her benefit, does not imply a power in him to defend alone a suit involving title to the trust, and we are therefore of opinion that the beneficiary was a necessary party. We come then to the second question: Can the objection that there is the want of a necessary party be taken after a judgment by default? This question must also be answered in the affirmative. In Anderson v. Chandler, 18 Texas, 436, Chief Justice Hemphill recognizes the doctrine that the objection is good upon a writ of error when the defect appears upon the face of the petition. The defect, however, did not so - appear in that case, and the point was not decided. The principle there recognized is that generally adopted in the common law courts.” A number of authorities are cited in support of the proposition. Indeed, starting with the premise, that a trustee, under the circumstances enumerated, cannot defend or prosecute a suit alone, there is no other reasonable ■conclusion at which to arrive than that the omission to make the beneficiaries parties is one that goes to the very foundation of the action, and is open to objection at any stage of the proceedings.
¶4 The opinion of this court, however, is based strictly upon the expressions in the two opinions cited, and independent of them, we might not have arrived at the conclusion contained in our opinion, and we desire to confine the proposition as to taking advantage of want of parties on appeal strictly to the class of cases mentioned. The motion will be overruled.
¶5 Overruled.