¶1This is an action brought by the administrator de bonis non of Ball’s estate against his heirs to • turn them out of his homestead by virtue of a real or pretended vendor’s lien claimed by the plaintiff to secure a note for $2000 given by T. H. Ball, deceased, on the sixth of August, 1856, to W. A. Leigh, and due one year from date.
¶2The suit was filed on the eleventh of July, 1871. The plaintiff claims to be the owner and holder of the note.
¶3The note was transferred by Leigh to J. C. & S. R. Smith, and was ^allowed as a claim against the estate of Ball by W. F. Perrie, a former administrator, and the allowance was approved by the chief justice on the fifteenth of September, 1860. The appellants, most of whom appear to be minors, deny all the allegations in the plaintiff’s petition, and aver that if the note formed any part of the consideration for the property in question, no lien was reserved.
¶4The deed from Lee to Ball acknowledges the receipt of $4000, the consideration named. The first error in the proceedings of the District Court to which our attention is called, is that of overruling the exception to the deposition of J. C. Smith, and it does appear to us that if this deposition were admitted at all, it should have been under great caution to the jury. The witness does not answer the cross-interrogatory as to how he obtained the knowledge of the facts to which he testified, but his answers raise the presumption that his evidence was not derived through T. H. Ball, the only source which could have made it competent in this case. His statements consisted rather of deductions made in his own mind, or impressions for which he does not satisfactorily account.
¶5*241We think the court erred in refusing to give the first special charge asked by the appellants. The production of this note was no evidence of ownership in J. A. Hill, and it was necessary for him to prove that the note had been transferred to him for a valuable consideration. (See Merlin v. Manning, 2 Texas, 351; Ross v. Smith, 19 Texas, 171; Merrill v. Smith, 22 Texas, 53.) The possession of a non-negotiable note, without a written assignment, is not evidence of ownership. The holder of such a note, at common law, might sue in the name of the payee for his own use, or he might sue in equity as in tliis case in his own name, and prove himself the bona fide owner for a valuable consideration.
¶6In a case like this the plaintiff must prove that he is a bona fide owner, and the manner in which he became such. The note in this case, by the allowance of a former administrator, and the approval of the probate judge in 1860, became a quasi judgment against the general assets of the estate of T. H. Ball, and should have been paid in due process of administration; and it is very doubtful whether, after so great a lapse of time, a court of equity will allow even a' bona fide holder and owner of the note to change the form of the remedy and proceed in equity to sell the homestead of minor heirs.
¶7The judgment of the District Court is reversed and the cause remanded.
¶8Revebsed and bemanded.