The Verdict and judgment for plaintiff, whereupon | well v. Horter, 11 Casey, 375). A married the defendant took this writ, assigning for error woman must have a separate estate to protect her the admission of evidence, the answer to the purchase upon credit, an estate available and point submitted, and the charge of the Court, proportionate to the credit it supports. as above set forth. purchase must in fact be made, not upon her credit, but upon the credit of her separate estate, upon her ability to pay out of her own funds (Gault v. Saffin, 8 Wright, 307). A. G. and H. D. Green, for plaintiff in error. Where a wife claims property as against her husband's creditors, she must show affirmatively by clear and full proof that she paid for it with her own separate funds. Rhoads v. Gordon, 2 Wright, 280. Auble Administrators v. Mason, 11 Casey, 262. Bradford's Ap., 5 Id. 515. Hallowell et al. v. Horter, 11 Casey, 375. Bucher v. Ream, 18 Smith, 426. Raybold v. Raybold, 8 Harris, 311. Where the wife has no separate estate she can acquire no separate property with her earnings during coverture. Her earnings belong to her husband, and if she purchases property with borrowed money or on credit, it belongs to her husband as it respects his creditors, and is liable for his debts. Bucher v. Ream, supra. Frank R. Schell, for defendant in error. The ownership of the corpus of an estate, real or personal, gives title to its incomes and profits. The title to lands gives title to its products, no matter whose labor may have been expended in the production (Rush v. Vought, 5 P. F. S. 442; Musser v. Gardner, 16 P. F. S. 247). But a married woman cannot acquire title to land upon the credit of its after production. Nor to any property or business upon its prospective profits. results of the labor of the husband and wife, or The production and profits are in general the their children, and whilst creditors have no claim on the husband's labor or that of his family, as such, yet when that labor acquires title to property they may have a claim upon the property thus acquired. Where the estate is hers, the production is hers, the labor expended in realizing incomes cannot affect the title to either. It is admitted that Mrs. Templin had no sepaIt is a sufficient answer to an objection to testimony as irrelevant, that it tends in the slight-made on her credit alone; the business was conrate estate; the purchase of the property was est degree to sustain a material averment. Thompson v. Boyle, 4 Norris, 477. The law does not require that the possession of personal property by the wife should be ex clusive of the husband. Gillespie v. Miller, 1 Wright, 247. ducted with the property thus purchased, and the property was paid for out of the earnings of the business. We may accept the verdict of the jury under the charge of the Court, as a finding that the transaction was bona fide, and was not a device to save it from Templin's creditors, but, assuming this, the property was not the property of Mrs. Templin; her credit under the circumstances was her husband's credit, and the earn it follows that the property involved in the transaction of 18th December, 1877, was, as respects his creditors, the husband's property. May 26, 1884. THE COURT. The Act of 1848 provides, in very clear terms, that "prop-ings of the business was the husband's money; erty of whatever kind or nature, which shall accrue to a married woman, during coverture,' shall be "owned and enjoyed by her as her own separate property," and "shall not be subject to levy and execution for the debts and liabilities of her husband." It is her "property" only, however, that the Legislature intended to protect; her earnings, her efforts, and her credit are her husband's since the Act of 1848 as before. What she may be said to acquire as the result of her skill and industry, or on her merely personal credit, accrues to the husband, and as to creditors is to be taken as his. (Raybold v. Raybold, 8 Harris, 311; Bucher v. Ream, 18 P. F. S. 421.) It was, of course, competent for Templin, so far as the transaction affected himself only, to place the title and ownership in his wife, not only of that embraced in the agreement of 18th December, 1877, but of that also which he had taken under the exemption law. A husband may freely bestow his goods upon his wife, or upon any other person, but he must be just to his creditors before he can afford to be generous to his friends. The rights of creditors rise superior to claims which are founded in no valuable consideration. Goods purchased by a married woman on her Nor can we discover how the petition and deown credit, are not her separate property (Rob- cree of 10th August, 1880, which secured to inson v. Wallace, 3 Wr. 133); her credit is Mrs. Templin the rights of a feme sole trader nothing in the eyes of the law; when she does could without more, have any effect upon the contract, the law esteems her the agent of her determination of this case. It is true that a porhusband (Heugh v. Jones, 8 Casey, 432; Hallo-tion of the property, embraced in the Sheriff's self, he takes the burden of establishing it, and must show all the essential requisites of that trust by evidence clear, explicit, and unequivocal. The evidence adduced in the present case held to be too indefinite and equivocal to establish a trust for the husband. levy, was purchased after the date of this decree, but with whose funds was the purchase made? It has not been shown that the purchase was made with the moneys of the wife; where a wife claims property as against her husband's creditors, she must show affirmatively by clear and full proof, that she paid for it with her own separate funds. (Keeny v. Good, 9 Harris, 355; Appeal of Henry W. Earnest and of Mary Gamber v. Gamber, 6 Harris, 366.) She must Ann Earnest his wife, from a decree of the make it clearly appear that the means of acqui- Common Pleas No. 2, of Philadelphia County, sition were her own, independently of her hus-ordering a conveyance by appellants of certain band. (Auble Adm'rs v. Mason, 11 Casey, real estate. 262.) The fact that Mrs. Templin at the time of the purchase of the cattle and hogs, possessed the privileges and exercised the rights of a feme sole trader, does not dispense with the production of this measure of proof. It was not the intention of the Legislature to dispense with the presumptions, which ordinarily and of necessity arise in favor of creditors, in transactions between husband and wife, affecting the ownership of property in the wife's name. The Act of 3d April, 1872 (P. L. 35), provides merely that the separate earnings of any married woman, howsoever realized, shall accrue to and inure to her separate benefit and use, and be under her exclusive control, as if she were feme sole, and not be liable to any claim of the husband or his creditors. The Act further provides: "That in any suit at law, or in equity, in which the ownership of such property shall be in dispute, the person claiming such property under this Act, shall be compelled in the first instance to show title and ownership in the same." In this case no such proof was made, the purchase-money was supplied from the earnings of the business, but the business, as we have already seen, belonged to the husband, and its earnings were his. For the reasons stated, therefore, we are of opinion that the several assignments of error are sustained, and the Judgment is reversed, and a venire facias de novo awarded. Opinion by CLARK, J. H. J. S. [See Lochman v. Brobst, 14 WEEKLY NOTES, 134.] Jan. '84, 188. Bill in equity, between John Hill, complainant, and Henry W. Earnest and Mary Ann Earnest his wife, defendants. The bill set forth that during the year 1862 the complainant, being a government contractor, which was a precarious business, bought a house for $4300, and directed the deed to be made to Elizabeth his wife; that it was understood and agreed at the time of the purchase and afterwards that Elizabeth should hold the property in trust for her husband, and should convey to him whenever he should require it, that Élizabeth became of unsound mind and never did convey the property to complainant, but died intestate and without issue, and left surviving her husband the complainant, and a sister the defendant; that complainant upon her death entered into possession; that defendant claimed to own said premises subject to complainant's tenancy by the curtesy. The prayer was for a conveyance to complainant of the legal estate. The defendants answered, admitting all the facts except the trust, which they denied, and alleged that a gift was intended to the wife, and that the complainant has so repeatedly declared it to be. The case was referred to a Master (Hampton L. Carson, Esq.) who reported as proved the marriage, the entering upon a precarious business, that the house was bought and put in complainant's wife's name at the suggestion and by the advice of his companion in business, who was the most likely man to become a creditor of the complainant, if the latter was unsuccessful. Said companion's evidence on the last point was as follows: "The property was put in Mrs. Hill's name to guard against himself, not against his creditors. I thought that by putting it in his wife's name he could not spend it April 10, 1884. if it had been his own he might have sold it, or he would have mortgaged it. The object was to put it in her name to secure a home for both of them." Earnest's Appeal. Trusts and trustees-Resulting trust-Husband and wife Presumption of gift to wife-What evidence necessary to rebut this presumption. When property is paid for by the husband and title taken in the wife's name, the law presumes that a gift was intended, and when the husband alleges a trust for him . The testimony of the parties in interest was flatly contradictory, and said by the Master to neutralize each other. There was also some evidence as to admissions by the parties of about equal weight on each side. Two other witnesses were examined, business companions of the complainant, who were entirely disinterested. One testified to a conversation with Mrs. Hill after her mind became disordered, when he, the witness, allayed her fears that the property might go to complainant's brother at her death. The other witness testified to conversations held before the purchase was made, in which Mrs. Hill expressed herself glad that "John would have something to support himself with when he got out of employment, or became disabled." The following facts were also found by the Master: "Mrs. Hill died without ever having conveyed the property and without a will. Nor did Mr. Hill ever request his wife either to convey or incumber it for his benefit or her own. It was alleged that she was insane and therefore disabled from making a deed or will. It is clear that she was peculiar, having suffered from paralysis in 1859. For some years she was not on speaking terms with her husband, and disliked the member of her family who befriended him. She lived alone, allowed the house to remain untenanted for years and, on one occasion, turned out the tenants whom Hill and Mrs. Clifton had secured. She would speak to no one, and would spend hours in the house entirely alone; but she was inoffensive and harmless. The Master is not satisfied that her peculiarities amounted to such a degree of insanity as to disable her from executing a legal instrument. Mr. Hill abstained for many years from all interference with the property. He neither collected the rents, nor made any effort, except on one occasion, to lease the property, which he knew was standing idle. He did not pay the taxes, but permitted his wife to do so. Subsequent to the purchase of the house, and during the short period that he lived with his wife at the house as a home, he gave her large sums of money. When they separated they remained apart for years, she at boarding, he at Mrs. Clifton's, the house of her mother. His conduct may be explained in part by these circumstances. After his wife's death, in October, 1875, he entered into possession, paid three years' arrears of taxes, rented the property, took the title papers, and is now receiving the rents.' He then, after an examination of the cases, decided that the testimony was not so “full, clear, and convincing" as to sustain a resulting trust, and reported that the bill be dismissed. Exceptions were filed to this report by the complainant, inter alia, as follows: "Because the Master has erred in finding that the complainant's equitable title to the real estate in question, was not sufficiently established by the evidence. "Because the Master has found the presumption of gift to the wife arising from the title being taken in her name must be rebutted by the same measure of evidence as that required to establish the fact of payment by the husband. "Because the finding is against the law." The Court, in an opinion by MITCHELL, J., sustained the above exceptions, and entered a decree in accordance with the prayers of the bill. Respondent thereupon took this appeal, assigning as error this action of this Court. Henry W. Hall and Henry C. Thompson, for appellants. When the purchase-money is paid by one and the title taken by his wife, the presumption of gift overcomes that of trust. Underwood v. Warner, 4 Phila. R. 6. and wife that there should be a trust in favor of The cases cited for the appellant are not in point as they refer to the proof of payment of purchase-money. These cases were distinguished by the Court below. The following cases are in point, and sustain the decision given below. Marshall v. Crutwell, L. R. 20 Eq. 328. The question is not, what did the wife consider the transaction, but what did the husband intend by it. Lewin on Trusts, 157. Sidmouth v. Sidmouth, 2 Beav. 555. Williard v. Williard, 6 Smith, 124. Under these facts complainant contended that a resulting trust had been established, while on the part of the respondent it was urged that the presumption was one of gift. The Master made this general statement of the law: "Where a man invests his own money in the name of a stranger, the law presumes that a trust was intended; where the investment stands in the name May 26, 1884. THE COURT. The appellants of a wife or child, the presumption is one of hold under the deed to Elizabeth Hill; they are gift. Both these presumptions may be rebutted, intrenched behind and hold all the muniments and a Chancellor will take into consideration all of a legal title. From this citadel they cannot the circumstances surrounding the transaction." be dislodged by any random fire, the attack In Roberts's Appeal (4 Norris, 87), which was affirmed upon the opinion of the Court below, Judge THAYER in speaking of trusts which arise from the payment of purchase-money, said: "The presumption of such a resulting trust is always rebutted, where, to use the language of the books, 'the purchase may be fairly deemed to be made for another from motives of natural love and affection.' Thus, a purchase in the name of a wife or a child, is uniformly held by the unaided force of the relationship alone to rebut the presumption, unless there be clear evidence to show the donee was intended to be a mere trustee." In a long line of cases, it has been held that to establish a resulting trust, the evidence must be clear, explicit, and unequivocal; the rule is so well established that a citation of the authorities in extenso seems unnecessary. We may refer, however, to McGinity v. McGinity (13 P. F. S. 38); Nixon's Appeal (Id. 279); Legenfelter v. Richey (12 P. F. S. 123); Kistler's Appeal (23 P. F. S. 393); Fricke v. Magee (10 WEEKLY NOTES, 50); Buchanan v. Streeper (11 Id. 434). must be made and maintained by clear and con- | principles upon which that statute is based sistent proofs that although the deed is absolute (Stronpflee v. Roberts, 6 Harris 298); and when in form, it was otherwise intended in fact. The one voluntarily places his rights to real property presumption that the title is in conformity with in such a plight that he can only establish them the deed is, as it should be, a strong one and by an attack upon the written legal title, through cannot be overcome except by satisfactory and the instrumentality of merely oral evidence, he clear evidence to the contrary. cannot complain, if he is held to that uniform The legal title to lands ought not to be ex-measure of proof, which will secure adequate posed to the peril of a successful attack, except- protection against the effects of fraud and pering where the right in equity is clearly estab-jury, and especially so, if he choose as the custolished. In this case it has been shown that the dian of the title his wife or child, to whom he purchase-money was paid by John Hill, the hus-occupies a relation of especial duty and obligaband, whilst the title was by his direction taken in tion and in whose favor presumptions of peculiar the name of Elizabeth Hill, his wife. The mere force must necessarily arise. payment of the purchase-money, however, under such circumstances, cannot raise a resulting trust in his favor. "Where a husband, who is solvent, purchases property in his wife's name, though he pay his own money, it is hers; there is nothing in the transaction to raise a resulting trust." (Underwood v. Warner, 4 Phila. 6.) The presumption of trust does not arise, where from the relation of the parties we may fairly assume that the purchase was made in the discharge of duty or from motives of natural love and affection; a husband owes to his wife not only affection but maintenance and support, and from such a transaction as this the law primarily presumes that the husband intended to settle so much of his estate upon his wife, rather than that she should become a trustee for his use. It is certainly true that, as in other cases, the trust, if any exists, results solely from the payment of the purchase-money; no express trust can be established by parol; yet, that payment must appear to have been made with the clear understanding and intention that a trust shall exist. This may appear from the attending circumstances or from the acts or declarations of the parties, at the time Whether, therefore, a trnst is deducible in any of the purchase, but it must be shown by evi- given case from the nature of the transaction as dence which is clear, explicit, and unequivocal. a matter of actual intent, is susceptible of oral The presumption of gift, it is true, is but a pre-proof; but he, who alleges the trust, takes the sumption of fact, which determines the burden burden of establishing it, and all the essential reof proof; yet, as the effect of the rebutting evi-quisites of that trust must be shown by clear, dence may be to fasten a trust upon the legal ti-explicit, and unequivocal proof. Does the evitle, it must for that reason conform to the meas-dence in the case at bar conform to this stanure stated; every element essential to the exist-dard? We think it does not. It must be obence or creation of a resulting trust, in any given served upon a full examination of the testimony, case, must be clearly shown. This rule grows taken in support of this alleged trust, that it is out of the policy pursued under the Statute of not only vague, inconsistent, and conflicting in Frauds, and its enforcement is essential to the se- its details, but also involved and inconclusive in cure enjoyment of real property. We cannot its effect. Besides, it is seriously contradicted distinguish between the measure of proof re- and shaken by the testimony taken on the other quired to rebut the ordinary presumptions, aris- side. If we were to conclude, as matter of fact, ing from the face of the deed to Elizabeth Hill, that a trust was intended, it would be most diffiand the presumption of gift, arising from the re-cult to determine its terms. If the testimony of lation of the parties, when the purpose is to set White, Fuller, and Brennan establishes or tends up a resulting trust against the legal title. Re- to establish anything, it is that Elizabeth Hill sulting trusts, although reserved out of the Stat- was the mere trustee for her husband, that she ute of Frauds, are in conflict with the sound] had no beneficial interest whatever in the prop erty, and that she was the mere custodian of the legal title for his benefit. Their testimony is meagre in details, loose, and unsatisfactory as to time, but it tends to show this or it shows nothing. The only other witness in the cause called to testify as to facts in support of this trust, is John Hill, the appellee, whose incompetency and that of the appellant, was waived. He repudiates this theory of the case in emphatic language. He says: The testimony as a whole is inconsistent, conflicting, contradictory; it cannot in any sense be considered clear, explicit, and unequivocal, as in such cases the law requires it should be. If any trust was in fact intended, we are left in the greatest uncertainty what the precise trust was. From a part of the testimony we are led to suppose that Elizabeth Hill was clothed with a mere dry trust, the entire beneficial interest being in the husband; from the testimony of the The title was put in my wife's name by my appellee himself that she had the beneficial ownconsent after explanations from my conveyancer, ership during her life only, the interest in reverwho said she could not convey without my sig- sion being his; from others we learn, that he nature. In every conversation I ever had with had a life estate, and the reversion was hers; Mrs. Hill about the property it was understood whilst others state that on repeated occasions he that it was to be mine at her death; she agreed acknowledged that he bought the property for to that; she always said: Who else?' These his wife and gave it to her, as her own, which conversations took place at or about the time of latter statement he does not deny having the purchase. There was one conversation pre-made. vious to the purchase. At the time of making The decree is reversed and the bill dismissed the purchase, I said, 'I am going to put the at the costs of the appellee, including the costs property in your name, with the understanding in the Court below. that it would revert to me after your death.' Opinion by CLARK, J. She agreed to that; 'it was consummated in that way.' From this testimony, taken alone, it would appear that Mrs. Hill, according to the terms of the alleged trust, did have a beneficial interest in E. A. B. January 17, 1884. Execution-Landlord and tenant-Estoppel- Conditional sale-Bailment. the property during her lifetime, at least, and July, '83, 59, 60, 61, 62. landlords gave notice to the sheriff that they claimed the property as their own. The claim was disallowed, and the goods were sold. The landlords (appellants) then put in a claim for one year's rent against the proceeds of the sale: Goods were levied on as the property of a tenant. The all interest in any fund that might arise from the proceeds Held, that in denying their tenant's title they disclaimed of the sale. By their claiming as owners against the writs they were estopped from claiming as landlords under the writs. In order to make a sale of chattels, which is conditional Mr. Joseph T. Richards testified, that from 1874 to 1876 he had frequent conversations with as to the parties, absolute as to creditors, there must be a Hill concerning this property; he says: "His delivery of the goods in pursuance of the contract; and statements in reference to the house, to me, further, there must be at least such a conditional or qualiwere that it belonged to his wife, Mrs. Eliza-fied title in the vendee as to give him a transferable intebeth Hill, that he had purchased it and given it rest in the chattels-such an interest as he can, at any time to her." It also appears, that until the death of his wife, he abstained from all interference with the property; he neither collected the rents, paid the taxes, or exercised any other acts of ownership over it. during the running of the condition, sell and dispose of at his own will. If, upon a transfer of chattels, it can be discovered from the contract that the party receiving possession of the goods is to retain them for a definite period, and if, at or before the expiration of the period, he pays for them, he is to become absolute owner, otherwise to pay for their use, |