Alvey, C. J.,
delivered the opinion of the Court.
In this case the deed by the husband to the wife, of all his real estate, was made in September, 1868, for the recited consideration of eight thousand dollars. It was made after suit had been brought by the complainants now seeking to have the' deed declared void as against themselves, and but a short time before they recovered' judgments against the grantor. The deed is sought to be .sustained as against these creditors by proof, by the husband and wife alone, that so far back as the years 1844, 1845, and 1846, and upon several occasions subsequently,, the husband had received several sums of money of the wife which he had promised, at the time of receiving the same, to repay to the wife ; hut not having paid the same, when finding himself pressed by his creditors, and, as he says, importuned hy his wife, he summed up the various-amounts received from the latter, with interest, which amounted to near about as much as the principal, and made that the consideration of the deed.
[103]*103In the answer of the defendants to the bill, instead of a particular and detailed statement of the transactions between the husband and wife, in regard to the loans of the money made the consideration of the deed, they aver, in general terms, that after their marriage in 1844, and from that time, and at sundry times, down to the time of the execution of the deed, the wife had received from her father, in his life-time, and from his estate after his death, (which occurred in 1858,) various sums of money, which she at different times agreed to loan, and did loan, to her husband, with the promise from him, exacted hy her, that he would repay with interest, whenever she might thereafter desire or need the same; and that the husband had repeatedly since promised to secure and repay her the money so loaned.
They further aver, that since the execution of the deed, the husband has been living upon the land conveyed, together with his wife, using and cultivating the same, as her agent, and for her use and benefit, and that the proceeds therefrom have been applied, with the consent of the wife, to the support of herself and family.
As was very justly said hy the Supreme Court of the United States, in Seitz vs. Mitchell, 94 U. S., 582, and repeated by this Court in the case of Hinkle vs. Wilson, 58 Md., 292, “ purchases of either real or personal property made by the wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor’s property; are so frequently resoi ted to for the purpose of withdrawing his property from the reach of his creditors and preserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and [104]*104there should he, a presumption against her which she must overcome hy affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to reduce into his possession and ownership all her choses in action.” And in support of the doctrine just stated, many decided cases are referred to hy the .Court. .
In this case, the rights of the parties, and the validity of the transactions involved, depend upon the law as it stood before the adoption of the Code in 1860.
By the common law, before it was modified hy the adoption of the Code, as between husband and wife, the personal property of the latter, such as money,- goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt., 351, b; 2 Kent Com., 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to he to her sole and separate use, the money so received enured to the benefit of the husband, and became his property absolutely. And so the husband was entitled absolutely to all sums of money received hy a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law; and they have been adopted and applied hy repeated decisions of this Court. Turton vs. Turton, 6 Md., 375, 381; Taggart vs. Boldin & Thayer, 10 Md., 104.
If, therefore, it he conceded, as it may well he, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testified to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it [105]*105vested in the husband at once and absolutely, by virtue of his marital relation. Unlike a chose in action belonging to the wife, which did not vest absolutely in the husband except at his own election to reduce it into possession, the receipt of the money by the wife was the receipt of the same to the use of the husband, and the money became his instantly it was received by the wife. Carroll vs. Lee, 3 G. & J., 504.
It would, doubtless, have been competent to the husband to settle the money upon the wife, to her sole and separate use, by gift; but, as has been said by this Court, “the act by which he divests himself of his property must be clear and unequivocal’’ (Turton vs. Turton, supra); or, as was said by the late Chancellor Johnson, to establish such gift from the husband to wife, Courtsofequity require clear and incontrovertible evidence. George vs. Spencer, 2 Md. Ch. Dec., 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald vs. Hoover, 42 Md., 368; Plummer and Wife vs. Jarman, 44 Md., 637; Sabel vs. Slingluff, 52 Md., 132, 135. Such promises amounted to nothing more than mere voluntary agreements to make future donations to the wife by the return of like sums of money. Being without consideration, they could not be enforced; for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual, the intention must have been executed; and the evidence should show clearly and distinctly that the husband had, by positive act, divested himself of his right of property and vested the same in the wife.
This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund, in respect to which the promise [106]*106is made, is, or could be made, subject to the control of a.
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Alvey, C. J.,
delivered the opinion of the Court.
In this case the deed by the husband to the wife, of all his real estate, was made in September, 1868, for the recited consideration of eight thousand dollars. It was made after suit had been brought by the complainants now seeking to have the' deed declared void as against themselves, and but a short time before they recovered' judgments against the grantor. The deed is sought to be .sustained as against these creditors by proof, by the husband and wife alone, that so far back as the years 1844, 1845, and 1846, and upon several occasions subsequently,, the husband had received several sums of money of the wife which he had promised, at the time of receiving the same, to repay to the wife ; hut not having paid the same, when finding himself pressed by his creditors, and, as he says, importuned hy his wife, he summed up the various-amounts received from the latter, with interest, which amounted to near about as much as the principal, and made that the consideration of the deed.
[103]*103In the answer of the defendants to the bill, instead of a particular and detailed statement of the transactions between the husband and wife, in regard to the loans of the money made the consideration of the deed, they aver, in general terms, that after their marriage in 1844, and from that time, and at sundry times, down to the time of the execution of the deed, the wife had received from her father, in his life-time, and from his estate after his death, (which occurred in 1858,) various sums of money, which she at different times agreed to loan, and did loan, to her husband, with the promise from him, exacted hy her, that he would repay with interest, whenever she might thereafter desire or need the same; and that the husband had repeatedly since promised to secure and repay her the money so loaned.
They further aver, that since the execution of the deed, the husband has been living upon the land conveyed, together with his wife, using and cultivating the same, as her agent, and for her use and benefit, and that the proceeds therefrom have been applied, with the consent of the wife, to the support of herself and family.
As was very justly said hy the Supreme Court of the United States, in Seitz vs. Mitchell, 94 U. S., 582, and repeated by this Court in the case of Hinkle vs. Wilson, 58 Md., 292, “ purchases of either real or personal property made by the wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor’s property; are so frequently resoi ted to for the purpose of withdrawing his property from the reach of his creditors and preserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and [104]*104there should he, a presumption against her which she must overcome hy affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to reduce into his possession and ownership all her choses in action.” And in support of the doctrine just stated, many decided cases are referred to hy the .Court. .
In this case, the rights of the parties, and the validity of the transactions involved, depend upon the law as it stood before the adoption of the Code in 1860.
By the common law, before it was modified hy the adoption of the Code, as between husband and wife, the personal property of the latter, such as money,- goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt., 351, b; 2 Kent Com., 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to he to her sole and separate use, the money so received enured to the benefit of the husband, and became his property absolutely. And so the husband was entitled absolutely to all sums of money received hy a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law; and they have been adopted and applied hy repeated decisions of this Court. Turton vs. Turton, 6 Md., 375, 381; Taggart vs. Boldin & Thayer, 10 Md., 104.
If, therefore, it he conceded, as it may well he, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testified to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it [105]*105vested in the husband at once and absolutely, by virtue of his marital relation. Unlike a chose in action belonging to the wife, which did not vest absolutely in the husband except at his own election to reduce it into possession, the receipt of the money by the wife was the receipt of the same to the use of the husband, and the money became his instantly it was received by the wife. Carroll vs. Lee, 3 G. & J., 504.
It would, doubtless, have been competent to the husband to settle the money upon the wife, to her sole and separate use, by gift; but, as has been said by this Court, “the act by which he divests himself of his property must be clear and unequivocal’’ (Turton vs. Turton, supra); or, as was said by the late Chancellor Johnson, to establish such gift from the husband to wife, Courtsofequity require clear and incontrovertible evidence. George vs. Spencer, 2 Md. Ch. Dec., 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald vs. Hoover, 42 Md., 368; Plummer and Wife vs. Jarman, 44 Md., 637; Sabel vs. Slingluff, 52 Md., 132, 135. Such promises amounted to nothing more than mere voluntary agreements to make future donations to the wife by the return of like sums of money. Being without consideration, they could not be enforced; for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual, the intention must have been executed; and the evidence should show clearly and distinctly that the husband had, by positive act, divested himself of his right of property and vested the same in the wife.
This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund, in respect to which the promise [106]*106is made, is, or could be made, subject to the control of a. Court of equity, and the promise is to do what the Court would compel the husband to do, by virtue of the wife’s, right to equitable settlement out of the fund; or where in consideration of the wife’s agreement to sell her real estate, and allow the husband to receive the proceeds, thereof, under a promise to invest such proceeds for her benefit, or to pay her the money; as in all such' cases, the promise is founded upon good and sufficient consideration, and the relation of debtor and creditor is created as. between the husband and wife. These propositions find apt and pointed illustration in the cases of Stevenson vs. Reigart, 1 Gill, 1; Bowie vs. Stonestreet, 6 Md., 416 Stockett vs. Hollyday and Wife, 9 Md., 480; Jones vs. Jones and Wife, 18 Md., 464; Kuhn vs. Stansfield, 28 Md., 210; Mayfield vs. Kilgour, 31 Md., 242; Oswald vs. Hoover, 43 Md., 360; Crane vs. Barkdoll, 59 Md., 534.
The case of Stevenson vs. Reigart, 1 Gill, 1, is much relied upon by the defendants; but that case is not an authority in a case like the present. In that case certain executors’ held the legacy, a chose in action, due the wife,, as her trustees, and they paid over such legacy to the husband upon a special agreement with them, that the money should be invested for the exclusive benefit of the wife. It was upon the validity of this agreement with the trustees that the case turned. The Court declared that the husband received the money from the trustees, on the agreement, not by virtue of his marital rights, but as trustee for his wife. He received the money, say the Court, upon a special trust and confidence, that it would be invested for her benefit; he received it as her trustee ; and upon his failure to make that investment, the consideration upon which he received it failed, and the wife had a right to consider it as so much money had and received for her use. That case, therefore, has but slight, if any, the remotest, bearing upon this case.
[107]*107Kb case could well occur where greater injustice would be done to the creditors of the husband by upholding the deed to the wife, than in this. Bayne, the husband, became surety on the guardian’s bond of Monroe, given for the protection of the complainants, then minor children, in 1855. He was then the owner of the farm that he subsequently conveyed to his wife. We may well suppose that it was upon the faith of such ownership of the farm that he was accepted as surety. So soon as he was sued on the bond in 1868, he at once divested himself of his entire property by the deed to the wife, and from his position of owner he descended to and assumed that of agent, but still remaining in the full possession and enjoyment of the farm, while his creditors were left without any possible means from which to get payment of their just demands. This transfer of his property is sought to be supported by proof of mere verbal promises made to the wife, some of the most material of them twenty odd years before the making of the deed.
Mr. and Mrs. Bayne were both examined and re-examined as witnesses, and their several statements are not in all respects consistent as to the circumstances under which the money was obtained by Mr. Bayne. Their respective statements in regard to the making and delivery of the deed, are essentially variant. And though this may be attributed to the imperfection of memory, yet it shows the great necessity for caution, and the danger in proceeding upon such evidence after such great lapse of time. Mrs. Bayne, upon her first examination, in speaking of the deed and the consideration therein expressed, says:
“The money and interest that Mr. Bayne received from her is the amount of the consideration mentioned in the deed, she thinks. She cannot give the dates; the amount was $4,300; that was the principal. The year they were married in, Mr. Bayne got from her $1,000, and then he got $1,500 soon after they were married. She cannot fix [108]*108the year, but it was very soon after they were married. He got six hundred at another time, and twelve hundred at another time, besides small sums for rent of farm, which she hardly knows what they amounted to. ■ The promises to return the money were made at the times the moneys were loaned; she required him at those times to return it to her. She does not know of any other promises than those already mentioned. Witness and Mr. Bayne were married in June, 1844, in Prince George’s County. Witness demanded the execution of the deed; the deed was executed in Marlboro’, on the 7th of September, 1868 ; she was not present at the execution of the deed; she can’t say when she pressed Mr. Bayne for the deed.” She further says that she does not remember whether she knew that her husband had been sued, at the time the deed was executed, or not; that the deed was never delivered to her.
Mr. Bayne, in his examination, states the circumstances of the loans, and the making of the deed, thus:
“ She loaned witness the money, and when it was loaned she peremptorily told him that she expected him to return that money. When he gave her the deed she had all the dates; the amount she loaned was $4,300, which, with interest up to that time, amounted to $8,000. The money was loaned at his house on the ‘ Apple Grove ’ farm, at different times. Mr. Robert W. Hunter, Sr., at one time gave her a family of negroes; the negroes were sold in Texas and the money remitted to her; witness got the draft cashed. The negroes sold for $2,100 or $2,200, but she got only $1,500 of it, which was a part of the money loaned to him. He can’t state the time, but it was after 1844 or 1845. A short time after their marriage she loaned him $1,000, which she had gotten from her father. She had a memorandum of this at the time the deed was executed, which was destroyed after the execution of the deed. At another time he got from her $1,200, not long after the death of Mr. Hunter, in 1858 or 1859, and then $600; all of which sums came from her father’s estate. [109]*109The promises to return the moneys were made whenever she loaned him the moneys, and she would occasionally ask him when he was going to pay the moneys.” He further states that he took the deed home and delivered it to Mrs. Bayne on the day it was executed. This is manifestly erroneous, according to the testimony of Mrs. Bayne.
How adopting either of these statements as true, or both of them, the money is not shown to have been the separate estate of the wife, or that such circumstances existed as would have entitled her to a settlement of it; but, on the contrary, that it belonged to the husband by virtue of his marital relation. According to established legal principles, as we have seen, the money became the property of the husband immediately upon its receipt by the wife, as the law stood at the time. His promises to return it to the wife were nothing more than promises to restore money to her possession which the law had vested in him as his own absolute property; and such promises created no legal obligations that could be enforced against the husband. At most only the money coming to the wife after the Act of 1858, ch. 245, could be protected from the debts of the husband.
Upon the whole, this deed, so manifestly in prejudice of the rights of the complaining creditors, ought not to stand as against them. The deed is perfectly good as between the husband and wife, but not as against the subsisting creditors of the husband at the time the deed was made. The decree of the Court below is as favorable to the wife as she could reasonably ask it to be ; and but for a technical objection taken to the frame of the bill, we should simply affirm the decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties beneficially entitled to the judgments; thus following the form of the recovery at law upon the bond. This is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregularity as may be corrected by amendment. We shall [110]*110therefore, without affirming or reversing the decree, remand the cause that the amendment, in the particulars mentioned, may he made, and that a decree, similar to the one appealed from, be passed by the Court below.
(Decided 10th April, 1884.)
Cause remanded under Art. 5, sec. 28, of the Code.