Pemberton, C. J.
In his brief, counsel for appellants says : “It appears to have been contended at the trial that the money which Mrs. Wassweiler let Mr. Wassweiler have was his anyway, and that the alleged agreements were void by reason of the relationship between them, the transaction having occurred prior to the passage of the married woman’s emancipation act. In this view the court concurred, and placed its ruling substantially on this ground. The case stands for determination on the correctness of this contention, and it is respectfully submitted that, as a legal proposition, it cannot be sustained. It is unnecessary to rely on the agreement testified to by both of the defendants, that from the first it was agreed between them that the real estate they were acquiring should be held and enjoyed jointly. When it came to a sale of the tract to Broadwater, she had valuable rights in it, which she was not obliged to surrender except on her own terms. * * * She had a dower interest in it, at all events, and a. homestead right. A conveyance by her husband without her concurrence would have been absolutely void. She had a perfect right to refuse to join in the conveyance unless her half' were paid or secured to her. It was paid to her, and took the form of certificates of deposit, — choses in action. These were hers, absolutely. Unless they were reduced to his possession [174]*174during his lifetime, they passed to her heirs, not to his. And he was powerless to obtain them except upon making her an adequate settlement out of his estate. Although the common law considered him the owner of the securities, this was a dogma so repugnant to the court of chancery that it devised a scheme of trusteeship for the wife in a third person for the manifest purpose of avoiding its effect. As the husband could not sue the wife at common law, he was powerless to get her choses unless he resorted to the court of chancery, before which the law was considered unconscionable; and that tribunal would refuse to compel the wife to surrender unless the husband created a trusteeship in her behalf, and thus made her an adequate settlement out of his own estate.”
In support of the above argument, counsel cites 1 Daniell on Ch. Prac., p. 90 el seg., and authorities cited in notes. Counsel also contends that, even if it be admitted that the agreements relied on between the defendants were made when the common-law rule in relation to the rights of married women was in force in this state, still, he says £ ‘the husband could not have possessed himself of these assets except he did substantially what he did afterwards, and that of which the plaintiff complains. In view of the expressions found in the foregoing authorities and the general rules governing the action of the court of chancery, there is no doubt that, if the husband obtained the wife’s choses upon an agreement to convey to her a portion of his real estate, equity would either compel him to do so, or to restore the property he got, or make some other adequate provision for her. Indeed, however he obtained them, she could maintain a bill against him to compel a' settlement, even alter his assignment for the benefit of creditors, or the institution of bankruptcy proceedings, or in a suit by his assignee not Iona fide or for a valuable consideration,’’ — and cites the following authorities in support of his contention : Pomeroy’s Equity Jur., § 1114; Beal's Ex'r v. Storm, 26 N. J. Eq. 372; Sykes v. Chadwick, 18 Wall. 141. In support of the contention' of counsel for appellants that the release of her dow.er rights in. the real estate mentioned in the complaint [175]*175was a sufficient consideration to support the claim of the wife to an enforcement of the agreements between the defendants in a court of equity, he cites 1 Am. Lead. Cas. 65, 66; Hershy v. Latham, 46 Ark. 542, and authorities cited; Garner v. Bank, 151 U. S. 420, 14 Sup. Ct. 390; Lambrecht v. Patten, 15 Mont. 260, 38 Pac. 1063. In view of the foregoing authorities, counsel for appellants contends that the agreement between the husband and wife shown in the evidence is valid, and supported by a sufficient consideration, and is enforceable in equity against the husband, as well as against his creditors or assignees. Counsel for appellants also says : “It is undoubtedly true that if the wife had done anything to induce the belief that the premises in question were the absolute property of the husband, and that she had no claims against it, and the debt had been contracted upon the faith of his ownership of it, or upon a credit induced by his apparent ownership, some question might possibly arise; but it is sufficient to say that no such case is made, either by the pleadings or the proof, and the law is now well settled that a wife may be preferred upon a bona fide obligation as well as any other creditor, and is under no more obligation to publish her claims than any other creditor.” Appellants’ counsel also says that the equitable doctrine contended for here was entirely overlooked by the court below.
Now, then, let us admit that the agreement relied upon by the appellants is valid as between themselves, and one which ar court of equity would enforce as between themselves, and, under ordinary circumstances, against the creditors and assignees of the husband; still, are the facts and circumstances of this case such as would authorize the enforcement of the agreement by a court of equity in favor of the wife, as against the rights of the plaintiifs ? In the language of counsel for the appellants, does the evidence show that the wife has ‘ ‘done anything to induce the belief that the premises in question were the absolute property of the husband, and that she had no claims against it, ” or that “the debt , had been contracted upon the faith of his ownership of it, or upon a credit [176]*176induced by his apparent ownership?” The evidence shows that the title to the whole tract of land acquired by the husband from the government remained of record in his name until the sale of one-half thereof to Broadwater, in 1873 or* 1874, and that thereafter the title to the 80 acres in controversy remained in the name of the husband until 1892, when it was conveyed to Tullis, and by Tullis to the wife. This was nine years after the wife turned over the $5,000 paid to her by Broadwater, as her part of the purchase 'price of the land sold to him by appellants, to her husband, for the purpose of improving the land in controversy. This was nine, years after the agreement was made by the husband to deed the land in controversy to the wife. For nine years the wife-permitted the land in controversy to stand on the records int the name of the husband after he had agreed to convey it to. her. Who can say that the wife did not thereby ‘ ‘ induce the belief ’ ’ in the minds of the plaintiffs, as well as of the public, ‘ ‘ that the premises in question were the absolute property of the husband, and that she had no claims against it, ’ ’ and that, in this case the debt had not “been contracted upon the faith of his ownership, or upon credit induced by his apparent ownership?” The wife in this case also authorized her husband to use the money she let him have to improve the premises in controversy. As. shown by the wife’s own testimony, her husband was authorized to improve the premises in . controversy. She let him have her money for that purpose. If he went in debt in making these improvements, and did-not limit himself to such improvements as he could or did pay for with her money, he was still her representative.
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Pemberton, C. J.
In his brief, counsel for appellants says : “It appears to have been contended at the trial that the money which Mrs. Wassweiler let Mr. Wassweiler have was his anyway, and that the alleged agreements were void by reason of the relationship between them, the transaction having occurred prior to the passage of the married woman’s emancipation act. In this view the court concurred, and placed its ruling substantially on this ground. The case stands for determination on the correctness of this contention, and it is respectfully submitted that, as a legal proposition, it cannot be sustained. It is unnecessary to rely on the agreement testified to by both of the defendants, that from the first it was agreed between them that the real estate they were acquiring should be held and enjoyed jointly. When it came to a sale of the tract to Broadwater, she had valuable rights in it, which she was not obliged to surrender except on her own terms. * * * She had a dower interest in it, at all events, and a. homestead right. A conveyance by her husband without her concurrence would have been absolutely void. She had a perfect right to refuse to join in the conveyance unless her half' were paid or secured to her. It was paid to her, and took the form of certificates of deposit, — choses in action. These were hers, absolutely. Unless they were reduced to his possession [174]*174during his lifetime, they passed to her heirs, not to his. And he was powerless to obtain them except upon making her an adequate settlement out of his estate. Although the common law considered him the owner of the securities, this was a dogma so repugnant to the court of chancery that it devised a scheme of trusteeship for the wife in a third person for the manifest purpose of avoiding its effect. As the husband could not sue the wife at common law, he was powerless to get her choses unless he resorted to the court of chancery, before which the law was considered unconscionable; and that tribunal would refuse to compel the wife to surrender unless the husband created a trusteeship in her behalf, and thus made her an adequate settlement out of his own estate.”
In support of the above argument, counsel cites 1 Daniell on Ch. Prac., p. 90 el seg., and authorities cited in notes. Counsel also contends that, even if it be admitted that the agreements relied on between the defendants were made when the common-law rule in relation to the rights of married women was in force in this state, still, he says £ ‘the husband could not have possessed himself of these assets except he did substantially what he did afterwards, and that of which the plaintiff complains. In view of the expressions found in the foregoing authorities and the general rules governing the action of the court of chancery, there is no doubt that, if the husband obtained the wife’s choses upon an agreement to convey to her a portion of his real estate, equity would either compel him to do so, or to restore the property he got, or make some other adequate provision for her. Indeed, however he obtained them, she could maintain a bill against him to compel a' settlement, even alter his assignment for the benefit of creditors, or the institution of bankruptcy proceedings, or in a suit by his assignee not Iona fide or for a valuable consideration,’’ — and cites the following authorities in support of his contention : Pomeroy’s Equity Jur., § 1114; Beal's Ex'r v. Storm, 26 N. J. Eq. 372; Sykes v. Chadwick, 18 Wall. 141. In support of the contention' of counsel for appellants that the release of her dow.er rights in. the real estate mentioned in the complaint [175]*175was a sufficient consideration to support the claim of the wife to an enforcement of the agreements between the defendants in a court of equity, he cites 1 Am. Lead. Cas. 65, 66; Hershy v. Latham, 46 Ark. 542, and authorities cited; Garner v. Bank, 151 U. S. 420, 14 Sup. Ct. 390; Lambrecht v. Patten, 15 Mont. 260, 38 Pac. 1063. In view of the foregoing authorities, counsel for appellants contends that the agreement between the husband and wife shown in the evidence is valid, and supported by a sufficient consideration, and is enforceable in equity against the husband, as well as against his creditors or assignees. Counsel for appellants also says : “It is undoubtedly true that if the wife had done anything to induce the belief that the premises in question were the absolute property of the husband, and that she had no claims against it, and the debt had been contracted upon the faith of his ownership of it, or upon a credit induced by his apparent ownership, some question might possibly arise; but it is sufficient to say that no such case is made, either by the pleadings or the proof, and the law is now well settled that a wife may be preferred upon a bona fide obligation as well as any other creditor, and is under no more obligation to publish her claims than any other creditor.” Appellants’ counsel also says that the equitable doctrine contended for here was entirely overlooked by the court below.
Now, then, let us admit that the agreement relied upon by the appellants is valid as between themselves, and one which ar court of equity would enforce as between themselves, and, under ordinary circumstances, against the creditors and assignees of the husband; still, are the facts and circumstances of this case such as would authorize the enforcement of the agreement by a court of equity in favor of the wife, as against the rights of the plaintiifs ? In the language of counsel for the appellants, does the evidence show that the wife has ‘ ‘done anything to induce the belief that the premises in question were the absolute property of the husband, and that she had no claims against it, ” or that “the debt , had been contracted upon the faith of his ownership of it, or upon a credit [176]*176induced by his apparent ownership?” The evidence shows that the title to the whole tract of land acquired by the husband from the government remained of record in his name until the sale of one-half thereof to Broadwater, in 1873 or* 1874, and that thereafter the title to the 80 acres in controversy remained in the name of the husband until 1892, when it was conveyed to Tullis, and by Tullis to the wife. This was nine years after the wife turned over the $5,000 paid to her by Broadwater, as her part of the purchase 'price of the land sold to him by appellants, to her husband, for the purpose of improving the land in controversy. This was nine, years after the agreement was made by the husband to deed the land in controversy to the wife. For nine years the wife-permitted the land in controversy to stand on the records int the name of the husband after he had agreed to convey it to. her. Who can say that the wife did not thereby ‘ ‘ induce the belief ’ ’ in the minds of the plaintiffs, as well as of the public, ‘ ‘ that the premises in question were the absolute property of the husband, and that she had no claims against it, ’ ’ and that, in this case the debt had not “been contracted upon the faith of his ownership, or upon credit induced by his apparent ownership?” The wife in this case also authorized her husband to use the money she let him have to improve the premises in controversy. As. shown by the wife’s own testimony, her husband was authorized to improve the premises in . controversy. She let him have her money for that purpose. If he went in debt in making these improvements, and did-not limit himself to such improvements as he could or did pay for with her money, he was still her representative. She had placed him in a position or, at least, permitted him to occupy a position, where he could impose on those with whom he was. dealing in improving the premises. We think, from the evidence, that a very considerable part of the husband’s indebtedness, if not all, to the plaintiffs, was incurred for hardware and lumber which went into the buildings and improvements placed on the premises by the husband. If this be not so, it. was incumbent on the appellants to show it before the wife. [177]*177could equitably ask to be permitted to hold the premises free from the incumbrance of plaintiffs’ judgment for a debt incurred under the circumstances of this case. If the wife in this case would claim the land in controversy as her own under the agreement in relation thereto made with her husband, she should, at least, take it subject to the incumbrances which have been placed upon it through her own negligence and laches, — negligence and laches which were calculated to mislead those dealing with her representative. If she would have equity, she must do equity.
We are unable to determine how much the value of these premises has been enhanced by the building materials lor which the husband’s indebtedness was incurred to plaintiffs. But, however much the value thereof has been thus increased, we do not think it equitable that the wife should, under the circumstances, take the land in controversy freed from the judgment lien of the plaintiffs, and that, until she has discharged this lien, she has no standing in a court of equity. Respondents’ objections to this court hearing this appeal, involving questions of practice, become immaterial under the foregoing treatment of the case. The judgment and order appealed from are affirmed.
Affirmed.
Hunt, J., concurs. Buck, J., disqualified.