Thomas, J.,
delivered the opinion of the Court.
The appellant, in her bill of complaint in this case, filed in the Circuit Court for Baltimore County, alleges that she was married to the appellee on the 7th day of September, 1894; that after her said marriage she purchased, on the 22nd day of May, 1896, four lots of the ground near Oatonsville, in Baltimore County, and paid the consideration therefor, to wit, the sum of fourteen thousand five hundred dollars, out of her separate funds and estate, and that she caused said lots to be conveyed to herself and the appellant “as tenants by entireties” by the deed, a copy of which was filed with the bill; that on the 11th of December, 1905, by the final decree
of the “Prohate, Pivorce and Admiralty Division. of the High Court of Justice” of England she was absolutely divorced from the appellee,' and that she “is advised that in consequence of said divorce she is entitled to have said property decreed to be hers, in her own right, free, clear and discharged of any interest therein of her former husband, from whom she has now' been divorced.” The prayer of the bill is. that the property may be decreed to be the property of the ■appellant, clear of any interest of the appellee; that a trustee may be appointed, “if necessary,” to convey the. property to her, and that she may hayo such.other relief as her case may require.
The bill, it is to be noted, does not charge that the property was purchased by the appellee and paid for with money belonging to the appellant, or that the conveyance of the-property to her and her husband was procured by the fraud or undue influence of the appellee; but the theory on which the bill wa,s filed is that the appellant, having been divorced from, the appellee, the. mere fact that the property was paid for out of money belonging to the appellant is sufficient to authorize a Court of equity, either under the authority of' Art. 16, sec. 37 of the Code, or independently of that section,, to restore the property to her.
Without considering or determining whether said section, which confers upon the Court granting the divorce “power to award to the wife such property or estate as she had when married,” has reference only to the Court decreeing the divorce, or whether Courts of equity, apart from the statute, have such power, it is clear from the decisions .in this State that where a wife during coverture voluntarily and without any fraud or undue influence - on the part of the husband,, conveys her- property to him, the effect of a decree for divorce is not to vest in her an equitable title to such property. It has been repeatedly held by this Court that if a wife gives to her husband property belonging to her 'separate estate, ox-permits. him to apply it to- his oto use, or he does so- with her knowledge and coxisent, in the absence of proof that it
was given to him to he held in trust for her use, or of á promise by 'the husband at the time to repay it, it will be presumed that ’ it was intended as' an absolute gift to him, and she- has no claim therefor against him or his estate.
Edelen
v.
Edelen,
11 Md. 415;
Kuhn
v.
Stansfield;
28 Md. 210;
Farm. & Mer. Nat. Bank
v.
Jenkins,
65 Md. 243;
Jenkins
v.
Middleton,
68 Md. 540;
Taylor
v.
Brown,
65 Md. 366.
In the cáse of
Tyson
v.
Tyson,
54 Md. 35, the bill- was for divorce and restoration to the wife of the property belonging to her when married, or the value thereof. The Court below granted the divorce and awarded alimony,'but omitted to award to the plaintiff certain property, and because of such omission the appeal was taken from the decree. The property which it was claimed should have been-awarded to the wife, consisted of a legacy to her from her father, '.amdunting to $2,873.75, which had been paid to the husband and wife jointly by the executor of' her father’s estate, ánd-for which they had-executed a joint release. Her claim was resisted on the ground that the legacy had been appropriated and converted by the husband, with the knowledge and 'Consent of the wife, and without any agreement to'repay It, or to hold it for her use and benefit. The Court, in construing Art. 16', sec. 37 of the Code, said that it was- not contení plated “to authorize the Court to annul all ’previous-dispositions made by the wife during Coverture by gifts tb her husband or others. *■ * * If -the husband received and applied the fund, whether money, goods or chattels, or collected
choses in action,
with the wife’s privity and consent,' and without an agreement or promise to repay or restore it,- no legal obligation rests on the husband to restore it; ño right of action enures to her, and, to that extent, her rights are extinct. ■
A decree for divorce has no retroactive effect;
per se,
it does not legally restore' the
status quo
of the parties before marriage, or annul their voluntary and legal acts diiring coverture. ’ ‘ '
Bishop,
treating of the consequences of divorce flowing by
law, says: “Coming now to consider the effect of the dissolution of a valid marriage, upon property rights, we must remember that the decree of divorce, so far from undoing the original marriage, expressly affirms it, and, therefore, does not restore the parties to their former condition, but places them in a new one. Consequently all transfers of property which were actually executed either in law or fact abide; for example, the personal estate of the wife reduced to possession by the husband remains his after a divorce, the same as before.” 2
Bishop,
706. Again (p. 731), referring to the effect of a' divorce
a mensa:
“This divorce does not at common law, and without statutory aid, change the relation of the parties as to property.”
Assuming that the Code confers on the Court the power of awarding the wife all the property she had during coverture, as well as that 'possessed prior and at the time of the marriage, that power must be qualified by the rights acquired by the husband, or others through him, claiming with her privity and consent.
If the effect of knowledge and acquiescence on the part of the wife was sufficient to destroy her right as creditor in this case, unless there was an agreement or promise of the husband to repay, it follows necessarily that the conversion of the money by the husband, with the wife’s concurrence, and her conjoint act and deed, must equally destroy her right to recover it as her separate properly, after divorce, after tho lapse of a series of years, without any promise or agreement of the husband to return or to repay it.
There was no loan or trust created between them, but the transaction amounted to an absolute gift. The wife exercised her
jus disponendi
absolutely and without reserve.
Under the averments of the hill, viz, that
she.
purchased and paid for the property, and that
she
caused it to be conveyed to herself and her husband, the appellant would not, therefofé, be entitled to the relief prayed. '
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Thomas, J.,
delivered the opinion of the Court.
The appellant, in her bill of complaint in this case, filed in the Circuit Court for Baltimore County, alleges that she was married to the appellee on the 7th day of September, 1894; that after her said marriage she purchased, on the 22nd day of May, 1896, four lots of the ground near Oatonsville, in Baltimore County, and paid the consideration therefor, to wit, the sum of fourteen thousand five hundred dollars, out of her separate funds and estate, and that she caused said lots to be conveyed to herself and the appellant “as tenants by entireties” by the deed, a copy of which was filed with the bill; that on the 11th of December, 1905, by the final decree
of the “Prohate, Pivorce and Admiralty Division. of the High Court of Justice” of England she was absolutely divorced from the appellee,' and that she “is advised that in consequence of said divorce she is entitled to have said property decreed to be hers, in her own right, free, clear and discharged of any interest therein of her former husband, from whom she has now' been divorced.” The prayer of the bill is. that the property may be decreed to be the property of the ■appellant, clear of any interest of the appellee; that a trustee may be appointed, “if necessary,” to convey the. property to her, and that she may hayo such.other relief as her case may require.
The bill, it is to be noted, does not charge that the property was purchased by the appellee and paid for with money belonging to the appellant, or that the conveyance of the-property to her and her husband was procured by the fraud or undue influence of the appellee; but the theory on which the bill wa,s filed is that the appellant, having been divorced from, the appellee, the. mere fact that the property was paid for out of money belonging to the appellant is sufficient to authorize a Court of equity, either under the authority of' Art. 16, sec. 37 of the Code, or independently of that section,, to restore the property to her.
Without considering or determining whether said section, which confers upon the Court granting the divorce “power to award to the wife such property or estate as she had when married,” has reference only to the Court decreeing the divorce, or whether Courts of equity, apart from the statute, have such power, it is clear from the decisions .in this State that where a wife during coverture voluntarily and without any fraud or undue influence - on the part of the husband,, conveys her- property to him, the effect of a decree for divorce is not to vest in her an equitable title to such property. It has been repeatedly held by this Court that if a wife gives to her husband property belonging to her 'separate estate, ox-permits. him to apply it to- his oto use, or he does so- with her knowledge and coxisent, in the absence of proof that it
was given to him to he held in trust for her use, or of á promise by 'the husband at the time to repay it, it will be presumed that ’ it was intended as' an absolute gift to him, and she- has no claim therefor against him or his estate.
Edelen
v.
Edelen,
11 Md. 415;
Kuhn
v.
Stansfield;
28 Md. 210;
Farm. & Mer. Nat. Bank
v.
Jenkins,
65 Md. 243;
Jenkins
v.
Middleton,
68 Md. 540;
Taylor
v.
Brown,
65 Md. 366.
In the cáse of
Tyson
v.
Tyson,
54 Md. 35, the bill- was for divorce and restoration to the wife of the property belonging to her when married, or the value thereof. The Court below granted the divorce and awarded alimony,'but omitted to award to the plaintiff certain property, and because of such omission the appeal was taken from the decree. The property which it was claimed should have been-awarded to the wife, consisted of a legacy to her from her father, '.amdunting to $2,873.75, which had been paid to the husband and wife jointly by the executor of' her father’s estate, ánd-for which they had-executed a joint release. Her claim was resisted on the ground that the legacy had been appropriated and converted by the husband, with the knowledge and 'Consent of the wife, and without any agreement to'repay It, or to hold it for her use and benefit. The Court, in construing Art. 16', sec. 37 of the Code, said that it was- not contení plated “to authorize the Court to annul all ’previous-dispositions made by the wife during Coverture by gifts tb her husband or others. *■ * * If -the husband received and applied the fund, whether money, goods or chattels, or collected
choses in action,
with the wife’s privity and consent,' and without an agreement or promise to repay or restore it,- no legal obligation rests on the husband to restore it; ño right of action enures to her, and, to that extent, her rights are extinct. ■
A decree for divorce has no retroactive effect;
per se,
it does not legally restore' the
status quo
of the parties before marriage, or annul their voluntary and legal acts diiring coverture. ’ ‘ '
Bishop,
treating of the consequences of divorce flowing by
law, says: “Coming now to consider the effect of the dissolution of a valid marriage, upon property rights, we must remember that the decree of divorce, so far from undoing the original marriage, expressly affirms it, and, therefore, does not restore the parties to their former condition, but places them in a new one. Consequently all transfers of property which were actually executed either in law or fact abide; for example, the personal estate of the wife reduced to possession by the husband remains his after a divorce, the same as before.” 2
Bishop,
706. Again (p. 731), referring to the effect of a' divorce
a mensa:
“This divorce does not at common law, and without statutory aid, change the relation of the parties as to property.”
Assuming that the Code confers on the Court the power of awarding the wife all the property she had during coverture, as well as that 'possessed prior and at the time of the marriage, that power must be qualified by the rights acquired by the husband, or others through him, claiming with her privity and consent.
If the effect of knowledge and acquiescence on the part of the wife was sufficient to destroy her right as creditor in this case, unless there was an agreement or promise of the husband to repay, it follows necessarily that the conversion of the money by the husband, with the wife’s concurrence, and her conjoint act and deed, must equally destroy her right to recover it as her separate properly, after divorce, after tho lapse of a series of years, without any promise or agreement of the husband to return or to repay it.
There was no loan or trust created between them, but the transaction amounted to an absolute gift. The wife exercised her
jus disponendi
absolutely and without reserve.
Under the averments of the hill, viz, that
she.
purchased and paid for the property, and that
she
caused it to be conveyed to herself and her husband, the appellant would not, therefofé, be entitled to the relief prayed. '
But a great deal of evidence was produced by the plaintiff tending to show that she was induced against her will to have
the property so conveyed, by the conduct and persistent demands of her husband, and by the defendant, for the purpose of showing that the conveyance was the result of her free and voluntary act; and while, as was said in
Schroeder
v.
Loeber,
75 Md. 195, under Art. 5, sec. 86 of the Code, where there were no exceptions in the Court below to the evidence, or to the sufficiency of the averments of the bill, we may decree according to the proof, “whether the
allégala
and
probata
correspond or not,” we think, as the bill was filed and the evidence was offered on the theory that the Court was authorized under sec. 37 of Art. 16 of the Code, to restore the property to her, apart from any question of its having been procured by coercion or undue influence, and the attention of her counsel was not, therefore, specially addressed to that feature of the case, that the case should be remanded in order that the bill may be amended, and the parties may have an opportunity to offer additional evidence, if they desire to do so, reflecting upon the question of fraud, coercion or undue influence in the procurement of the deed to the plaintiff and defendant as “tenants by the entireties.”
In 2
Story’s Eq.
see. 1395, the author, after stating that it is now the established doctrine in equity that a married woman may bestow her separate property upon her husband, as well as upon a stranger, says: “But, at the same time, Courts of equity examine every such transaction between husband and wife, with anxious watchfulness and caution and dread of imdue influence; and if they are required to give sanction or effect to it, they will examine the wife in Court, and adopt other precautions to ascertain her unbiased will and wishes.” A similar expression of the jealous care with which Courts of equity guard the interests of the wife in such transactions is found in
Farmer’s Executor
v. Farmer, 39 N. J. Eq. 216, where the Court held that gifts by a wife to her husband “are to be closely inspected on account of the danger of improper influence, but if they appear to have been fairly made, and to be free from coercion and undue influence, they ought to be sustained.” And in the case of
Liv
ingston v.
Hall, 73 Md. 386, Chife Judge Alvey refers to the above section of
Story’s Eq.,
and says that “it has been held by Courts of high authority, and upon full and careful consideration, that a gratuitous conveyance by a wife of her property to her husband will be held void, unless it affirmatively appears from, the attending circumstances, Or 'otherwise, that it was her voluntary act, free from any undue influence exercised by her husband.” See also
Bradish
v.
Gibbs,
3 Johns. Ch. p. 589;
Parks
v.
White,
11 Ves. 222;
Whitridge v. Barry,
42 Md. 140.
"If, therefore, the interest Of the appellee in the property referred to in this case was' obtained by him by coercion or undue influence brought to bear’ by him upon the appellant, it is the plain duty of a Court of equity to grant her relief.
' We fully Concur in the conclusion reached by the Court below, and for the reasons stated and Upon the authorities cited by that OoUrt, that; as the result of the divorce, the appellant and appellee1 ’now hold the property as tenants in common. Rut for the reasons we have'stated the decree will be reversed, and the case be remanded, in Order that the bill may be amended and'the parties ihay produce additional evidence if they'désiré to do1 so. 1
Decree reversed and case remanded for further proceedings in accordance with views herein expressed, the costs in this Court and in the Court below to abide the final decree in the case.