Andrews, C. J.
This was an action praying to foreclose a judgment lien on nine pieces of land situated in the town of Fairfield. The complaint alleged the obtaining by the plaintiff of a judgment against George D. Chapman; that a judgment lien was duly placed on these pieces of land; that the record title to each and all of them was in Lucia I. Chapman, wife of said George D.; that they were married [452]*452in 1862; that all said pieces of land had been purchased with the money, or upon the credit, of the said George D.; and that the title had been taken in the name of the said Lucia I., for the purpose of defrauding the plaintiff and others who were creditors of the said George D. Chapman.
The plaintiff made numerous requests to the court for rulings, all of which were denied. The finding of the material facts is set forth in the statement of the case. The court found the issues for the defendants and dismissed the complaint. The plaintiff appealed.
The only real controversy in the case in the trial court, was whether or not George D. Chapman had any interest in the parcels of land described, or in an j of them, which could be taken for his debts. Most of the claims made by the plaintiff are disposed of by the finding of facts. Only three or four were pressed in this court. As to all the pieces of land mentioned in the complaint, other than the first one called the homestead, the finding is explicit that they were purchased with funds in which Mr. Chapman had no interest. As to the homestead, the plaintiff asked the court to hold and rule, “ that the money loaned by the bank to Mr. and Mrs. Chapman and used by them in the purchase of the homestead, was the money of the husband, and that the wife in signing the note incurred no personal responsibility or liability of any kind, and that the bank, as to her, could only look to the land which was mortgaged to secure the note. That if she incurred a personal responsibility, she could by no means have acquired more than an equal interest in the money with her husband, and that to the extent of his interest in said money, contributed to the purchase of said homestead property, it is to that extent available to this plaintiff in satisfaction of his claims. That the fact the mere legal title never vested in the husband, could make no difference in this case, as the taking of a conveyance to a wife by a husband who had paid the consideration therefor, is equivalent to a voluntary conveyance.” These claims were overruled.
The decisive question in this part of the case was not to [453]*453whom did the money obtained from the savings bank belong; but whose was the land mortgaged to the bank as security for that money. If the land so mortgaged belonged to Mrs. Chapman and not to Mr. Chapman, then, granting that the money was the money of Mr. Chapman, there is no error .in this ruling. It is then an instance of the mortgage by a wife of her land to secui-e a loan of money to her husband.
In respect to this first piece of land several requests were made to the trial judge for the finding of particular facts. These are in the record, with the marginal statement to each of “proven” or “not proven.” The finding of facts made by the court, read in connection with these requests, is perhaps, not entirely consistent or wholly free from doubt. From a careful and somewhat prolonged study of the case we are led to conclude that the trial court intended to decide, and did decide, that the title to the homestead was in Mrs. Chapman before the money was obtained from the savings bank, and that that money was not strictly purchase money, but was money raised by the mortgage to remove the lien of English & Holt. The legal title to the homestead was in Mrs. Chapman before the mortgage was made. The deed from English & Holt to Mrs. Chapman was made on the 8th day of May, 1877, while the money was not obtained from the bank until the 10th of that month. And the agreement between Mrs. Chapman, Mrs. Sturges, and Messrs. English & Holt, is sufficient to authorize the court to decide that the equitable title also had vested in her, subject, of course, to the payment of the debt to English & Holt. In this view of the case the court has not committed any error which has harmed the plaintiff; for, even though the money obtained from the bank technically belonged to Mr. Chapman and it was used to pay the debt of English & Holt, he had no interest in the homestead which could be taken by his creditors.
The plaintiff also claimed and asked the court to hold, “ that the burden of proof was upon the wife to show by clear and satisfactory evidence that the consideration paid for the said property arose from some other source than her [454]*454husband, and consisted of her separate estate.” We think this claim went too far and that the court committed no error in disregarding it. It is true that where any case like the present one is on trial, where a transaction in which a husband and wife are engaged, and in which it is claimed that the wife is colluding with her husband to conceal his property in her hands so as thereby to defraud his creditors, is the subject of inquiry, it should be examined with all reasonable diligence to discover if such fraud exists. The community of interest between husband and wife is such, the opportunities for frauds of this kind between them are so convenient, the temptations are so great, and the instances in which embarrassed husbands have resorted to this kind of proceeding for the purpose of withdrawing their property from the reach of their creditors and preserving it in their own hands are so frequent, that all such transactions should' be subjected to a rigorous scrutiny. But if, upon the whole case, the wife shows by the evidence, to the satisfaction of the trier, that as between her husband and herself the consideration was her own money instead of his, we think she should have judgment in her favor. Conn. Humane Soc. Appeal, 61 Conn., 465; Trumbull v. Hewitt, 62 id., 448.
Another claim made by the plaintiff was, “ that the absence of said husband and wife, and their omission to testify, was a ground for an unfavorable presumption against them.” This claim is stated to have been overruled. Mr. and Mrs. Chapman were charged in the complaint with contriving and conspiring together to defraud Ms creditors. There appears to have been evidence offered by the plaintiff from which he claimed such charges to be proved. Under such circumstances the unexplained absence of either of them from the court, and an omission to testify, would have been a strong ground for an unfavorable presumption against them. Lord Mansfield, in Blatch v. Archer, 1 Cowper, 63, 65, said: “ It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.” In Wharton’s Evidence, § 1266, [455]*455this same maxim is stated in still more forcible language : “ The holding back of evidence may be used as a presumption of fact against the party who holds back such evidence in all cases where it could be produced.” But this rule cannot be applied in the present case, because the record does not show an unexplained absence by either Mr. Chapman or his wife. As to Mr. Chapman it is found that he did appear and testify. And as to Mrs. Chapman, while it may be inferred that she was absent and did not testify, it does not appear but what such absence was fully explained.
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Andrews, C. J.
This was an action praying to foreclose a judgment lien on nine pieces of land situated in the town of Fairfield. The complaint alleged the obtaining by the plaintiff of a judgment against George D. Chapman; that a judgment lien was duly placed on these pieces of land; that the record title to each and all of them was in Lucia I. Chapman, wife of said George D.; that they were married [452]*452in 1862; that all said pieces of land had been purchased with the money, or upon the credit, of the said George D.; and that the title had been taken in the name of the said Lucia I., for the purpose of defrauding the plaintiff and others who were creditors of the said George D. Chapman.
The plaintiff made numerous requests to the court for rulings, all of which were denied. The finding of the material facts is set forth in the statement of the case. The court found the issues for the defendants and dismissed the complaint. The plaintiff appealed.
The only real controversy in the case in the trial court, was whether or not George D. Chapman had any interest in the parcels of land described, or in an j of them, which could be taken for his debts. Most of the claims made by the plaintiff are disposed of by the finding of facts. Only three or four were pressed in this court. As to all the pieces of land mentioned in the complaint, other than the first one called the homestead, the finding is explicit that they were purchased with funds in which Mr. Chapman had no interest. As to the homestead, the plaintiff asked the court to hold and rule, “ that the money loaned by the bank to Mr. and Mrs. Chapman and used by them in the purchase of the homestead, was the money of the husband, and that the wife in signing the note incurred no personal responsibility or liability of any kind, and that the bank, as to her, could only look to the land which was mortgaged to secure the note. That if she incurred a personal responsibility, she could by no means have acquired more than an equal interest in the money with her husband, and that to the extent of his interest in said money, contributed to the purchase of said homestead property, it is to that extent available to this plaintiff in satisfaction of his claims. That the fact the mere legal title never vested in the husband, could make no difference in this case, as the taking of a conveyance to a wife by a husband who had paid the consideration therefor, is equivalent to a voluntary conveyance.” These claims were overruled.
The decisive question in this part of the case was not to [453]*453whom did the money obtained from the savings bank belong; but whose was the land mortgaged to the bank as security for that money. If the land so mortgaged belonged to Mrs. Chapman and not to Mr. Chapman, then, granting that the money was the money of Mr. Chapman, there is no error .in this ruling. It is then an instance of the mortgage by a wife of her land to secui-e a loan of money to her husband.
In respect to this first piece of land several requests were made to the trial judge for the finding of particular facts. These are in the record, with the marginal statement to each of “proven” or “not proven.” The finding of facts made by the court, read in connection with these requests, is perhaps, not entirely consistent or wholly free from doubt. From a careful and somewhat prolonged study of the case we are led to conclude that the trial court intended to decide, and did decide, that the title to the homestead was in Mrs. Chapman before the money was obtained from the savings bank, and that that money was not strictly purchase money, but was money raised by the mortgage to remove the lien of English & Holt. The legal title to the homestead was in Mrs. Chapman before the mortgage was made. The deed from English & Holt to Mrs. Chapman was made on the 8th day of May, 1877, while the money was not obtained from the bank until the 10th of that month. And the agreement between Mrs. Chapman, Mrs. Sturges, and Messrs. English & Holt, is sufficient to authorize the court to decide that the equitable title also had vested in her, subject, of course, to the payment of the debt to English & Holt. In this view of the case the court has not committed any error which has harmed the plaintiff; for, even though the money obtained from the bank technically belonged to Mr. Chapman and it was used to pay the debt of English & Holt, he had no interest in the homestead which could be taken by his creditors.
The plaintiff also claimed and asked the court to hold, “ that the burden of proof was upon the wife to show by clear and satisfactory evidence that the consideration paid for the said property arose from some other source than her [454]*454husband, and consisted of her separate estate.” We think this claim went too far and that the court committed no error in disregarding it. It is true that where any case like the present one is on trial, where a transaction in which a husband and wife are engaged, and in which it is claimed that the wife is colluding with her husband to conceal his property in her hands so as thereby to defraud his creditors, is the subject of inquiry, it should be examined with all reasonable diligence to discover if such fraud exists. The community of interest between husband and wife is such, the opportunities for frauds of this kind between them are so convenient, the temptations are so great, and the instances in which embarrassed husbands have resorted to this kind of proceeding for the purpose of withdrawing their property from the reach of their creditors and preserving it in their own hands are so frequent, that all such transactions should' be subjected to a rigorous scrutiny. But if, upon the whole case, the wife shows by the evidence, to the satisfaction of the trier, that as between her husband and herself the consideration was her own money instead of his, we think she should have judgment in her favor. Conn. Humane Soc. Appeal, 61 Conn., 465; Trumbull v. Hewitt, 62 id., 448.
Another claim made by the plaintiff was, “ that the absence of said husband and wife, and their omission to testify, was a ground for an unfavorable presumption against them.” This claim is stated to have been overruled. Mr. and Mrs. Chapman were charged in the complaint with contriving and conspiring together to defraud Ms creditors. There appears to have been evidence offered by the plaintiff from which he claimed such charges to be proved. Under such circumstances the unexplained absence of either of them from the court, and an omission to testify, would have been a strong ground for an unfavorable presumption against them. Lord Mansfield, in Blatch v. Archer, 1 Cowper, 63, 65, said: “ It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.” In Wharton’s Evidence, § 1266, [455]*455this same maxim is stated in still more forcible language : “ The holding back of evidence may be used as a presumption of fact against the party who holds back such evidence in all cases where it could be produced.” But this rule cannot be applied in the present case, because the record does not show an unexplained absence by either Mr. Chapman or his wife. As to Mr. Chapman it is found that he did appear and testify. And as to Mrs. Chapman, while it may be inferred that she was absent and did not testify, it does not appear but what such absence was fully explained.
It sometimes happens that the record sent up to this court from the court below presents a case from which it is difficult to see how that court reached the conclusion to which it came, and yet in which there is no apparent error. There are doubtless many instances in which it is no easy matter, even with the utmost care, to put into print, so that it can be seen by this court, an exact picture of the case as it was presented in the trial court. And when the manner and bearing of witnesses, their intelligence, character, and means of knowledge must be portrayed in order that the picture be correct, these difficulties are largely increased. And when, added to this, the record which comes up is only perfected some considerable time after the trial, and then as though it was not done as a whole but rather as in detached parts, it is not strange that this court should be sometimes perplexed to reconcile the judgment with the matters contained in the other parts of the record. The present is a case of that kind. While it seems to us from the record we have, that a different conclusion might more readily have been reached, we suppose it is because we are unable to see the exact case that was tried in the Superior Court.
There is no error.
In this opinion the other judges concurred.