Ames, C. J.
No one doubts, at the present day, that a married woman, having separate property, may purchase with it an interest in the property of her husband; and that if the price paid by her be adequate to the value of her purchase, her title will be maintained both at law and in equity.
Lady Arundell v.
Phipps, 10 Ves. 139. Even if the purpose of the purchase was to prevent the sale of the property for the husband’s debts, and to retain it' in the family on account of its peculiar usefulness to or
connection with it, the purpose would not be deemed fraudulent, so that the creditors received a fair equivalent for it. Ib. If the title conveyed to the wife were a mere equitable one, resting in executory contract, a court of law could not set it up against a legal title by execution acquired by purchase from a creditor’s levy and sale ; but where, as in this case, the wife’s legal title has been perfected by deed, a court of law would deal, and ought to deal, with the wife’s right to purchase, for a fair consideration, from her husband, precisely in the same way that a court of equity would. Ib., and cases to this point in the defendant’s brief. If this be so by the general law, how much more in this State, where, by statute, not only the wife’s rights to her property are secured against her husband and his creditors, but her legal identity with respect to it, as a person distinct from her husband, is recognized, and her power to act and contract in the disposal of it, in the modes permitted by law, is acknowledged by legislative enactments.
If she may contract with her husband at all for the purchase of his property with hers, it must be, in regard to his creditors, upon the same principles as to
bona fides,
and the giving of equivalent consideration, that any other purchaser might. If she loans him money, it must be with the same right to expect and receive security or repayment out of his estate, and even preference of payment, that any other creditor has ; for it cannot be pretended that a debt, -which a court of equity recognizes, may not be preferred in payment by the debtor, in a state of the law which, like ours, admits preferences in payment, as well as a debt -which is also recognized in a court of law. She cannnot, indeed, when her husband becomes insolvent, convert into debts as against his creditors, former deliveries to him of her money or other property, or permitted receipts by him of the income or proceeds of sale of her separate estate, which, at the time of such delivery or receipt, were'intended by her as gifts, to assist him in his business, or to pay their common expenses of living ; and, considering the relation between them, the law would not, merely from such delivery or receipt, imply a promise ón his part to replace or repay, as in case of persons not thus related; but would require more, either in express promise or circumstances,
to prove that in these matters they had dealt with each other as debtor and creditor. It is not, hówever, as supposed, a rule of law, that
at the time
of each delivery or receipt of the separate property of the wife by the husband; the latter must expressly promise to repay the former, or tp secure her out of his estate, to constitute the- relation of debtor and creditor , between them, in regard to it. Such a'promise,'made before such transactions and looking forward to and covering them, would, at law as in common sense, avail as well to prove the character of them, precisely as it would between other parties who were dealing with each other on credit and in confidence.
Nor is it true that an
express
prior promise to secure or repay out of the estate of the - husband is requisite, in such a case, fo prove that her husband received her separate property as_ a loan, and was therefore entitled, as against his creditors, thus to secure or repay her. Neither at law, nor in equity, is inferential jDroof to be rejected upon such a subject, more than upon any other, although, as suggested, what are proper inferences may be modified or altered by the relation between the parties. The amounts received, the times when, the occasions, the application of the amounts, the conduct of the_parties at or about the times, their relative condition as to property, the time and circumstances attending the payment or security out of the estate of the husband, and the relative value of what has been received and paid, especially if paid by a conveyance of the husband’s property, are all proper sources of inference upon such a question, as they would be upon a similar question between other parties.
The question of indebtment by the hiisband to the wife is not dissimilar to the more common one of a father to a child, for services rendered during minority, complicated, as it must be, with the question of emancipation, or whether the parent has freed the child from his control, and “ given him his time,” as the common expression is. This question too, arising as it usually does, after the death of the parent, and in contest -with coheirs or creditors, often becomes a difficult one, to adjust, with certainty that entire justice is done to all parties; b.ut who ever heard of excluding from its solution evidence of a circumstantial or inferential character, so wisely regarded, so effectually used, not only as a source, but even as a test of truth ?
The danger to the rights of creditors was pressed upon us at the argument of this motion, if we should allow inferences to be considered by a jury, in favor of a wife, who sets up against her husband’s creditors a claim to a portion of his property purchased by her during coverture, out of her separate estate. A sufficient reply would be, that we do not sit here to make, but to administer the law; but if this were otherwise, we should as soon exclude the light of the sun from the eyes of jurors, lest when they read a document submitted to them they should see it with distorted vision, as we should exclude from them inferential evidence upon any subject upon which it could elucidate the truth, lest they should draw unfounded inferences. In an especial manner would it be unjust to do so in cases to which husbands and wives were parties, or in which the interests of either were involved. Already they are excluded as witnesses for or against each other in all cases in which either is a party or interested, whilst no other relation excludes a party or interested witness from testifying in a civil cause. If, in addition, they were cut off from all presumptive proof, whatever light it might shed upon their transactions with each other, we know not, considering the privacy of domestic life, to what source of proof they are to look for the protection of their relative rights. We are not so far gone in adoration of the rights of 'creditors, as to sacrifice to them the rights of everybody else.
The danger of false credit to the husband, if the wife may obtain by secret contract an equity as to his property, which he may prefer to the claims of his other creditors by conveyance to her use, whilst he is the apparent owner, though the property is in the comnjon possession of husband and wife, has also been urged upon us; but this danger was so long ago considered by Lord Eldon, and the rights of the wife as a purchaser, in spite of it, upheld by that learned and discreet Judge, that we dismiss the matter by a reference to his comments upon it.
Lady Arundell
v.
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Ames, C. J.
No one doubts, at the present day, that a married woman, having separate property, may purchase with it an interest in the property of her husband; and that if the price paid by her be adequate to the value of her purchase, her title will be maintained both at law and in equity.
Lady Arundell v.
Phipps, 10 Ves. 139. Even if the purpose of the purchase was to prevent the sale of the property for the husband’s debts, and to retain it' in the family on account of its peculiar usefulness to or
connection with it, the purpose would not be deemed fraudulent, so that the creditors received a fair equivalent for it. Ib. If the title conveyed to the wife were a mere equitable one, resting in executory contract, a court of law could not set it up against a legal title by execution acquired by purchase from a creditor’s levy and sale ; but where, as in this case, the wife’s legal title has been perfected by deed, a court of law would deal, and ought to deal, with the wife’s right to purchase, for a fair consideration, from her husband, precisely in the same way that a court of equity would. Ib., and cases to this point in the defendant’s brief. If this be so by the general law, how much more in this State, where, by statute, not only the wife’s rights to her property are secured against her husband and his creditors, but her legal identity with respect to it, as a person distinct from her husband, is recognized, and her power to act and contract in the disposal of it, in the modes permitted by law, is acknowledged by legislative enactments.
If she may contract with her husband at all for the purchase of his property with hers, it must be, in regard to his creditors, upon the same principles as to
bona fides,
and the giving of equivalent consideration, that any other purchaser might. If she loans him money, it must be with the same right to expect and receive security or repayment out of his estate, and even preference of payment, that any other creditor has ; for it cannot be pretended that a debt, -which a court of equity recognizes, may not be preferred in payment by the debtor, in a state of the law which, like ours, admits preferences in payment, as well as a debt -which is also recognized in a court of law. She cannnot, indeed, when her husband becomes insolvent, convert into debts as against his creditors, former deliveries to him of her money or other property, or permitted receipts by him of the income or proceeds of sale of her separate estate, which, at the time of such delivery or receipt, were'intended by her as gifts, to assist him in his business, or to pay their common expenses of living ; and, considering the relation between them, the law would not, merely from such delivery or receipt, imply a promise ón his part to replace or repay, as in case of persons not thus related; but would require more, either in express promise or circumstances,
to prove that in these matters they had dealt with each other as debtor and creditor. It is not, hówever, as supposed, a rule of law, that
at the time
of each delivery or receipt of the separate property of the wife by the husband; the latter must expressly promise to repay the former, or tp secure her out of his estate, to constitute the- relation of debtor and creditor , between them, in regard to it. Such a'promise,'made before such transactions and looking forward to and covering them, would, at law as in common sense, avail as well to prove the character of them, precisely as it would between other parties who were dealing with each other on credit and in confidence.
Nor is it true that an
express
prior promise to secure or repay out of the estate of the - husband is requisite, in such a case, fo prove that her husband received her separate property as_ a loan, and was therefore entitled, as against his creditors, thus to secure or repay her. Neither at law, nor in equity, is inferential jDroof to be rejected upon such a subject, more than upon any other, although, as suggested, what are proper inferences may be modified or altered by the relation between the parties. The amounts received, the times when, the occasions, the application of the amounts, the conduct of the_parties at or about the times, their relative condition as to property, the time and circumstances attending the payment or security out of the estate of the husband, and the relative value of what has been received and paid, especially if paid by a conveyance of the husband’s property, are all proper sources of inference upon such a question, as they would be upon a similar question between other parties.
The question of indebtment by the hiisband to the wife is not dissimilar to the more common one of a father to a child, for services rendered during minority, complicated, as it must be, with the question of emancipation, or whether the parent has freed the child from his control, and “ given him his time,” as the common expression is. This question too, arising as it usually does, after the death of the parent, and in contest -with coheirs or creditors, often becomes a difficult one, to adjust, with certainty that entire justice is done to all parties; b.ut who ever heard of excluding from its solution evidence of a circumstantial or inferential character, so wisely regarded, so effectually used, not only as a source, but even as a test of truth ?
The danger to the rights of creditors was pressed upon us at the argument of this motion, if we should allow inferences to be considered by a jury, in favor of a wife, who sets up against her husband’s creditors a claim to a portion of his property purchased by her during coverture, out of her separate estate. A sufficient reply would be, that we do not sit here to make, but to administer the law; but if this were otherwise, we should as soon exclude the light of the sun from the eyes of jurors, lest when they read a document submitted to them they should see it with distorted vision, as we should exclude from them inferential evidence upon any subject upon which it could elucidate the truth, lest they should draw unfounded inferences. In an especial manner would it be unjust to do so in cases to which husbands and wives were parties, or in which the interests of either were involved. Already they are excluded as witnesses for or against each other in all cases in which either is a party or interested, whilst no other relation excludes a party or interested witness from testifying in a civil cause. If, in addition, they were cut off from all presumptive proof, whatever light it might shed upon their transactions with each other, we know not, considering the privacy of domestic life, to what source of proof they are to look for the protection of their relative rights. We are not so far gone in adoration of the rights of 'creditors, as to sacrifice to them the rights of everybody else.
The danger of false credit to the husband, if the wife may obtain by secret contract an equity as to his property, which he may prefer to the claims of his other creditors by conveyance to her use, whilst he is the apparent owner, though the property is in the comnjon possession of husband and wife, has also been urged upon us; but this danger was so long ago considered by Lord Eldon, and the rights of the wife as a purchaser, in spite of it, upheld by that learned and discreet Judge, that we dismiss the matter by a reference to his comments upon it.
Lady Arundell
v. Phipps, 10 Ves. 145, 146, 150-152.
Our conclusion is, that the Judge .trying this cause instructed the jury quite' as favorably to the plaintiffs as the law would permit, and that they at least have po cause to complain of his instructions.
This disposes of the only questions of law raised at the trial, except an objection to evidence which was properly overruled, and which was not mentioned at the hearing of this motion.
The last ground for new trial is, that the verdict is against the weight of the evidence. After two full trials in this court by impartial juries, in which verdicts were rendered for the defendants, we certainly shall not open this case for a new trial, without strong proof that justice imperatively demands it. Upon looking into the evidence, we find that sums of money amounting in the aggregate to the full value óf the three lots in question, as proved at the trial, were advanced by the wife to her husband -out of her separate estate, arid that a very considerable portion of this was shown to have been applied to the payment of his debts. Evidence of the time's and circumstances of these advances, and evidence of an" explicit promise on the part of the husband to secure or repay them out of his estate, made either at or just after one of the principal of the advances in amount, was also submitted to the jury. The evidence was countervailed by none offered, either in reply to or in impeachment of it; and we cannot say, looking at the evidence, direct and circumstantial, although not as full as might be desired, that the jury must have been mistaken or partial to have rendered the verdict that they did. The Judge trying the cause saw nothing in the transaction proved, to excite his suspicion, that this was a fraudulent attempt on the part of the husband to cover his property from his creditors by a conveyance of it for the benefit of his wife. On the contrary, it appeared to him, as the event shewed it did to the jury, as a fair exchange of the wife’s money for the little homestead of the husband on which they lived, — the money being used to carry on his business and to pay his debts, and the homestead to shelter the family. We do not see that this litigation can be rightfully permitted to go any farther ; and upon all the grounds, dismiss this motion for a new trial, with costs.