thus granted or devised, or the purposes of the trust do not exhaust the whole beneficial interest, a trust in the remaining part or interest will result to the grantor, or the heirs or representatives of the devisor; 2 Pomeroy's Eq. Jur., sec. 1034; 1 Perry on Trusts, sec. 152; 2 Story's Eq. Jur., sec. 1199; Lloyd v. Spillet, 2 Atk. 150; Ellcock v. Mapp, 2 Phila. 793; Longley v. Longley, 13 L. A. Eq. 133; Marshall v. Crutwell, 20 Id. 328; Hobart v. Suffolk, 2 Vern. 644; Halford v. Stains, 16 Sim. 488; Davidson v. Foley, 2 Bro. C. C. 203; Parnell . Hingston, 3 Sm. & G. 344; Levet v. Needham, 2 Vern. 138; Read v. Steadman, 26 Beav. 495; Culpepper v. Aston, 2 Ch. Cas. 115; Dawson v. Clarke, 18 Ves. 254; Sewall v. Denny, 10 Beav. 315; Cooke v. Dealey, 22 Id. 196; Cottington v. Fletcher, 2 Atk. 155; Benbow v. Townsend, 1 Myl. & K. 506; Hogan v. Stayhorn, 65 N. C. 279; Loring v. Elliot, 16 Gray, 568; McCallister v. Willey, 52 Ind. 382; Kennedy v. Nunan, 52 Cal. 326; Ponce v. McEloy, 47 Id. 159; Hogan v. Jacques, 19 N. J. Eq. 123. The reason is, that the declaration of a trust as to part is considered sufficient evidence that the grantor or devisor did not intend the grantee or devisee to take the beneficial interest in the whole, and that the creation of the trust was the sole object of the transaction: 1 Perry on Trusts, sec. 152. But thero is a distinction which must be observed between property given expressly for a particular purpose and subject to a particular purpose. In the latter case the beneficial interest is given to the grantee or devisee, subject to some charge which, when discharged, vests the whole remaining beneficial interest in such grantee or devisee: King v. Denison, 1 Ves. & Bea. 260; Tregonwell v. Sydenham, 3 Dow, 194; Dawson v. Clarke, 18 Ves. 247; Downer v. Church, 44 N. Y. 651; Wood v. Cox, 2 Myl. & Cr. 684. Lord Chancellor Eldon thus states this distinction in King v. Denison, 1 Ves. & Bea. 272: "If I give to A. and his heirs all my real estate, charged with my debts, that is a devise to him for a particular purpose, but not for that purpose only. If the devise is upon trust to pay my debts, that is a devise for a particular purpose, and nothing more; and the effect of those two modes admits just this difference. The former is a devise of an estate of inheritance for the purpose of giving the devisee the beneficial interest, subject to a particular purpose; the latter is a devise for a particular purpose, with no intention to give him any beneficial interest. Where, therefore, the whole legal interest is given for the purpose of satisfying trusts expressed, and those trusts do not in their execution exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir; but where the whole legal interest is given for a particular purpose, with an intent to give the devisee of the legal estate the beneficial interest, if the whole is not exhausted by that particular purpose the surplus goes to the devisce, as it is intended to be given to him."

CONVEYANCE WITHOUT CONSIDERATION.-Where conveyance has been made, without any consideration expressed or implied, and does not state any use or trust, and is not intended as a gift, a presumption arises that it was intended it should be held for the benefit of the grantor, and a resulting trust will be created. This is in conformity to the rule of the common law, whereby, if a feoffment was made without consideration, the legal title only passed to the feoffee, and a use resulted to the feoffor: 2 Story's Eq. Jur., secs. 1197, 1198; 2 Poneroy's Eq. Jur., sec. 1035; 1 Lead. Cas. in Eq. 349, 350; 1 Perry on Trusts, 161 et seq., where the whole subject is discussed. In Russ v. Mebius, 16 Cal. 355, the plaintiff had conveyed to his father certain real estate, and brought that suit to set aside the conveyance. Cope, J., said: "It appears that the consideration was a verbal agreement by the father to make a will, and d vise to the plaintiff certain property mentioned in the

complaint. The father died without having complied with the agreement, and the plaintiff claims that he is entitled to be restored to his original rights. The referee finds that this agreement was the only consideration for the conveyance, but whether this is the consideration expressed in the conveyance itself does not appear. Assuming that it is, we are unable to see why the case does not fall within the doctrine of resulting trusts. The agreement was void, and the conveyance was executed without any consideration, express or implied. It is shown that the transaction was not intended as a gift, and as there was no consideration, a trust resulted in favor of the plaintiff by impli cation of law." If a consideration is expressed in the conveyance, even though a nominal one, parol evidence is not admissible to show the trust: Leman v. Whitley, 4 Russ. 423; Russ v. Mebius, 16 Cal. 350.

PAROL EVIDENCE, WHEN ADMISSIBLE TO ESTABLISH.-In the first and most important class of resulting trusts, viz., where the trust arises in favor of the party furnishing the consideration, it has long been well settled that parol evidence is admissible to establish the facts necessary to create the trust, or out of which it results: 1 Perry on Trusts, sec. 137; 2 Pomeroy's Eq. Jur., sec. 1040; 2 Story's Eq. Jur., sec. 1202; Ryall v. Ryall, Amb. 413; S. C., 1 Atk. 59; Gascoigne v. Thwing, I Vern. 366; Willis v. Willis, 2 Atk. 71; Lench v. Lench, 10 Ves. 517; Miller v. Blose's Ex'r, 30 Gratt. 744; Smith v. Patton, 12 W. Va. 541; Rhea v. Tucker, 56 Ala. 450; Hyden v. Hyden, 6 Baxt. 406; Byers v. Wackman, 16 Ohio St. 440; Baker v. Vining, 30 Me. 126; Frederick v. Haas, 5 Nev. 389; 1 Lead. Cas. in Eq., 4th Am. ed., 335, and cases there cited. Mr. Perry lays the rule down broadly, that the statute of frauds extends to and embraces only trusts created or declared by the parties, and does not affect trusts arising by operation of law: 1 Perry on Trusts, sec. 137, citing Ross v. Hegeman, 2 Edw. Ch. 373; Larkin v. Rhodes, 5 Port. 196; Enos v. Hunter, 4 Gilm. 211; Smith v. Sackett, 5 Id. 544; Foote v. Bryant, 47 N. Y. 544; Black v. Black, 4 Pick. 238; Bryant v. Hendricks, 5 Iowa, 256; Judd v. Haseley, 22 Iowa, 428; Ward v. Armstrong, 84 Ill. 151.

66

Hence, the person claiming a resulting trust in his favor may prove by parol the payment of the purchase money by him, although the deed recites it to have been paid by the grantee; so also it is admissible in opposition to a sworn answer denying it: Boyd v. McLean, 1 Johns. Ch. 582; and even after the death of the nominal purchaser: Id.; Freeman v. Kelly, 1 Hoffm. 98. But parol evidence is to be received with caution; hence it must be full, clear, convincing, and satisfactory: Boyd v. McLean, supra; Baker v. Vining, 30 Me. 126; Thomas v. Standiford, 49 Md. 181; Billings v. Clinton, 6 S. C. 90; Lee v. Browder, 51 Ala. 288; Hyden v. Hyden, 6 Baxt. 406; Agricultural Ass'n v. Brewster, 51 Tex. 257; Parker v. Snyder, 31 N. J. Eq. 164; Whitemore v. Learned, 70 Me. 276. Thus, in the last case, the court say, page 285: 'That such a trust may be established at all by parol, was a rule reluctantly adopted in equity, and accompanied at its adoption with the requirement of full proof, or a high degree of force and weight in the testimony offered." And in a Tennessee case it is said, "that such a parol trust may be set up contrary to the face of a deed, is well settled; but it is equally well settled, that in order to the establishment of such a trust in opposition to the terms of a written instrument, the proof must be most convincing and irrefragable:" Hyden v. Hyden, 6 Baxt. 407, per Freeman, J. In a leading case on this subject, Chancellor Kent has said: "The cases uniformly show, that the courts have been deeply impressed with the danger of this kind of proof, as tending to perjury and the insecurity of paper title; and they have required the pay ment by the cestui que trust to be clearly proved:" Boyd v. McLean, 1 Johns.

Ch. 590. Even the parol declarations of the nominal grantee that another paid the purchase money, will be evidence againt him, and his heirs or devisees; but such evidence is most unsatisfactory on account of the facility with which it may be fabricated, but is nevertheless competent if clear and consistent, especially when corroborated by circumstances: Harder v. Harder, 2 Sandf. 17; Malin v. Malin, 1 Wend. 626. A resulting trust may also be rebutted by parol evidence. It is founded on an equitable presumptive intention, but this presumption may be rebutted by parol evidence that the person furnishing the purchase money intended to give the nominal grantee the beneficial interest: Benbow v. Townsend, 1 Myl. & K. 506; Garrick v. Taylor, 29 Beav. 79; Rider v. Kidder, 10 Ves. 360; Steere v. Steere, 5 Johns. Ch. 19; S. C., 9 Am. Dec. 256; Page v. Page, 8 N. H. 195; Hunt v. Moore, 6 Cush. 1; Botsford v. Burr, 2 Johns. Ch. 416; Beecher v. Major, 2 Drew. & Sm. 431; Carter v. Montgomery, 2 Tenn. Ch. 216; Bellasis v. Compton, 2 Vern. 294. So also this presumption may be rebutted as to part of the trust, and not as to the remainder: Benbow v. Townsend, supra.

PAROL EVIDENCE, WHEN NOT ADMISSIBLE.-It seems that in the other classes of resulting trusts, viz., where a conveyance is made in trust for a certain purpose, but which is indefinite and uncertain, or is illegal, or which fails, or where a trust is expressly created in a part only of the estate conveyed, or where a conveyance has been made without any consideration whatever, parol evidence is not admissible. The intention that the donee is not to enjoy the beneficial interest, but that a trust is to result, or the contrary intention, must appear expressly or by implication from the terms of the instrument itself by which the property is conveyed. If the instrument is a will, then no extrinsic evidence is ever admissible to show the testator's meaning. If the instrument is a deed, no extrinsic evidence of the donor's intention is admissible, unless fraud or mistake is alleged and shown: 2 Pomeroy's Eq. Jur., sec. 1036, and cases cited. Hence, if there is in fact no consideration, but the deed recites a pecuniary consideration even merely nominal as paid by the grantee, this statement raises a conclusive presumption that the grantee is to take the beneficial estate, and destroys the possibility of a trust resulting to the grantor, and no extrinsic evidence would be admitted to contradict the recital and to show that there is in fact no consideration-except in a case of fraud or mistake: 2 Pomeroy's Eq. Jur., sec. 1036; Leman v. Whitley, 4 Russ. 423; Russ v. Mebius, 16 Cal. 350; Squires v. Harder, 1 Paige, 494; S. C., 19 Am. Dec. 446.

HOLLIS ET Ux. v. FRANCOIS ET AL.

[5 TEXAS, 195.]

NOTES, BONDS, OR AGREEMENTS OF MARRIED WOMAN are absolutely void at common law. Her separate existence is merged in that of her hus band, and she can make no contract to charge her estate or render herselt liable to an action.

IN EQUITY, MARRIED WOMAN HAS BEEN TREATED AS POSSESSING, IN A Great Degree, the powers of a feme sole over her separate property, and as possessing the necessary powers of charging, incumbering, or disposing of it at pleasure.

DOCTRINES OF COURTS OF EQUITY AS TO POWERS OF FEMES COVERT OVER THEIR SEPARATE ESTATES are not recognized as rules by which the powers of femes covert over their separate estates, under the Texas statute, and their consequent liabilities, are to be determined.

TEXAS STATUTE PRESCRIBES SPECIAL MODE FOR CONVEYANCE OR TRANSFER OF WIFE'S SEPARATE PROPERTY, and unless this mode be pursued, the wife has no power to charge her separate estate, except for necessaries for herself and family and for expenses incurred for the benefit of her separate property; a note given for these alone, or jointly with the husband, would create a legal liability which can be enforced against either the common property or the separate property of the wife, at the plaintiff's discretion.

UNDER FORMER LAWS OF TEXAS, WIFE COULD ALIEN HER SEPARATE PROPERTY with the consent of her husband, and in case of his refusal or absence, by authorization of the judge.

PRESENT STATUTE HAS INTRODUCED, IN ADDITION TO ASSENT OF HUSBAND, the requisite of the privy examination of the wife, and, in fact, the customary mode for the transfer of the freehold and dower interests of the wife, under the strict rules of the common law.

STATUTE PROVIDING THAT FEMES COVERT MAY DISPOSE OF THEIR SEPA. RATE PROPERTY in a particular mode applies to the transfer of the most insignificant articles of her movables; but the restriction has been so far removed as to authorize her separate estate to be charged with necessaries for herself and family, and expenses incurred for the benefit of her separate property.

WIFE CAN, BY COMPLYING WITH FORMALITIES PRESCRIBED BY STATUTE, pass her whole estate for the payment of her husband's debts; and her competence, under the same sanction, to pass a less interest, or to incumber her estate, can not be questioned.

WHERE WIFE JOINS HER HUSBAND, IN MORTGAGE OF HER ESTATE, FOR BENEFIT OF HUSBAND, as between the husband and wife, the mortgage will be considered the debt of the husband; and after his death, the wife or her representatives will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of his assets.

IN ACTION TO FORECLOSE MORTGAGE GIVEN BY WIFE FOR HUSBAND'S DEBTS, if the husband has separate property, or there is community property, the court would doubtless have authority to decree payment out of such property, if sufficient, and if not, the balance to be satisfied out of the separate property of the wife, incumbered with the charge. COURTS WILL EXAMINE WITH VIGILANCE TRANSFERS AND INCUMBRANCES BY WIFE OF HER SEPARATE PROPERTY, even when the formalities of the statute have been complied with, and protect the wife from undue influence or fraud, or compulsion of her husband or others; but where such defenses are insisted on, they must be averred by the wife and sustained by proof, as it is not incumbent on the plaintiff to establish a negative.

Surt to foreclose mortgage on two slaves, the separate property of Elizabeth Hollis. The slaves were held by John Love, as trustee for said Elizabeth. In 1845, William Hollis and his wife Elizabeth purchased certain farming utensils, provisions,

and other necessaries for the family of said Hollis and to carry on his farm; and in consideration therefor gave their note for five hundred and seventy-eight dollars and twenty-one cents. To secure the note, said William and Elizabeth, and the said Love, as trustee, executed and delivered to plaintiffs the said mortgage. The mortgage was acknowledged by said Elizabeth, as prescribed by the statute regulating the mode in which married women may dispose of their separate property. Decree of foreclosure entered; defendants appealed.

J. P. Henderson and Ardrey, for the appellants.

Thomas J. Jennings, for the appellees.

By Court, HEMPHILL, C. J. The grounds upon which the appellants rely to show that the judgment is erroneous, are: 1. That the contract of the wife, as a joint promisor with her husband, created no legal liability on her part, and was, as to her, absolutely null and void. 2. That the mortgage was but an accessorial contract, dependent upon the legal liability created by her signing the said note; and that it was null and void, and could not be enforced against her separate property.

The first proposition, if tested by the rules of the common law, or at least those administered in the common-law courts, is undeniably true. The notes, bonds, or agreements of a married woman are absolutely void at law. Her separate existence is merged in that of the husband; and she can make no contract to charge her estate, or render herself liable to an action: Murray v. Barlee, 3 Myl. & K. 209. But the case is wholly different in equity; her separate existence is there recognized both as to her rights, and the liabilities with which her property may be affected. She is treated, in equity, according to the rules of the English decisions, as possessing, in a great degree, the powers of a feme sole, over the separate property in which she has an absolute interest, and possessing, as incidents to her right of property, the necessary powers of charging, incumbering, or disposing of it at pleasure. Her power to charge is clear; and when her intention to do so is manifest, the liability attaches; and the execution of a note by a feme covert is regarded in equity as, prima facie, an evidence of her intention to charge her separate estate. The note, then, though void at law, can be enforced in equity against the separate estate of the wife, according to the rule of the English decisions; and although a wife incurs no personal liability by the execution of a note, yet it must be satisfied out of the corpus or profits of her separate estate.