of a wife or child was intended for the benefit of the wife or child; but the fact of a husband or parent, even when children are minors, going immediately into possession after such purchase, and always claiming and holding such lands as his own, would, however, be some, though by no means conclusive, evidence of his original intention to make the purchase in trust for himself, and not an advancement.

SUIT for partition of land among the heirs of the deceased wife of the defendant, one of whom, a daughter, had been married by the plaintiff Smith, and had since died, leaving a child, since deceased. The other heirs were three other children of the defendant and his deceased wife. They had been made defendants, and now joined in the plaintiff's prayer for partition. Strahan, the defendant, alleged that although the deed for the land had been taken in his wife's name, it had been paid for out of his separate property, pleaded the statute of limitations, alleged a settlement of the plaintiff's claim by an instrument transferring to himself the whole interest of the plaintiff and his wife in the land in controversy for one hundred and fifty dollars, and set out improvement to the value of about seven thousand dollars. The jury found a special verdict upon the issues submitted, finding, inter alia, that the land was paid for out of the defendant's separate property, and that the deed to his wife by the former owners of the land did not constitute a gift or dedication to her from the defendant; also that the possession of the defendant commenced in 1844 and continued until the present time, 1853, and was adverse to all others. Upon this verdict judgment was rendered for the defendant and title was confirmed in him. Motion for a new trial was overruled and error was assigned. The evidence was doubtful, upon the intention of the defendant in taking the deed in the name of his wife, as to the execution and intended effect of the instrument from the plaintiff and wife to the defendant, and as to the adverse possession of the defendant. The plaintiff requested the instruction that the deed to the defendant's wife, though the purchase money was the defendant's separate property, raised the presumption that the land was given by the defendant to his wife. The instruction was refused, and the plaintiff excepted.

J. H. Robson, for the plaintiffs in error.

G. W. Smith, for the defendant in error.

By Court, HEMPHILL, C. J. It is a general rule that the trust of a legal estate, whether taken in the names of the purchaser and others jointly, or in the names of others without that of the

purchaser, whether in one name or several, whether jointly or successively, results to the one who advances the purchase money; and this is in strict analogy to the rule of the common law, that where a feoffment was made without consideration the use resulted to the feoffor: 2 Story's Eq. Jur., sec. 1201; Dyer v. Dyer, 2 Cox, 92; 1 Lead. Cas. Eq. 188.

But there are exceptions to this rule as well established as the rule itself. For example: a purchase by a parent in the name of a child is deemed, prima facie, an advancement for the child, so as to rebut the presumption of a trust resulting for the parent: 2 Story's Eq. Jur., sec. 1202, and the authorities above cited. The moral obligation of the parent to provide for his children is said to be the foundation of this exception; and it is but a reasonable presumption that a purchase by a parent in the name of a child is for the benefit of the latter in discharge of this obligation, and also as a token of his natural love and affection. And a like presumption exists also in the case of a purchase by a husband in the name of the wife; and it is said that the presumption is stronger in case of a wife than of a child, for at law she cannot be the trustee of her husband: 2 Story's Eq. Jur., sec. 1204; Kingdon v. Bridges, 2 Vern. 67; Christ's Hospital v. Budgin, Id. 683; Rider v. Kidder, 10 Ves. 360; Hill on Trustees, 135; Dart on Vendors, 437; Guthrie v. Gardner, 19 Wend. 414; Whitten v. Whitten, 3 Cush. 194-197; Jencks v. Alexander, 11 Paige, 619; Dummer v. Pitcher, 2 Myl. & K. 262.

The presumption of trust, when the purchase is taken in the name of a stranger, as it is raised so it may be rebutted, by parol evidence; and the presumption of an advancement, when taken in the name of a wife or child, may also be rebutted by evidence showing that the purchase was intended for the benefit of the husband or parent who advanced the purchase money.

It was said in the case of Kingdon v. Bridges, supra (as a reason why a purchase by a husband in the name of a wife should be for her benefit), that a wife could not be a trustee for the husband, and this is cited by later authorities as a circumstance which increases the force of the presumption in favor of the wife over that of a child. But this principle has little or no force under our system of laws and of marital rights. The right of the wife under our laws to hold property is coequal with that of the husband, and upon evidence it may be shown that property in the name of one is really held for the benefit of the other. It is very true that the wife is under the burden, or as the law intends, under the protection, of some legal disabili

ties even with reference to her separate property; but these have reference to the mode of alienation, and not to any claim of the husband over such property jure uxoris, for he has none except that of management and its incidents. At all events, where the fundamental principle of the marital relation is, that whatever may be the unity of persons, there is no unity of estates, there can be no such rule as that the wife cannot be a trustee for the husband in any sense which would preclude evidence showing that although property is in her name it was intended for the benefit of the husband.

The rational foundation for the presumption in favor of the wife is, that the purchase is intended as a provision for her; and this presumption will hold as well under our system as in others where the rights of the wife are not so much favored. It may, and would under the operation of our laws, be generally more easily rebutted than it would be where the wife has no interest in community property and a very restricted right to separate estate. The necessity for a provision would not so often exist in this state, as in others, where by operation of law the great proportion of the wife's property is absorbed by the husband. But the necessity might and would often exist in fact. The property of the wife might not be large, or in proportion to her condition and situation in life; and in fact, though eminent advantages are afforded the wife by our laws, yet her condition is not so much changed as to repel the presumption of benefit from a purchase made by a husband in her name out of his own separate funds. The legal effect and operation of the deed is to vest the property in the wife. This effect would be rebutted in case a stranger were the nominee in the purchase. But the wife is not as a stranger to the husband. She has distinct rights and a separate estate, but he is bound for her support and maintenance, not only by law, but from the impulses of affection; and a conveyance to her, when the purchase money is advanced by himself, is not to be presumed prima facie an arrangement for his convenience, but as importing to the wife a substantial benefit, and vesting in her the whole interest, as well legal as beneficial.

This is but a presumption, and may be rebutted by evidence; but the wife and her privies are entitled to the benefit of this presumption; and the court erred in refusing to instruct the jury that such was the inference of the law.

There is a material distinction between the inferences to be drawn as to the effect of the act of the husband in his purchase

AM. DEC. VOL. LXVII-40

of property in the name of the wife with community funds, and in his purchase in her name with his own property. The law regulating ganancial property prescribes the effect of purchase in the name of the wife, and makes it precisely the same as if purchased in the name of the husband. The definition of community property includes all effects which husband and wife, during marriage, acquire by a common title, either lucrative or onerous, or which they, or either of them, acquire by purchase, or through their labor or industry. The intention of the husband, in taking the conveyance of community property in the name of his wife, has no effect upon either his own or the rights of the wife. The law prescribes the operation of such deed, irrespective of the motives in taking it, in either the name of the husband or of the wife, or of both jointly; for whether taken in the one form or the other, the community character of the property is not changed. But there is no such rule in reference to their separate estates, and it could not be applied to them without producing much embarrassment and confusion. The law having attached no uniform operation to a purchase by a husband out of his separate funds in the name of the wife, the question of intention of the husband in so taking the deed becomes of paramount importance, for upon that depends its operation. The inference of law is that by such act he intended an advancement or provision for the wife. And we will now consider whether, in this case, there was any sufficient evidence to rebut this presumption, and raise the influence of resulting trust to the husband.

Questions of this character have arisen more frequently in cases where the purchase is in the name of a child by a father than in the wife's name by a husband, and many circumstances have been taken into consideration, as rebutting the presumption of an advancement for a child, which have given rise to many nice distinctions, not easy to be understood, most of which are, however, now disregarded; thus, at one time it was thought that the infancy of a child, in whose name a purchase was made, was a circumstance against it being considered an advancement, though it is now regarded as a strong circumstance to the contrary: 1 Lead. Cas. Eq. 196; Dyer v. Dyer, 2 Cox, 92; Lamplugh v. Lamplugh, 1 P. Wms. 111.

From this it appears that there has been fluctuation as to the circumstances in support or rebuttal of presumptions of the intention of parties, when this intention depends on matters in parol, and is not fixed conclusively by the deed. The facts in this case adduced to rebut the influence of advancement are

not only meager, but appear to be inconclusive, though if the jury had been properly instructed much weight should have been allowed the verdict even upon this evidence. The intention of the parties at the time of the execution of the deed is to determine its complexion and character; and antecedent or concomitant acts and declarations of the husband are to be regarded as parts of the transaction, and as evidence of his intention whether the purchase should be for the benefit of the wife or of his own: Grey v. Grey, 2 Swanst. 594; Sidmouth v. Sidmouth, 2 Beav. 447; Partridge v. Havens, 10 Paige, 618-626; Murless v. Franklin, 1 Swanst. 17-19. But in case of purchase in the name of a child, it is said that subsequent acts or declarations of the father will not be admissible to rebut the presumption of advancement. Thus a subsequent devise of the property by the father, Mumma v. Mumma, 2 Vern. 19; Crabb v. Crabb, 1 Myl. & K. 511, or a mortgage, will be ineffectual: Sidmouth v. Sidmouth, 2 Beav. 454; Finch v. Finch, 15 Ves. 51. And the case of a child, especially of a minor, by the entering into possession and taking the rents and profits of the purchased property, the presumption of advancement will not be rebutted, as the acts of the father may be referable to his duty as guardian of his children: Loyd v. Read, 1 P. Wms. 608; Dyer v. Dyer, 2 Cox, 92.

All such acts and declarations by a husband are as ineffectual against the wife as they are against a child. The law vests the management of the wife's lands and slaves in the husband, and his possession or cultivation and improvement of her lands cannot avail, or at least is by no means conclusive, against her rights. The fact of a husband or parent, even when children are minors, going immediately into possession after such purchase, and always claiming and holding the lands as his own, would, however, it seems to me, be some, though by no means conclusive, evidence of his original intention that the purchase was in trust for himself, and not an advancement: Dyer v. Dyer, 2 Cox, 92. It is only as indicative of original intention that such possession, unless long continued, could be made available; for coverture and minority would protect the wife and infants against the claim of adverse possession. There is no proof of any declarations or acts on the part of the wife; and the declarations of the husband, claiming the property as his own, are not proved by the witness Kelch to be contemporaneous with the execution of the deed. The deed was attested by two witnesses, one of them of the same name with the witness on the trial.