Assuming that the wife's property, which she owned at the time of the marriage in 1859, might have been appropriated by the husband to his own use, still it is a question of fact not settled in this case whether he had done so.
If he had not made the property his own before his taking the title to himself, although that might be evidence tending to show such appropriation, it certainly is not conclusive evidence. If it were settled as matter of fact that he had not assumed to exercise his marital right over it, then a trust would result to the wife under the circumstances of the case. I do not see how the plaintiff can be equitably estopped by what was done without her consent and against her will. So far as my recollection of the cases extends, those acts which have been held to estop a party have been acts voluntarily done by him. In the present case the plaintiff, so far as the case shows, has not even been silent in the matter, but has expressed her dissent.
The case of Hicks v. Skinner, 71 N.C. 539, 17 Am. R. 16, is very much like this. There the husband purchased property for the wife, taking the title in his own name, without her consent; and the case finds that he did this because he was afraid it would injure his credit if he took it in the name of his wife. But the court held that the equity of the defendant against her husband and his creditors was indisputable, and in particular it was held that the wife was not estopped.
I agree, therefore, with my brother LADD, that the decree must be set aside, and the case sent back for a further investigation of facts.
I think it clear that the evidence of the post-nuptial contract was rightly rejected. *Page 188
The evidence in regard to the new building appears to have been relevant on the question which was in issue, whether the husband had made the property his own by the exercise of his marital rights.
SMITH, J. I do not think this case comes within the doctrine laid down in Horn v. Cole. The plaintiff did not take a conveyance of this land in the name of her husband to defeat her creditors, nor did she represent that the land belonged to him. The money with which it was purchased was earned and inherited by her before marriage, and appears to have been kept in her possession until the time of the purchase. Her dissatisfaction, expressed when she learned the deed had been taken in her husband's name, and subsequently, shows very clearly that the deed was no so taken with any fraudulent intent on her part; nor did the defendant become a creditor of the plaintiff's husband upon the strength of his owning this land, for his debt was contracted prior to her marriage. He was not therefore prejudiced in any was by the fact that the deed was taken in the name of the husband.
Unless at the time of the purchase the husband reduced the money to possession, a trust resulted in her favor, which can be enforced upon proper proceedings. Atherton v. McQuesten, 46 N.H. 205, decides that the husband had a vested right in 1859 to reduce this property to possession, which the legislature could not take away by the act of 1860. It becomes material, then, to ascertain whether by taking this deed in his own name he intended to reduce the purchase-money furnished by his wife to possession. His taking the deed is evidence of such reduction, but not conclusive.
As this question was not tried, the case must be discharged, and a
New trial granted.