By the common law the husband became seised of a freehold estate in the real property of his wife, the usufruct continuing his during their joint lives. By virtue of the provisions of the Stat. of 1844, c. 117, the rule of the common law was. so modified that she might become the owner of real or personal estate, by the usual modes of transfer and succession, in her own name, and as of her own property, and hold it exempt from any ' liability for the debts or contracts of her husband; and her marriage had no effect upon her absolute dominion over her property owned before marriage. After that statute became operative, her control of her estate irrespective of the time when it was acquired, was unlimited. Southard v. Plummer, 36 Maine, 64. Southard v. Piper, 36 Maine, 84.
This exemption was modified by engrafting a well established principle into the statute which provided that if the property was purchased after marriage with the money or other property of the husband, or that being his it was conveyed to her directly or indirectly, without adequate consideration, and so that his creditors might thereby be defrauded, it shall be held for the payment *443of his prior contracted debts — thus authorizing a subsequent conveyance directly from the husband to his wife, but in cases of fraud loading the property thus transferred with the prior debts of the husband on due proceedings. Stat. 1847, c. 27. Johnson v. Stillings, 35 Maine, 427.
These statutes being in derogation of the common law and therefore construed strictly (Swift v. Luce, 27 Maine, 285) conferred upon a married woman the right to purchase, own and control property without let or hindrance on the part of her husband, but contained no authority on her part to sell and convey. In respect to the sale and transfer of her property, her rights and powers were still to be found in the common law. And by the rules of the common law a feme covert can convey the fee in her real estate only by a deed executed by herself and her husband, — her sole deed being a nullity and conveying no estate. Lithgow v. Kavanagh, 9 Mass., 172. Allen v. Hooper, 50 Maine, 371. Bean v. Boothby, 57 Maine, 295. Beale v. Knowles, 45 Maine, 479. Eaton v. Nason, 47 Maine, 132. Brookings v. White, 49 Maine, 479. Jewett v. Davis, 10 Allen, 71.
On account of this disability, and for the purpose of removing it the legislature subsequently conferred upon “any married woman power to lease, sell, convey and dispose of” her real and personal property, “and execute all papers necessary thereto, in her own name, as if she were unmarried.” Stat. 1852, c. 227. And lest that language might not be considered sufficiently specific to exclude the necessity of the husband’s joinder, the words, “by her separate deed,” were interpolated. Stat. 1855, c. 120. These statutes entirely removed her disability in this respect by conferring upon her full, complete and unrestricted power to “lease, sell and convey” to any and all persons including her husband. Allen v. Hooper, 50 Maine, 371. Brookings v. White, sup.
One of the practical results of this legislation was to aid certain classes of men in putting their real estate beyond the reach of their creditors by furnishing another confidential friend as grantee. The possession being apparently the same, the change of title would not become known until the creditor began to urge payment, when for the first time he would learn that the title had *444some considerable time since passed to the wife, and that he was a subsequent, instead of a prior creditor. In numerous instances the title of real estate of married men in embarrassed circumstances was transferred to their respective wives and thence to third persons, thereby clogging the proof of fraudulent conveyances by this other remove from the original fraudulent grantor.
To remedy this condition of things among others, the following statute was passed:
“No conveyance of a married woman of any real estate conveyed to her directly or indirectly by her husband, paid for directly or indirectly by him, or given or devised to her by her husband’s relatives, shall be deemed valid, unless her husband shall join with her in such conveyance.” Stat. 1856, c. 250. This limited' the power of a married woman to convey some of her property by her separate deed and without the joinder of her husband, and this made an exception to her otherwise unrestricted authority. And it was so expressed in Shepley, O. J.’s report of his revision to the legislature in 1856. In other words, E. S., of 1857, c. 61, § 1, remains as it was written by him with this verbal difference only, to wit: instead of “but” in the fifth line, the report read “except,” with “which” before “cannot” to complete the grammatical construction. All the foregoing statute provisions are substantially preserved in § 1, although expressed in briefer terms, as will readily be seen by the language, so much of which as is material to our present inquiry, is as follows:
“A married woman may own in her own right, real estate acquired by . . . purchase; and may sell and convey the same without the joinder or assent of her husband; but real estate directly or indirectly conveyed to her by her husband, or paid for by him, . . . cannot be conveyed by her without the joinder of her husband in such conveyance.”
“The language of E. S., c. 61, § 1,” in the language of Danforth, J., in Bean v. Boothby, 57 Maine, p. 301, “limits the wife’s capacity to convey such real estate only, as has been directly or indirectly 'conveyed to her by her husband, or paid for by him,” such real estate in the unambiguous and peremptory terms of the statute, “cannot be conveyed by her without the joinder of her husband.” To *445be sure a separate deed by each though executed at different dates may be sufficient. Strickland v. Bartlett, 51 Maine, 355. But “no conveyance” without a joinder, “shall” (in the emphatic language of Stat. 1856, c. 250, of which “this provision is substantially a re-enactment,” Strickland v. Bartlett,) “be deemed valid.” Such a conveyance then must be, as to prior creditors of the husband at least, ipso facto, void. Moreover, the result is the same whether this clause in § 1 is considered as an exception to the general abrogation of the common law rule applicable to the power of a married woman, to convey, or as a positive prohibition by the statute.
The legal title never having been in the husband, W. J. Perkins, it is not, and cannot be successfully, contended that he “directly or indirectly conveyed” the premises in controversy to his wife. Bean v. Boothby, sup. The plaintiffs however contend that although the wife derived her title directly from James Perkins, that it was “paid for by her husband.” If this allegation be true, the separate deed of Elizabeth A. Perkins, of June 20, 1864, to Eossett & Wheeler, so far as these plaintiffs as prior creditors of W. J. Perkins are concerned, conveyed nothing; and whether or not her grantees or those holding under them were bona fide purchasers for a valuable consideration without notice that the husband paid the consideration of the deed to her, becomes immaterial. ■
Under one of the provisions of B. S., c. 61, § 1, property conveyed to a married woman, but paid for by her husband, may be taken as his to pay his prior contracted debts. Such property need not be wholiy paid for by the husband, but if paid for in part by him, his interest may be taken. Sampson v. Alexander, 65 Maine, post. And the fact that the husband has other property which may be reached by some other mode, imposes no legal duty upon the creditor to pursue that course and take that property, in preference to this. Gray v. Chase, 57 Maine, 558. Hamlen v. McGillicuddy, 62 Maine, 268. It is the privilege of the creditor, and not of the debtor or those who hold his property, to elect which shall be taken.
Such property may be taken although the parties are guilty of *446no actual or intentional fraud. Sampson v. Alexander, sup., and cases therein cited. But it is sufficient if the allegations sustained by proof meet the substantive requirements of the statute, setting forth the conveyance, payment therefor in whole or in part from the property of the husband, and that the debt for the payment of which the land is sought to be taken, accrued before the conveyance. Hamlen v. McGillicuddy, sup. The allegations in this bill are within this rule although there are also allegations of fraud.
When a creditor of the husband elects to hold land which the latter has not owned since the debt accrued, but which he has paid for and procured to be conveyed to his wife, the legal title does not thereby become vested in the husband, and it cannot therefore be “taken as the property of her husband” by a simple levy; but resort to equity becomes necessary. Low v. Marco, 53 Maine, 45. DesBrisay v. Hogan, id., 554 and cases sup. The creditor need not make a levy, but a return of nulla bona will be a sufficient preliminary proceeding. But when he has levied, he has exhausted his legal remedy so far as that land is concerned and then may invoke equity to perfect his statute right. Gray v. Chase, and other cases already cited.
Whether or not W. J. Perkins paid any, and if any, what part ■of the consideration for the conveyance by James Perkins to Elizabeth A. Perkins, of May 10, 1862, becomes a material inquiry. It is a question of fact; and the burden of establishing it is upon the plaintiffs, the deed making a prima facie case in behalf of the defendant. Winslow v. Gilbreth, 50 Maine, 90.
The defendant has moved for a trial of this issue by a jury. Whether or not he is entitled to it of right under the constitution, we need not now inquire. It is within the province of the court sitting in equity to order such a trial on its own motion. And when the fact in controversy is peculiarly fit and suitable for a jury to try, the court, in the absence of any statute requiring it, have ordered it on motion of either party.
In this state the law court is the court of equity ; and a single justice at nisiprius, under our revised statutes, has no occasion to examine into the merits of a suit in equity before the cause is *447brought to a formal hearing, except so far as the rules provide. Such is the general practice in chancery. And the Stat. of 1873, c. 130, simply makes it imperative upon the court to order such an issue when requested by either party — the language “and direct the same to be tried in the county where such cause is pending,” clearly indicating that the order was not intended to be made there. Such was the early practice here as appears by the order in Bean v. Herrick, 12 Maine, 263.
In the case at bar, the controversy is of such a character, and the testimony is so conflicting and has been taken in such a manner that we deem it eminently proper that the main controverted fact be submitted to a jury of the vicinity, and to the end that the jury may see as many of the witnesses as possible and hear their testimony from the stand, we shall exercise the discretion of directing what testimony may be used.
And now op motion of the defendant and after hearing of the parties, it is ordered that an issue be framed by the parties for the purpose of submitting to a jury the following question : was any and how much of the consideration of the deed of May 10, 1862, given by James Perkins to Elizabeth A. Perkins, paid from the property of William J. Perkins. And it is further ordered that said issue stand for trial at the term next to be held in the county of Lincoln; that the plaintiff here shall bo the plaintiff in the trial at law; and that the parties at such trial may read in evidence such and so much as is material, and none other, of the depositions taken before the publication of the testimony on Peb. 19,1872, excepting the depositions of such deponents as are actually in attendance at said trial, together with such other depositions as may be taken by either on or before April 1, next, including the oral testimony of any witnesses, which shall be competent, the verdict to be certified to the chief justice of the court. And all further directions are reserved until after the trial of said issue.
Appleton, C. J., Walton, Dickerson and Daneorth, JJ., concurred.