In 1855, the complainants recovered a judgment against one of the respondents, Kobie F. Alexander, for about $1300, still remaining unpaid. In 1856, Kobie F. was married to the other respondent, Hannah Alexander. Since their intermarriage, she has acquired the title of certain real estate. She contributed towards the consideration paid- for it the proceeds of what property she had of her own when she was married, amounting now to the sum of two hundred and seventy-five dollars, as near as may he. The balance of the money paid for the real estate was acquired by both respondents, living in the relation of husband and wife, from other sources; such as, “keeping boarders,” “entertaining travelers,” “putting up horses,” “rent of hall for dances,” “sales of stock,” and sales of agricultural products raised upon their place, and the like.
*184The complainants seek to recover payment of their judgment out of this real estate, upon the ground that it was paid for by the husband; and this claim is resisted by the respondents, upon the ground that it was paid for out of the property and earnings of the wife.
Undoubtedly an interest in the land, amounting in value to the sum of $275, is hers. This sum includes the amount by her paid from her own property and interest thereon. "We think it reasonable to allow her interest upon the sums advanced by her, for the reason that a considerable amount of. rent seems to have been indirectly received from the property, besides its enjoyment for mere family use. As the law now stands, since a married woman can make any contracts of her own without creating any liability upon the part of her husband, she wonld be entitled to any profits that might arise from her purchases of property. Colby v. Lamson, 39 Maine, 119. Oxnard v. Swanton, id. 125. Blake v. Blake, 64 Maine, 177. But as it does not appear whether the property in question is worth more than was given for it or not, and as no such claim is presented by the respondents, we do not find it practicable to make such an inquiry or set up such a distinction in the present case. Beyond the sum before named, therefore, we do not see why the complainants are not entitled to a satisfaction of their judgment out of the balance of the controverted estate. It was paid for, (save the $275,) from the earnings of the husband and wife. Her earnings belonged to him. She was acting as his agent, and under his legal control, in conducting the premises occupied by them. The provision in R. S., c. 61, § 3, would not make such earnings as these were, the property of the wife; and the rights of the parties must depend upon the well settled rules of the common law. Bradbury v. Andrews, 37 Maine, 199. Merrill v. Smith, id. 394. Gould v. Carlton, 55 Maine, 511. The bill may be sustained, although the parties are guilty of no actual or intentional fraud. Low v. Marco, 53 Maine, 45. Brisay v. Hogan, id. 554. Hamlen v. McGillicuddy, 62 Maine, 268. And it is the proper remedy, even if guilty of fraud, inasmuch as the title of the real estate was never in him. Gray v. Chase, 57 Maine, 558. Webster v. Folsom, 58 Maine, 230.
*185The form of a decree is within the discretion of the court. None is prescribed by statute or the practice. Low v. Marco, supra. Corey v. Greene, 51 Maine, 114, 118.
The conclusion is, that the bill is sustained, with costs; a master to be appointed who shall assign and set off to Hannah Alexander a portion of the premises described in the bill, of the value of $275 ; the balance of the estate, or so much of it as will be equal in value to the sum due upon the judgment, to be by the master appraised and set off to the complainants; a suitable conveyance from the respondents to the complainants to be made, unless an amount equivalent to the amount of the appraisal shall be paid to the complainants, or secured to them, by the respondents, upon such terms as a single judge may settle, when the master’s report comes in.
Appleton, 0. J., Hiokkbsqn, Hanfortií, Virgin and Libbey, JJ., concurred.