I cannot agree with the decision of this case as directed in the opinion of Mr. Justice Patterson.
By the deposit in the defendant bank by the defendant Jean Fountain, the bank became a debtor of said Jean to the amount deposited. The relation that existed was simply one of debtor and creditor, and the bank was bound to pay to Jean upon her order the amount of such indebtedness. The bank, in the discharge of that obligation, has paid upon a check to Jean Fountain, their depositor, this sum of money due, and unless this plaintiff proves in this action that this sum of money was not due to Jean, or that the plaintiff had a right superior to hers to receive from the defendant bank the amount owing by the bank to Jean, the plaintiff was not entitled to recover. This plaintiff brought this action, asking for a judgment requiring this bank to pay the indebtedness which it owed to Jean to the plaintiff, and it based its right to this judgment upon the fact that, as between the two Fountains and the plaintiff, the plaintiff was entitled to receive from the bank the amount that it owed to Jean, and this was because of the fact that the plaintiff was a judgment creditor of Joseph Fountain’s; that the money which had been deposited in the bank was the money of Joseph, and that thus the foundation of the indebtedness which existed from the bank to Jean was the money of Joseph, which Joseph had transferred to Jean without consideration. If these facts were true, and if the plaintiff could succeed in tracing directly the money of Joseph into Jean’s bank account, so as to show that the foundation of the indebtedness of the bank to Jean was furnished by Joseph, then a court of equity in this action was justified in rendering the judgment that the indebtedness which existed in favor of Jean was applicable to the payment of the debts of Joseph, and that it should be applied to the payment of plaintiff’s judgment, but to establish such relief the plaintiff was bound to prove the fact that this money, which was the foundation of this indebtedness, and which was deposited in the bank by Jean, was the money of Joseph which he had transferred to Jean without consideration. It seems to me that the evidence on the trial was entirely insufficient to prove that fact. It was entirely immaterial for the decision of this case as to how Joseph got the money—whether he got it by cheating some*356body else or not. It was sufficient to show that the money which was the foundation of this deposit was Joseph’s money and not Jean’s. There is not, however, the slightest evidence to show that this money deposited in the savings bank by Jean in bills, on the 20th of May, 1895, was Joseph’s money, and the only evidence upon which it is attempted to base this finding is that two days before Joseph had received a check for $750 for the sale of his property. On that sale it would appear that' Joseph had swindled the purchaser, but there is nothing to connect this check, or the money received under the check, with this $650, which Jean deposited in the bank two days afterwards. In fact, it is not proved that the check which Joseph received two days before had been cashed at this time. There is nothing to show that Joseph’s money, or the proceeds of the check which he had received, was applied in making up tliis deposit. The defendant Jean expressly swears that she did not receive that money from her husband; and while the court would not be bound to believe her, at the same time, to justify a finding of fact that it was Joseph’s money, there must be some evidence of the fact, and the circumstances that there was evidence negativing this fact, which the court was not bound to believe, is not sufficient upon which to base a finding of the affirmative of the fact. There was evidence that at some prior time two checks for collection had been deposited by Jean in this bank, which were drawn by her husband; but there was nothing to show that these checks were not the property of Jean, and nothing to show that when these checks were deposited by Jean she was not the owner of the money represented by them. It further appears that all of this deposit, based upon these checks, with the exception of a small sum, had been drawn out of the bank by Jean before the commencement of this action.
There is nothing in all this testimony, except the mere suspicion that because these parties were husband and wife, the money which Jean received was the money of her husband; and as a married woman now has a right to her property, free from any control of her husband or his creditors, it seems to me that before the court can apply the property of a married woman to the payment of her husband’s debts there must be some evidence to show that the money or property in the possession of the wife is, or has been, the money *357or property of the husband, and not base such action upon a mere suspicion which arises out of the relation that exists between the parties. The fact that the bank paid the check of Jean drawn on it to the sheriff to satisfy a judgment against Jean, would not impose upon the bank any liability in case the money on deposit was due to Jean. Unless that money belonged to the judgment debtor, or unless, as between the judgment debtor and his creditors, the debt due by the bank in equity should be paid, not to Jean, but to Joseph’s creditors, then the bank was bound to pay the check, and would have been liable to J ean for a refusal. By the payment the bank simply took the responsibility of defending the action on its own behalf, and not on behalf of its depositor whose check it had honored.
I think the judgment should be reversed and the complaint dismissed.
Judgment affirmed, in so far as it requires payment by the bank to plaintiff of amount of balance and interest standing in the name of Jean Fountain, with costs.