The property in dispute in the case of Bamsdell v. Fuller, referred to in the opinion of Mr. Justice Boss, was conveyed during coverture to the wife for a money consideration. Presumptively the property thus acquired by the wife was common property. But that presumption was liable to be rebutted by proof that the money which was paid for the property constituted the separate fund of the wife; and that fact being proven, it was *530held by the Court that the wife was entitled to a decree setting aside, as a cloud upon her title, a mortgage upon the property which had been executed by the husband alone, upon the ground that the record of title in the case was notice to the mortgagee and all the world, that the land in dispute might be the separate property of the wife, and every party dealing with it did so at his peril. “ The plaintiff,” said the Court, “ was, by record, put upon inquiry as to the true condition of the title.” But the case in hand is not that case.
It is true, that the defendant in this case had constructive notice that the title, which he acquired to the land in dispute, had at one time belonged to the plaintiff in the action as her separate property; but the record and judicial proceedings which imparted to him that notice, also showed that she had, jointly with her husband, mortgaged it to one Nicholas Tuning; that the mortgage had been, by judicial proceedings against her and her husband, foreclosed ; and that her title had passed by sheriff’s deed under decree of foreclosure to Burling, the purchaser, at the foreclosure sale. The deed which Burling obtained at this compulsory sale was as effectual in vesting in him the title of the plaintiff to the land, as though he had purchased it directly from her; and this title passed by deed from Burling to Hassey ; and by deed from Hassey to the defendant, who took it without actual or constructive notice that Burling held the title in secret trust for Hassey, or "that Hassey held it for his wife.
I, therefore, respectfully dissent from the judgment of my associates. I think the order of the Court below should bo affirmed.