This bill was brought by Mrs. Oxford against her husband and M. M. Maddox, to recover $705.00 with interest, on the ground that her husband had used her separate estate to that amount to pay Maddox in part for a tract-of land bought for himself, and to charge the land after-wards sold by Maddox for balance of purchase money and bought by himself at the sheriff’s sale, with the debt off complainant, Maddox being cognizant of the fact that the-husband had used her money thus to pay his own debt.. Under the charge of the court, the jury found for complainant, principal and interest; a motion for a new trial was made, and on its denial error is assigned here, as well as upon the decree, because unauthorized by the verdict.
1. There is no doubt that there is equity in the bill, and if there be no error of law by the court, and. the facts sus-*184tain the allegations, there is no doubt that the verdict is right. The principle is •well settled that the husband cannot use the wife’s separate money to pay his debts, and if his creditor knows it is her separate fund, she can recover it; and if the fund be invested in real estate by the husband’s creditor, the husband being insolvent, the land is subject to her claim, and she has a lien thereon for the amount of it. Code, §§1754, 1783; 54 Ga., 543; 56 Ib., §22; 61 Ib., §662; Perry on Trusts, 122. If the husband, lield her money, not as a loan, but for her, he was her trustee, and whosoever helped him to misapply it to the husband’s own debt, held what he got as her trustee too, -and when traced to his land, it is liable therefor. Code, §§3151, 3152, 2316.
2. If a witness answer interrogatories put to him by the commissioners, clearly and distinctly, and to the same purport that he had previously informed complainant’s counsel that he would answer, and afterwards make an affidavit for defendant that he was mistaken, or did not mean so to testify, a new trial will not be granted on account of such alleged mistake. This case is unlike those referred to in 8 Ga., 136; 10 Ib., 143; 15 Ib., 550; and 54 Ga., 635.
3. The jury allowed the complainant principal and interest. The defendant tendered evidence to show that the wife occupied and lived on the land (worth $2,000,00) in which her money ($105.00) was invested, and that the rents, issues and profits thereof were worth $200.00 per annum; that her husband was insolvent and unable to support her; and that she actually subsisted on these rents, issues and profits of the land while the title was in Maddox, and while the husband only had a bond therefor, on payment of purchase money, the testimony being offered with a view to set off the rents against her claim. The court rejected this testimony, and the question on the point is, was the evidence admissible ? Or, in other words, can the defendant, Maddox, set off this support of the wife against.her .claim on him ? In Chappell vs. Boyd, 61 Ga., *185662, on. an. action at law for the recovery of the wife’s money in the hands of one who got it from the husband knowingly, it was held that it could not be so set off. But by ■closely scanning the decision in that case, as set out in the opinion, on page 670, this rule is applied because the wife’s liability was primarily to the husband, and as he was not .a party, the doctrine of subrogation of his creditor to his right could not be applied in behalf of the creditor. The intimation is that, had the case been in equity and the husband been thus made a party, so as to settle the rights ■of all the parties, the set-off might have been allowed.
In this case, the complainant is in equity; she invokes the aid of a court of equity to get her rights; she must, therefore, do equity. There is no positive proof that the fund derived from the wife’s father’s estate was held in trust for her by the husband; nor is there any that he held it as a loan from her. If as a loan, the verdict is wrong, and there should be no recovery; if as her trustee, the husband is bound to account to her for principal and interest. If he has paid her the interest for her exclusive use, then she cannot recover it again from him. If she cannot recover it from him, it is difficult to reason to the conclusion that she can recover it from Maddox; for Maddox is ■only responsible upon the principle that he has connived knowingly with her husband in taking her money for his ■debt, and only to the extent of what is due thereon. Does it make any difference that her husband paid her the interest, not in cash, but in any other valuable thing equivalent to cash ? And if he did, does her husband owe her that much ? If he does not, Maddox does not; no more than he would owe her nothing at all, if her husband had paid the entire debt to her. As intimated in the case of Chappell vs. Boyd, in 61 Ga., supra, the creditor must logically and necessarily stand in the shoes of the husband, and be subrogated to his rights.
Now, the proof offered was to the effect that the husband was insolvent and wholly' unable to maintain his *186wife in the necessaries of life — food and clothing; and that the food and clothing she got during all the time h& was in possession of this land, for which he had not paid Maddox, and in part payment of which her money went,, came out of this land — the crops made thereon, — and that,, therefore, equity, as she knocks at the door of her temple' of justice, will not permit her to enter, except upon the-terms that she do equity; and if she got food and clothing: out of this land so held by her husband, when she demands-that the money her husband put in it, of hers, with interest, must be paid her, it is inequitable for her to take that part which she exclusively used herself. It is difficult to imagine a more exclusively personal use of money, or the-profits of land, than what she ate and wore on her own person. Of course, while, as long as her husband could maintain her, it was his duty to do so, yet, when he no-longer could, and paid her separate money for her separate-use, when he paid it to her for that separate use, either money or other thing that brought food and clothing, to that extent his debt to her was paid in equity and good conscience, so far as it went to her exclusive use and separate enjoyment, and she cannot recover that part of it-from one who got it from her husband to pay the husband’s debt. This ought to be especially so, when the-husband paid her the food and raiment, not with his own money, or the property, or profits of property, belonging to himself, but out of the profits of property of that creditor of his from whom she seeks to recover.
We do not mean to say that Maddox can set off the entire usufruct of the land, or that spent in the support and maintenance of any of the family. It is only that spent by her for her own separate and' sole support; not that of child or children, but that which enured to her exclusive use which can be set off, upon the principle that her husband has paid her that, and has paid it out of Maddox’s, property, for her own separate support.
Nor do we mean to say how much the land contributed! *187and. how much the labor upon it did to this support. That .labor was not put on it by him, and that contribution is not his. It is only what the land would yield, and did yield, and the part of its yield that went into her own support. The •estimate must be made by the jury on the new trial, from all ■the proof which may be submitted. Inasmuch as we think that the court should have let in this testimony to the jury, as a mode of reaching this equitable set-off above declared, with the aid of other testimony as to the amount the •complainant got annually from this land for her own exclusive use, we reverse the judgment and award a new trial.
4. In regard to the decree, it is unnessary to pass upon :it, as a new trial is awarded. We will say, however, that it is only the land into which her money entered, upon which she can claim a special lien. Of course, all the other property of Maddox would be bound by her general decree .against him from its date, just as a general judgment would bind it.all.
Bearing in mind the principle repeatedly rocognized by this court, that transactions between husband and wife .•should be closely scanned, as capable of being secretly •and fraudulently concocted to perpetrate wrong upon creditors of the husband, and that the principle is more •clearly and strongly applicable in cases where no writing •of any sort defines the agreements between them, we are less reluctant than we would otherwise be, to differ with the learned and able presiding judge in respect to the grant of a new trial; and we send the case back for the reason of the exclusion of the testimony offered bearing on the set-off, as well as for the reason that a more thorough investigation may open the case to a clearer view of the truth of the facts and the equities of the parties.
Judgment reversed. '