The opinion of the court was delivered by
Strong, J.It was incumbent upon the plaintiff in the court below to establish two things: first, the existence of a trust resulting to her; and secondly, that the defendants who had purchased the title of the trustee had knowledge of the trust at the time of the purchase. Aware of this, she attempted to prove both. The learned judge who tried the cause was of opinion, and so instructed the jury, that the proof of knowledge by the purchaser which the plaintiff submitted was sufficient if believed. In this we think there was error. It was a binding instruction upon the facts. The only witness who had testified upon the subject was Shad-man. Whether his testimony, if believed, proved that Gibson the purchaser had knowledge, at the time of the sheriff’s sale, of the existence of any trust, was a question of fact for the jury, if indeed it amounted to any evidence of such knowledge. The sheriff’s sale to the defendant took place in November 1852. While the vend. ex. was in the sheriff’s hands, the plaintiff claimed the benefit of the three hundred dollar exemption law, out of the property. Four months after the sale, she took a lease of the lot from the purchaser, and thus acknowledged his title. Shadman testified, that after the sheriff’s sale, and after the.plaintiff had become the tenant of Gibson the purchaser, she told him he knew it was her money had bought- the house and lot; to which he replied yes, but Divers had to give his own obligations for it. It is to be observed, that the inquiry for the jury was not respecting *432knowlege at the time of that conversation, but knowledge at the time of the sheriff’s sale. Had the jury been left at liberty to find whether Gibson knew of the trust when he purchased, it is probable they would have found that such knowledge was not proved. Coupling the testimony of Shadman with the proof of the lease from Gibson to the plaintiff, and her demand of exemption, when the property was about to be sold as that of her husband, in our judgment, the weight of evidence greatly preponderated in favour of the want of knowledge of a resulting trust; and, though perhaps it was enough to submit to the jury, it should not have been declared by the court sufficient to prove knowledge.
We discover no other error in the charge. It is true, that the Act of 11th of April 1848 has nothing to do with the case. But if it was the wife’s money which paid for the lot, and if, in addition to this, the money was obtained by the husband on condition that the deed should be taken in the wife’s name (as the evidence would seem to show), the law, as it was before 1848, regarded the husband as a trustee for the wife.' Nor did the fact of his giving a note for the money, and subsequently a judgment, convert his situation as trustee into that of a mere debtor ; and more especially so, if these acts were done without the knowledge or consent of the cestui que trust.
The notice to the sheriff, and the renting from Gibson, amounted to no estoppel after the determination of the lease, though they were strong evidence against-the plaintiff.
For the reason first noticed by us, however, the judgment must be reversed.
Judgment reversed, and a venire de novo awarded.