The opinion of the court was delivered, by
Strong, J.— The first bill of exceptions presents the question whether it was competent for the plaintiff below to prove that on the trial of a former ejectment brought by the executor of the will of George Adams, deceased, against Mr. and Mrs. Hartman, they set up an equitable title in John Hartman, the husband. The evidence offered and received by the court was, that on the trial of that ejectment, the defendants called witnesses to show that at the time when George Adams received from the sheriff the deed for the property, he acknowledged John Hartman had paid him between seven and eight hundred dollars of the purchase-money mentioned in the deed, and that he .had in hand claims of John Hartman, with which he promised to arrange the balance as soon as he should collect them. The facts which the defendants then undertook to prove were very material to the issue tried in the present case, for, if John Hart* man paid the purchase-money of the sale to Adams, then the property was liable to seizure and sale at the suit of Hartman’s creditors. The objection, however, in the court below, was not more to the materiality of the facts alleged than it wa-s to the mode of proof. It was urged that the declarations of George Adams, in his lifetime, could not affect Mrs. Hartman, the vendee under his title, and that she could not be affected by the evidence offered in a former ejectment not between the same parties. The first of these objections is founded upon a misapprehension of the nature of the offer. It was not proposed to use the declarations of George Adams as in themselves evidence against Mrs. Hartman, but as inducement-to proof of her admissions. The kernel of the offer was, that she had made use of those admissions to defend her possession against the executor of the will of Adams. She had thus adopted the admissions as her own, and asserted the fact which they tended to establish. That such a mode of proof of a party’s confessions is legitimate, the authorities abundantly assert. Thus records may be received in evidence in favour of a stranger to them, against one of the parties, as containing a solemn admission of a fact: 1 Greenleaf’s Evidence 195, 527 a. So in Truby v. Seybert, 2 Jones 101, parol evidence was admitted of what a party had attempted to prove in another suit between himself and a stranger. It was admitted, not as conclusive, but as the assertion of the fact which the party essayed to establish.
The plaintiffs in error, however, contend that the evidence should not have been received, because, as they say, Mrs. Hart*161man was not present at the trial of the ejectment brought by Ott against her husband and herself. This is an objection not taken in the court below, and there is nothing in the evidence to warrant the assertion of her absence from the trial. The record shows that she joined in the defence, and whatever was done on the trial in assertion or support of the defence was her act. Even the concessions of attorneys of record, in all matters relating to the trial and progress of the cause, bind the client, and are his concessions, though he may not be present when they are made: Young v. Wright, 1 Campbell 139; 1 Greenleaf 186. The defence in the former ejectment, set up by her, or at her instance, was then not only material, but the mode of proof was unexceptionable.
The second and third assignments of error were not pressed in the argument, and they require no particular notice. They are not sustained.
The remaining assignments relate to the charge of the court contained in their answers to the propositions for instructions to the jury submitted by the parties. The court was requested to charge the jury “that real property purchased by a married woman since the passage of the Act of the 11th of April 1848, with her separate funds, is not liable for her husband’s debts, and, in ease an attack is made on such purchase by her husband’s creditors, all she is bound to prove in the first instance is, that she had separate funds which were not derived from her husband, and by her so proving, the onus is cast upon the person contesting her ownership to show that it was not purchased with her separate means.” This the court refused to affirm, though admitting that property purchased by the wife with her separate means is not liable for her husband’s debts. The point and the answer, of course, refer only to purchases made during coverture, and they raise the question whether a deed to the wife, accompanied by proof that she had the means to buy, without more, establishes primd facie that she did buy for her own separate interest. Before the Act of 1848, the possession of money by the wife was, in contemplation of law, the possession of the husband. The money was presumed to be his, and this even though the wife might have had an estate settled to her separate use. Of course, when she used money in the purchase of either real or personal property, the presumption was that she used her husband’s money, and the ownership of the thing purchased was vested in him whose money had procured it. The Act of 1848 doubtless made a great change in the marital relations. It secured the property of the wife to her as separate property, took away the husband’s interest'in and control over her estate, but it did not disturb his interest in his own property, nor annihilate any of the evidences of his title. That which before was-*162evidence of ownership in him, is evidence now. If the possession of the wife was then primd facie the possession of the husband, it must be equally so now. There is indeed, if possible, higher reason than formerly for presuming in the first instance that what the wife has in possession, and what she invests, is the property of her husband. Without such a presumption, the Act of 1848 would open a wide door to the perpetration of fraud upon creditors. The wife would become but a cover for her husband’s property, and her possession a battery to repel his creditors.
It is the duty of the courts to protect the community against such a state of things. Accordingly it was held in Gamber v. Gamber, 6 Harris 363, that, in case of a purchase by a wife during coverture, the burden is upon her to prove distinctly that she paid for the thing purchased with funds that were not furnished by the husband. This was followed by Keeney v. Good, 9 Harris 349, where the subject was more fully discussed. In that case it was said that evidence that she purchased amounts to nothing, unless it be accompanied by clear and full proof that she paid for it with her own separate funds — not that she had the means of paying, but that she in fact thus paid. In the absence of such proof, the presumption is a violent one that her husband furnished the means of payment. This was the rule laid down in Gamber v. Gamber, and. it must be rigidly adhered to. It applies to purchases of real estate as well as personal. The evils to be guarded against are equally great in both cases; and as the ownership of the thing purchased is not dependent upon the form of the title, but follows the ownership of the purchase-money, whether it be realty or personalty can make no possible difference. The rule laid down in Keeney v. Good, and Gamber v. Gamber, was reasserted in Bradford’s Appeal, 5 Casey 513, a case in which the contest was not between the wife and a creditor of the husband, but between her and his next of kin. Other similar cases have followed, and decisions to the same effect have been made down to Walker v. Reamy, 12 Casey 410. The existence of the rule is no longer open to question. It was properly applied to the present case. Here the evidence was direct, dependent on no mere presumption, that about three-quarters of the purchase-money came from the husband, and it appeared that the wife had no separate estate. Most of the money with which she claimed to have purchased she borrowed years before or a year after the deed was made to her, and not about the time when the purchase-money was paid.
The next assignment is that the court refused to instruct the jury “that if a married woman should only pay a part of the purchase-money, and receive a conveyance of the legal title, no person could gainsay her title except the vendor, his heirs, or *163creditors.” To affirm this proposition as presented would be to assert that a purchase by a wife with her husband’s money would protect the property against his creditors. Surely this ought not to have been expected.
The fourth point of the defendants requires no notice. It ignores the possibility of there having been any title other than the legal one conveyed to Adams, and subsequently to Mrs. Hartman, while the matter in controversy was whose was the purchase-money paid.
The next assignment of error is to the refusal of the court to charge the jury that if John Hartman did furnish some of the purchase-money or loaned it to Mr. Adams in his lifetime to pay over to Sheriff Thomas, it would not affect Mr. Adams’s title, though the money thus advanced might be attached in his hands or in the hands of his legal representatives. If the advance of money by Hartman to Adams was a mere loan, doubtless it would not raise any trust in his favour, or affect the title of the purchaser at the sheriff’s sale; but if the money was advanced as the purchase-money, and paid to the sheriff as the consideration of the sale, the advance was the acquisition of a title by Hartman. Whether it was paid by him to the sheriff as purchase-money or as a loan to Adams, the ostensible purchaser, the jury only could determine, and to them it was submitted. Whether a resulting trust arises in favour of one who pays only a part of the purchase-money of a tract of land, but not a definite or aliquot part, need not now be considered; for if any part of the sum bid at the sheriff’s sale to Adams was paid by John Hartman, it was a definite part of the whole consideration, and its proportion to the whole is easily ascertainable. The court, therefore, could not properly have declared in answer to the defendant’s fifth point, that, in the case supposed, Adams would be a mere debtor, and to no extent a trustee for Hartman. The point does not raise the question how far Mrs. Hartman could be prejudiced by the trust, if she bought from Adams without notice of it. In fact, the case did not turn on the existence or nonexistence of such a trust, but rather on the question whether Mrs. Hartman bought from the executor of the will of Adams with her husband’s money.
We perceive no error in the answers of the court to the defendant’s seventh, eighth, ninth, and tenth points. The answer to the eighth has already been vindicated in what we have said relative to the first bill of exceptions, and our view of the answers to the others may be gathered from the former part of this opinion.
The last assignment of error embraces the answer of the court to the fourth and fifth points of the plaintiff below. The fourth presents the question already considered as to the effect of Mrs. *164Hartman’s borrowing money without other proof of her applying it in payment of her purchase from Jacob Ott, the executor. Enough has been said upon that subject.
The fifth point of the plaintiff is obscure and badly drawn. Its meaning, however, appears to have been a request that the court should charge the jury that the plaintiff was entitled to recover, unless it had been fully and clearly shown that the whole consideration-money of the conveyance to Mrs. Hartman was paid by her own separate funds. The court affirmed the point, remarking that the law was as therein stated, if it was not a gift of the lot by Adams to Mrs. Hartman, and that that was not pretended. It is unjust to the court to assert that the case was taken from the jury. It may be the affirmation that if the whole of the purchase-money had not been paid by the wife, with her separate funds, the plaintiff was entitled to recover, would not have been" strictly accurate, if it had been made without reference to the circumstances in proof in the case. But it must be taken in its connection, taken as it must have been understood by the jury; and, as such, it was but a repetition of the answer to the defendant’s first point. It was a reassertion of the principle that, in order to sustain the wife’s title against her husband’s creditors, something more was necessary than a conveyance to her accompanied by proof that she had borrowed money, or had separate property of her own.
The judgment is affirmed.