delivered the opinion of the court,
This was a feigned issue between Abraham Rhodes of the one part, and the executor of his deceased wife Mary of the other part. It was to try the right to certain money paid into court by Joseph Fichtner, on a note executed by him in 1872, to Abraham and Mary Rhodes. The contention involved an inquiry into the ownership of the property which was the consideration of this note. Evidence was given in relation to their business transactions, covering the whole period of their married lives. They were married in T834. Each party then owned property of the value of a few hundred dollars.
Although numerous errors are assigned, they may all be considered together. The uncontradicted evidence shows the note of Fichtner in contention was given in consideration of other notes against Fichtner, payable to Abraham Rhodes alone, and some money loaned by Abraham to Fichtner at the time the last note was executed. One of the notes was for $2887, and the money, for which this note was given, was obtained by Abraham from one Shaw, on a sale to him in 1872 of a farm, the title to which had been in Abraham from 1864.
The appellant attempted to prove the wife was entitled to a portion of the money paid by Fichtner in two ways. The one by showing her previous ownership of property; the other by the conduct of the parties when the last note was executed.
In support of the first view’, it was shown that in 1834 Abraham and his wife united in giving a receipt for a legacy due to her of about $400; but there was no evidence that she took the money into her possession. At that time the law gave the personal property of the wife to the husband. It was not shown that she had the possession or control of this money at any time thereafter. There vras no proof that she loaned it to him, or that he promised to repay it. There was no understanding that he should invest it *233for her, and no evidence that he ever did so. He appears to have mingled it with his other funds and treated it as his own property -
It is true, in 1852, he conveyed some lands to her, and this land is claimed by the appellant to be the foundation of her title to the money in controversy. The uncontradicted evidence is, that he made this conveyance to her at a time when he was sick and expected to die; that she neither paid, nor was expected to pay, anything therefor. They had no children, and the deed was made with the supposed view of avoiding a collateral inheritance tax.
The conveyance of the land to Campbell, in consideration of his agreement to support Abraham and wife, and the reconveyance thereof, and the subsequent conveyances to Crissman and Sissler were not accompanied by any agreement between Abraham and his wife, or by declarations of either of them, indicating that she had any equitable interest therein as against him. The fact that when Sissler conveyed the land to Abraham, on the 23d February 1864, the wife of the latter united with him in the mortgage given to secure the payment of a part of the purchase-money, creates no legal presumption that the land was purchased with her funds or on her credit. The title thereto was made to him alone, and remained in him until he conveyed to Shaw, more than eight years thereafter. There is not a particle of evidence tending to show that she had any estate in the land during the intervening time. He was therefore entitled to receive in his own right the whole purchase-money paid by Shaw. Having so received it, the money was his exclusive property. The court was therefore right in saying Mrs. Rhodes had no right to any portion of it.
The other question requires us to consider the acts and declarations of the parties at the time the last note was executed by Fichtner. The former notes and the money, which were the consideration for this note, were the property of Abraham alone. He suggested to Fichtner that they should all be put into one note. After it was so agreed, Mrs. Rhodes said to Fichtner “ I want the new note in my name.” He replied that he could not so make it unless her husband assented, and then informed him of her request. Abraham “said that the money was his, and that he wanted the note in his name, as it was before.” They failed, that day, to agree on the form of the note. On the next day Mrs. Rhodes again expressed a desire to have the new note made payable to her; but as Fichtner swears, Abraham “again told me that he would not have the note in any other way but what it was in his name. Mrs. Rhodes was by.” After talking awhile to them, Fichtner proposed to make the note to them jointly. To this Mrs. Rhodes made no reply; but Abraham, in rather an angry tone said, “I don’t care how the note is made; but the money is mine.” Fichtner then drew the note payable to both of them.
Thus it appears, he clearly asserted his exclusive right of pro*234perty, and an unwillingness to relinquish the same'or any evidence thereof. She did not deny his right nor assert any claim in opposition thereto. Apparently as a favor, she requested that the note be made payable to her. At the suggestion of the maker, and to him, he reluctantly expressed an indifference as to the form of the note. Yet, to avoid any seeming waiver of his rights, he added: “but the money is mine.” These were his last words in relation to the execution of the note. In view of all this evidence, we cannot see that the appellant has any cause of complaint against the court for having submitted to the jury to find whether he made a gift of one-half of the note to her at the time of its execution. The jury found he did not. This finding disposed of the whole case, and the question reserved became irrelevant. It is therefore not necessary for us to now consider it.
Judgment affirmed.