dissenting:
I regret that I cannot agree to this judgment. I think the decision goes one step beyond any heretofore decided, and, I fear, in the wrong direction. There is nothing more pernicious than secret parol trusts. The statute has done much to cut them up by the roots, and we have left resulting trusts only, viz., trusts arising from the payment of the purchase money at the inception of the title, and those resulting from fraud in obtaining the title. This case comes as I view it, within another class not heretofore recognized by the law, viz., trusts resulting from the loan or advance of money by a wife to her husband, after he has acquired the title, to assist him in paying for the property. The case was this:
Under proceedings in the Orphans’ Court in partition, Reuben L. Light, one of the plaintiffs below, was allotted a purpart, consisting of the farm in controversy. He took it in right of his wife, who was one of the heirs, and joined with her in the recognizance. He did not take her share of the farm; that remained in her. He took only the interest of the other heirs. The allotment was confirmed b}*- the court, and a deed therefor duly made to him. No money was paid at the time the title passed to Mr. Light; it was paid more than a year afterwards. Mr. Light furnished a portion of the purchase money; the balance thereof was paid by the application of his wife’s share of the estate, the other heirs joining in a release to him. The legal title thus passed to the husband; his wife knew all about it; there is evidence that she wished him to have the credit of owning the property; there was neither allegation nor proof that any concealment, fraud, or imposition was practiced upon her. With the title in this condition, Mr. Light exercised acts of ownership over the property for several years. The buildings were insured in his name ; in 1883 the barn was destroyed by fire, together with its contents; Mr. Light made oath that both barn and contents belonged to him, and received the insurance money as his own; the property was assessed in his name from the time of the partition in 1874 until the sale by the sheriff in 1884; upon a writ of fieri facias issued in 1884 the husband claimed the products of the farm under the exemption laws as his own property, which were accordingly appraised and set apart to him under said claim, while his wife claimed only the *608household furniture. Finally, in the year last named, Reuben L. Light became financially embarrassed, and, desiring to secure to his wife the money she had advanced him, confessed a judgment in her favor for eight thousand dollars. The judgment, however, was too late to be of any practical use, as the farm was already heavily encumbered. It was therefore removed from the records by direction of Mrs. Light, and the bolder and more successful measure adopted of setting up a parol trust of the real estate itself. And thus, after acquiescing in her husband’s 'title for ten years; after he had contracted debts on the strength of it, she has succeeded in setting aside a solemn deed, the decree of the Orphans’ Court, and the rights of her husband’s creditors.
And this was done mainly upon the testimony of the husband and wife. If there had been any evidence that a fraud had been practiced by the husband upon the wife, the case would present a different aspect. But there was none. As before observed, Mrs. Light knew all about it. She was present in court at the allotment; she heard all that took place; she knew that the farm was awarded to her husband, while the shares of her married sisters were at the same time awarded to them, and not to their respective husbands ; she knew the title was placed in her husband’s name, and in the course of her long examination and cross-examination upon .the trial below she did not so much as hint that she was deceived in this respect, or that a fraud had been practiced upon her. This silence was especially significant in view of her declaration that she wanted her husband to have the credit of owning the property, and strengthens the testimony upon this point. Stripped of the gloss which has been thrown around the case, it is merely that of a married woman who permits her husband to take the title in his own name; contributes a portion of the purchase money, not at the inception of the title, but over a year afterwards; allows him to retain the title and exercise acts of ownership over it for ten years, and until he becomes insolvent, and then sets up her secret equitable title to defeat the claims of his honest creditors. Such a transaction may be well likened to a pirate ship at sea, which hoists friendly signals to lure unsuspecting vessels within its reach, and then displays the black flag.
*609That these parties regarded the transaction as a loan from the wife to the husband, is at least morally shown by the fact of the confession of the judgment by the husband in his wife’s favor. Had the judgment been available to protect her interest we would never have heard of this alleged equitable title. It is true, she repudiated it afterwards, doubtless by the advice of counsel; but few persons will believe that the judgment was confessed without her knowledge and approval in the first instance.
I confess I am unable to see how the fact that Mrs. Light joined in the recognizance with her husband, operated by its own force as an appropriation of her share of her father’s estate to pay for her husband’s farm. Had she taken the farm herself this might have been the case. The actual appropriation, as before stated, was made more than a year after the partition. At that time she could have demanded her share of her father’s estate, which would have compelled her husband to pay the money. This fairly illustrates the strain of the case; for, under all the authorities, the trust must result from the payment of the purchase money at the very inception of the title.
I have referred to this case as being a step in advance of any heretofore decided. In all of them, as I understand them, there has been fraud or concealment practiced upon the wife. In such cases, I would say, as the authorities say, let the wife recover. But I am utterly opposed to the species of financial legerdemain practiced in this case. The rights of married women have been greatly enlarged by the course of recent legislation and judicial decision. This involves corresponding responsibility. The legal fiction of the unity of the person of husband and wife no longer exists to the extent that it formerly did. I am of opinion that our decisions should be moulded to meet the changed circumstances. The time has gone by for treating a married woman like a spoiled child who cries for her rattle. I would reverse this judgment.
Mr. Justice Green and Mr. Justice Mitchell noted their concurrence in this dissent.