(after stating the facts).—Appellants contend that it was proved that M. Y. Warren, after his marriage, in the exercise of his marital rights under the common law, *133which was in force in Missouri up to 1875, reduced her moneys and personal property to his possession; and the same thereby became his property, was his property when they went to Colorado, and ever afterwards remained his property. The testimony is somewhat conflicting upon this. It is clearly shown that, at the time of their marriage, M. Y. Warren had only about two hundred dollars’ worth of property, and that Mrs. Warren had property, inherited from her mother of the value of about three thousand dollars, and inherited property from her grandmother of about the same value; and while witnesses living in Missouri testify that M. Y. Warren always did business in his own name in that state, and the property was owned by him, yet a deed introduced shows that real estate in that state was owned by L. E. Warren. The will of her grandmother also showed how she obtained her inheritance, and it is practically conceded that it was from the proceeds of money derived from her inheritance that she finally acquired the property now in Maricopa County. The contract with Hall Bros, was made in 1884, in Kansas. It appears to have been made between them, Warren, and It. J. Howard. The judgment against M. V. Warren grows out of that contract, whereby the Halls sold their interest in the Wilcox herd, or Trinidad Cattle Company’s herd, for certain sums, notes, etc., to be .assumed by Warren & Howard, and paid Wilcox. It appears that Warren paid one half of the amount to the Halls and Wilcox, losing many thousand dollars on the transaction. He evidently thought it a several transaction, and that he had paid all that he had assumed, and sued the Halls in the Colorado court for damages growing out of this contract; and they counterclaimed, and the court held that the contract was joint, and gave judgment against Warren for $15,464.78. This judgment is valid against M. Y. Warren, but it has no binding force whatever against L. E. Warren. The testimony shows that the proceeds of her inheritance were invested in cattle, and in 1883, before the agreement of M. V. Warren and Howard with the Halls, the cattle were sold and notes taken. The cattle were returned, and notes were taken again for forty thousand dollars in 1887, when two seventy-five-hundred-dollar notes were turned over to Mrs. Warren, and twenty thousand dollars paid Scruggs, five thousand dollars expended for other debts and living expenses, and the fifteen *134thousand dollars is all Mrs. Warren brought to Arizona as the proceeds of her inheritance. If the allegation were true that, in the exercise of marital rights, the personalty of L. E. Warren had been converted to the ownership of M. Y. Warren, it nowhere appears from the testimony that, in getting these seventy-five-hundred-dollar notes, it was in fraud of Hall Bros.’ rights. The testimony of the Warrens shows that these cattle, etc., purchased with'Mrs. Warren’s money, were always her property. It also shows that she knew nothing of the trade made with Hall Bros, at Dodge City, Kansas, until after it was made; that, when she did find out about it, she objected to it; and that none of her money went into it.
At common law, the receipt of a wife’s personalty did not of itself make it the property of the husband, unless it was received by him, in the exercise of his marital rights, for the purpose of its appropriation to his own use. Such right could be enforced or waived at the husband’s pleasure. If waived, the personalty remained the property of the wife. 1 Bishop on Married Women, par. 119; Hall v. Young, 37 N. H. 134 et seq. We think the court below, from the evidence in the case, was clearly authorized in holding that Warren never did take possession of his wife’s personal property by virtue of his marital rights. The evidence shows that they always considered it the property of Mrs. Warren. It was treated as such in 1883 and in 1887, when Mrs. Warren received the notes; and this court cannot disturb the finding of the court that there was no fraud in her receiving the notes, especially as we are unable to find- any evidence showing fraud either on the part of Warren or his wife. If she had been a creditor (which question is not in this ease), he would have had the right to prefer her to other creditors, no fraud appearing. If her personal property had been converted by virtue of the marital rights of some common-law jurisdiction, there appears no reason why, no intervening rights of creditors appearing, and no fraud of any kind being proved, he could not have restored her property at any time. Fraud is a question of fact, under the code of this territory, and also under the statutes of Colorado, and proof necessary to establish the same must be clear and conclusive. We find no such degree of evidence in the record, and, with the witnesses before the court below, it was its. province to pass upon all questions of *135conflict in the evidence, and we think its decision and judgment should on this question be sustained.
It is also claimed that if L. E. Warren had any claim to the personalty and other property, she permitted her husband to appear and hold out that he was the owner, with full power of disposition of the same; and that as Hall Bros, had no knowledge that she claimed or owned said property, and gave large credit to M. V. Warren in pursuance thereof, the property handled by M. Y. Warren is subject to sale, to satisfy Warren’s judgment to appellants, whether now in his possession or that of his wife, L. E. Warren. This might be true under certain circumstances, but the facts in this case do not apply. Hall seems to have known that the Warren cattle had been sold .when he made the agreement with Warren & Howard, at Dodge City. The Warrens had sold their cattle in 1883. Warren & Howard had in 1884 assumed payment of certain notes of Hall Bros, to Wilcox. These notes were secured by a lien on the Hall Bros.’ interest in the Wilcox or Trinidad Cattle Company’s herd, and Hall appears to have thought the cattle were good for the amount. It is true they secured a note of Warren for twenty-six hundréd dollars, and to that extent gave him credit; but this was paid by Warren, and he also paid cash, amounting, with the note, to one half of the interest purchased by him and Howard. He was held liable on this contract, which was held to be joint, for Howard’s part also. This is not a sufficient cause for a coürt of equity to subject the property of Mrs. Warren to the satisfaction of such an obligation. Mrs. Warren does not appear to have led Hall Bros, to believe that Warren was the owner of the cattle sold prior to the Hall trade. The doctrine of estoppel is well stated in a similar ease in De Berry v. Wheeler, 128 Mo. 84, 49 Am. St. Rep. 538, 30 S. W. 339 et seq.: “The question, then, is whether the wife, by permitting the husband to hold the title to her land, by recorded deed, in his own name, would, without other act or representation on her part, be estopped to deny the title as against plaintiff, who, without her knowledge, gave credit to the husband upon the faith of his ownership as it appeared of record. Equitable estoppel arises ‘when one, by his words or conduct, willfully causes another to believe in the existence of a certain state of .things, and induces him to act on that belief, so as to alter his *136own previous position.’ In such case ‘the former is concluded from averring against the latter a different state of things as existing at the time.’ To make this estoppel complete, it is said three things must combine, ‘namely, fraudulent representation or withholding the truth when duty requires one to speak, reliance on the expressed or implied representation by the party defrauded, and the consequent act taken by the defrauded person.’ Bishop on Married Women, 487. Again, it is said by another: ‘It must appear that there was fraud or gross neglect; that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title; and that others were acting in ignorance of it; and that he intended to deceive or was culpably negligent in the non-assertion of his rights; that the other party had no knowledge, or means of acquiring knowledge, of the true state of the title; and that he relied upon such admission, to his injury.’ Hermann on Estoppel, 987. It must be conceded that Mrs. Wheeler, by permitting the record title to the land to remain in her husband, represented to the public that her husband was the owner of it. Yet in this alone no one could be defrauded. The fraud and the consequent estoppel would only exist when she knew, or from all the circumstances ought to have known, that others, relying upon what she permitted the record to tell them, were dealing or might deal with the husband in such a manner as to cause them to alter their previous condition to their injury.” The contract with Warren & Howard does not appear to have caused the Halls to alter their previous condition by any act on the part of Mrs. Warren. They were primarily liable on the Wilcox notes. They were secured by cattle which was thought by all of them to be ample to pay them. This liability by the contract was shifted from the Halls to Howard & Warren, as far as it was able to do. Warren paid one half of it. Howard failed to pay his part. The court gave judgment practically for the default of Howard against Warren.
This was strictly an action at law, and we have gone into the ease, not from any fault with the Colorado judgment, but simply to find out if any equities have arisen therein in favor of Hall Bros, against L. E. Warren. The court below was fully warranted in finding none. She was guilty of no fraudulent representations. She did not withhold the truth when *137duty required her to speak. Hall Bros, never relied on or acted upon any of her expressed or implied representations. Then, upon what theory could the hand of equity be called upon to take her property, received from the proceeds of her inheritance, and apply it to the payment of this judgment? There is none shown under the state of facts in this case. The findings of the court below upon the merits are just, and its judgment is affirmed.
Bethune, J., and Rouse, J., concur.