The bill was filed by Frances W. Robison against her husband, Lodowick Robison, and Boyles & Milner, his judgment creditors, to establish a resulting trust in her favor of a certain tract of land. She charged that the land was sold on the 3d of December, 1860, by Allen Hawkins, as administrator of Wiley Hawkins, deceased, and bid off by her husband, who gave his *233own notes, due twelve months after date, for the purchase-money. These notes were paid with money of her separate estate derived from her father. Her mother, as executrix of his estate, advanced the money to her husband, Lodowick, who was unable to pay, under an express agreement with him, that he was to apply it to the payment of the debt for the land, and the land was to be her daughter’s, the complainant, to constitute so much of her distributive share of her father’s estate. The money was so applied, and the land paid for, but her husband took the deed in his own name on the 26th of January, 1863, after payment had been fully made, but she did not know this until subsequently. On the 22d of March, 1867, Boyle & Milner, as surviving partners of Smith, Boyle & Co., recovered a judgment against Lodowick Robison. The land was sold under an execution issued on this judgment, and purchased by Boyle & Milner, as surviving partners, with knowledge at the time of the sale of the complainant’s equity.
The bill was demurred to by the defendants, Boyle & Milner, for want of equity, and for misjoinder of parties, by making the widow and children of the deceased partner, Smith, parties defendant. Their answer, not under oath, denied the allegations of the bill. The answer of Robison admitted the charges.
Those only who are improperly joined can demur for misjoinder of parties defendant. Where the objection of want of interest applies to a defendant, it is fatal to the suit only against the defendant improperly joined. — Story’s Eq. Plead. §§ 544, 630, 232.
A motion to suppress the testimony of Lodowick Robison, on the ground that the husband can not be a witness for his wife, was overruled. Section 2704, of the Revised Code, removes the incompetency of witnesses because of interest or being parties to the suit in civil cases. The general rule, excluding husband and wife from being witnesses for or against each Other, is founded, partly on their identity of interest, and partly on the necessity of guarding the security and confidence of the marriage relation.
The objection of interest applies more particularly to *234their being witnesses in favor of each other, and the other, to their being witnesses against each other. — Phil. Ev. vol. 1, p. 69.
The exceptions to this rule are, where, from the nature of the inquiry, the information to be expected is peculiarly within the knowledge of the husband or wife, and where, to exclude such evidence, -Would occasion insecurity to that relation of society which it is the object of the rule to protect. — Ib. 78.
The section of the Code referred to, removes the objec* tion of interest, and being a party to the suit, leaving dor consideration only that of public policy.
In cases where the reason of the rule does not apply, it has been the practice of the courts to make it yield to the demands of justice. Where the wife acts as her husband’s agent, her declarations have been admitted in evidence to charge him. —2 Kent’s Com. 179. Where the husband and wife had agreed to articles of separation, and a third party became a party to the agreement as the wife’s trustee, and provision was made for her maintenance and enjoyment of separate property, the declarations of the wife relative to her acts as agent were admissible in favor of her husband against the trustee. — Fenner v. Lewis, 10 Johns. R. 38.
In an action by the husband on a policy of insurance on the life of the wife, the husband having introduced the surgeon who examined her as a witness of her good health, who testified that his opinion was partly formed from her answers to his questions respecting her health, the defendant was permitted to give in evidence her declarations to another person about the same time, of her poor state of health at the time of, and soon after the examination by the surgeon. Lord Ellenborough said, “ no confidence had been violated; nothing extracted from the bosom of the wife which was confided there by her husband. The admission of the evidence is free from the imputation of breaking in upon the confidence- subsisting between man and wife.” Grose, J., said “such declarations are admissible, not so much as evidence of confessions of the wife against her husband, as of the actual state of her health, in her own opinion, at the time.” Lawrence, J., said, “The *235ground of objection was, tbe account given by ber went to criminate ber busband, by showing him guilty of fraud, but tbat does not follow.” — Aveson v. Kinnaird, 6 East, 188. Where a man was tried on an indictment for a forcible marriage, tbe wife was received as a witness for ber bus-band to prove tbat tbe elopement and marriage were voluntary. — Bristol Assizes, 1794; Mae. Nally’s Ev. 181, note 70, p. 78 ; Phil. Ev.
These decisions were made at a time when tbe identity of tbe wife, in tbe presumption of law, was merged almost entirely in tbat of tbe busband. A stricter rule should not now be observed when ber individuality is being recognized, and ber responsibility, at least in reference to ber separate property, is almost as great as tbat of femme sole. In a suit against herself ber own testimony can be used for or against herself. So of ber busband and of these defendants. There is no exclusion on account of relationship, no matter bow near and dear, save only in tbe case of bus-band and wife. In tbe. case under consideration tbe wife desires to prove by. her busband what be did with tbe money belonging to ber separate estate, which be received from ber mother. Tbe law has made him ber trustee and invested him with tbe control of ber property, of which she can not divest him, except for good cause proven. He alone knows what disposition bebas made of it. No confidence of tbe marriage relation is involved. A trustee is merely giving an account of what be has done with the funds of bis trust. To deny this right to tbe wife would be to place ber in a worse condition than all tbe balance of tbe world. The motion to exclude tbe testimony of tbe busband was properly overruled.
Tbe appellant contends tbat tbe sale and purchase of this land was completed in 1860, and tbe money was not advanced by Mrs. Christian, until some time afterwards; tbat no resulting trust can arise unless tbe money was paid at tbe time tbe land was bid off. A contract for tbe sale of land can not properly be said to be completely executed until the money has been paid and a conveyance delivered, though important rights and obligations become vested in tbe parties by tbe simple agreement for a sale. Tbe ques*236tion of the existence of a resulting trust depends, not so much on the time when the money is used, as the char-* acter of its receipt. A party may borrow money and apply it at once to the purchase of land without the creation of a resulting trust, but if it be advanced with the intention of such application, the trust will arise. In the case of Bottsford v. Burr, (2 Johns. Ch. Rep. 405,) Chancellor Kent said: “ The resulting trust, not within the statute of frauds, and which may be shown without writing, is when the purchase is made with proper moneys of the cestui que trust, and the deed not taken in his name. The trust results from the original transaction, at. the time it takes place, and at no other time 5 and it is founded on the actual payment of money, and on no other ground. It can not be mingled or confounded with any subsequent dealings whatever.” “ The trust arises out of the circumstance that the moneys of the real, and not of the nominal, purchaser, formed, at the time, the consideration of the purchase and became- converted into the land. In this case the question was, was the money advanced as a loan to the defendant, or as a payment pro tanto by the plaintiff to the vendor.” In the case of Boyd v. McLean, (1 Johns. Ch. Rep.) the trust was established, notwithstanding the land had been sold on a credit, and the money was not paid until several years after the sale. The decisions of this court in Roper v. Roper, 29 Ala., and Foster v. The Trustees of the Athenœum, 3 Ala., are based on the authority of Bottsford v. Burr, above.. The testimony abundantly shows that the money of the complainant was received by her husband, who was her trustee, and applied as the consideration for the land with the express understanding that it was to be her property. The trust arose at the moment of the application of the money, and is not affected in favor of the defendants by section 1591, Revised Code, in which the word “ creditors” must be construed to mean creditors with a lien.— Wells v. Morrow, 38 Ala. 125; Fash v. Ravesies, 32 Ala. 451. Quere, — whether it would not have arisen against such, to the extent of the money of the wife used in payment ?
Mrs. Christian testified, that her daughter’s slaves *237were employed on the land in conjunction with her own and her husband’s, and that the husband recognized, and the wife claimed, the proprietorship of the land. The possession of the husband must be referred to his representative character, and be considered the possession of the wife, which is'equivalent to notice of her right.— Gwynn and Wife v. Hamilton's Adm’r, 29 Ala. 233; Michan and Wife v. Wyatt, 21 Ala. 813; Shepherd’s Dig. p. 701, § 28, title Notice. The bill alleges, and the proof sustains the allegation, that all of the purchase-money was paid out of the wife’s property.
It is unnecessary to consider the objections to the specified portions of the testimony. The bill is sustained by the proof independently of them.
The decree is affirmed.