The principle is well settled, without conflict among the authorities, that a married woman could, at common law, act as trustee, not being incapacited to do so by the fact of coverture. — 1 Bish' Marr. Women, § 700; 2 lb. § 115; 1 Perry on Trusts, §§ 48-9; Hill on Trustees, 48; Lewin on Trusts and Trustees, 34-35. And the principle is, in a measure, strengthened by the policy of modern legislation, which has established a system of “ married women’s laws,” encouraging the tenure by femmes covert of separate estates in their own name, and for their own benefit, and conferring on them the right to sue and be sued alone in certain cases, and authorizing them to devise or bequeath such property as if they were femmes sole. — Const. 1875, Art. X, §§ 6-7; Code, 1876, §§ 2704-2713, 2892.
The wife’s power as trustee, over such property as she may hold in trust, seems also to be well settled. Chancellor Kent says, “ she may transfer a trust estate, by lease and release, as a femme sole — 2 Kent’s Com. 151. It is added in Bishop on Married Women, § 700, that “she may execute a power of attorney to convey such an estate, and a conveyance under it will be good. She may, likewise, bring suits as trustee, which has been allowed where her husband joined as plaintiff with her.”
In Gridley v. Wynant, 23 How. (U. S.) 500, it was said by Campbell, j.: “ There is no incapacity in a married woman to become a trustee, and to exercise the legal judgment and discretion belonging to that character. A trustee, in equity, is regarded in the light of an instrument, or agent for the cestui que trust, and the authority confided to him is in the nature of a power. It has long been settled, that a married woman may execute a power, without the co-operation of *62her- husband.” And it has never been doubted, we may add, that she may act as agent, either for her husband or a-stranger, and that coverture takes from her no capacity in this respect. — 1 Bish. on Mar. Women, § 701; Lang v. Waters, 47 Ala. 624.
The doctrine being clear, then, that the wife may act as a trustee of an express trust, the reasons are more forcible why she may in equity be declared a trustee in invitum, or by implication; trusts of this nature being implied as intended by the parties, or- forced on their consciences by operation of law. — 2 Story’s Eq. Jur. § 1195. The principle is favored in equity, that where one person pays the purchase-money, and another takes the title, the latter will be treated as a trustee of the former; but the facts are required to be shown by clear and satisfactory evidence. — 2 Whart. Ev. § 266 ; 2 Story’s Eq. Jur. §§ 1195-6. To such an extent have resulting trusts been favored by the law, that they have always been excepted from the operation of the statute of frauds, and parol evidence, though received with great caution, has been uniformly held admissible to establish the c dlateral facts from which they may be implied. — 1 Greenl. Ev. § 266 ; 2 Whart. Ev. § 10-25. And section 2199 of our present Code, which prohibits the creation of any trusts in lands, unless by instrument in writing, makes special exception of “ Such as result by implication or construction of law,” — a phrase which has been properly construed to leave the above salutary principle, as to their establishment by parol proof, unaltered, and remaining as it was at common law.—Robison v. Robison, 44 Ala. 227.
And although the principle has been questioned, we are clear in the view of its soundness and policy, as- applied in favor of the husband as against the wife. It is true that, where the husband pays the purchase-money of land, and the title is taken in the name of the wife, the presumption would be, prima facie, that he intended to make an advance-. ment to, or provision for her ; just as in the case of parent and child, and for the similar reason, that he is deemed to have acted from motives of natural love and affection.—Welton v. Divine, 20 Barb. (N. Y.) 9. But it is equahy plain, that the question is one of intention purely, and this presumption is liable to rebuttal. — 2 Bish. Mar. Women, §§ 112-121. It was said by Nelson, C. J., in Guthrie v. Gardner and Wife (19 Wend, 414, 416), that “ all the cases concur, that the presumption in favor of a provision for the wife, where the deed is taken in her name, may be rebutted by the cotemporane'ous circumstances.” And where there is an agreement, express or implied, on the wife’s part, to convey *63to the husband on request by him, there is a clear resulting trust. — 2 Story’s Eq. Jur. (12th ed.) § 1201c, note 1; 2 Bish. Mar. Women, § 124; Cotton v. Wood, 25 Ia. 43; also, Cairns v. Colburn, 104 Mass. 274; Whitten v. Whitten, 3 Cush. 191, 197; Fox v. Doherty, 30 Ia. 334.
The rule is not different, where there is an investment of a mixed fund, and where a part of it is the property of the husband, and a part that of the.wife. The resulting trust may be established, in such case, for the husband’s part. — 2 Bish. Mar. Women, § 125 ; Tharp v. Tharp, 3 Met. (Ky.) 372.
Under the allegations of the bill in the case at bar, which were admitted to be true by the demurrer, as far as well-pleaded, there clearly appears to be a resulting trust in favor of Benjamin Harden, so far as concerns the money belonging to him which was invested in the lands, the title of which was taken in the name of Mrs. Ann Harden, his wife. The mutual deeds, executed between the wife and the husband, were designed merely to separate the relative interests of the parties, and should be sustained, so far as the partition clearly appears to be fair and just. She must be regarded as conveying in her capacity as trustee, under the recitals of the deed and the admitted facts. Where the parties have voluntarily done what they can be compelled by law involuntarily to do, the transaction will in equity be sustained.
But it is urged that, under the statute, “ husband and wife can not contract toith each other for the sale of any property ” (Code, 1876, § 2709); and that this provision is violated by the partition and mutual conveyances between Harden and wife in this case. We do not consider this transaction as a contract of sale, within the prohibition of the statute. It has been held, that it does not inhibit the husband from making a deed to the wife, in payment of a debt due her by him.—McMillan v. Peacock, 56 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Barclay v. Plant, 50 Ala. 509. No more would it prevent a wife, who holds the title of lands in trust for the husband, from executing it in such manner as she could be compelled to do by law. But, in view of the relation of the parties, and the influence which the husband exerts thereby over the conduct of the wife, all transactions of this, and in fact of every character between them, will be scanned with a watchful and jealous eye by courts of equity.
These views settle the equity of the bill, and make it unnecessary to consider the other questions raised. The “ Nance tract” of land was not, under the principles above enunciated, the property of the wife, but of the husband; and the mortgages executed by him to Mary B. Miller and Darwin & *64Pulley, were valid and binding, if the averments of the bill be. taken as true.
The demurrer was properly overruled, and the decree of the chancellor making such ruling, and refusing to dismiss the bill for want of equity, is affirmed.