The issue formed between the parties questioned the bona fides, as to the creditors of the husband of the appellant, of the transfer he had made to her of his right and interest in the lease executed to bim and Beasley by James Wilson and Minnie Constantine. The transfer purports to have been made in consideration, and for the payment of an antecedent indebtedness of the husband. If the debt was real, the pivotal inquiry was whether there was such disparity between its amount and the value of the leasehold interest, as to be indicative of fraud ; whether the appellant had' bargained for and received over-payment, or payment in excess of her just demand. — First National Bank v. Smith, 93 Ala. 97, 9 So. Rep. 548; Pollock v. Meyer, 96 Ala. 172, 11 So. Rep. 385. To this inquiry, the evidence of the witness Miles was directed, and we do not perceive that it is subject to any just objection. If the question eliciting the evidence was in form objectionable, or, if its hypothesis was, as is here insisted, broader than the evidence *286to which it refers, this was matter of special objection, which, if it had been made, would have been removed. The objection to the question, and to the evidence was general and indefinite. Such objections are not favored, and if the evidence is not plainly illegal or irrelevant, the trial court commits no error in overruling them.— Wallis v. Rhea, 10 Ala. 453 ; Sanders v. Knox, 57 Ala. 81; Rule of Practice, 90 Ala. p. IX.
The first instruction given to the jury at the request of the appellee is not very clearly expressed. As we construe it, as matter of law, it asserts, that the failure to examine the husband as a witness, should be regarded as a fact or circumstance tending to the proof or disproof of the matter in dispute. It may be, that it was intended to assert no more than that the failure to examine the husband was matter of inference or presumption unfavorable to the appellant, in weighing the other evidence. In either point of view, we deem the instruction erroneous. The husband was in court, accessible to either party, and a competent witness to the same extent for the one party, as for the other; and it is difficult to assign any just reason for imputing the failure to examine him as a witness, as matter of evidential inference, or as ground of unfavorable presumption for or against the one party, which would not apply to the other. To neither can be imputed the withholding or suppression of evidence ; and all that can be properly said is, that neither deemed it necessary to add the evidence of the husband touching the matter in dispute. The question was considered in Scovill v. Baldwin, 27 Conn. 316, and it was said by the court: “The circumstance that a particular person, who is equally within the control of both parties, is not called as a witness, is too often made the subject of comment before the j ury. Such a fact lays no ground for any presumption against either party. If the witness would aid either party, such party would probably produce him. As he is not produced, the jury have no right to presume anything in respect to his knowledge of any facts in the case, because they are to try the ease upon the facts shown in the evidence, and upon them alone, without attempting to guess at what might be shown, if particular persons were produced by the parties. ’ ’ Cases arise in which material facts life exclusively within the knowledge of a particular *287person. If such, person is accessible, and is not produced and examined, the party claiming benefit from the facts must generally fail from a want of evidence. And cases may present themselves in which a person having peculiar knowledge of facts, from which a party claiming to derive benefit, is accessible to such party, and not to his adversary. If such person is not produced and examined, a presumption may arise that the facts do not exist. — Lawson on Presumptive Ev., 120, et seq. Such presumption is, however, indulged with great caution, and only when it is manifest the evidence is within the power of the one party, and is not accessible to his adversary. The husband was a party to the transaction impeached, and it may be, the principal actor in it, of necessity having full knowledge of all the facts attending it. The appellant was the other party, having equal knowledge, and was examined. There is no room for any inference that she had omitted the statement of any material fact to which the husband would have testified; or, that his evidence would not have been merely cumulative, corroboratory of the evidence she had given. If it was supposed there was any fact within his knowledge of which there was not evidence ; or that so far from corroborating he would, in any respect, have contradicted the evidence of the appellant, in support of the transaction, the appellee ought to have examined him. Not having examined him, there is no room for any conjecture or speculation as to the character of the evidence he might have given; nor any just reason for unfavorable inference against the appellant. If she had called the husband, and he had corroborated the evidence in support of the transaction, his credibility would have been assailed because of his relation to the appellant and to the transaction. This being true, the appellant ought not to suffer by reason of the failure to examine the husband. Similar instructions have been considered and repudiated by this court. — Patton v. Rambo, 20 Ala. 485; Jackson v. State, 77 Ala. 18; Carter v. Chambers, 79 Ala. 223; Pollak v. Harmon, 94 Ala. 420, 10 So. Rep. 156. The last case cited is not in any respect distinguishable from the present one, and the instruction requested and refused differs from the instruction we are considering, only in being more clearly expressed. It was said by Clopton, J., citing the case of Scovill v. Baldwin, supra; *288“Both the grantors in the bill of sale were in court, and equally in the control of both parties. In such case, the jury, being in duty bound to determine the case on the facts shown and the evidence actually introduced, have no right to presume what would have been shown, had the grantors in the bill of sale been examined as witnesses.”
It is not necessary to notice separately and particularly, the instructions given or refused, the subject of the remaining assignments of error. The controversy between the parties involved only plain, well settled principles of law. Prior to the act of 28th of February, 1887, the earnings of the wife were not her separate property. The common law prevailed, and her earnings belonged to the husband. By contract with her, or by gift, or by renunciation of all right to them, suffering her to retain them, the husband could invest the wife with a separate estate in such earnings which a court equity would protect. But such gift, or such voluntary renunciation, the equivalent of a gift, was not valid as against the existing creditors of the husband, for the same reason that any voluntary conveyance would be void as to the existing creditors of the donor. • As to subsequent creditors, such a gift or renunciation was valid, unless it was successfully assailed for intentional fraud. — Pinkston v. McLemore, 31 Ala. 308; Wing v. Roswald, 74 Ala. 346. The evidence of such gift or renunciation, must have been clear, and it must have been apparent that the husband intended to divest himself of the right to her earnings, and to set them apart to the separate use of the wife.— Carleton v. Rivers, 54 Ala. 467. If it.be shown that the husband gave or renounced to the appellant her personal earnings, and that by her thrift and industry she acquired moneys, which were loaned to, or used by the husband, by the loan or use he became indebted to the appellant, and the debt would form a valuable consideration for the sale or conveyance of property to her. If at the time of such gift or renunciation, the debt of the husband to the appellee had not been created, as to her the gift or renunciation is valid, unless it is shown to have been infected with actual fraud. — Huggins v. Perrine, 30 Ala. 396. But although it may appear that the appellee was a subseqent creditor of the husband, if her claim existed at the time of the transfer of the leasehold interest to the *289appellant, the transfer can not be supported, if it be shown that the value of the interest transferred was so materially in excess of the amount of the indebtedness of the husband, that the legitimate boundary of securing payment of the debt was passed, and there was intentional bargaining for and receiving over-payment. — Pollock v. Meyer, 96 Ala. 172. 11 So. Rep. 335, and authorities cited. An observance of these well settled principles will lead to a proper determination of the controversy and of the right of the parties.
Reversed and remanded.