(after stating the facts). There was no error in the refusal by the court to admit the evidence of the declarations of W. J. Bell as to his ownership of the land in controversy that were made before he conveyed the land to Alice Bell, his wife. Such as were made afterwards, while Bell was in possession of the land, were properly admitted by the court.
Appellant contends that a conveyance of land by the husband to the wife is void, that he is incapable of making a valid conveyance to her; but in this he is mistaken. A conveyance of real estate by a husband to the wife is not void, but valid in equity, but may be avoided by creditors of the husband for fraud.
Competency of husband and wife as witnesses. When wife estopped to claim property in husband’sThere was no error in the ruling by the court upon the admissibility of the testimony of W. J. Bell. * The instructions given by the court were correct.
The instruction numbered 8, refused by the court, should have been given, as it announces the law correctly, as laid down in Driggs & Co.'s Bank v. Norwood, 50 Ark. 46, in which case it is said in the syllabus, which correctly states the principle decided in the case, that “ where a husband collected his wife’s money and used it as his own, without objection on her part, for a period of more than ten years, and obtained credit on the faith of its being his own, she could not afterwards assert her claim to such money, or its proceeds, against the husband’s creditors. Her assent to the husband’s use of the money would in such case be presumed, in the absence of proof to the contrary.” There is no error in the court’s refusal of the other instructions. ‘‘A wife who gives her husband unlimited control of her property and money, and permits him to invest it in his own business for a series of years, is not, in case of his insolvency, permitted to shield his property from the just claims of persons who, in good faith, have given the husband credit, in reliance upon his ownership. In such a case a conveyance by the husband to the wife is fraudulent and void as to creditors.” Riley v. Vaughan, 116 Mo. 169; Bennett v. Bennett, 37 W. Va. 396.
It is true that “a husband in failing circumstances, who owes a debt to his wife, may prefer her as a creditor to the exclusion of others, and a transfer of property to her in good faith for this purpose, without fraud on his part, or, if with such fraud, without participation therein by her, must be upheld.” But if she permits her husband to take her money, and invest it in land in his own name, and to deal with it as his own, and obtain credit upon the strength of his apparent ownership of it, up to the time of his failure in business, she will not be allowed then to claim it against his creditors, having permitted him to represent it to be his own, and upon the apparent ownership of which he had obtained his credit and standing in business. Besson v. Eveland, 26 N. J. Eq. 471; Sexton v. Wheaton, 8 Wheat. 229.
For error in refusing said instruction numbered 8, the judgment is reversed, and the cause is remanded for a new trial, without prejudice to the rights of the appellees to claim their homestead in the lands in controversy.
See Sand. & H. Dig. Sec. 2916.—[Rep.]