Jane Warren, the wife, brought this action against John K. Warren, her husband, to recover about six thousand dollars, money alleged to be loaned to him by her. She secured a judgment for the amount, and subsequently died pending further proceedings. The present plaintiff is the executor of her last will and testament. Defendant by his answer denied the allegations of the complaint. At the trial plaintiff established a prima facie case under her pleading. Defendant thereupon introduced some evidence tending to show that the *323money received by him from his wife was not money loaned, but ■a gift to him from her. Upon this state of the evidence the case was submitted to the jury under certain instructions of the court as to the law. In this regard the court instructed tire jury to find a verdict for the plaintiff, holding in substance that, as plaintiff and defendant were wife and husband, it devolved upon the husband, who claimed to have received the gift, to prove that such gift was made without any undue influence on his part, the presumption being that, in the absence of proof to that effect, there was such undue influence used. Upon the legal soundness of the principle of law here declared the affirmance or reversal of this judgment is dependent.
Section 158 of the Civil Code is as follows: “Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined in the title on trusts.” Section 2235 of the Civil Code, which relates to trusts, declares: “All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence.” Section 2219 declares: “Every one. who voluntarily assumes a relation of personal confidence with another is deemed a trustee within the meaning of this chapter.”
Under the principles of law embodied in the aforesaid sections of the Civil Code the trial court was fully authorized in instructing the jury to the effect that it did. When the defendant introduced evidence tending to show the transaction between himself and his wife to be a gift, the presumption of law immediately arose that the gift was obtained from the wife by the exejgggg~5f undue influence upon his part. As applied to the/relations of husband and wife, the aforesaid section 2235 mav'be read as follows: “All transactions between the husband wife, by which one obtains any advantage from the othep$ are presumed to be entered into by the latter without consideration, and under undue influence.” Here, conceding what ^claimed by the de*324fendant as to the nature of the transaction, it is evident that he was greatly advantaged thereby, and, such being the fact, the burden rested upon-him of disproving the presumption of undue influence created by the law under such conditions.
These views are not in conflict with previous cases decided by this court bearing generally upon the proposition of law here involved, notably Dimond v. Sanderson, 103 Cal. 97, and Tillaux v. Tillaux, 115 Cal. 663. The respective powers and rights of husband and wife in making contracts, as treated upon in section 158, are not plain when considered in connection with section 2235 of the chapter of the Civil Code upon trusts. At the same time it-is perfectly apparent that it cannot be said every business transaction between husband and wife is presumptively void. It cannot be said that in every transaction between them one stands as a trustee and the other a beneficiary. Such a holding would absolutely destroy the purport, scope, and effect of the aforesaid section 158. For example, in a transaction conducted between them whereby one secures money and the other its full value in land, there is no presumption of undue influence. In such a case, there is neither a trustee nor a beneficiary, and the chapter of the code upon trusts can in no way be invoked. It is only in those transactions where one secures an advantage over the other that the confidential relation existing between them may be invoked, and the equitable principles laid down in the chapter of the code upon trusts be called into operation.
These views find full support in Dimond v. Sanderson, supra. In that case, plaintiff, the wife, sued upon the promissory note of the husband. The relation of husband and wife was established by the etddence. The note also was offered in evidence, and plaintiff thereupon rested her case. Defendant offered no evidence. The syllabi of the decision correctly declare the principles laid down in the body of the opinion: - “1. The burden of proving sufficient-consideration for a note, and that it was not-given uncí? '-indue influence, is not thrown upon the plaintiff in an action thereon merely because it appears that plaintiff and defendant wer§ husband and wife at the time the note was given; 2. In order thaí the presumption may arise that a transaction between a husband an<t wife, by which one has obtained an advantage over the otíiSD was entered into without consideration *325and under undue influence, it must appear upon the face of the transaction, or that the marital confidence was used to take an advantage.”
In Tillaux v. Tillaux, supra, it was held that the marriage relation does not ipso facto raise the presumption that a deed of conveyance from the husband to the wife has been the result of undue influence. And with such conclusion we are in entire accord. In that case it may be further suggested that there were many considerations recited in a contemporaneous agreement amply sufficient to establish the prima facie validity of the deed to the wife. But, whatever may be the rule by which the prima facie validity of conveyances of real estate between husband and wife are to be determined, we have no doubt as to the rule in a case presenting the facts disclosed by the present record. It comes squarely within the principles declared in the provisions of the Civil Code already cited. Defendant, in offering evidence tending to prove the money to be a gift from the wife, and resting his case at that point, rested too soon. Such evidence, standing alone, compassed his defeat, for by reason of that evidence the presumption of undue influence arrayed itself against him.
For the foregoing reasons the judgment and order are affirmed.
Van Fleet, J., and Henshaw, J., concurred.