The plaintiff sues as ..trustee for Emily K. Bailey, a married woman, to recover money which accrued as rent of certain real estate belonging to her. The real estate was conveyed to her from her husband, through a third person, by deeds in the ordinary form. It is not expressed to bo to her sole and separate use, nor does it appear that the 'deed to her was in consideration of money or other property acquired by her personal services during coverture. As a general rule, if it is intended that a married woman shall hold real estate conveyed to her, to her sole and separate use, that intention must appear upon the face of the deed. Plumb v. Ives, 39 Conn., 120. Nothing appears in this case to make it an exception to the rule. The husband’s interest in the property therefore must be determined by the principles of the common law, which gives him the rents and profits as his own.
It was competent however for him to relinquish to her his right to the rents, in which case they would vest in her free from any control by him. Whether he did so or not was the *361principal question in the case, and the one upon which the result depended. If that question is answered in the affirmative, then the payment of the rent to the wife in the first instance discharged the debt, and the subsequent, receipt of the money by the defendant was a good consideration to support his promise. And his subsequent payment to the husband, with knowledge of the facts, and that such payment would operate to defeat the rights of the wife, ought not to prevail as a defense to the action.
But if that question is answered in the negative, then the payment to the wife under the circumstances did not discharge the debt, and it was her duty to return it. Her. doing so, therefore, was no consideration for his promise to repay her; and that of itself, independent of the subsequent payment to the husband, would be a defence to this action.
By a reference to the motion for a new trial .it will appear that the court submitted the case to the jury upon the question whether the wife, when she paid the money back to the defendant, did so in pursuance of her prior promise to that •effect, or upon his promise, then made, to retain the money until the decision of the court of • Hte, and, in case of the removal of the husband, to repay it the wife; thus ignoring the vital question in the case, and leading the jury to make up their verdict upon a question of minor importance, and which was in one event wholly immaterial.
It is evident that the verdict 'of the jury did not determine, the real merits of the cause, and a new trial must be advised.
It seems to have been assumed in the court below that the husband under our statute holds the real estate of the wife, or rents and profits arising from real estate, in trust for the wife: Whether this is- so or not we are not now called upon to determine. That is a question of some importance, and we do not wish to be understood as intimating any opinion 'in respect to it. ^
In this opinion the other judges concurred; except Foster, J., who did not sit.