It is quite unnecessary to determine to what extent a court of equity would go in the absence of direct proof, in inferring an intention on the part of a husband to make a gift to his wife. The statement of facts makes it certain that in the case before us the husband did not intend to make,' and the wife did not suppose she had received, a gift. The husband placed the title to the property in the wife’s name to secure the re-payment of her advancements upon it, and in trust for himself for the remainder; in trust upon his request to convey it to himself or to such person as he should appoint, subject to her incumbrance. The deed of August 5th, 1873, from herself to him, if effective for no other purpose, is in the nature of a formal written declaration and acknowledgment of that trust, and was an effort to carry it into execution. This act of the wife, taken together with the complementary act of the husband in giving to.her his bond of even date, is most convincing as a piece of evidence; in these they have joined in excluding themselves from the possibility of establishing their present claim, that the transaction was the giving of the whole estate to the wife; and, properly, the finding bars the door against it. While she thus held this estate for him and subject to his order, he conveyed it to the assignee; this was equivalent to notice to her of an appointment by him and a request that she should convey to the appointee, subject to her lien, and confirm his grant; and this, theoretically, it is her duty to do; but practically we are to reach the result by another process. The estate must be converted into money, and this must be divided between herself and the assignee according to their respective equitable rights. Therefore we must advise the court to deny her Sprayer for a decree confirming a clear title to the whole estate in herself as against him.
*584"We might content ourselves with this conclusion and dismiss the petition, but the court has the estate within its power, all parties in interest are before it, and the equities are known; therefore it is our duty to make final disposition of the case, precisely as if the assignee had filed a cross-bill for'the confirmation of his rights.
We advise the Superior Court to decree the sale by the assignee of the property described in the petition; that from the proceeds he shall first re-pay to the assignee the sum of seven hundred and eighty-two dollars and sixty-three cents with interest, being money expended by him for taxes, repairs, &c.; this by the agreement of the parties hereto; secondly, that he shall pay to Alice K. Grain, the petitioner, the two sums, namely, ten thousand dollars, and eleven hundred and thirty-three dollars and seventy-three cents, each with interest, deducting therefrom such sum as shall be fixed by the court as rent for the property from the date of the assignment by Francis H. Grain to the date of the sale; and that the respondent, in his capacity as assignee, is entitled to the remainder.
In this opinion the other judges concurred.