By the Court,
Whitoít, 0. J.The bill in this ease sets out a purchase of the property in dispute, at the administrators’ sale, by the defendant Connors, to whom the title was conveyed, and that this was done at the request of the complainant.
The bill then alleges that the purchase money was paid and advanced by the complainant, “from her own hard earnings and her own separate property.” It is contended by the defendant Connors, that this statement in the bill shows that the money which purchased the land belonged to him, and that he therefore acquired by the purchase, both the legal and equitable title.
On the other hand the complainant contends that this statement shows that the money which paid for the land was her “separate property,” and that consequently the defendant was a mere trustee in relation to it, and that the court should grant the relief prayed for in the bill. We think not. On the contrary, we are of opinion that the facts stated in the bill do not show *117that the money of the complainant paid for the land, so as to create a resulting trust in her favor by implication of law. It has been ingeniously argued by her counsel that the averment contained in the bill, that the money was her own and separate property, shows beyond dispute that the husband had no right to, or interest in it. But in order so to decide, we should be obliged to reject that portion of - the statement which avers that the money was paid and advanced by the complainant from her own earnings. For it cannot be doubted that before the enactment of our statute giving to married women their own property, the husband was entitled to the earnings of the wife, and also to the personal property which she possessed at the time of the marriage. And we are of opinion that the whole statement taken together, shows that the money which paid for the land, was earned by her, she being at the time the wife of the defendant Connors. The words “ her own and separate property,1’ cannot control the statement of facts, which precedes them; and these facts show that the money was not her separate property, but her husband’s.
The complainant contends that even if it is admitted that the money with which she paid for the land was not hers by virtue of a strict legal settlement, still the facts stated in the bill show that she had an equitable interest in the money, and in the land which it purchased, and that the doctrine of courts of equity is, that this interest will be protected when it can be done without injury to the creditors of the husband.
It is undoubtedly true that courts of equity uphold contracts made by the husband and wife after marriage, by which the hus.band agrees that the wife shall separately possess and enjoy property which came to her by bequest or gift; even where the husband has given property to her without the aid of trustees, if this is not prejudicial to the husband’s creditors. Courts of equity have upheld the gift, and allowed her to hold the property' as her own separate estate.' 2 Story's Eg. §§ 1872-3, 1380; 2 Kent's Oom. 147, 154, 163.
/ Yarious other authorities might be referred to for the purpose of sustaining this position, but it is not necessary to notice them, as the facts of this case do not bring it within the principle in question.
*118The bill in this case contains no allegation that there was any agreement between the husband and wife, as to the earnings of the wife, and in the absence of any, we must hold that they belong to the husband. Without deciding what the effect of such an averment in the bill would be, we must hold, that as the bill stands, the demurrer to it was rightly sustained.
The order of the court below is. affirmed, with costs».