The only question in this case Arises on the cross-bill, and is whether Abby S. Perce, who was the holder and owner of two promissory notes at and previous to her *524Intermarriage with Heman M. Perce, after such marriage-gave them to her husband. He acquired no interest in the notes by the marriage; they remained the property of' his wife the same after the marriage as before, except that' she could not sell or dispose of them without the consent of her husband, as the law then was: — Comp. L. §3289, This restriction on her right of disposition was soon after-wards removed: —Comp. L. § 3292. Her husband therefore had no interest in the notes unless they were given to him by his wife. The evidence relied on to show a gift I do not think sufficient. Austin’s receipt of the 9th January, 1855, shows a transfer of the notes to him by Perce and wife as collateral security for the payment of a mortgage and notes Austin held against Perce. By the terms of the receipt, the proceeds of the notes, if they were paid to Austin, were to be applied by him on Perce’s notea and mortgage, and if Perce’s notes and mortgage were' otherwise paid, the notes were to be returned by Austin, In this, I see nothing more than a pledge by the wife and her husband (for it was necessary as the law then stood that the husband should join with his wife in making the pledge) of the wife’s property as security for the payment of the husband’s debt.
A pledge for the purposes stated, and not a gift, is all the receipt and circumstances attending the transaction show. The receipt is to both; but why was her name-included in it if she had given the notes to her husband? She with her husband called on Austin, and on the-arrangement being agreed upon between them and Austin, she indorsed the notes and handed them over to Austin. It does not appear her husband so much as ever had the notes in his possession; and the transaction, it should be recollected, took place within ten days after they were married.
The parol testimony in support of a gift all has reference to this transaction, and not to any other. And besides *525being extremely vague and uncertain, and sometimes contradictory to itself, should not be received even if it was of a ■more satisfactory character than it is, to contradict the written evidence of its true character, to be found in the receipt of Austin, understood and construed by the circumstances attending its execution.
The most that can be said of the parol evidence is, 'that it shows an intention of the wife to use the money due her on the notes to pay off the mortgage, if necessary to secure the ;mortgaged premises as a homestead. An intention that was not consummated at the time of her death. And had it been carried into effect, it could not so properly be called a gift as an appropriation of the money for an object in which she would have had an interest beyond the control of her husband without her voluntary consent.
I think the decree should be modified so as to conform to the above views.
Christiancy J. concurred. Campbell J.:The contest in this case is entirely between Hernán M. •Perce and the Administrator of his late wife Abby S. Perce, so far as the principal merits are concerned, and is to determine whether the Administrator has a right to the notes received by Julius A. Austin from her. As the other parties are satisfied with the decree as it stands} and have not appealed from it, any claim which they might have asserted against it is immaterial. Whether, however, they can bé deprived of any right now reserved to them under the decree, is a question which does arise, and which may in some aspects of the case become material.
The circumstances under which Mrs. Perce transferred the Norris notes to Austin, as appears from the case, are substantially as follows: Hernán M. Perce, her husband, *526owned a homestead, which was mortgaged to Austin; and' after her marriage they desired to build a new house on the farm. Mrs. Perce having the Norris notes, and being desirous of getting the property clear, transferred them to Austin,, who agreed to receive them as collateral security. Whether they passed through her husband’s hands is in my view entirely immaterial. If paid, the proceeds, which would nearly cancel the mortgage, were to be applied on it. If' the mortgage should be paid otherwise, the notes were to be returned; and here again, in my judgment, it can make no difference whether they were to be returned to Mrs. Perce, or to her husband. The receipt given by Austin shows what his rights were, but does not show anything concerning the arrangements of Mrs. Perce, or her designs, or reasons. Those I' think sufficiently appear from the other evidence. But the design apparent from the receipt is entirely consistent with the other evidence in regard to what is a main feature of the case. It is very clear that she never desired or designed that the land should be sold in preference to having her notes collected and, applied. Both the receipt and the testimony show plainly that the payment from other sources than the notes, upon which the notes were to be returned, meant payment by other means than foreclosure. The evidence of her desire-to save the land at all events is entirely convincing and undisputed. No other object could exjdain the transfer, even if there were no proofs on the subject. But the proof is abundant.
The case is not changed by her death from what it would have been had she in person, instead of her administrator, been a party. And did the receipt stand alone, a. claim on her part to compel Austin to look to the land before using the notes she had herself given as collateral, would not I think be at all consistent with any purpose for which such collaterals are ever given. A dispute arose in Davis v. Rider, 5 Mich. 423, whether a. *527person holding collaterals must not first resort to them. We held that he need not do so. But it would be difficult to find authorities negativing, his right to do so, if he pleased. And the evidence shows that the sale of the land would have been the last thing desired by her, inasmuch as it would deprive her and her husband of their homestead, and of all improvements made . on it, a portion of which at least we may gather from the witnesses were to be paid for by her assistance as well as by means saved by her economy.
I am unable to draw any other conclusion from the case than that she meant, so far as she was able, to have the lands cleared from encumbrance by her means, and that she meant to appropriate these notes to be, as between notes and land, a primary and not a secondary fund. She could not compel Austin to resort to them first; but it is clear that such was her desire. And I do not see how she could have done more to complete the appropriation.
Courts have never been so particular in requiring exact proof in cases of gifts or appropriations of the separate property of married women in favor of their husbands as in other cases, for the obvious reason that testimony concerning their mutual acts is not legally attainable. In all cases where an intention is manifested to give him the benefit of it, and it requires no further formal transfer, the gift or appropriation has been sustained unless impeached for deceit, oppression, or some manifest unfairness. The law has never required her to restrain her generosity from her husband when it is left unrestrained as to the rest of the world; neither does it assume that he has cheated or over-persuaded her into it. And if this transaction, when made, would have been entirely for his benefit, I see no reason for questioning its validity or conclusiveness. And on the other hand, if it was originally not entirely for his benefit, the fact that by his survivorship it may have become so can not deprive it of its original character and sufficiency.
*528"When we consider the circumstances under which Mrs. Perce became induced (or rather determined of her own will, for it appears that her husband did not request her), to appropriate the notes to pay the mortgage, so far as they would go, we shall find that she was providing directly for her own individual benefit, and not merely saving her husband’s property. Under our Constitution, the wife has an absolute and vested interest in the homestead, which her husband has no power to discharge or affect. The exemption is not under his control, and he can not waive or destroy it. It is intended for her benefit as much as his. (See Beecher v. Baldy, 7 Mich. 488). As the mortgage held by Austin was made before her marriage, it of course was valid as against her interest in the homestead, and she therefore had a direct interest in having it cleared off, and thus securing herself a home against all contingencies. The testimony of Fralick, Crosby and the Sellecks, shows how anxious she was to get the place clear of incumbrance, in order for building a new house, and she was evidently anxious to secure a comfortable home. That she did not live to enjoy it does not change the force of her design when the arrangement was made.
I think such an application as that' of her administrator, whatever might have been the facts, is without precedent, and unsustainable upon any principle. But I prefer to put my conclusions upon the. merits, and therefore I shall not go into any discussion of that question. I think the decree contains no error of which the appellant can complain, and should be affirmed.
Martin Ci-i.-J. concurred in the result of this opinion.The Court being thus equally divided, the decree of the Court below was affirmed.