1, 2. After a careful consideration of the testimony we agree with the Circuit Court in finding that the lands in question were purchased with plaintiff’s money, and the fact that the conveyances were made to the husband was not the result of any desire or direction on her part to that end, but was through inadvertence, the consequences of which she sought to have corrected as soon as she became aware that the conveyances placed the legal title in the name *462of her husband. Upon this branch of the case we think the evidence well-nigh conclusive. The reply set forth with great particularity the sources from which plaintiff received the money she claims she invested in the property. The persons from whom she inherited the lands and securities in Kansas, which she subsequently converted into the money that went into the property in question, are mentioned and data given which would have enabled defendants to contradict material portions of plaintiff’s testimony, had it been false. The case stands thus: plaintiff, at the time of the levy of execution, had the cleár legal title to the property. Defendant claims that the apparent legal title is void because the property was conveyed in fraud of creditors. This places defendant in the position of a plaintiff in a creditor’s bill. The burden of proof being upon it to establish the fraudulent character of the conveyance. It is a well-established rule of law in cases of this nature that conveyances from a husband to a wife, he being at the time greatly indebted, will be subjected to the strictest scrutiny by a court of equity. Some authorities go so far as to intimate that such a conveyance is prima facie fraudulent: Bigelow on Fraudulent Conveyances, 214, and cases there cited. But it is going too far to say that such a conveyance creates a legal presumption of fraud. Mr. Bigelow well observes:
“At most, the relationship is but a circumstance to be taken into consideration with other facts, if there be such and that too, for or against the conveyance according to the situation; but standing alone it is a false quantity. Even if it could be said that relationship might raise a presumption that the conveyance was voluntary it would not follow that the presumption could not be met by evidence which would be sufficient in any other case unless indeed, the position *463should be taken that the presumption was stronger than ordinary presumptions, a position not likely to be taken”: Bigelow, Fraud. Conveyances, 222, 223. See, also, pages 220, 221; Schroeder v. Walsh, 120 Ill. 403 (11 N. E. 70); Davis v. Zimmerman, 40 Mich. 24.
3, 4. We are of the opinion that whatever presumption or inference either of law or fact might be drawn from the circumstance that plaintiff was the wife of her grantor, is overcome by the evidence in the case which indicates that through her natural wifely confidence in her husband a great portion of her inheritance has been wasted. The enlightened legislation of this age recognizes the right of a wife to acquire and hold property and does not penalize the marriage relation by discriminating between a creditor wife and any other creditor in the method of securing bona fide claims. No one would question the right of another person not related to Mr. Vogt to secure and reduce to legal ownership property taken as Vogt took this property. The evidence is ample here to have justified a court in declaring a resulting trust in favor of plaintiff as to the property, even if she had not seasonably demanded and received a deed. Whether or not she had notice of her husband’s embarrassed condition is immaterial. Even if the property had been his own and he had been indebted to her, she would have had the same right to take property in payment of her debt as any other creditor would have had.
5. It is true that debtors seeking to defraud their creditors most frequently make conveyances to near relatives or close friends, but the fact of relationship is merely a circumstance to be scrutinized with other circumstances in determining the good or bad faith of the transaction. Good faith and adequate consideration being shown, the circumstance of relationship loses its value.
*4646. It is also argued that plaintiff ought to be estopped from asserting her ownership in the property, by reason of the fact that she permitted her husband to manage her property in his own name and to obtain credit upon the faith of it to the injury of his creditors, and particularly of the defendants, and that the case comes therefore within the rule announced in Marks v. Crow, 14 Or. 382 (13 Pac. 55); Bank of Colfax v. Richardson, 34 Or. 518 (54 Pac. 359, 76 Am. St. Rep. 664); Barger v. Barger, 30 Or. 268 (47 Pac. 702). We will consider the condition of the pleadings as they relate to the right of defendants to urge the estoppel contended for by them.
A first and conclusive negative of the right of defendant to urge this defense is that it has not been pleaded. It is an invariable rule in this state that an estoppel cannot be taken advantage of without pleading it if there is an opportunity to do so: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513) Remillard v. Prescott, 8 Or. 37; Bays v. Trulson, 25 Or. 109 (35 Pac. 26); Nickum v. Burckhardt, 30 Or. 464 (47 Pac. 888, 48 Pac. 474, 60 Am. St. Rep. 822); First Nat. Bank v. McDonald, 42 Or. 257 (70 Pac. 901); Christian v. Eugene, 49 Or. 170 (89 Pac. 419); Tieman v. Sachs, 52 Or. 560 (98 Pac. 163); Gladstone Lumber Co. v. Kelly, 64 Or. 163 (129 Pac. 763); Lane v. Myers, 70 Or. 376 (141 Pac. 1022, Ann. Cas. 1915D, 649).
The opinion of Justice Burnett in the case last cited is instructive, dealing as it does with facts very similar to those in the case at bar. Here defendant had ample opportunity to plead the estoppel in its answer and failed to do so and it follows that that defense cannot be here considered. Even upon the facts it is not shown that plaintiff knew that the conveyances in question had been taken in her husband’s name, or *465that lie had represented himself to be tbe owner of tbe property, or knew that be was so greatly indebted as to be in peril of insolvency, so that in any view of tbe case this defense fails.' We are of tbe opinion the decree of tbe Circuit Court is in accordance with tbe law and tbe facts, and it is therefore affirmed.
Affirmed.
McCamant, Bean and Benson, JJ., concur.