Mary A. Jackson, appellee, brought an action of replevin against John B. Duncan, appellant, a constable in the Marion Circuit Court, to recover possession of a certain field of growing wheat that appellant had levied upon by virtue of an execution in his hands against the goods and chattels of E. A. Jackson, the husband of appellee. Hpon the trial of the cause judgment was rendered for the plaintiff. A motion for a new trial was entered, and overruled by the court, and the cause is brought to this court by appeal. The second error assigned is that the court gave improper instructions for the plaintiff. The fifth instruction is as follows: “ The court instructs the jury for the plaintiff, that if you believe, from the evidence, that Mary A. Jackson owns the land upon which the wheat crop in question is growing, then you should find for the plaintiff, xmless you further believe, from the evidence, that plaintiff, Maxy A. Jackson, had rented the land to her husband to put in wheat, or had permitted her husband to occupy and control the land, and sow the wheat thereon. This instruction is erroneous, and by it the jury were probably misled. The instruction is based on the theory that proof of the wife’s ownership of the land on which the wheat is grown is prima facie evidence of the ownership of the wheat, when both husband and wife together live upon and occupy the premises as a home, and that the burden of proof is therefore shifted to him who claims the wheat to be the property of the husband. We do not so understand the law. ¡Notwithstanding the fact that the land is the separate property of the wife, the presumption as to crops raised under such circumstances, must be that they are the property of the husband as the head of the family, and were raised by him by his labor and at his expense, but with her consent, for the support of the family, the support of which primarily devolved upon him. Any other rule or presumption would be contrary to the usual- and ordinary course of human affairs, and would be prolific of fraud.
The instruction also assumes that if the wife owned the land, then there were only two methods by which it might be shown that she was not the owner of the wheat. Objections are made to the first and second instructions, that the name of ¡Margaret A. Jackson is used instead of the plaintiff’s name, Mary A. Jackson. We do not consider the objection tenable. The mistake was amere lapsus pennae of the attorney preparing the instruction, and it did not affect the finding of the jury. But the first and third instructions are objectionable because they are uncertain. The defense was that there was a fraudulent combination between the plaintiff and her husband, by which the plaintiff was to become the owner of the property, and thus prevent the creditors of the husband from collecting their claims. The evidence tended very strongly to show that the defense was true. Where there is a conflict in the evidence, or when it leaves it doubtful which way the jury should find, it is important that the instructions should not only be accurate, but clear and perspicuous. They should aid the jury in arriving at a correct conclusion, not mislead or even leave them in doubt as to the law arising on the evidence before them. Volk et al. v. Roche, 70 Ill. 297. The judgment of the circuit court is reversed and the cause remanded.
Judgment reversed.