In this case, I am constrained to concur in the opinion of Judge Davison. By the common law, marriage vests in the husband the personal property of the wife, and vests in him the absolute right to reduce her choses in action to his possession and use. He needs not her consent, and may disregard her opposition to such reduction, where it can be effected without the aid of a Court of chancery.
*67By the common law, marriage does not vest in the husband either the title, or the right to acquire it, of her real estate. If he obtains this description of her property, it must be by her free gift, or by a contract with her. If he is driven to obtain it by contract, then he will be bound by the stipulations of the contract, because they will be supported by a valid consideration; and, hence, will be enforced by the Cóurts. If it is a stipulation of the contract that he shall hold the real estate, or the proceeds of its sale, as a trustee for the wife; or shall invest them again for her use and benefit, execution of the stipulation will be compelled. Such were the cases of Barnett v. Goings, 8 Blackf. 284, and Resor v. Resor, 9 Ind. R. 347. The stipulations relate to her property, not his.
But where the wife has money or choses in action, absolutely hers, at the time of the marriage, and which the husband can reduce to possession without the aid of chancery, a promise of his, upon so reducing them to possession, to hold them in trust for the wife, is without consideration, and cannot be enforced. Such promises do not make it her property in his hands, and therefore no trust arises. They do not prevent it becoming his property.
Totten v. McManus, 5 Ind. R. 407, is not in conflict with this position. There the husband did not reduce the property of the wife to possession. He permitted her to retain, and vest it in real estate, in her own name. When that was done, it was placed beyond his reach, without the aid of a Court of chancery. It remained the wife’s property, unreduced. So, in this case, had the real estate been conveyed to the wife, the husband, by his own consent, would have conferred his rights of reducing upon his wife, or, rather, waived it as to himself, by an executed contract, which he could not have asked a Court of equity to set aside. It would have been trifling with it to do so. On the other hand, as the husband, in this case, had a legal right to the conveyance to his own use, and so took it, his promise to hold it for the benefit of the wife, was without consideration; and such a contract, it is well settled, a Court of equity will not enforce. Froman v. Froman, 13 *68Ind. 317. Such a contract did not have the effect to continue the consideration—the choses in action, the property of the wife.
And as to Totten v. McManus, supra, the case does not show that it was not real estate that the wife changed into cash and reinvested.
The case of Taggard v. Talcot, cited in Totten v. McManus, is without point in the case at bar. In that case, it was not the property of the wife which the husband received, but the property of her father; and it was competent for him to give it to the husband upon such terms and conditions as he pleased. [2 Edw. Ch. 628.]
And it may here be remarked that, by ways of jointure and marriage settlement, property might be vested for the exclusive use of the wife, and be placed beyond the control of her husband, during marriage. Walk. Am. Law, 3d ed., 236. Such property the husband could not, against the consent of his wife, take possession of. And if he did, and used it, doubtless he might be held as a trustee of it, and his estate charged with it after his death.
So where property was given to her during coverture, coupled with the condition that it should be for her separate use, and under her sole control. See 2 Kent’s Comm., 6th ed., p. 163. In all such cases, the husband, as such, has no right to take possession of the property.
And our statute seems now to have placed all the separate property of the wife on the same footing with that specially given or conveyed to her use at common law, except that she cannot dispose of it, under the statute, while she could when placed at her separate disposal at common law. See Hetrick v. Hetrick, 13 Ind. R. 44, and cases cited. It is true, that a husband may refuse to reduce to possession the property of his wife, and thus leave it hers. Gochenaur's Estate, 3 Am. Law Reg., p. 486. But suppose he should so refuse on one day, if the refusal was not upon a consideration, he might exert his right of reduction on a subsequent day. Did he not do that in this case? See 1 Shars. Blacks. Comm., p. 442, notes.
In the case now before us, then, there being no contract *69upon a consideration, on the part of the husband, in taking the deed for the real estate in his own name, and it being purchased with funds to which he had a legal right, and no trust being declared in writing, the property became the husband’s absolutely.
In Ramsdell v. Craighill, 9 Ohio (Ham.) R. 198, it is held that if husband and wife sell her land, without any special agreement, and he receives the consideration and invests it in land in his own name, no irust arises for the wife. And a subsequent unexecuted promise to pay it to her, amounts to nothing.