(after stating the facts). (1) The title to the land in controversy being in appellant, the burden was upen the appellee to prove the allegations of his cross-complaint by a preponderance of the evidence in order to entitle him to the relief sought. This he wholly failed to do. On the contrary, the clear preponderance of the evidence shows that the appellant purchased1 the fifteen acres which she had at the time of their marriage from the State and that she donated the 120 acres, and that she furnished the money to purchase the eighty acres designated in the evidence as the Dollarhide tract. She makes a satisfactory 'explanation as to how she obtained money to acquire this land, and her testimony is corroborated by C. W. Wright and I. B. Wright. She stated that she borrowed part of the money to pay the donation fees from I. B. Wright. I. B. Wright corroborates her in this by stating that he remembered loaning her $10 to donate some land. The appellee himself states that she borrowed the money of I. B. Wright, but that he gave her the money to pay Wright. The appellant denies this, but I. B. Wright corroborates her, for he states that he thought she paid the money back in person.
Appellant shows that she obtained the money to purchase the Dollarhide tract from the sale of her interest in her father’s estate, and she is corroborated in this by C. W. Wright, who states that he bought her interest in the G-illihan land at $100, and he shows that $47 of this was paid on the Dollarhide land, and that the balance was used by the appellee on his personal account. The appellee himself states that he used $50 of the money obtained from the sale of the appellant’s inheritance on the purchase of the Dollarhide land, but states that he gave his individual note for $75 of the purchase money, which he paid himself; but he does not deny that he used the other $50 on his own account.
(2) So it is established by a clear preponderance of the evidence that the appellant furnished the money to purchase and to donate the land in controversy. The testimony therefore fails to show any resulting trust in favor of the appellee. But, even if appellant had furnished the money, the presumption, by taking the title in his wife’s name, would be that he intended it as a gift, and in that case the proof to overcome this presumption of gift should he clear and convincing. Carpenter v. Gibson, 104 Ark. 32-36; Hall v. Cox, 104 Ark. 305-311; Harbour v. Harbour, 103 Ark. 273-8; Spradling v. Spradling, 101 Ark. 451-6; Wood v. Wood, 100 Ark. 372; Jentzsch v. Jentzsch, 84 Ark. 322; O’Hair v. O’Hair, 76 Ark. 389; Bogy v. Roberts, 48 Ark. 17; Johnson v. Richardson, 44 Ark. 365.
(3-4) The finding that the appellant executed and delivered to the appellee her deed to an undivided one-half interest in the lands in controversy is not established by a preponderance of the evidence. Because of the marital relation and the dominating influence which a husband has over his wife, it is' a rule in equity to scrutinize with care a transaction where a wife conveys her real estate to her husband. While this is true, such conveyance will not be defeated when it clearly appears that the transaction was free from any undue influence on his part, and where it is clearly shown that the wife intended to make a gift of the property to her husband. Such gifts, when free from coercion or any undue influence, should be sustained; but, in such eases, the burden is on the husband to show that the transaction was fair; when the transaction is free from fraud and undue influence, if the real intention of the wife is to convey to her husband her real property as a gift, such intention must be carried out. Spradling v. Spradling, supra; McDonald v. Smith, 95 Ark. 526; Mathy v. Mathy, 88 Ark. 60; Naler v. Ballew, 81 Ark. 328; Hannaford v. Dowdle, 75 Ark. 127.
These well settled principles, when applied to the facts as to the alleged gift of an undivided one-half of the lands in controversy, do not -sustain appellee’s contention that there was such a gift. The appellant admits that she executed the deed, hut she denies that she delivered the same to the appellee, and as to whether or not there was such a delivery with the intention of making an immediate gift of the undivided half interest in the lands is the only serious question in the case. This is purely an issue of fact, and a correct solution of it depends much upon the credit to be given the testimony of the parties themselves. It could serve no useful purpose to discuss in detail the evidence which has brought us to the conclusion that the greater weight should be given to the testimony of appellant and that the -clear preponderance of the evidence shows that she did not deliver the deed to the appellee for the purpose of making an immediate gift to him of the lands in controversy. The appellant states that she made the deed with the understanding that she was to hold the same as long as she lived, and in case she died without leaving him a child he was to have a half interest in it and was to live with her and support her as long as she lived. She did not deliver the deed to him. The appellee himself corroborates the appellant in her statement as to her intention in making the deed, and that it was not to take effect until her death,, when he says: “I asked her, saying it was time, so that if anything happened to either one of us, our brothers could not step in and take it away from the other, and she thought it was.” In this testimony the appellee shows clearly that the -deed was executed for the purpose of preventing the collateral heirs of the appellant from inheriting the property in the event of her death, for that was the only thing that could have happened to the appellant that would have enabled her brothers to deprive the appellee of possession of the property. Evidently appellee used the words “happen to either of us” as referring to the death of either one of them.
Appellant’s testimony as to her purpose in making the deed is further corroborated by the statement of witness Mrs. Schott, who testified on behalf of appellee, as follows: “She was speaking of her trouble and said she had burned the deed. I asked her, in the first place, why she wanted to burn the deed, and she said she had made it out so that if anything happened to her that her brother would not get it, but that Emery would get it all.” She told witness that she had at that time intended that at her death Mr. Wood should have her property; that her brother should not come in; that it was not her intention to relinquish her interest in the land so that Mr. Wood or any one else would get it until her death.
True, Wood testified that it was always understood between them that he was to have a half interest in their home; that he was to have the half interest for doing the work and -making the improvements and paying the $75 on the Dollarhide tract. In another place he states that he insisted on his wife making the deed because she would take cranky spells and he was afraid she would get mad and go sell the place or the timber off of it as she had once before. But this does not appeal to us as reasonable and 'Consistent in view of the fact that appellee did not have the deed recorded.
(5-6) Now, appellee stresses the fact that the notary who took the acknowledgment testified that the deed was delivered to appellee, but the notary’s testimony further shows that he had drawn the deed at the request and under the directions of appellee, when the appellant was not present; that he carried the deed to her to sign, and might have explained the nature of it to her; that she signed it and acknowledged it, and that he then delivered the deed to the appellee because it was taken for him, and he delivered it in the presence of the appellant. The testimony of this witness, when considered t(¡>gether, has no significance whatever in determining the issue as to whether the deed was delivered by the appellant to the appellee for the purpose of conveying immediate title. His testimony showed that the deed was not delivered to the appellee at the instance and direction of the appellant at all, but that he was acting for the appellee in handing him the deed, and that the mere act of handing or delivering the deed to the appellee was not at appellant’s request or suggestion or as her agent, and could not be considered as her act constituting a legal delivery for the purpose of transferring the immediate title to the property; and when appellant, in her testimony, denies that she delivered the deed to the appellee, she manifestly used the word ‘ ‘ delivered” in the sense that she did not intend to give him the possession of the deed for the purpose of conveying to him the present 'title to the property and of giving present dominion and control over the same. The testimony of the appellant all the way through is consistent and reasonable. The testimony of the appellee was contradictory in itself and contradicted by other witnesses, and is inconsistent. The testimony of the appellant was entitled to more credit. Her testimony, in many particulars, was substantially corroborated. Therefore, her testimony as to the purpose for which the deed was executed and on the issue as to the delivery thereof should be taken as the true state of the case. The chancery court erred in not so accepting it.
The decree is therefore reversed and the cause remanded with directions to dismiss appellee’s cross-complaint for want of equity.