delivered the opinion of the Court.
The appellee was married in February, 1855, to John Hoover..
Her father died intestate the following year, and his real estate was sold during the year, under decree for partition, and Hoover, the husband, received at sundry times, in right of his wife’s share of the proceeds, $2191.52, and we think the appellee’s claim to this amount, under the testimony in the cause, rests upon an equitable foundation, as will be more fully explained hereafter. But as to the amount received by the husband from the personal estate of her father, before the adoption of the Code, it must be governed by the law then existing, applicable to *368such fund, and it is not subject to the same principles, which affect the proceeds of the real estate.
. The husband was entitled in his own right to receive it, and any promise or engagement he may have made to pay it to his wife, was a mere voluntary promise, without consideration, and can form no ground of claim, against him or his estate.
If he had been obliged to resort to a Court of equity to get possession of it, no doubt the Court would have required him to do equity, by making a fair settlement upon his wife. Duvall vs. Farmers’ Bank, 4 G. & J., 282.
The sum received by the husband, on account of the distributive share of his wife, in her mother’s personal estate, in February, 1870, amounting to $312.12, was the separate property of the wife under the provision of the Code, Art. 45, her mother having died intestate, in the year 1870. Barton vs. Barton, 32 Md., 214.
All these sums aggregating $2880.44 received by the husband, were applied by him, it seems, in payment for the home farm of the appellee’s father, which had been purchased by her husband, at the trustee’s sale thereof, under a promise to his wife, before the purchase, that the money should be applied to that purpose, and treated as a loan to her husband. That property was afterwards sold by the husband, who bought other lands, and becoming-involved in debt in 1871, he conveyed all his property to his brother, in trust for the payment of his debts.
The claim of the wife as a creditor of her husband, has been exhibited against the fund, derived from the sale of the husband’s property under the deed of trust, brought into Court for distribution amongst his creditors. Exceptions being filed thereto, including the plea of limitations, they were overruled by the Circuit Court, and the whole claim was allowed.
The equitable nature of the claim upon the husband, and the wife having no remedy against him in a Court of *369law; neither limitation, nor lapse of time, certainly short of twenty years, could operate as a bar to the demand. Bowie vs. Stonestreet, 6 Md., 418.
Although the real estate of the father, had been sold under the decree, and its mutation from real to personal, took place when the sale was ratified, and the purchaser had complied with the terms of sale, and the interest of the wife had then become a chose in action, with the right of survivorship to the wife, in case the husband made no appropriation of it to his own use ; State vs. Krebs, 6 H. & J., 31; yet there is no doubt a Court of Equity, the proceeds being under its control, would upon the application of the husband and wife, have made equitable provision therefrom, for her benefit. Where the parties have not come into Court, if the husband has agreed to do what the Court would have directed, it ought to receive the sanction of the Court. The wife’s equity will prevail against the assignment of the husband i'or valuable consideration, or in payment of a just debt. Stevenson vs. Reigart, 1 Gill, 27, referring to 5 Johnson C. R., 484, and 6 Johns. C. R., 178.
The wife may become the creditor of the husband; Buchanan vs. Deshon, 1 H. & G., 280; and as to the proceeds of the real estate of the appellee, the agreement of the husband with her and his promise, rest upon sufficient foundation and constituted her the creditor of her husband.
We have had occasion recently in the case of Drury & Wife vs. Briscoe & Randall, 42 Md., 154, very similar to this, carefully to examine this question, and upon principle and authority, we think, in such case the wife must be treated as the creditor of her husband, in a Court of Equity.
There is no doubt that by the rules and policy of the common law, the husband and wife are considered for most purposes as one person, and have such unity of interest, as to render them incapable of contracting with each other; *370differing from the provisions of the civil law, which treated them as two distinct persons. Story’s Eq. Juris., sec. 1367.
But the common law, whilst giving to the husband the enjoyment of the wife’s'property, upon the ground that it was obligatory upon-him to maintain her, afforded no provision for her, in the event of his failure, or inability to perform that duty. Story’s Eq. Jurisp., sec. 1409.
For the purpiose of securirfg ■ to the wife, a reasonable support from her own property,' which devolves upon the husband by the marriage, and for which the common law had made no adequate provision, the Courts of Equity-have always been careful to extend their protection to the wife, in all cases brought within their cognizance, so as to afford the wife reasonable maintenance from such property. For many purposes Courts of Equity treat the husband and wife,.as the civil law does, capable in a limited degree of contracting with each other, and of having separate interests. ' Story’s Eq. Juris., secs. 1318, 1372, 1377.
■ This policy governing Courts of Equity seems, says Judge Story in his Equity Jurisprudence, sec. 1429, to have been founded in wisdom, sound morals, and in a delicate adaptation to the exigencies of a polished and advancing state' of society. That policy so manifestly just, has always governed our Courts of Equity, and has been recognized and further extended by Constitutional provisions, and by the Legislature of the State from time to time. (See Jets of 1841, ch. 161, 1842, ch. 293, 1853, ch. 245, and 38th sec. of Art. 8, of the Constitution of 1851.)
Further provisions have been made by the Code, Art. 45.
That the relation of debtor and creditor may exist’ between husband and wife in equity, is now too well established to be questioned, and the principles and practice of our Courts of Equity, in regard to the rights of *371the wife, rest upon a solid foundation of wisdom, and the most enlightened justice. The construction given to our statutory provisions, has been in full accordance with the policy indicated. Amongst others authorities, see Buchanan vs. Deshon, 1 H. & G., 280; Duvall vs. Farmers’ Bank of Maryland, 4 G. & J., 282; Stevenson vs. Reigart, 1 Gill, 1; Bowie vs. Stonestreet, 6 Md., 418; Logan vs. McGill, 8 Md., 461; Anderson vs. Tydings, 8 Md., 427; Stockett vs. Holliday, 9 Md., 480; Unger and Wife vs. Price, 9 Md., 552; Schindell vs. Schindell, 12 Md , 108, 294; Bridges & Woods vs. McKenna, 14 Md., 258; Jones, Adm’r of Henry vs. Jones and Wife, 18 Md., 468; Smith vs. McAtee, 27 Md., 420; Mayfield vs. Kilgore, 31 Md., 240; Barton vs. Barton, 32 Md., 214; Rice vs Hoffman, 35 Md., 344.
The fact is undisputed, that the husband received in right of his wife the amount claimed by her.
The proof shows that he received the money with the agreement and understanding between him and his wife, that it was to be treated as a loan to he repaid by him, and which he promised to do.
There is no allega!ion that there were any subsisting creditors to be affected thereby. Neither by the common law, nor the provisions of the Statute of Elizabeth in regard to creditors, can any valid objection be interposed to the bona fit des of the transaction.
No law compelled the husband to insist upon his marital rights, or denied him the power to make reasonable provision for his wife in the manner adopted.
It was a provident and just provision, and there was ample consideration for his promise to treat the funds, to the extent we have stated, as a loan to him, to he returned. The sum received from the proceeds of the real estate $2191.52 and the $312.12, from the personal estate of her mother, we think ought to he allowed her. Having received a support from her husband from the time of the *372loan, she is not entitled to interest on the claim, except a due proportion of the interest received by the trustee from the sale. The order of the Circuit Court will be reversed, and the cause remanded, that the claim of the appellee may be allowed as indicated.
(Decided 13th December, 1875.)Order reversed, and cause remanded.