FROM STRAFFORD CIRCUIT COURT. It seems to me the decision of this case cannot stand on the ground that the plaintiff is estopped by her conduct to claim a resulting trust in her favor in the land bought and paid for with her money. The deed was taken in the name of her husband without her knowledge, and against her consent. And even if she had consented, if she had made the purchase herself and directed the deed to be made running to her husband, I do not see how, then, any doctrine enunciated in Horn v. Cole, 51 N.H. 287, would apply. Unless there was something to rebut the presumption of a resulting trust, such trust would arise by implication of law; and I see nothing to distinguish the case from the ordinary case of a resulting trust, nor do I know of any rule of law which requires the cestui que trust in such cases to take immediate measures to have the legal estate as well as the equitable interest placed in him. At any rate, I venture to say it is a novel doctrine, that an omission to do so will work an estoppel against the cestui que trust to maintain his equitable rights in the land; and I think no such effect can legally be given to the omission of the plaintiff here.
No case has been found where it is intimated that a resulting trust may not arise in favor of the wife against the husband; and Hall v. Young,37 N.H. 134, seems to be a direct authority that it may. In any view, the existence or non-existence of such trust involved a question of fact and intention. Perry on Trusts, sec. 143, et seq., and a multitude of cases referred to in notes. Undoubtedly the purchase of the land and taking a deed in his own name by Stephen F. Moulton was evidence of an intention by him to reduce this property of his wife into his possession; but bearing in mind that the common law rule was so far modified by decisions of the court, that, independently of any statute, the personal chattels of the wife remain hers until the husband reduces them into his possession, with the intention of making them his own — Hall v. Young, sup., and see cases referred to in Houston v. Clark, 50 N.H. 479, 481 — that evidence was not conclusive, and ought not to be weighed without all the other evidence that may be produced bearing on the question. Receiving the money of the *Page 187 wife for the purpose of paying it away on her account, and thus paying it over, does not constitute a reduction to possession. Hall v. Young, supra.
If when the money was paid for the land it had been reduced to possession, so that it was actually the money of the husband, then, of course, no trust resulted. Whether there was a trust in favor of the wife was the great question in the case; and inasmuch as that question was not tried, I think the case should be discharged, and stand for further hearing in the court below.
As to the post-nuptial agreement, it could not, in any view, amount to anything more than a declaration of the husband's intention with respect to the property at the time the paper was executed. His intention at the time the land was paid for was the point in question, and on that he could be a witness. What his intention in that regard may have been years before seems to be immaterial; and I think there was no error in excluding this document.
The facts in reference to the new building erected on the land by the husband were properly received. His conduct with respect to the land — whether he assumed to control and manage it as owner, or otherwise — would bear upon the question whether his intention was to reduce the money of the plaintiff to possession when he paid it over for the land.