MansEieed, J. i. presmnPof Nias, 1. It is suggested by counsel for the appellants that the complaint was treated in the court below as if it were so amended as to claim damages for a breach of the covenants contained in the deed. But we find nothing in the record to warrant us in supposing that the chancellor so regarded the complaint or in holding that he might properly have done so. We must therefore consider it as stating only the facts embraced in its original form as presented by the transcript. As found there, it states no cause of action arising out of any contract with Mrs. Wright, or resultiug from any tort committed by her, either in person or by an authorized agent; and the only relief it seeks against her is to have the land she holds in Arkansas subjected to the satisfaction of the judgment prayed for against her husband. That relief is sought on the ground that the land was purchased'with the husband’s money, and that the deed was taken in the wife’s name to defeat the collection of the plaintiffs’ claim.
The Arkansas property was purchased with the money received on the sale of the Texas hotel; and the latter was paid for with money belonging to Mrs. Wright and delivered to her husband for the purpose of making' the purchase. She testifies that the deed was taken in his name without her knowledge dr consent, and on this point there is no contradiction of her testimony. It also appears, from the undisputed facts of the case, that she refused to execute a deed on the sale to the plaintiffs except upon the condition that the purchase money should be paid directly to her, and that it was only by a compliance with such condition that the conveyance from her was obtained.
But it is argued that when the wife’s money passed into the possession of the husband, prior to his purchase of the hotel, it became his, and that he was therefore the equitable, as well as legal, owner of the property purchased with it. Whether, under the laws of Texas, the money ceased to be the separate property of Mrs. Wright when thus delivered to her husband for investment, we cannot decide, for the reason that what the law of that State is has not been proved.
It is insisted that the money became the property of the husband by the rule of the common .law. But as the jurisprudence of Texas was not founded upon or derived from the common law, we cannot presume that that law is in force there. Thorn v. Weatherly, 50 Ark. 237" court="Ark." date_filed="1887-11-15" href="https://app.midpage.ai/document/thorn-v-weatherly-6542205?utm_source=webapp" opinion_id="6542205">50 Ark. 237 ; Garner v. Wright, 52 Ark. 385" court="Ark." date_filed="1889-11-15" href="https://app.midpage.ai/document/garner-v-wright-6542473?utm_source=webapp" opinion_id="6542473">52 Ark. 385.
With no proof before him as to the law of'Texas, the chancellor could not determine the right to the Tyler hotel otherwise than according to our own laws (Garner v. Wright, 52 Ark. supa). Under these the mere possession of the wife’s money by the husband would not have converted it into his property ; and he would have held the hotel purchased with it as a trustee for her benefit. Mansfield’s Dig-est, sec. 4637; Kline v. Ragland, 47 Ark. 115 ; Hoffman v. McFadden, 56 Ark. 217" court="Ark." date_filed="1892-05-16" href="https://app.midpage.ai/document/hoffman-v-mcfadden-6542956?utm_source=webapp" opinion_id="6542956">56 Ark. 217.
%. when wife not estoppea to claim property m 2. But it is further insisted that the appellee . ii»i ill . . permitted the title to the hotel to remain m the name of ± her husband for such length of time as to bar her equitable right to it as against his creditors. It appears to have been held in his name for about two years ; but it is not shown when she ascertained that the conveyance had been made to him, and the evidence discloses no act on her part indicating a willingness to have it treated as his property. Moreover the plaintiffs were distinctly informed of her claim before their purchase was completed, and they recognised it by paying her the purchase money. She is not then, as against them, estopped to assert that her husband held in trust for her ; and as they must have understood that she received the money for her separate use, its investment in her name in the lands purchased in this State was not in fraud of their rights.
3. Ratmcaof’Simband^ 3. This disposes of the only question raised by the pleadings. For, as before stated, the action is not upon the covenant embraced in the deed nor for the breach of any other contract, but is for deceit, and that is not charged against the appellee. The covenant was not expressly against incumbrances, and if the plaintiffs had sued for its breach, we cannot know but that Mrs. Wright might have shown that, under the laws of Texas, she was not liable upon it. But it is very earnestly contended that Mrs. Wright ratified the false representation of her husband by accepting its benefit, and that on the proof a personal judgment should have been rendered against her for the sum she obtained as the fruits of his fraud. Conceding that the deceit alleged ag'ainst William Wright was not so purely a tort, that it was necessary to show that it was actionable by the law of Texas, in order to maintain a suit for it here, and that, notwithstanding the nature of the complaint, it was proper for the chancellor to consider any evidence tending to show that Mrs. Wright participated in or ratified the wrongful act of her husband, we do not think the facts warranted relief against her on either of these grounds. A preponderance of the evidence does not, in our judgement, show that when she received the purchase money for the hotel she knew that a false representation had been made to effect its sale ; and without such knowledge her acceptance of the money was not a ratification of the fraud. Mechem on Agency, secs. 113, 148; Lyon v. Tams, 11 Ark. 205. As to the declarations attributed to her by the disputed testimony of the plaintiffs, with reference to the incumbrance of the hotel, we are not satisfied that .they were relied upon, or were such that the plaintiffs had a rig'ht to rely upon them, under the circumstances detailed in the statement of the case. Yeates v. Pryor, 11 Ark. 58 ; Matlock v. Reppy, 47 Ark. 148" court="Ark." date_filed="1886-05-15" href="https://app.midpage.ai/document/matlock-v-reppy-6541905?utm_source=webapp" opinion_id="6541905">47 Ark. 148 ; 2 Bish. Mar. Worn. secs. 257, 258.
Note — There is a note to the above case in 21 Z¡. R. A. 467, on the presumption as to the law of other states. (Rep.) ! Our conclusion therefore is that, on the case made by the pleadings and the proofs adduced, the complaint, in so far as it is against Mrs. Wright, was properly dismissed.
Affirmed.