STONE, J.
“All property of the wife, held by her previous to the marriage, or which she may become entitled to *388after the marriage, in any manner, is the separate estate of the wife,” . . —Code of 1876, § 2705. Under this statute, and all sections of the Code bearing on the same subject, we have uniformly held, that the provisions therein found relate exclusively to estates which, in the absence of the statute, would not be the separate property of the wife. 2 Brick. Dig. 91, § 272. The statute has never been construed as affecting rights of property which had vested prior to its enactment, or dioses in action of the wife, when both tho ownership and the marriage antedated the enactment of the statute. — Ib. §§ 268, 269, 270, 276.
2. In the present case, lands descended to the plaintiff and her sisters. The lands were in the State of Texas, and were sold for partition; and the share of plaintiff came to her in money, the proceeds of the lands. Plaintiff, so far as we are informed, has all the while been a resident of Alabama. She surely was when she received the money. The question arises, what are the several rights of wife and husband in the money ? No proof was made of the laws of Texas bearing on this question. If Texas had had a common origin with this and the other older States, we would presume the common law prevails there. — 1 Brick. Dig. 349, § 9. But Texas did not have a common origin with these older States, as to which this presumption is indulged. Hence, we are left without proof, and without presumption, as to what are the laws of Texas which govern the transmission of property, and the effect of marriage upon its title and enjoyment.
3. An examination of the various statutes will show, that scarcely any two States have similar statutes on the subject we are considering. Immoveable, or real property, is governed by the law of the country in which it is situated, as to its title, descent, and the forms necessary to be observed in its conveyance.—Nelson v. Goree, 34 Ala. 563. The rule is different as to personal property.—Turner v. Fenner, 19 Ala. 355.
As we have said above, the plaintiff and her husband are residents of this State; they were probably married in this State; and it follows, that the laws of no foreign State have stamped their impress on any personal property belonging to either, which can follow and attach to it in this State.—Drake v. Glover, 30 Ala. 382. Personal property, as to ownership and transmission, is governed by the law of the domicile of the owner.—Nelson v. Goree, supra; "Wharton’s Oonfl. of Laws, §297. If we were to apply to the products of property, having its situs in another State, yet owned by persons domiciled in this, and who bring such products into this State, the laws which governed the property in the State *389from which the products were brought, we should soon find ourselves involved in confusion, of which the shrewdest can scarcely conceive. It is not beyond the pale of possibility, that one and the same person may own lands in several different States, in one of which the common law prevails, in a second the civil law, and in others various modifications of statutory systems, which secure to married women the seperate ownership of their property. In the several landed interests thus situated, the owner, being a married woman, and having her domicile in this State, would have very variant rights, and her powers of alienation and enjoyment might be equally variant. Now, let these lands be converted into money, and the money brought into Alabama, the domicile of the wife; how could the character of estate, which local law had impressed upon the land, follow the money into this State, and stamp its characteristics upon it ? Money has no earmark, and the profession will readily understand into what inexplicable confusion such holding would lead.
4. "We take another step. While we accord to other States, plenary legislative sovereignty in the matter of making and enforcing contracts, and of acquiring, enjoying, and disposing of property within their territorial jurisdictions, and will give full effect, as a rule, to their laws, when, by change of domicile, or removal of property, the legality of transactions there is brought before our tribunals; yet, this comity of nations must be taken and administered with the fundamental condition, that such foreign law does not contravene the positive law, or public policy of our own State.—Hanrick v. Andrews, 9 Por. 9; Newcombe v. Leavitt, 22 Ala. 631.
5. Influenced by the fact that real estate, voluntarily converted into personalty, can not, even when the two Species of property are owned and held in the same jurisdiction, be enjoyed and disposed of under one and the same system of rules, it has been held, where the common law defines the property-rights springing out of the marital relation, that “where a wife joins her husband in the sale of her real estate, without an agreement in reference to the proceeds of sale, the proceeds vest absolutely in the husband.”—Chester v. Greer, 5 Humph. 26; Martin v. Martin, 1 Comst. 473; Benedict v. Montgomery, 7 Watts & Serg. 238. This results from certain rules of the common law, namely: that the rights and interests of the husband in the wife’s realty are inadapted to the use and enjoyment of money; and the absolute ownership which the law gives to the husband, when he reduces to possession the wife’s personal property, including her moneys, is incompatible with the temporary seizin which the same common law gives to him in her realty, The con*390version of the property from realty to personalty, necessarily takes it from under one system of rules ; and when effected voluntarily, and without any settlement or contract defining its future use, the law alone operates upon it, and declares its status. What law ? On principle, it would seem it ought to be the law then in force, and not an exploded, or superseded system. So, in Sessions v. Sessions, 33 Ala. 522, where the marriage took place prior to the enactment of the statutes securing to married women their separate estates, the wife being at the time seized of real estate ; and after the enactment of those statutes, the husband and wife sold the lands, and converted them into money; it was held, that the proceeds were thereby converted into new property, and they became the separate estate of the wife under the statute. A similar principle was declared in Sampley v. Watson, 43 Ala. 377.—See Whar. Confl. Laws, § 198.
To avoid the embarrassments attending any other rule, we feel it our duty, in cases like the present, to follow the lead of Sessions v. Sessions, supra, and hold that money, thus received, must be regarded and treated as the acquisition of new property, governed by the laws of this State, which define the several rights of husband and wife in such newly acquired property; the law in force at the time of the new acquisition.
6. We think no importance should be attached to the fact that.checks, instead of money, were paid by Jeffries to appellant. Commercial payments are most generally made in cheeks ; and we shall treat this case as if cash had been handed by Jeffries to Castleman.—Stewart v. Connor, 9 Ala. 803. Saying nothing, then, about the alleged agreement between Mrs. Jeffries and Castleman, by which it is averred, though somewhat denied,- that the former obtained the credit on the faith of her expected remittance from Texas, and on her promise to pay the account when the remittance should come to hand, we have this simple state of facts: Castleman had in his hands seven hundred dollars in money, of the corpus of Mrs. Jeffries’ statutory separate estate, and there appears to have been due to him a much larger sum, on contracts, largely made by Mrs. Jeffries herself, “ for articles of comfort and support of the household, * * suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law.” The case may be justly stated even stronger than this. The testimony tends to show that Jeffries, the husband, act’ ually paid, _ or turned over to Castleman, the money, or checks, which the present suit seeks to recover from him.
The money in controversy in the present suit, when it was ■realized by Mrs. Jeffries, vested in her husband as her trustee, *391who had the right to manage and control the same — .Code of 1876, §2706. In Marks v. Cowles, 53 Ala. 499, this court, commenting on section 2709 (Code of 1876), said: “The statute is silent as to money, the corpus of the wife’s separate estate, not the subject of alienation, but the subject of conversion into other property, or of investment, unless it is derived from a sale of other property.” The court then proceeded to declare, that of this money, corpus of her estate, which was not proceeds of her property which had been sold, the husband was trustee, with large powers of investment, and that without any direction or decree of the chancellor authorizing such investment. We do not doubt the power of the husband to invest moneys, the corpus of the wife’s separate estate, in the purchase of articles of comfort and support of the household, or to employ them in payment of those previously purchased, if they fall within the classes for which they are declared to be liable under section 2711, Code of 1876.
7. Nor do we doubt that a creditor, who is in possession of moneys of the wife, which he holds in such manner as to constitute him only a debtor to her, as so much money had and received for her use, may retain such money in payment of any just demand he has, which, by said section, is made a charge on her statutory separate estate; and, if sued by her for such money, he can successfully defend on that ground. To hold otherwise, would be to declare that a feme covert, owner of a statutory separate estate, could successfully maintain a suit for the money, when, at the same time, the creditor could successfully prosecute a suit against the corpus of her estate, for the same, or larger amount. The law abhors circuity of action, and will adjust cross demands between parties, whenever if can do so consistently with its rules of procedure. The action for money had and received is an equitable action, and can not be maintained when the defendant can show that, ex cequo et bono, he is authorized to retain the money alleged to be in his hands. — 1 Brick. Dig. 140, §§72, 73; Ib. 142, §106.
8-9. The defense in the present action assumes two forms. First, it is alleged that, in consideration of “articles of comfort and support of the household,” &c., furnished and to be furnished by Castleman to Jeffries and wife, Jeffries, the husband and trustee, turned over and paid to Castleman the two checks, which were received and used as so much money. If this be so, and if such articles were furnished in value equal to, or greater than, the sum of the two checks and the premium thereon, then this is a complete defense to the action, and could be given in evidence under the general plea *392of payment. The second form of defense is set-off. Set-off, being in its nature a cross action, or revocatory suit, must be pleaded with the same formality which would be required in a complaint, if it were made the cause of an action brought. See Ravisies v. Stoddard, 32 Ala. 599.
The fifth plea, as amended,^is scarcely a good plea of payment. The delivery of the cíiecks by Mr. Jeffries did not necessarily, and per se, constitute such delivery a payment, unless something was done or said, at the time, showing that they were delivered as payment. Coupled with the agreement that payment would be so made, alleged by Castleman to have been entered into when the account was opened, if it be true that such agreement was made, the delivery by Jeffries, even if silently done, would amount to payment pursuant to the agreement. The averment in that plea, referring to the delivery of the checks by Jeffries, is in the following language: “ which defendant knew, or understood to be, the money referred to in the conversation had with Mrs. Ann M. Jeffries.” This is not equivalent toan averment that it was the money referred to by her. This averment is bad. The plea should aver, positively, that it was the money referred to in the conversation ; or, it should aver that it was delivered by Jeffries in payment. In either form, it would be a good special plea of payment.
But this plea has some averments which tend to show it was intended as a plea of set-off. As such plea, it was not necessary it should aver the money sued for was of the statutory separate estate of Mrs. Jeffries. That had been averred in the complaint. As a plea of set-off, however, it is defective in this : it fails to aver that Mrs. Jeffries owned such statutory separate estate before July, 1870, and claims as a set-off some items of account sold and delivered to her before that time. The plea is to the whole action, and does not show how much of the account was contracted after the land was converted into money, and thereby became her statutory separate estate. It is perfectly consistent with every averment in the plea, that the bulk of the account was contracted before she acquired any separate estate, which, under the rules we have declared, would be brought under the dominion of our statutes. As soon as the land became money by conversión, the money, no matter where situated, became the statutory separate estate of Mrs. Jeffries, whose domicile was in Alabama. Only the separate estate owned by Mrs. Jeffries at the time the goods were purchased, can, under this branch of the defense, be condemned to the payment of the debt thereby created,—Ravisies v. Stoddart, su*393pra; 2 Brick. Dig. 96, § 342. As a plea of set-off, the fifth plea is bad, for the reason above stated.
The husband being trustee of the fund in controversy, any payment of the money made by Castleman to him, was admissible under the plea of payment, and was a good defense pro tanto. So, if Jeffries delivered the checks in payment, or pursuant to the alleged agreement that the account contracted should be so paid, then any articles of comfort and support of the household, furnished by Castleman, which were suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law, would be referred to such agreement; and, to the extent of such purchases after she became the owner of the alleged statutory separate estate, they are a defense to the present action. The Circuit Court erred in not receiving evidence on these several points, even though the fifth plea was rightly adjudged bad on demurrer. And if the fifth plea be amended as above indicated, so as to make it a good plea of set-off, the evidence should be received in defense, notwithstanding it may not be shown the checks were delivered in payment, or pursuant to the alleged agreement of Mrs. Jeffries.
Lest we be misunderstood, we will add, by way of explanation, that if Jeffries delivered the checks as payment, under either of the hypotheses stated above, then such payment may be applied to the purchases made before Mrs. Jeffries’ lands became statutory separate estate by being converted into money, as well as to purchases afterwards made.
It results from what we have said, that the judgment of the Circuit Court must be reversed, and the cause must be remanded.—Tenn. & Coosa Railroad Co. v. Moore, 36 Ala. 371, 391.
Reversed and remanded.