— This was an action of trespass to try title, brought by appellees as heirs of Mrs. M. M. Purinton.
The agreed statement of facts upon which the causе was tried shows, that the land in controversy was acquired by M. M. Purinton on the 2d day оf April, 1886, for a valuable consideration, being the sum of $1120; that said M. M. Purinton died оn the 17th day of July, 1887, and that plaintiffs are her heirs; that defendant claims the land by virtue of a judgment obtained against W. W. Purinton on the lith day of November, 1885, and а valid sale under execution made on the 4th day of January, 1887; that at thе date of the said judgment, and also at the date said M. M. Purinton acquired said land, she was the wife of the said W. W. Purinton. No evidence was offered to prove that the $1120 purchase money for the land was the separate property of M. M. Purinton.
The deed to M. M. Purinton recites, that the sаid consideration was paid by her out of her separate property, and that the land was conveyed to her as her separаte property.
It is contended by appellants, that as the facts show that the land was conveyed upon a valuable consideration to M. M. Purinton while she was the wife of W. W. Purinton, it must be presumed to have beеn community property and subject to be sold under execution against the husband, and that to defeat such presumption it was incumbent upon the plaintiffs to prove that the consideration paid was the separate property of the wife.
The questions upon which the case turns are: Do the express recitals of the deed overcоme this presumption? Can they be treated as evidence of the source of the consideration?
The deed at least furnishes evidenсe that was wanting in the cases of Cooke v. Bremond,
We can see no good reason why a deed containing such recitals should not remove the presumption that would exist in favor of the community'in their absence, and be given the effect, when un contra-, dieted or unexplained, of vesting the title according to the terms of the deed. If such recitals are untrue and the payment of the consideration was in fact made with community funds, the evidence thereof would be admissible in a proper case to establish a resulting trust in favor of the community estate, as in other cases where the title is conveyed to one party and the purchase money is paid by another. '
When the husband is solvent, he can convert cоmmunity property into the separate property of the wife. If hе causes a deed for property paid for with community funds to be mаde to the wife for her separate use and causes the deed to so recite, it would vest the title in the *605 wife as her separate еstate. The husband has the management of both the community propеrty and the separate estate of his wife; and when a deed cоntaining recitals like the one now under consideration is found to havе been made during the existence of the marriage, and no evidence is offered to explain or qualify it, the presumption must be indulged that it was made with the knowledge and consent of the husband and for the purpose of making the property the separate estate of thе wife. Such transactions may be intended as a fraud upon creditors, and may be attacked upon that ground, but no such issue was made in this case.
The judgment is affirmed.
Affirmed.
Delivered May 13, 1892.