Lead Opinion

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.

Concurrence Opinion

Assuming that the wife's property, which she owned at the time of the marriage in 1859, might have been appropriated by the husband to his own use, still it is a question of fact not settled in this case whether he had done so.

If he had not made the property his own before his taking the title to himself, although that might be evidence tending to show such appropriation, it certainly is not conclusive evidence. If it were settled as matter of fact that he had not assumed to exercise his marital right over it, then a trust would result to the wife under the circumstances of the case. I do not see how the plaintiff can be equitably estopped by what was done without her consent and against her will. So far as my recollection of the cases extends, those acts which have been held to estop a party have been acts voluntarily done by him. In the present case the plaintiff, so far as the case shows, has not even been silent in the matter, but has expressed her dissent.

The case of Hicks v. Skinner, 71 N.C. 539, 17 Am. R. 16, is very much like this. There the husband purchased property for the wife, taking the title in his own name, without her consent; and the case finds that he did this because he was afraid it would injure his credit if he took it in the name of his wife. But the court held that the equity of the defendant against her husband and his creditors was indisputable, and in particular it was held that the wife was not estopped.

I agree, therefore, with my brother LADD, that the decree must be set aside, and the case sent back for a further investigation of facts.

I think it clear that the evidence of the post-nuptial contract was rightly rejected. *Page 188

The evidence in regard to the new building appears to have been relevant on the question which was in issue, whether the husband had made the property his own by the exercise of his marital rights.

SMITH, J. I do not think this case comes within the doctrine laid down in Horn v. Cole. The plaintiff did not take a conveyance of this land in the name of her husband to defeat her creditors, nor did she represent that the land belonged to him. The money with which it was purchased was earned and inherited by her before marriage, and appears to have been kept in her possession until the time of the purchase. Her dissatisfaction, expressed when she learned the deed had been taken in her husband's name, and subsequently, shows very clearly that the deed was no so taken with any fraudulent intent on her part; nor did the defendant become a creditor of the plaintiff's husband upon the strength of his owning this land, for his debt was contracted prior to her marriage. He was not therefore prejudiced in any was by the fact that the deed was taken in the name of the husband.

Unless at the time of the purchase the husband reduced the money to possession, a trust resulted in her favor, which can be enforced upon proper proceedings. Atherton v. McQuesten, 46 N.H. 205, decides that the husband had a vested right in 1859 to reduce this property to possession, which the legislature could not take away by the act of 1860. It becomes material, then, to ascertain whether by taking this deed in his own name he intended to reduce the purchase-money furnished by his wife to possession. His taking the deed is evidence of such reduction, but not conclusive.

As this question was not tried, the case must be discharged, and a

New trial granted.