#### Hay *v.*Martin.

Where land is purchased by a husband with his wife’s money belonging to her separate estate, given him for the purpose of buying the property for her, a resulting trust arises in her favor; and if, within five years, the husband executes a deed to the wife, such deed will operate as a declaration of trust, and take effect as a conveyance of the legal title to the wife, even as against judgment creditors of the husband, and although he was insolvent at the time of making the deed, and no new consideration passed.

The declarations of the husband, immediately after the sale, that the purchase was for his wife, and was to be paid for with her money, were received upon the trial as a part of the res gestae. So, also, the husband was allowed to testify, that, a few days after the sale, when his wife heard of the sale, she approved of it and directed him to pay for it out of her money. This evidence was received under objection and exception, but the assignments of error failed to recite the evidence. The judgment was affirmed.

May 8, 1888.

Error, No. 216, Jan. T., 1888, to C. P. Somerset Co., to review a judgment on a verdict for plaintiffs, in an action of ejectment by James B. Martin and Mary A. Martin, his wife, in right of the wife, against Peter S. Hay, at Sept. T., 1885, No. 185. TRUNKEYand Clark, JJ., absent.

The writ, issued July 3, 1885, claimed to recover the land in dispute. The defendant pleaded not guilty.

*527At the trial, it was admitted that the title to the premises in dispute was, on June 21, 1879, vested in the school district of Elk-lick township.

Plaintiff then offered in evidence deed dated Jan. 3, 1880, from the school directors to J. B. Martin, for the same premises. J. B. Martin was then called and testified that his wife, Mary A. Martin, had received about $150 from her mother’s estate, and $222 from her father’s estate, and that she requested him to buy a property for her, and that he bid on the school house lot, and it was knocked down to him for $165.

Counsel for plaintiff then proposed to prove by this witness that, at the time he bought the lot, he bought it for his wife; that, immediately after the property was knocked down, and before they left there, he went to the building committee and told them that he had bought it for his wife, that his wife’s money was to pay for it, and he wanted the deed made out in the name of his wife, that he had bought it for her; this, before any money was paid; that he afterwards paid the directors the purchase money out of his wife’s money, and directed them several times after the 'sale to have the deed made in the name of his wife.

Mr. Kooser: We object to that part of the offer in which it is undertaken to prove by the witness that he, the witness, told the building committee, or any one of them, that this purchase was with the money of his wife, or that his wife’s money was to pay for it.

Evidence admitted. Exception. [1]

Counsel for plaintiff proposed to prove further by this witness that, on the Monday following the sale, his wife, who had been away from home on a visit, returned home, and he informed her of the purchase of the lot for her; that she expressed her satisfaction and directed him to pay for it out of her money and have the deed made in her name; this, before any of the purchase money was paid.

Mr. Kooser: We object to this for the reason that the witness is incompetent to testify to a conversation between himself and wife after the purchase; the testimony is therefore immaterial.

Evidence admitted. Exception. [2]

The plaintiff, Mary A. Martin, having testified that she received money from the estate of' her father and mother, as testified to by her husband, and that she told 'her husband she wanted the deed made out in her name for this lot,'counsel for defendant, on cross-examination, made the following offer:

Mr. Hay: I propose to ask the witness on the stand whether her husband leased this lot to C. L. Peters in 1880, to improve it, in his own name; that he did improve it; that he paid the taxes ; had it insured in his name, and that her husband sold the undivided one-half of this lot to Peter S. Hay; that he got the consideration for it, and that she joined in the deed, reciting in the deed a conveyance from the school-board to J. B. Martin: with a certificate of ac*528knowledgment to said deed of the separate examination of the wife, and of her acknowledgment of the deed without coercion or compulsion from her said husband, J. B. Martin.

Mr. Ruppel: This is objected to : 1st, as not proper cross-examination ; 2d, as irrelevant; 3d, the plaintiff having been at that time a married woman, she could not be affected by any acts of her husband; 4th, the deed and lease are the best evidence of their contents.

The Court: The evidence is admitted in so far as it may tend to affect credibility, but not as an acknowledgment of title in the husband, or as estopping plaintiff from setting up a title; in short, on credibility only is it admitted. Exception. [3]

Counsel for plaintiff then offered the deed of James B. Martin to Mary A. Martin, dated Jan. 28, 1884, marked “ Exhibit A,” recorded April 10, 1884, Vol. 65, page 73.

Mr. Kooser: We object to the admission of this deed; 1st, because, being absolute in form, it is a contradiction of the resulting trust set up by the plaintiff; 2d, that this deed, reciting, as it does, the conveyance of the same tract of land by the school directors of Elklick township, by deed dated Jan. 3, 1880, and already in evidence, to J. B. Martin, it is a contradiction of the claim of resulting' trust; 3d, that the proof showing that the date of acknowledgment recited in the deed is not the actual date of acknowledgment, the paper is fraudulent and not such paper as a resulting trust can be founded upon; 4th, the consideration recited in the deed being $990, and the proof already in evidence being that the wife had but $165, if any, invested in property, there is such a discrepancy between the consideration and the actual money attempted to be proven as makes the deed fraudulent for the purpose .of the evidence, and it is therefore inadmissible; 5th, the deed, being a conveyance directly from James B. Martin to his wife, Mary A. Martin, is a nullity at common law, the plaintiffs having already testified and failed to show such a case as would warrant a chancellor to declare it valid in equity. We further object to its offer now because we propose to show that the deed was not actually signed and delivered when it purports to have been signad and delivered, nor until after judgment was entered against the property which was sold at sheriff’s sale and purchased by the defendant.

Objections over-ruled and evidence admitted. Exception. [4]

Counsel for defendant having called Peter S. Hay, proposed to prove by him and others, that at that sale this property was knocked down to Mr. Martin in his hearing; that he knew that the school board made a deed to Mr. Martin for this property; that he saw that deed; that James B. Martin afterwards negotiated a sale of the half of this lot with the improvements, to him, and made a conveyance, his wife joining in it; that he knew that Mr. Martin was dealing with this property as his own; improving it; insured it as his own : that Mr. Martin got credit on the strength of title in him of this prop*529erty from Mr. Hay, by endorsing for him — incurred liabilities on the faith of title in Mr. Martin; and that he had no knowledge of claim of title by Mrs. Martin.

Mr. Rupple: We object to this: 1st, because it is irrelevant; 2nd, because the acts and declarations of James B. Martin are not admissible in evidence against his wife, Mary A. Martin, to defeat her title; 3d, because it is not in contradiction of Mr. Martin or Mrs. Martin.

The Court: All of the offer down to and including the clause “insured it as his own,” is admitted; all succeeding that is rejected. Exception. [5]

The testimony given under the above offers, tended to support the offers as made.

Plaintiff’s evidence was further to the effect that the first payment of $65 was made in Sept. 1879; Jan. 3, 1880, the deed was acknowledged, but not delivered or tendered; in the Spring of 1880, $50 more of the purchase money was paid; August 1880, $10; Sept. 25, 1880, $15 ; and Nov. 2, 1880, $25, when the deed was delivered. In the Spring of 1882, plaintiffs move.d upon the premises and remained there until the Spring of 1885, when they were dispossessed by the defendant.

It was also in evidence that, on June 10, 1882, J. B. Martin and wife made a deed for the undivided one-half of the premises in dispute to the defendant. The recital in this deed was as follows: “ Being the same lot of ground conveyed by S. P. Maust, John N. Davis and J. J. Folk, a committee duly appointed by the school directors of Elklick township, to make a deed and convey the same to the present grantors by deed dated Jan. 3,1880.” Mrs. Martin testified that she at first objected but was persuaded to do it by her husband, on condition that Hay would make her a deed for another lot. Hay afterwards made her a deed for another lot, given in evidence.

Defendant offered in evidence the records of a number of judgments against J. B. Martin, and a sale under the same of the property in dispute to the defendant.

It appeared that, at the sale under these executions, the following notice was given:

“ Notice is hereby given that the half interest of the property now offered for sale as the property of J. B. Martin, at the suit of S. D. Livengood et al., is owned by Mrs. Mary A. Martin, whose deed therefor is on record, at Somerset, Pa., in Vol.-, page-. Said deed having been executed and delivered before any of the judgments were entered against said J. B. Martin were entered of record. Said property is situate in West Salisbury, in said county, and has thereon erected a dwelling and store-house, ware-house, stable, etc. No title will pass to the purchaser, if purchased' at sheriff’s sale as the property of J. B. Martin.

“ COFFROTH & RUPPEL,

“April 26, 1884. “ Attorneys for Mary A. Martin.”

*530The court charged the jury, inter alia, as follows:

“ Mrs. Martin alleges .... [that, after the auctioneer had knocked down the premises, and before the parties separated (that is, the directors and Mr. Martin, who had bought it), her husband notified Mr. Davis, who was acting as secretary of the board, that he wanted the deed made to his wife, and that her money was to pay for it. These declarations are what in law is called a part of the res gestae, and they become evidence to be considered when you determine what the transaction was;] [14] the declarations of the husband made at the time he bought as to whether he was buying for himself or his wife and as to whose money was paying. That alone could not establish all that is required, but it is evidence for you.

“ But she further alleges that, although the deed was in the name of her husband, yet the consideration money was, in point of fact, her own, and was paid by her directions out of her own money. That is an allegation set up on the part of the plantiff that this title is hers and not her husband’s, because, as she alleges, it was bought for her and paid for by her means. That, in law, would be called a resulting trust; as, where one man buys property for another, and that other pays for it, and the title is made in the man who happened to negotiate the sale. The property still belongs to the' man who paid the money. It is that principal that applies in this case.

“ A deed from her husband direct to her for the undivided half of this lot was offered in evidence, dated and purporting to be acknowledged on Jan. 28, 1884. As to this deed, a question was raised that it was not executed at the time it was delivered, or on the day that it purports to have been executed and delivered. This deed, it is not denied, was executed and delivered at a date subsequent to the date of the purchase by the husband from the directors; but it is alleged that it was not executed and delivered until some time after its date, and that, at the time it bears date (the allegation is on the part of the defendant), the husband was insolvent and largely indebted. If this, on the evidence, is found to be so — that he was insolvent and largely indebted at this time — then the wife of James B. Martin took no title by that deed — if that wras the case; there being no evidence to show that the wife paid any consideration for that deed; and a husband, when so indebted, could not make a deed for all of his real estate to his wife.

“ But there is more in the case than that. If these premises were originally bought from the directors for her by her husband, and paid for by money of her own separate estate, and at her direction, then this deed of Jan. 28, 1884, would operate as a conveyance of the trust estate vested in her by the purchase. It would not give her title if she had none before, by the mere virtue of that deed. But if she had title before by virtue of a resulting trust, arising from the purchase of this lot by her husband, by her direction, and the payment of it by her money, then this deed would operate, as we have said, as a declaration of the trust, because made within five years *531from the time at which the original transaction took place. There is a statute that requires a transaction of that kind to be put in writing within five years.

“ The plaintiff seeks to recover now on the strength of the trust, and not on the deed made by the husband alone, as I understand it. The plaintiff, I will repeat, seeks to recover on the strength of the trust (that is, the original transaction, the purchase from the directors), and not on the strength of this deed that the husband made to the wife, except in so far as that deed may preserve the trust by being a conveyance of the lot alleged to have been bought for her.

“ The deed from the husband, if you find he was insolvent when he made it, and if it was made for a consideration much below the value of the lot, and without payment of the consideration by the wife at the time, would be invalid, as we have said before, and, as they allege, against creditors, Hay being one; and on that alone there could be no recovery and they do not ask to recover upon that alone.

“ But if you find it was a deed made in pursuance of an original resulting trust, arising in favor of the wife at the time the bargain was made with the directors, and the money paid and the deed delivered, then the deed operates as a declaration of the trust in writing; and if this resulting trust is proved to your satisfaction by her, by the evidence in this case, that is clear, and so full and satisfactory that the jury can rely on it with reasonable certainty, that the premises in suit were bought from the directors for her, and by her direction, or with her assent, and that she had means of her own to buy with, and that her money actually paid for it, then she would be entitled to recover.

“ If she so satisfies you, by evidence that is clear, full and satisfactory and reasonably certain, that it was bought for her by her husband from the directors, by her direction or with her assent, and that it was paid for by money which she had and owned as of her own separate estate, at or before the delivery of the deed, in pursuance of the terms of purchase at the time the husband bought from the directors, then the lot so bought was hers from the time it was bought and paid for, even though the deed was made in the name of the husband. He would, in such case, be considered as holding it in trust for her, and, in fact, this is the same as if the deed had been made to her, if, in due time, the trust had been declared. . . .

[Mr. Davis testifies to the fact that after the sale, and before they parted, Martin told them that it was bought for his wife, and the deed was to be made to her; and Folk says that, before the deed was delivered and the money paid, Martin told him he had bought for his wife and was paying with her money. A number of others have testified to that. You will recollect them, because that is one of the important features in this case.] [15] . . . .

“The defendant, Mr. Peter S. Hay, sets up against this claim of Mrs. Martin a title he acquired by a sheriff’s sale of the lot, *532which was sold as the property of James B. Martin, the husband ; and alleges that the original purchase by James B. Martin, the husband, from the directors, was for himself, that it was paid for by his own money, and not by the money of his wife; and that the deed made on Jan. 28, 1884, by the husband, was made to his wife, not as a declaration of any previous trust or in pursuance of any previous promise to make a deed, but on a sale at a consideration of *$900*or more at a time when the husband was insolvent, and without the payment of the consideration named in the deed; and it was therefore void as against creditors..

“ If these allegations are sustained by the evidence and satisfy you, if these are found to be true by the jury, then the sheriff’s deed, shown to be in Peter S. Hay, the defendant, gives him such title as will defeat recovery by the plaintiff; and in such case your verdict would be for the defendant Hay. If the title was in the wife by virtue of a resulting trust, then neither the declarations of Martin, nor his improvement of the property, the payment of taxes, nor insurance of the property in his own name, could divest her title. You could not take title away in that way. If title was in the wife, such acts of the husband would not take away her title. But as he is the husband of the plaintiff and a principal witness, all such relevant facts (he having been interrogated in relation to them on the stand) are evidence that you can consider only as it may effect credibility, and not as divesting title; that so far as these things affect credibility they come in.

“ Martin alleges that he bought in trust, and this property was his wife’s. They undertake to say his credibility is affected because he said to others that the property was his own. You will consider all he said on that subject, so far as it may affect his credibility; and also the fact as to what he testified in a former trial, which does not seem to be very relevant. He states now that, at the time he showed his wife the mistake in the deed, he said he would make her a deed. We say to you that, whether he had said so to her or not, if he had bought for her and paid for the lot with her money, it does not make much difference.

[“ Although the law provides a method by which a married woman may dispose of property (that method has not been shown to have been employed in this case), yet, being a witness herself in her own behalf, all her acts and declarations, while they would not take title out of her except in the form prescribed, yet all these acts and declarations in evidence, which have been brought to her attention on the stand as material, are to be considered by you as they may affect her credibility only.] [16] . . . .

“ Not a great deal depends upon when the deed was signed. Much would depend upon it if the plaintiff was here claiming to recover on that deed alone. Then the facts as to when that deed was executed, when acknowledged, and when put into the office here, would all be very material. But the position that this case has taken, *533differing from that which it assumed before in two other cases, is that they rely upon this deed simply as a declaration of the previous trust, and the plaintiff stands or falls, not by this last deed, but by the original transaction. If the original transaction was not what in law is called a resulting trust, if it was not bought by her husband for her, by her direction, and paid for with her money before the deed was delivered, then this last deed has very little to do with it, except taking it out of the statute of five years and keeping the trust alive.”

The defendant requested the court to charge, inter alia, as follows :

“ 1. The notice given by Mrs. Martin, through her counsel, W. H. Ruppel, Esq., at the sheriff’s sale, that she claimed title to the undivided one-half of the property in dispute by virtue of a deed of the 28th of January, 1884, and said notice asserting no other kind, character or claim of title, and the deed to her from Mr. Martin itself disclosing no trust, but purporting to be a purchase by her from her husband, she cannot claim by virtue of that deed. *Answer:*Refused.” [6]

“ 2. The title now set up by the plaintiff by reason of the payment of the purchase money could only be a resulting trust, if it can have any force whatever; and, as such resulting trust, it comes distinctly and clearly within the terms and inhibitions of § 6 of the Act of April 22, 1856, which is a statute of repose; and as there is no evidence that such trust was acknowledged in writing to subsist, made by the party sought to be charged therewith, within the period of five years, and such title, if created at all, was created at the time of the sale in June, 1879, or when Mr. Martin took possession of the lot in the fall of 1879, or at latest on Jan. 3, 1880, the date of the deed; and inasmuch as this action was not commenced until July, 1885, the statute is a complete bar, and as a matter of law there can be no recovery in this case by reason of a resulting trust. *Answer:*Refused.” [ 7 ]

“ 3. The action of the plaintiffs by virtue of a resulting trust was for the whole property, and, inasmuch as the deed, dated Jan. 28, 1884, is only for the undivided one-half thereof, and is a conveyance from the party claiming to be the owner, and in whom the legal title is, purporting on its face to be for a valuable consideration paid by the vendee at and immediately before the signing and delivering of the deed, and six times the amount of the alleged trust money — it is not an acknowledgment of the trust such as is required to be executed by §6 of the Act of April 22, 1856, and therefore the deed does not remove from the case the bar of that statute. *Answer:*Refused.” [8]

“ 5. The establishment of a resulting trust in an action of ejectment requires all the clear, satisfactory, full and convincing proof necessary to convince the conscience of a chancellor in decreeing specific performance of a contract, and if there is any uncertainty *534or any position in the case not clearly established by the evidence in the case, it is his duty to determine against the execution of such a contract or the enforcement of such a trust. *Answer:*The law is stated correctly in this point, but, so far as the jury have to do, we say to you that the plaintiff must satisfy you by evidence in the case that is clear and so full, satisfactory and convincing that the jury can rely on it with reasonable certainty, that the premises in suit were bought for her by her direction and assent, that she had means of her own to buy with, and that her money actually paid for it.” [9]

“ 6. There is no such evidence in this case as establishes a resulting trust in Mrs. Martin which would justify the court in leaving that as a question of fact for the jury; and the jury should be instructed by the court that, upon this point, there can be no recovery by the plaintiff. *Answer:*Refused. This is asking the court to decide this case, which we refuse; it is a question of fact for the jury.” [10]

“ 11. If the jury shall find that the defendant had no notice of the secret trust until after the sheriff’s sale of this property, in April, 1884, then there can be no recovery on account of the alleged trust. *Answer:*If the defendant had no notice of the resulting trust until after the sheriff’s sale, this would make him a purchaser without notice; but a wife in possession is not bound to record her deed; but if notice was given him of the existence of a deed from the husband to the wife for the same premises now in suit, this put him on inquiry, and he is not an innocent purchaser, and in such event he must stand upon the defence he makes which denies the existence of a resulting trust in favor of the wife at the date of the payment of the money to the school board and the delivery of the deed.” [11]

“ 12. That deed from J. B. Martin and wife for the undivided one-half of the premises in dispute to the defendant, dated June 10, 1882, is an assertion and recognition of the full title in J. B. Martin as recited therein, and is notice from Mrs. Martin to the defendant of such title in her husband, and said notice of title is conclusive upon her as to any then existing title, legal or equitable, in her, except her contingent right of dower. *Answer:*Refused.” [12]

“13. Even if the jury believe that Mrs. Martin paid the $165 to the Elklick school board for the lot in dispute; if they shall further find that she, by her own free act, allowed the title thereof to be taken in her husband’s name and to stand among the recorded land titles of the county in his name ever since Feb. 11, 1882, and that she allowed him to use it as his own, and hold himself out to the world as the absolute owner of this property; and if she voluntarily placed him in a position which enabled him to obtain credit on the strength of his apparent ownership of this property; and if she, by her declarations, conduct and active participation, led the defendant to believe that she had no claim to it, but that her husband owned it; and if the jury shall further find that the defendant did rely upon the strength of the declarations, conduct and acts of her*535self or her husband, and did give him credit and did incur liabilities for her husband which defendant had to pay, and for which he after-wards obtained judgment against him, and that the defendant had to buy in the property in dispute at the sheriff’s sale to secure his claims against him — then Mrs. Martin is estopped from setting up title in herself to the property, by virtue of a resulting trust, even if she gave notice at the sheriff’s sale or at any time after defendant incurred such liabilities for her husband, that she claimed the property. *Answer:*This point is refused, as not warranted by the evidence in the form stated.” [13]

Verdict for plaintiff and judgment thereon.

*The assignments of error*specified, 1-5, the rulings on the evidence, quoting the bills of exceptions, as above, but not the evidence; 6-13, the answers to the points, quoting the points and answers; and, 14-16, portions of the charge in brackets, quoting them.

*Valentine Hay,*with him *F. J. Kooser,*for plaintiff in error.

It was error to admit the declarations of the husband in favor of the wife’s title to the money: Parvin *v.*Capewell, 45 Pa. 92'; Feig *v.*Meyers, 102 Pa. 16; Gamber *v.*Gamber, 18 Pa. 363; Topley *v.*Topley, 31 Pa. 328 ; Walkers. Reamy, 36 Pa. 410 ; Black *v.*Nease, 37 433-

The wife is estopped by permitting her husband to take title in his own name, or by remaining silent when her husband asserts rights inconsistent with her own: Stewart, Husband and Wife, §§417,419; by recitals in her deed: 2 Bishop, Married Women, §490; or by permitting another to purchase: Bigelow, Estoppel, 490, 492, 496, 497, 498; Bispham, Eq., 387; 1 Perry, Trusts, 278 ; 1 Story, Eq., §§385, 389.

A married woman who has assigned her interest in a legacy to her husband is estopped from questioning its validity as against her husband’s judgment creditors who advanced money on the faith of the assignment: Powell’s Ap., 98 Pa. 403. Or by withholding a deed from record : Coates *v.*Gerlach, 44 Pa. 46. To the same effect are Early *v.*Rolfe, 95 Pa. 58; Callender *v.*Robinson, 96 Pa. 459; Miller’s Ap., 84 Pa. 391; Watters’s Ap., 35 Pa. 523; Chapman *v.*Chapman, 59 Pa. 214; McKeley *v.*Truby, 4 W. & S. 325.

The notice given at the sheriff’s sale was not such as to have the effect of allowing the wife to set up a resulting trust. The party can assert only the title of which notice was given at the sale: Woods *v.*Farmere, 7 Watts, 384; Brown *v.*Bank, 3 Pa. 202; Eshbach *v.*Zimmerman, 2 Pa. 313. This is founded on the doctrine of estoppel: Moncure *v.*Hanson, 15 Pa. 396. A purchaser cannot be affected by a latent equity without actual notice, or unless it appears on some deed necessary to the deduction of the title: Peebles *v.*Reading, 8 S. & R. 496. Here, the deed showed an absolute purchase ; the consideration named, beyond the means of the wife; the husband, insolvent. The possession is presumed to be *536that of the husband: Curry *v.*Bott, 53 Pa. 403. The purchaser had a right to infer fraud, and defendants are estopped.

The testimony in favor of the wife’s title was not such as to move a chancellor to make a decree in her favor: Greenlee *v.*Greenlee, 22 Pa. 225; Brawdy *v.*Brawdy, 7 Pa. 158. The testimony must go directly to the fact of payment: 56 Pa. 54.

The 12th assignment should be sustained under Bellas *v.*Lloyd, 2 Watts, 401.

The deed of Jan. 28, 1884, was not a declaration of a subsisting trust as contemplated by the Act of April 22, 1856, and does not purport or pretend to be in execution of a trust, and is wholly inconsistent with the idea of a trust, and there being no entry made by her and the suit not having been brought within five years from the time said alleged trust accrued, said statute is a bar to this action.

*W. H. Ruppel,*of *Coffroth & Ruppel*and *W. H. Koontz,*for defendants in error.

It was competent for the husband to testify that he bought the property for his wife, and his declarations and directions to the parties from whom he purchased, are admissible as part of the res gesta: Deardorf *v.*Hildebrand, 2 Rawle, 226; Feather-man *v.*Miller, 45 Pa. 103; Levering *v.*Rittenhouse, 4 Wh. 140; Potts *v.*Everhart, 26 Pa. 497 ; Devling *v.*Little, 26 Pa. 506 ; York Co. Bank *v.*Carter, 38 Pa. 456; Hannis *v.*Hazlett, 54 Pa. 139; Huntzinger *v.*Jones, 60 Pa. 170.

The authorities cited on the other side do not apply to the facts of this case. In those, the declarations were relied on to establish title in the wife, and were wholly inconsistent with the other evidence in the cases, and besides were not connected with the original purchases.

The consideration for the deed moved from the wife, and the deed will prevail : Bedell’s Ap., 87 Pa. 513. The title vested in her by a resulting trust, even if the deed was made to her husband: Feig *v.*Meyers, 102 Pa. 15.

Suit was brought within five years of the delivery of the deed. Besides, as the defendant was a feme covert, and in possession, suit was not necessary until the spring of 1885, when she was dispossessed.

As to the third assignment of error: ■ Unfortunately for the defendant, this testimony, instead of proving an estoppel, developed the fact that Mrs. Martin at all times asserted her ownership to the property.

The rejection of the testimony of the defendant, in which he proposed to say that he had given J. B. Martin credit “ on the faith of title in Mr. Martin,” constituting the 5th assignment of error, was proper. There was no offer in this rejected portion to prove facts, or actions, or declarations of Mrs. Martin, or anyone else; simply to allow the witness to give the beliefs which induced him to do certain things.

*537May 21, 1888.

Numerous authorities are cited by the defendant’s counsel on the question of estoppel, but we are unable to see the bearing of either of them on the questions at issue in this case. There was not the slightest proof in the case that Mrs. Martin had done any act, or made any declaration whereby the defendant was misled.

The defendant’s 13th point is very similar to the third point of defendant in -Feig *v.*Meyers, supra, which was there refused, and the refusal assigned as error, but the ruling affirmed. In this case, the court was justified in refusing, because of the unwarranted statement of facts in the point.

Mr. Hay did not find the deed, and did not see it until long after the sheriff’s sale, it is therefore impossible that he should have been misled by any of its recitals. Every ingredient of estoppel is wanting, whether considered as arising under the deed, or in pais.

The court could not have withdrawn the case from the jury, even if Martin had been the only witness who testified to the payment of the wife’s money for the lot, and that the wife was not present when the money was paid: Earl *v.*Champion, 65 Pa. 191.

The owner of land is not estopped from setting up his title against judgment creditors, though they had no actual or constructive notice of his title at the time they gave credit or filed the judgments against the occupant. A married woman is not bound to record her deed under pain of losing her land if seized by her husband’s creditors. Feig *v.*Meyers, 102 Pa. 15.

The evidence shows that the wife asserted her title, and received from the defendant a lot in exchange for a half interest in the lot in controversy. And the recital in the deed on which the defendant relies, if it amounts to anything, is a recognition of the title of Mrs. Martin. The clause recites that a committee was duly appointed to make deed to the “ grantors.”

“ P'or prevention of fraud, clear and satisfactory proof of a wife’s claim against her husband is exacted in a degree not required of others, but, when established, she is entitled as another would be.” Lohr’s Ap., 90 Pa. 511.

Per Curiam,

A thorough examination of this case satisfies us that it was well and carefully tried in the court below. The charge contains a full and complete exposition of the law relating to the resulting trust upon which the plaintiff depended for a verdict; the points were properly answered, and the facts clearly and impartially submitted to the jury, so that nothing is left for us but to affirm the judgment.

The judgment is affirmed.

The following should be added to the syllabi in the abo^e case:

A deed may operate as a written acknowledgment of trust, within the terms of the Act of April 22, 1856, *\*6, although it contains no reference to the trust and names a consideration different from that upon which the trust is founded.

The facts of this case did not operate as an estoppel to prevent the wife from asserting her title. w. m. s., jr.