Dixon v. Vandenberg. had, first to Bigelow and then to Vandenberg. In consideration that the complainant in that suit would abandon all claim. against them for deficiency therein, they consented to an order of reference and a final decree for sale of the mortgaged premises, which were made and entered accordingly, and no decree for deficiency taken against them. The final decree directed that the premises be sold to pay, first to Wilkinson the amount due on the Allen mortgage, with interest and costs, and next to Vandenburg the amount due on his mortgage, with interest and costs. The property was advertised for sale by the master, to whom the execution was directed and delivered, and in March, 1875, Bigelow, in order to prevent the sale, borrowed $2,200 of Courtlandt P. Dixon, the complainant in this suit, to be secured by an assignment of Wilkinson's interest in the decree for foreclosure, and borrowed also of Vandenberg $350 on his own note, and with those moneys paid to the master the amount due Wilkinson, and the master, with Vandenberg's consent, returned the execution (by mistake endorsing on it a certificate that the Wilkinson claim was satisfied), without further proceedings thereon. Wilkinson, by deed of assignment, assigned the decree to Dixon. Subsequently, the latter caused the property to be sold under the execution, and it brought only $200, or thereabouts. He then, by petition, obtained an amendment of the master's return, by striking out the statement that the Wilkinson claim had been satisfied. Subsequently he filed this bill. It alleges that Vandenberg is insolvent, and that Bigelow has been adjudged a bankrupt, and that Van Winkle left an estate sufficient to pay the deficiency, and prays a decree establishing the liability of Allen and the executors, heirs and devisees of Van Winkle, to pay the money due on the bond and the costs of this suit. The bill is filed to enforce an alleged liability, which it avers is not enforceable at law. But, though the bond in question is joint and not several in its terms, the statute provides for the bringing of suit against the executors in the same manner as it might have been brought if the obligation had been several as well as joint. Rev. p. 742. The complainant, therefore, is not compelled to come into equity in order Lister v. Lister. to reach Van Winkle's executors. And, as to his devisees, the EDWIN A. LISTER V. HANNAH A. LISTER. 1. Where lands are bought and paid for by a husband, but the title thereto put in the name of his wife, the ordinary presumption of a settlement, which in this case was fully corroborated by his actions and declarations at the time of the purchase and transfer, cannot be rebutted by his subsequent declarations, nor by his present declarations of his intention then. 2. Nor will equity aid him on account of the subsequent adultery of the wife, and his consequent divorce from her therefor. 3. Nor will any possibility of curtesy in the property entitle him to relief. 35 49 56 382 35 49 62 763 Lister v. Lister. Bill for relief. On final hearing on pleadings and proofs. Mr. W. H. Francis, for complainant. Mr. W. B. Guild, Jr., for defendant. THE CHANCELLOR. The parties to this suit were married on the 1st of June, 1858, in the state of New York. They lived together in Tarrytown, in that state, until the 1st of April, 1862, when they removed to the city of Newark, in this state, where they have lived ever since, with the exception of from six to nine months, in 1868, when they resided in Brooklyn, in New York. There were two children of the marriage, a son and daughter, the former now about twenty-two years of age, and the latter about nineteen. By the decree of this court, the husband and wife were, in November, 1879, divorced from the bond of matrimony, for the adultery of the latter. Since that time she has married the person with whom the adultery was proved to have been committed. In March, 1870, the complainant bought a lot of land in Nichols NOTE. The rule that where the evidence as to a husband's object in making a conveyance of lands to his wife is conflicting, the ordinary presumption that it was intended as a settlement prevails, has been recognized in New Jersey, Linker v. Linker, 5 Stew. Eq. 174; also Stevens v. Stevens, 70 Me. 92; Lux v. Hoff, 47 Ill. 425; Cotton v. Wood, 25 Iowa 43; Darrier v. Darrier, 58 Mo. 222; Irvine v. Greerer, 32 Gratt. 411. Only contemporaneous acts and declarations are admissible to show the intent of a husband in making a settlement on his wife, and subsequent acts or declarations must be excluded, Gillespie v. Burleson, 28 Ala. 551; Garner v. Graves, 54 Ind. 188; Crain v. Wright, 46 Ill. 107; Cairns v. Colburn, 104 Mass. 274; Cormerais v. Wesselhoeft, 114 Mass. 550; Mack v. Mack, 3 Hun 324; Kelly v. Campbell, 2 Abb. App. Dec. 492; Ferris v. Parker, 13 Tex. 385. See Gackenback v. Brouse, 4 W. & S. 546; Johnston v. Johnston, 31 Pa. St. 450; Gicker v. Martin, 50 Pa. St. 138; Moyer's Appeal, 77 Pa. St. 482; McCampbell v. McCampbell, 2 Lea 661, 665; Ingersole v. Truebody, 40 Cal. 603. Nor can a husband be asked, on an examination in open court, what his motives or intentions were when he made the settlement, Woods v. Whitney, 42 Cal. 358; Gillespie v. Walker, 56 Barb. 185. See Wormley v. Wormley, 98 IU. 544, 553. Lister v. Lister. street, in Newark, from John Williams, for $1,100, which he paid, and took the title for the property in his own name. On the 28th of May, in the same year, he bought an adjoining lot of the same person, for $5,000, which he paid, and by his direction, the deed therefor was made to his wife, and at the same time he transferred the title of the other lot to her. In 1873 he bought three lots on Warwick street, in the same city, of his brother Alfred, for which he paid $3,700. These lots were, by his direction, conveyed by his brother to John Williams, in order that the latter might convey them to the defendant, which he did accordingly. On the first-mentioned lot, in Nichols street, the complainant erected a brick dwelling-house of three stories, and he repaired and otherwise improved the frame dwelling-house which was on the other Nichols street lot. He also built a stable on the Warwick street lot. Subsequently, the Nichol street properties were exchanged for a large lot of land on South Broad street, in the same city, and another lot of land on Thomas street, in the rear of the South Broad street property, was subsequently purchased, and the title to those properties was taken in the name of the defendant. On the South Broad street property, The same rule applies to an advancement made by a parent to a child, Betts v. Francis, 1 Vr. 152, 156, 159; Christy v. Courtenay, 13 Beav. 96; Williams v. Williams, 32 Beav. 370; O'Brien v. Sheil, L. R. (7 Irish Eq.) 255 [which criticises Deroy v. Devoy, 3 Sm & Giff. 403]; Cartwright v. Wise, 14 Ill. 417; Sanderlin v. Sanderlin, 24 Ga. 583; Sharp v. Maxwell, 30 Miss. 589; Bradsher v. Cannady, 76 N. C. 445; High v. Stainback, 1 Stew. (Ala.) 24; McKane v. Bonner, 1 Bail. 113. Subsequent misconduct of the wife does not affect or invalidate a settlement, even where a divorce may have been obtained by the husband therefor, Bent v. Bent, 44 Vt. 555; Edgerly v. Edgerly, 112 Mass. 175; Orr v. Orr, 8 Bush 156; Baggs v. Baggs, 54 Ga. 95; Johnson v. Johnson, Walk. Ch. 309; Porter v. Porter, 27 Gratt. 599; Charlesworth v. Holt, L. R. (9 Exch.) 38. See Marrall v. Marrall, L. R. (6 P. D.) 98; Weathersby v. Weathersby, 39 Miss. 652; Huntly v. Huntly, 6 Ired. Eq. 514; Vreeland v. Ryno, 11 C. E. Gr. 160, 12 C. E. Gr. 522. As to antecedent misconduct, see Grove v. Jeager, 60 IU. 249; Chew v. Chew, 38 Iowa 405; Switzer v. Switzer, 26 Gratt. 574. Equity will not relieve where the settlement or conveyance was made in the expectation that the wife would die before her husband, when in fact she survived him, Spring v. Hight, 22 Me. 408; Andrews v. Oxley, 38 Iowa 580. See Cotton v. Wood, 25 lowa 43; Bettle v. Wilson, 14 Ohio 257.-REP. Lister v. Lister. four costly dwelling-houses were erected, after the exchange. The complainant alleges, and the proof establishes the claim, that he paid, with his own money, the whole of the purchasemoney of the lots exchanged for the South Broad street property, and of the Warwick street lot, and the cost of the improvements thereon, also the difference between the valuations of the properties exchanged; also what was paid for the Thomas street property, and all the cost of the dwelling-houses erected on the South Broad street land, and the interest on the mortgages on the properties, and all taxes, insurance, water-rents and repairs. He states the amount so paid for the properties and improvements, not including taxes &c., at about $60,000. In addition, he is liable on a bond for $16,000, given by him and his wife, and secured by a mortgage on the South Broad street property. It may be stated that he is, irrespective of his claim. in this suit, a man of large estate. As before stated, the divorce was granted in November, 1879. The bill in this suit was filed December 8th, in that year. It states that the properties were purchased by the complainant with his own money, and that the title thereto was put in the name of his wife, in trust, for the benefit of himself and his wife and family, as such, and not as a settlement upon her, and it prays that she may be decreed to convey the South Broad street and Thomas street properties, and the Warwick street property, to him. The defendant, by her answer, denies the alleged trust, and avers that the conveyances made to her were intended as gifts, and that the expenditures made by the complainant on the properties were voluntarily made. The deeds to the defendant express no trust, nor is there any written evidence of any. The complainant claims that a trust resulted in his favor from the payment of the purchase-money by him. When a man purchases land and causes it to be conveyed to his wife, the presumption is, that it is a settlement upon her, but it is a question of intention, and the presumption may be rebutted. The burden of proof is upon him. The bill, indeed, states, and the complainant testifies, that in placing the title to the property in the name of his wife, he acted upon the |