The opinion of the court was delivered, April 4th 1870, by
Agnew, J.
The three errors assigned in this case resolve themselves into one. The court instructed the jury under all the evidence to return a verdict for the plaintiff. The only question is whether the evidence ought to have gone to the jury. If insufficient, what the court said in their charge would be immaterial, the case being properly taken away from them. Had the case gone to the jury a statement of the quality or degree of the evidence would have been important as an instruction to guide them. We have said in many cases that the evidence must be clear and satisfactory — clear and full proof — clear and unequivocal — -it must exclude reasonable suspicion that the property was the husband’s. Many of the cases are collected in Tripner v. Abrahams, 11 Wright 228. To these I may add Baringer v. Stiver, 13 Wright 129; Flick v. Devries, 14 Wright 266; Curry v. Bott, 3 P. F. Smith 400. These are but forms of expression to denote that the property of a husband is not to be covered up or withheld from creditors upon equivocal, suspicious or doubtful evidence of a wife’s right to it. The family relation is such and the probabilities of ownership so great on part of the husband, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against honest creditors. But the language of the cases is rather an approximation than a definition. It is difficult to define accurately that which is merely a mental operation, and to express with precision the degree of conviction forced upon the mind by evidence. Hence, where a judge said to a jury that the law requires a wife “ to come into court with full proof such as will relieve reasonable doubts — if you pause, or doubt upon her evidence, your verdict should be given to the plaintiff”— it was held to he too strong a description of the degree of proof in that ease: Tripner v. Abrahams, 11 Wright 228. In Flick v. Devries, 14 Wright 267, the same judge himself laid downthe rule thus: “We require no unreasonable amount of proof. Absolute demonstration is no more to be looked for in this class of cases than in other lawsuits, and where evidence is offered from which the conclusion can fairly be deduced, it ought to be submitted to the jury, who often decide on less than demonstrative proofs.” In the still more recent case of Welch v. Kline, 7 P. F. Smith 432, our Brother Sharswood said, that the whole question of exclusive ownership of the wife in the property derived from her own means, and applied by her to the purchase of it, is one for the jury, which it would be error to withdraw from them.
The opinion of the judge in the court below, is an excellent presentation to the jury of the force and effect of the evidence, but he went too far when he finally withdrew it altogether from their consideration. The difficulty of the case lies chiefly in the fact that it depends greatly on the credibility of the husband, the principal witness, a matter falling within the province of the jury. He testified to facts tending to show that the wife’s separate estate paid for the lots. He swore to an ante-nuptial settlement, by which she became entitled in consideration of marriage to receive from him $1000, and did receive from him from $500 to $700. He also testified that the judgments against him from 1856 to 1859, relied on to show a motive on his part to cover up his property in the name of his wife, had chiefly all been paid, a fact deriving some corroboration from their long standing without an effort to collect, them. He is also corroborated to some extent as to the proportion of a separate estate on part of Mrs. Earl, by the testimony of Callahan and Crittenden. The contract of purchase of the lots was in the name of Mrs. Earl, and if the testimony of Earl was believed, there was evidence of the possession of a sepa rate estate by Mrs. Earl, and of its application to the payment of a considerable part of the purchase-money, A parol marriage settlement of personalty is not ipso facto void: Gackenbach v. Brouse, 4 W. & S. 546; Magniac v. Thompson, 1 Baldwin 344; Larkin v. McMullen, 13 Wright 29. Whether the arrangement sworn to by Earl was a fraud in fact, was a question for the jury. The conduct of Earl and his control of the property tended to weaken his credibility. Under these circumstances it was properly the province of the jury to determine what were the actual facts of the case, under instructions as to the degree of evidence necessary to enable the wife to sustain her right to the property. The judgment is therefore reversed and a venire facias de novo awarded.