
    William Winslow & ux. versus Benjamin H. Gilbreth.
    Since the Act of 1847, (R. S. of 1857, c. 61, § 1,) authorizing a married woman to hold property exempt from payment of her husband’s debts, if his creditor would impeach her title to any property conveyed to her, the burden is on him to prove that it came to her, directly or indirectly, from her husband, after coverture, and fraudulently as to creditors.
    Exceptions from-the ruling of Appleton, C. J., presiding at JVisi Prius.
    
    This was an action of trover against the defendant, as sheriff, for -the act of a deputy, in attaching and selling one half of a vessel, (as the property of said William Winslow,) which, it is alleged in the writ, was the property of the wife of said Winslow, the female plaintiff.
    The plaintiffs put into the case a bill of sale conveying to Hepzibah Winslow, (the female plaintiff,) one half of the vessel in controversy. The bill of sale contained the usual consideration clause — "for and in consideration of $910, * * * * to us in hand paid, before, &c., by Hepzibah Wins-low,” &c.
    It was admitted that the plaintiffs were husband and wife at the time.
    The plaintiffs offered no evidence to prove that the money paid for the purchase of the vessel did not come from the husband.
    The Court directed a nonsuit; to which ruling the plaintiffs excepted.
    
      Evans and Putnam, in support of the exceptions.
    Stat. 1844, c. 117, by its terms, throws the burden on the wife to show that the property did'not come from the husband. Ciarle v. Viles, 32 Maine, 32; Eldridge v. Preble, 34 Maine, 152, were decided under that statute.
    Stat. 1847, c. 27, materially modified the statute of 1844.
    What are the circumstances declared which render property of the wife liable for the debts of the husband ? In the first place, the statutes declare generally that all property of which a married woman becomes seized or possessed by direct bequest, demise, gift, purchase or distribution, in her own name, &c., shall be " exempt from the debts of her husband.” In the next section it is provided that, " if it shall appear,” &c., then the same shall he held " for the payment of the prior contracted debts,” &c. The statute, reversing the rule of 1844, required distinctly that the whole proviso must " appear” before it can be of force. Now it cannot be said, by any construction of language, that in this case it " appears” that the property of the husband has in any way gone into this vessel. Apply the ordinary rules, and, though nothing appears one way or the other, it would be presumed that the bill of sale was for full value from the person to whom it runs. Refuse to apply them, and, whatever may be presumed, nothing would appear on that point from the evidence in the case.
    Another rule of construction is, that when a general rule is prescribed in one section, and exceptions are made in a subsequent section or, indeed, in a subsequent clause, the party who would avail himself of the exceptions, must allege and prove them. In stat. 1847, the general rule is made in the first section, and no mention is made of the exceptions, of which defendant seeks to avail himself, until the second section.
    Section 1, c. 61, R. S., is entirely a revision from the then existing statutes; and, although considerably abbreviated, makes no change of any of their leading principles, but adopts, so far as consistent with abbreviation, their very phraseology. The various provisions of the stat. of 1847 assume precisely the same order in the codification, and what, in the statute of 1847, followed in a distinct section, here follows in a distinct clause.
    
      Tollman & Larrabee, contra.
    
    " In the absence of clear and satisfactory proof that property purchased by the wife, after marriage, was paid for out of her own separate funds, the presumption is, that it was paid for by means furnished by the husband.” Bradford’s Appeal, 29 Penn. State Rep., 513, (5 Casey.) "Evidence that she purchased it “amounts to nothing, unless it. be accompanied by clear and satisfactory proof that she paid for it with her own separate funds.” Ib., 515.
    "A married woman, who claims money in the hands of another as her separate property, must show that she acquired it in her own right. The husband is presumed to be the owner of-all the personal property possessed by the family until the contrary appears.” 31 Penn. State Rep., 328, (7 Casey), Topley v. Topley; 35 ib., 375, Hallowed v. Horton; 39 ib., (3 Wright, 129), Robinson & Go. v. Wallace.
    
    
      Brans, in reply.
    A Pennsylvania decision should not be of such authority with our Courts as to compel a disregard of principles of evidence and construction generally acknowledged in our State, especially in those matters relating to the rights of married women, as the statutes on that subject and the decisions relating to them, are hardly alike in any two States.
    Neither of the cases pretends to state any principles of construction to sanction their position. They all rest solely on the alleged reason that the statute would operate unjustly, unless the Court presumes that all conveyances to married women are fraudulent as to their husbands’ creditors, and throws the burden of proving otherwise on them. When such an argument is used, not in cases of very doubtful construction, but to add to a statute what plainly is not contained in it, and to overthrow the established presumptions of the common law, it should be addressed, rather to the Legislature, than to the judiciary. In this State, the Legislature has refused to admit the force of such an argument, as we have already shown in examining the phraseology of the-statutes of 1847. On the other hand, the Pennsylvania statute, which will be found cited in Kenney v. Good, 9 Harris, 349, does not contain the decisive phraseology of our statutes, which alone is sufficient to decide this case.
   The opinion of the Court was drawn up by

Appleton, C. J.

By the statute of 1844, c. 117, it was enacted that " any married woman may become seized of any property, and in her own name, and as of her own property ; provided it shall be made to appear by such married woman, in any issue touching the validity of her title, that the same does not, in any way, come from her husband after coverture.” By this Act, it will be perceived, the burden was on the wife to prove that the estate in controversy did not come from the husband. She must make it so to appear. Eldridge v. Preble, 34 Maine, 148.

By the Act of 1847, c. 27, "any married woman maybe-come seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name and as of her own property, exempt from the debts or contracts of her husband, provided that, " if it shall appear that the property so possessed, being purchased after marriage, was purchased with the moneys or other property of the husband, or, that the same being the property of the husband, was conveyed by him to the wife directly or indirectly, without adequate consideration, and so that the creditors of the husband might thereby be defrauded, the same shall be held for the payment of the prior contracted debts of the husband.” This statute requires that the proviso must appear — must he shown to be true— before it can have effect, and relieves the wife from the burden of proof resting upon her by the Act of 1844, c. 117, and imposes it upon the creditor who would impeach her title.

The proviso of the Act of 1847 is substantially adopted in R. S., 1857, c. 61, § 1, by which it was enacted that " when payment was made for property conveyed to her, (the wife,) from the property of her husband, or it was conveyed by him to her without a valuable consideration, it may be taken as the property of her husband to pay his debts, contracted before such purchase.” When a party alleges the existence of facts authorizing the seizure of property, the title to which is in the wife, wherewith to pay the debts of the husband, he must establish their existence by proof. The burden is on him.

The bill of sale of the vessel to the wife, reciting payment therefor by her, makes out a prima facie case of title in her. The creditor who denies-its validity, must impeach it by proofs. The statute authorizes the wife to take a conveyance, and her rights, under'it, are entitled to the protection afforded other grantees.

The ruling at Nisi Prius was erroneous.

Exceptions sustained.

Cutting, Davis, Walton and Barrows, JJ., concurred.  