By the Court,

On the 13th of November^. 1856, the premises described in the complaint, for a consideration expressed in the deed of $3,000, were conveyed by one George W. Brown to the defendant, Jane E. Fuller, who was then the wife of Silas Fuller. The purchase money was paid out of funds belonging to the separate estate of Mrs. Fuller. On the third day of November, 1859, Silas Fuller, at that time the husband of defendant, Jane E. Fuller (but who was very soon afterward separated from her by a decree of divorce), executed a conveyánce of said premises to L. L. Lawrence. Said Lawrence, on the 11th of August, 1860, conveyed to defendant Summers. These deeds were regularly acknowledged and recorded. Both Lawrence and Summers took their respective conveyances with actual knowledge of the fact that the consideration of the conveyance from Brown to defendant, Jane E. Fuller, was paid out of the separate estate of Mrs. Fuller. On the 15th of June, 1861, defendant, Summers, executed the mortgage in suit to one Alexander G. Bamsdell, to secure the note set out in the complaint, which note and mortgage were afterward assigned to plaintiff. There is nothing, other than the record of the deed from Brown to Jane E. Fuller, to show that plaintiff, or his assignor, the mortgagee in said mortgage, had notice at the time of the execution and assignment respectively of said mortgage, that Mrs. Fuller claimed the land, or that the purchase money was paid to Brown out of her separate estate. Subsequent to the execution of the mortgage, the defendant, Jane E. Fuller, in an action instituted for that purpose against defendant, Summers, recovered the premises in question. Plaintiff brought this action to foreclose the said mortgage, making Mrs. Fuller a party defendant.

*42 The defendant, Jane E. Fuller, in her answer, set up her title as aforesaid, alleging plaintiff’s mortgage to be a cloud upon it, and asking, as affirmative relief, that the said mortgage be declared null and void as against her, and that the same be set aside, and be removed as a cloud on her title to said premises. The facts having been found upon the trial as herein stated, a judgment was entered in accordance with the prayer of the answer of defendant, Jane E. Fuller; and from that portion of the judgment this appeal is taken.

Conceding Mrs. Fuller to have a valid title as against the plaintiff’s mortgage, there can be no doubt that the mortgage is a cloud upon it, which will be removed, within the principle of the case of Pixley v. Huggins, 15 Cal. 130 , and numerous other cases. Property purchased -during coverture with funds which constitute a part of the separate estate of the wife, will also be her separate estate. Such a transaction would only be changing the form of the property, which is already held as separate estate, without in any degree affecting its character as separate property. '

In Houston v. Curl, 8 Texas, 242 , the Court say: “It is the settled doctrine and law that property purchased during the marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. This presumption may he rebutted by clear and satisfactory proof that the purchase was made with the seporate funds of either husband or loife—in which case it remains the separate property of the party whose money ivas employed in the acquisition.” (See, also, Meyer v. Kinzer, 12 Cal. 252 .)

The poWer to change the form of the investment, without impairing the right of the wife, is absolutely essential to the full beneficial enjoyment of her separate estate.

A presumption arises from a conveyance to a married woman upon a money consideration that the property conveyed is common property. But this is only a presumption of law arising from the fact, that a purchase has been made during coverture, and the real character of the transaction may be shown. It is much easier for the party purchasing *43 land to show affirmatively, that the funds used are separate property of the party purchasing, than for others interested to show negatively that they were not. The evidence is peculiarly within the knowledge and control of such party. For these and other reasons, when the fact is required to be proved, the law throws the burden of identifying the funds as a part of the separate estate upon the party claiming the benefit of such estate.

In this case it was shown to the satisfaction of the Court, that the premises in question were purchased with funds belonging to the separate estate of the wife. They became, therefore, in fact, her separate property. The conveyance was upon its face to the wife. The apparent record title was in her, and not in her husband, Silas Fuller. The deed is sufficient in law to convey a title to the wife, but whether it did, in fact, convey an estate in common, or a separate estate, manifestly depended upon a fact dehors the deed. Ostensibly the intent was to vest the title in. the grantee named, Jane E. Fuller. It did not appear on the face of the deed that the grantee was a married woman—or that, being a married woman, the consideration was paid out of her separate estate. The deed, then, so far as shown on its face, might have conveyed a title absolute to a feme sole; a separate estate to a feme covert; or an estate in common to husband and wife. Upon the best view for plaintiff, the deed upon its face was equivocal. But it afforded to all persons seeking to acquire title under it a clue to the title, which they were bound to pursue, or suffer the consequences of their loches. The grantee is a woman. The presumption of law is that she is sole, and prima facie a conveyance from her would pass the title. But she may be married, and her deed may not pass the title. The fact as to whether she is married or single, all parties dealing with the' land must ascertain, or omit to do so at their peril. So, also, if a grantee of a conveyance for a money consideration is a married woman at the date of the conveyance, prima facie a conveyance by the husband in his own name, of the land so conveyed to the wife, will be presumed to pass the title; but *44 in fact it may not, for the reason that the land may still be the separate property of the wife, which he has no power to convey. Aud in such cases, as in the case last mentioned, all parties claiming title through the husband to lands, the title to which never stood in his name, must ascertain, at their peril, whether he did in fact have the power to convey.

The record title in this case was notice to all the world, that the land in dispute might be the separate property of Mrs. Fuller, and every party dealing with it, did so at his peril. The plaintiff was by the record put upon inquiry as to the true condition of the title. The grantee upon the record was capable of taking the land, and was a different person from the one from whom the plaintiff derives his title. If the plaintiff did not avail himself of the means afforded by the record to ascertain the true state of the title, it is Ms own fault, and he cannot claim to be an innocent purchaser. He stands in no better position than he would had he taken bis mortgage from Fuller himself. We think the judgment fully supported by the pleadings and the facts found.

It is therefore affirmed.