Flournoy

This is an action brought by a wife against her husband to recover upon a promissory note, and for money had and received. The defendant set up a counterclaim for money loaned. The court below found in favor of the plaintiff on the note, and for a part of the amount claimed by her for money had and received, and allowed the defendant a part of his counterclaim. The plaintiff appeals on the judgment roll. There is no controversy as to the correctness of the finding and judgment upon the note and the counterclaim. The contest *290 is as to the amount allowed the plaintiff for money had £nd received. The real matter of controversy is as to the character of certain moneys claimed by the wife, whether the same was her separate estate or community property.

The facts, as disclosed by the findings, are these, in substance: That certain real estate was sold to the plaintiff for $4,750, and a deed therefor executed to her; that it was the intention and expectation of the parties that the consideration therefor should be paid by the plaintiff out of her separate estate, and that thereupon the property should be her separate property; that, on the day said real estate was purchased, the…