¶1There was no evidence that, subsequent to the maturity of the notes on which the appellant had obtained judgment, the husband had made a gift to the wife of any part of the property in controversy. And for this reason, if not for others, the first instruction to the jury was properly refused. Instructions based partly or entirely on a state of facts not appearing in the evidence are abstract, and it is not error to refuse them. 1 Brick. Dig. 338, § 41.
¶2The second and third instructions are based on the hypothesis that, at the time of the levy of the execution, the defendant, the husband, had possession of the property. There was evidence that prior to the creation of the debt to the appellant, the husband had given the wife a part of the property, and that the other property, though purchased by the husband in his own name, was purchased for the wife, and paid for by her, with her own moneys. If these facts be true, though the -husband and wife were living together in the same -house in which the goods were, the law referred the possession to the title. The principle is general, if not universal, and of frequent application to the relation of husband and wife, that when two persons have a common or joint *636possession of personal property, the law refers the possession to the title. Newbrick v. Dugan, 61 Ala. 251; Bragg v. Massie; 38 Ala. 105. These instructions ignored the evidence tending to show the title and possession of the claimant, and were properly refused.
¶3It was doubtless true, under the law creating the separate estates of married women, existing prior to the act of February 28, 1887, now forming sections 2341-51 of the' Code, a gift or other transfer of personal property to the wife by the husband created in her an equitable, not a legal, title, upon which she could not support a claim to a trial of the right of property,if'a levy was made upon it as the property of the husband. Bush v. Henry, 85 Ala. 605. But by the express words of the present statute, intended to abrogate the preexisting rule, property acquired by gift from or a contract with the husband 'becomes the separate-estate of the wife, and for the recovery of such property she is endowed with full capacity to sue as if she were a feme sole The error which seems to pervade the argument of the appellant is that such gift or conveyance now creates only an equity,not a legal title, and the error, it is probable, contributed to induce the instructions requested.
¶4We cannot say there was error in the refusal of the instructions requested; and manifestly the verdict of the jury is not so unsupported by the evidence, as that the court was required to grant a new trial. In no aspect of the case, do we find error in the record, and the judgment must be affirmed,