¶1If the evidence offered by the plaintiff in the original action is insufficient to show that Samuel Mills took possession of all the proceeds •of sale of his wife’s real estate, her admissions offered by the defendant make the proof complete even as to the $20,500 cash payment. It is plain also from all the evidence that she consented to such possession; but the chief question is whether he reduced the property into his possession with her assent within the meaning of the act of 1861 (58 O. L. 54) as to $20,500 and the act of 1871 (68 O. L. 48) as to $6,000 of the sum sued for.
¶2*78The evidence clearly shows that the husband intended and did appropriate the notes and money of .the wife to his own use. During' the remainder of his life, a period of nearly thirty years, he rendered no account to her of the principal or the interest, and she requested none; but on the contrary repeatedly said that there was only one pocketbook in the family, and after his death she elected to take under a will which purported to dispose of all the property standing in his name without acknowledging any indebtedness to or claim in favor of her, and at the same time she declared that her property had been “given over to Mr. Mills and he should dispose of it as he felt like;, that she was satisfied.” This declaration was not an attempt to dispose of her property at that time, nor merely a ratification of the acts, of her husband, but was a statement of a past transaction whereby she had made a gift of her property to him. It was made when the subject under consideration was her property and property rights — when the influence and restraint, if any, of her husband were removed, and was; a frank and natural explanation of the conduct of both of them with reference to her property, which could not have been explained in any other way without reflecting on the honesty and fidelity of her husband.
¶3While it is true that Judge Ferris, who was present, does not recall his declaration, yet it does not affirmatively appear that he was in a position to hear everything that was said. He was there for the purpose of obtaining her election under the will of her husband, and was not concerned with other matters discussed. It appears also that he recalls a declaration that the witness Catherine Lynskey. does not, although she did remember a like declaration made by Mrs. Mills at other times, to wit, “There was only one pocketbook.” This failure of the two witnesses to recollect all that was said on that day is not unusual, but rather to be expected.
¶4The declarations of Mr. Mills "I have money of your aunt’s to> invest” and “This is your aunt’s money” relate to no particular sum and were made many years prior tó' that of Mrs. Mills. While they could apply at the time to a part of the fund in controversy,'yet they would cease to apply if Mrs. Mills subsequently assented to a reduction into possession of such fund by her husband, and that is the effect of her declaration. The very term “reduction into possession” implies an initiative on the part of the husband and the assent, if given, is a subsequent act of the wife either expressed or implied. It seems clear to us that Mrs. Mills gave her express assent that her husband might, use the fund in his possession for his own benefit.
¶5*79The doctrine of stale equity or laches does not apply, the action being one at law and governed by the statute of limitations which did not begin running during coverture.
¶6The refusal to open up the case after final submission to hear newly discovered evidence material to the defense which could not with, reasonable diligence have been obtained before, is also a ground of error. The proposed evidence so far as it relates to payment by Samuel Mills of his wife’s debts was not cumulative, but was an entirely new and distinct kind of evidence directed to a different defensél The circumstances of the discovery are such that it may fairly be .said that the evidence could not with reasonable diligence have been sooner discovered. It was the result of chance or good fortune, more than diligent search and inquiry.
¶7It is claimed, however, that the evidence is inadmissible, because the presumption is that when a man pays the debt of his wife with his own money a gift is made, and numerous authorities are cited which hold that where the husband buys land, pays for it, and causes it to be conveyed to his wife, or expends his own money in the improvement of her property, the law, in absence of proof to the contrary, presumes it to be a gift. In all of these eases the payment or conveyance was wholly voluntary and naturally led to the conclusion that it was a gift.
¶8The proposed evidence showed that the wife was largely indebted to the firm of Mills, Spellmire & Co., of which her husband was a member, for a balance due for the construction of a building on one of the lots in question — that he paid such debt or a part thereof; that a short time thereafter the premises were sold, and that the proceeds of sale came into his possession and were retained until his death. While there was no legal liability imposed on him to pay the debt, it was not a mere voluntary payment intended to enhance the value of her property, but to preserve that which she had, and when he took possession of the proceeds of sale, ever after retaining them,,the presump-, tion of a gift is rebutted, or at least a reduction into possession with her assent is shown, to the extent of the debt paid. Counsel for defendant in error insists that Samuel Mills, almost from the date of his marriage, assumed control and management of his wife’s estate and became her trustee or agent; but he seems to deny him the right to credit himself with payments made in the interest of the trust and while •acting as such trustee or agent. The same rule that required htm to account for all money received as agent or trustee allowed him a credit for all payments, made in that capacity. The cash book of Mills, Spell-mire & Co. was competent evidence under Sec. 5242, Sub. 6, Eev. Stat., *80of payment by Samuel Mills of his wife’s debt to the firm or other creditors. -
¶9The entry in his diary purporting to be the result of an examination of his account as shown by the books of Mills, Spellmire & Co., some of which had since been destroyed by fire, and being against interest when made, was admissible as evidence of payment or assumption of payment of his wife’s debt.
¶10The evidence offered, if uncontradicted, would have required a different judgment; but as the application was not made by motion for a new trial under Sec. 5307 Rev. Stat., nor by petition under Sec. 5309 Rev. Stat., there was no error in overruling the same.
¶11The judgment, being manifestly against the weight of the evidence, is reversed and the cause remanded for a new trial.
¶12Decision on Rehearing,
¶13It is settled law in this state that a written assignment is unnecessary to complete a gift inter vivos of a note or other evidence of indebtedness. Polly v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A. 858]. And while the evidence must be clear and convincing, there is no rule of law requiring it all to be direct and positive.
¶14The admissions of Mrs. Mills, if made, are direct evidence of the facts stated, which considered together show her assent to a reduction into possession by her husband of the proceeds of sale of her real estate. The claim of counsel for defendant in error that the declarations of deceased persons are of little, if any, value, is not as a general rule sound. In the case of Larimore v. Wills, Admr. 29 Ohio St. 13, it was held to be reversible error to exclude declarations of the payee of a promissory note that she intended to give it to the defendant, Judge White saying at page 17:
¶15“Where the subject of the alleged gift has been delivered, the intention with which the delivery was made becomes material, and this intention may be proved by the declarations of the alleged donor, whether made at the time of the delivery or not. ’ ’
¶16In the case under consideration the declarations relate not to an intention to thereafter make a gift, but to her assent to the use by her husband for his benefit of property then in his possession. If there be any weakness in the testimony, it lies in the source and not the substance of the declarations. The trial judge makes, in his written opinion, no complaint of the witnesses who testified to the declarations, but *81disagrees with us on their effect; and surely the fact that one óf the witnesses was a nurse or servant in the household should not alone discredit her.
¶17While it is true that no presumption of a gift arises from the possession by the husband of his wife’s property, whether with or without her consent, yet such possession with her consent continued for a period of thirty years without demanding or receiving any account, although the marriage relation was always harmonious and affectionate, is clearly corroborative of the declaration that a gift was made. Mrs. Mills was not, of course, bound to speak at the risk of making trouble in the family; but it was natural that she should and did speak in harmony with her conduct with reference to the property. When therefore, with full knowledge that her husband was using her property as his own, investing part of it in real estate and taking title in his own name, selling part, and reinvesting the proceeds, without in any way recognizing her as a creditor or beneficiary, she makes any declaration upon the subject, the most natural one would be' that it was all done with her consent.
¶18Her will executed before her marriage to Mr. Mills and before the purchase of the property in dispute, and which contains no specific bequest, except of her gold watch, is no more inconsistent with her admissions concerning property in the possession of her husband than her election to take under his will is inconsistent with her right to such property, and for the reason that neither refers, in terms, to that property.
¶19Without her declarations the evidence is insufficient to show that her husband received for her use all the money in question. The stub of a bank check'can rise no higher as evidence than the check itself, which' is only to be regarded as payment, if cashed, unless accepted in absolute discharge of the debt. 2 Daniel, Neg. Inst. Sec. 1623.
¶20The stub of June 6, 1870, shows by a liberal construction only that a check for $6,875, payable to Fanny ,C. Mendenhall, or bearer, was delivered to Samuel Mills as “first payment, house and lot, Sixth street; ’ ’ and no effort was made to prove that the cheek itself was cashed by him or any other person, although a check of the bank on which it was drawn was examined as a witness.
¶21So also the check dated May 29, 1872, for $5,135.58, and the corresponding stub show that it was payable to Fanny C. Mendenhall or bearer, and applied to the payment of “note to S. Mills;” but the note for the purchase money of the Sixth street property due on that day *82bears no evidence by indorsement or otherwise that S. Mills had anything to do with it; and on the day the last note was due, Mrs. Mills joins her husband in the execution of a receipt of satisfaction in full of the mortgage, and authorizes its cancellation of record.
¶22It does not appear from the evidence when, if ever, in what manner, or to whom, the first payment of $2,500 for the George street property was made except by the deed in which both husband and wife acknowledged receipt of the entire purchase money of $6,000.
¶23The purchases of real estate by Samuel Mills in 1885 and 1886 were too remote to prove the receipt by him of money arising from transactions occurring twelve or fifteen years before; nor do they enlarge the declaration that he had money of his wife’s to invest in a particular piece of property and for a particular purpose, so as to-include all the money he invested during that period in other property.
¶24Counsel insist, however, that the trial court was entitled to accept, the declarations of Mrs. Mills to the extent of showing possession and to reject them as evidence of title; but he himself, in his original brief, cites cases to show the indefinite and uncertain sense in which the verb “to give” may be used in connection with personal property. Why then reject qualifying words which make the meaning definite and certain, and add others that restrict the sense to “delivery of possession” only.
¶25In the ease of Liesemer v. Burg, 106 Mich. 124 [63 N. W. Rep. 999], cited by counsel for defendant in error, the defense of payment is, a distinct admission of .the purpose for which the money was received, to wit, for the use of plaintiff; hence it was properly held that he might avail himself of the admission and contradict other portions of' the testimony.
¶26The plaintiff’s cause of action is money had and received for the use of his testator, and the burden of proof is not sustained by showing merely that Samuel Mills had possession of a check and notes given in payment of his wife”s property, although transferable by delivery. It must be further shown that he realized the cash or its equivalent by using the check and notes.
¶27In either view of the evidence, therefore, it is not sufficient to sustain the judgment, and the application for a rehearing will be denied.