Nunn's Adm'r v. Givhan's Adm'r. arate use, and said estate was so set apart to her by decree of the chancery court of Lowndes, in 1846." Mrs. Givhan married in 1836. Her father, Drury Fort, died intestate the same year, leaving a large estate, which descended to her and her brother, John Fort. Her brother died intestate in 1845, leaving her his sole heir. Givhan having become deeply involved, and his creditors having already seized on legal process a number of negroes received by him as part of Mrs. Givhan's share of her father's estate, Mrs. Givhan filed her bill in the chancery court of Lowndes in the year 1845, praying that all of the estate of her father and brother in the hands of her husband, as well as that part yet to be received by her, be settled on trustees to be appointed by the court, to her sole and separate use during her natural life; and at her death to her children. At the June term, 1846, Hon. Anderson Crenshaw, Chancellor, granted the relief prayed for, and decreed, among other things, "that all of the property of the estates of the father and brother of complainant in the hands of her husband, George Givhan, as well as that part of said estates not yet administered, to which complainant is heir, be settled in trust for the sole and separate use of complainant during life, and at death to her lawful heirs. * * * * * That the master sell the lands, &c., on a credit of twelve months, and that the proceeds of the sale be settled in trust for the sole and separate use of Sarah L, Givhan, during life, and at her death to her lawful heirs, &c. That the master appoint a proper and suitable person trustee, to take charge of the trust estate hereby contemplated, and that he give bond, &c., for the faithful performance of his duty, and to account annually, and to abide such order and decree as may be made touching said trust property." Under this decree, a trustee was appointed by the register, but no sale of the land was made, and nothing else seems to have been done under the decree. The bill is filed by Theodore Nunn, as administrator of David Nunn, deceased, against Mrs. Givhan, and seeks to charge the lands, or the rents and profits thereof, as may be necessary, held by her (under the decree of the chan Nunn's Adm'r v. Givhan's Adm'r. cery court heretofore set out,) with the payment of the notes. Geo. Givhan, husband of appellee, died in 1864, and his wife administered his estate, which had been duly declared insolvent, &c. Philip Givhan left no estate. Mrs. Givhan is the sole defendant to the bill. In 1867 the death of Mrs. Givhan was suggested, and the cause revived against her administrator. She left surviving her two children of full age. There was an answer by the administrator, who assigned numerous grounds of demurrer to the bill, &c.; but in the view taken of the cause by the court, it is unnecessary to notice them, or the cross bill filed by one of Mrs. Givhan's children. The chancellor dismissed the bill on final hearing, and taxed complainant with the costs, and hence this appeal. The decree of the chancellor is now assigned for errcr. R. M. WILLIAMSON, for appellant.-1. The first question is, did the decree vest the property in Mrs. Givhan immediately, or was it conditioned upon a sale of the land? For the purpose of vesting immediately in such cases, the law considers land, when it is directed to be sold and the proceeds disposed of, as money to carry out the disposition. Wheeldale v. Pachridge, 5 Ves. 395; Fletcher v. Achbronin, 1 Bro. C. C. 497; High v. Worley, 33 Ala. 196. 2. The legal title was never vested in the trustee, but he was to take "charge and management" of it. But if the legal title vested in the trustee, it would make no difference.-See Blevins v. Buck, 26 Ala., in which the property was vested in the trustee. 3. The fact that the trustee was to abide the direction of the chancellor, is nothing more than any trustee must do. The wife's right of disposition is independent of the trustee, unless the deed restricts. The property, in Blevins v. Buck, supra, was settled by the decree in a trustee for support, and maintenance, and a new trustee was appointed, showing that it was an estate arising out of chancery. 4. That the complainant has no remedy at law.- Vance v. Wells, 6 Ala. 737; S. C. in 8 Ala. 399; Blevins v. Buck, supra. Nunn's Adm'r v. Givhan's Adm'r, 5. The equitable remedy against the separate estate of the wife is independent of the liabilities of the husband, and can be proceeded on as if her agreement was separate from his obligation.-Bradford v. Greenway, 17 Ala. 797. 6. It is not necessary to create the charge that the intention to do so, should be stated in the contract.-Ozley v. Eikelhemer, 26 Ala. 332; Bradford v. Greenway, supra; Collins v. Rudolph, 19 Ala. 616; Watkins and Wife v. Smith, 28 Ala. 569; Stewart v. Kirkwell, 3 Mad. 387. 7. The heirs of George Givhan have no interest in the subject matter of this suit, and they would be improper parties. The direction of the chancellor was asked as to making proper parties. 8. The bill charges that defendant holds the property as her "sole and separate estate," and refer to the decree as the source from which she derives her title, which is at the command of this court. That the averment is sufficient, see Cowles v. Morgan, 34 Ala. 535. 9. That fact that the estate is a trust estate, does not disable the wife from charging for her contracts, and the assent of the trustee is not necessary.-Blevins v. Buck, 26 Ala. 292; N. A. Coal Co. v. Dyett, 7 Paige, 1. 10. The decree is the source from which defendant derives title; the words used convey an absolute estate to Mrs. Givhan.-Ewing v. Standifer, 17 Ala. ; Lloyd v. Rambo, 29 Ala. 11. The court, under the circumstances, had jurisdiction to settle the real estate to the sole and separate use of the wife; it was done at the request of the wife, and by consent of the husband. She derived an advantage from the settlement, for by it her husband was deprived of the rents for life, by the courtesy.-Haviland v. Meyers, 6 J. R. C. 25. 12. The land, by the decree, was changed from real to personal property. Cox & WITCHER, contra. [Appellee's brief did not come into Reporter's hands.] PECK, C. J.-This court, following the English decis Nunn's Adm'r v. Givhan's Adm'r. ions, and, we think, in some cases, going even beyond them, has held that a feme covert, having a separate estate by contract, if she makes a promissory note with her husband, for the payment of her own debt, or that of her husband, it will be implied that she thereby intends to make the payment of the debt a charge upon her separate estate.-Bradford and Wife v. Greenway, Henry and Smith, 17 Ala. 797; Collin et al. v. Larenberg & Co., 19 Ala. 682; Collin et al. v. Rudolph, 10 Ala. 617; Caldwell v. Sawyer, 30 Ala. 283; Cowles and Wife v. Morgan, 34 Ala. 535; Gunter v. Williams and Wife, 40 Ala. 561; and other cases. We feel constrained to say we cannot approve of these decisions, so far at least as they are held to apply to notes made for the payment of the husband's debts; as, however, they have become the law of this court, we do not feel at liberty to depart from or overrule them, but we can not consent to extend them to cases not clearly and strictly within the principles settled by them. We think the true rule should be, that if a feme covert, having a separate estate by contract, with her husband, makes a note, bond or other document in writing, for the payment of the husband's debt, that thereby, without more, no charge for its payment is created upon her separate estate; that no implication or inference, in any case, should be made against her, that she intends to make the payment of a note, or other promise in writing, a charge upon her separate estate, unless the consideration thereof be for her benefit; and we should so rule, if it were a question of first impression, in this court. Where the note or written promise of a feme covert makes no direct charge upon her separate estate, it is held that it becomes a matter of intention whether a charge is or is not thereby created. Mr. Story says, "it is agreed that there must be an intention to charge her separate estate, otherwise the debt will not affect it."-2 Story Eq. 1400. But, it is said that by making the note or promise, it is to be inferred, prima facie, that she intends to make its payment a charge upon her separate estate. On this subject, Mr. Story further says in the same section, that "the fact that the debt has been contracted during coverture, either Nunn's Adm'r v. Givhan's Adm'r. as principal or as a surety for herself or her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention to do so." The reason given for this is, that the security must be supposed to be executed with the intention that it shall operate in some way; and that it can have no operation, except as against her separate estate. This may be a plausible reason, where the consideration of the security is for the benefit of the wife; but where the consideration is not for her benefit, it seems to us to be an unsafe, if not wholly an insufficient reason, to justify a court of equity in decreeing the payment of the debt against the wife's separate estate. We feel persuaded that this supposed intention, in a large majority of cases, will be found not to accord with the truth, when considered in connection with the many influences that may be, and no doubt too often are, brought to bear, upon a loving and trusting or a timid and fearing wife; influences that can seldom be proved, and, if proved, can hardly be justly estimated or duly appreciated by either judge or court. Without saying more on this subject, but confining the foregoing decisions to cases where the separate estate is created by contract, we think it manifest the appellant is not entitled to the relief prayed in his bill of complaint. The lands out of which he seeks the payment of the notes named in his bill, came to Mrs. Givhan by descent from her father and brother, and were not, in any sense, her separate estate; her husband, by his marital rights, being entitled to the possession and to the rents and profits during the coverture; she had, therefore, no power to charge them with the payment of either her own or her husband's debts. The decree of the chancellor, on her bill filed in 1845, was not intended to settle these lands on her; the prayer of the bill was, that the lands might be decreed to be sold, and the proceeds of the sale, when realized, be settled in the hands of a trustee to the separate use of herself for life, and after her death to her children. The decree conforms to the prayer of the bill, and directs |