78 Ala. 533
Ala.
1885
STONE, C. J.

On the 10th day of January, 1868, Joseph McCullough, by deed absolute in terms, conveyed certain described lands “to Thomas McCullough, as trustee for my [his] wife Mary.” The consideration of the deed is thus expressed : “For and in consideration of being indebted to my wife, Mary A. McCullough, an amount of her separate estate received by me in the sum of four thousand dollars in money.” The habendum clause is as follows: “To have and to hold to him, the said Thomas McCullough, as trustee for my said wife Mary; the same to be held and enjoyed by her in all respects as her separatе estate under the laws of Alabama, and the same to be held, governed and controlled, in all respects by the statutes of said State respecting the separate еstates of married women, he, the said Thomas McCullough, being the more depository of the legal title to said property, and not to be responsible for the same, or any рart thereof,” &c.

On the 6th day of January, 1874, the said Joseph McCullough and Mary A., his wife, conveyed said lands by mortgage to E. Blum, to secure, among other things, their joint note to him in the sum of one thousand dollars, due September 1st, 1874. The present bill was filed to foreclose said mortgage. It avers that the debt is due and unpaid, and “that on, to wit, the 15th day of February, 1876, said note and mortgage were duly assigned and transferred by said Blum to your orator” [Loeb], who now owns the same.” There was a demurrer to *535the bill, which the chancellor sustained; and from that decretal ordеr this appeal is prosecuted. The grounds of the demurrer are, in substance, first, that Blum, the mortgagor, is not made a party; second, that Mrs. McCullough’s estate in the lands was' and is statutory, аnd that she could not bind if by mortgage.

An amended bill was filed, which avers that certain other named persons, ‍​​​‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌​‍whom it makes defendants, claim some interest in the lands mortgaged.

The theory of the bill is, that Joseph McOullongh’s conveyance, for the benefit of his wife, makes Thomas McCullough a dry trustee, charged with no duties ; and that inasmuch as our statute of uses, ex proprio vigore, transfers-suсh title to the beneficiary, the legal effect of the deed was and is the same as if Joseph McCullough had conveyed the lands directly to his wife. — Code of 1876, § 2185; You v. Flinn, 34 Ala. 409; Webb v. Crawford, 77 Ala. 440. And, second, the cоnveyance, being in legal effect from husband directly to his wife, vested in her an equitable title, which she had capacity to charge, and did charge by her mortgage. — -McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Seals v. Robinson, 75 Ala. 363; Meyer v. Sultzbacher, Ib. 423 ; Powe v. McLeod, 76 Ala. 418; McIlwain v. Vaughan, Ib. 489; Washburn v. Gardner, Ib. 597.

We need not decide whether there is, in this case, anything to take it out of the operation of the rules stated above. We think, however, that taking the bill as framed, it does not fall within these rules. The deed from Jоseph McCullough to Thomas McCullough, for the use of Mary A. McCullough, is made a part of the bill. That deed recites that Joseph McCullough had used four thousand dollars, the separatе estate of his wife. Made at the time that deed was — some eighteen years after the enactment of the statute of 1850 securing to married women their separate estаtes — we must presume, in the absence of averment to the contrary, that her said separate estate was statutory. — Patterson v. Kicker, 72 Ala. 406. The deed further recites, that the conveyance is madе in consideration of said moneys, the separate estate of Mrs. McCullough, so used by her husband. Taking this to be true, as we must on demurrer, the land is made to take the place of her money. And ‍​​​‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌​‍we may ask, did the parties intend tn mnvwt hp.r statutory estate into an eqiiitabla-n.np.? The language of the deed repels snch TñtJntvirvn Tt.._ nr»mroya~t.hp lnnH urn Ko halrl hy hw in ali~ respects as her seрarate estate under the laws of Alabama.”

In Seals v. Robinson, 75 Ala. 363, the deed which that suit sought to have set aside, as fraudulent as against creditors, was made directly by the husband to the wife, on a consideration of love and affection, without any valuble consideration expressed.

*536It, like-the present deed, conveyed the property to the wife, “as her separate property under the statutes of the State governing the estates of married women.” The fact that, under the law, the husband is entitled to receive as trustee the rents, incоme and profits of the wife’s statutory estate, without liability to account for the same, was held in that case to be a badge of fraud, showing an intention in the husband to secure a bеnefit to himself. It was not announced that the conveyance created a statutory estate; but the result of the ruling was, that the words had some operation. We need not, and do not decide, whether the husband, by deed directly to his wife, or by conveyance for her benefit made to a dry trustee charged with no duties, can clothe the wife with a statutory еstate. Such deed being inoperative at law as a transfer of title, can it have any effect save in a court of equity ? However the question propounded abovе, but not answered, may be determined, there can be no question, that the words employed prove clearly that there was no intention to create an equitable seрarate estate. ['Nor can husband and wife, by mere contract between themEselves, convert her statutory into an equitable separate estate. Code of 1876, § 2709; Coleman v. Smith, 55 Ala. 368 ; Lee v. Lee, 77 Ala. 412: Hardin v. Darwin, Ib. 472. The stаtute gives her no power to effect such change, and she is under all the disabilities of coverture, save those of which the statute has expressly relieved her. Chancery can relieve her of some or all of the disabilities of coverture, as she may claim and obtain relief under one or other sections of the Code of 1876, §§ 2717-18, 2723, 2728, 2731; Lee v. Tannenbaum, 62 Ala. 501; Hatcher v. Diggs, 76 Ala. 189 ; Meyer v. Sultzbacher, Ib. 120; Warren v. Wagner, 75 Ala. 188; Falk v. Decht, Ib. 293; King v. Bollng, Ib. 306.

And there are rеasons — cogent reasons — why the husband will not Ire allowed to contract with his wife for the conversion of her statutory into an equitable estate. The statute forbids them to contrаct with each other, for the sale of any property; and if by mere agreement between themselves, the statutory estate can be made equitable, then, by the emplоyment of such influence as the law presumes the husband exerts over the wife, he can induce her to make such change in the terms by which she holds her property, as that she may pledge it indefinitely for the payment of his debts, and even convey it to him as a gift. This, too, while the law makes him her trustee — a relation which is supposed to arm the fide-comtnissary with so grеat power and such alluring temptations, that chancery will not allow him to make a profit, or even to traffic in the subject of the trust. And we may well inquire, why has the legislature felf itself so often 'called upon to provide the means of *537relief from the disabilities, total or partial, under which married women labor, if a mere private agreement of the рarties can accomplish the same result, without delay or expense? ‍​​​‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌​‍We hold that, by no contract between husband and wife, can; her statutory separate estate be converted- into an equitably estate, with power in the wife to charge it.

In what is said above we intentionally overrule what is said in Turner v. Kelly, 70 Ala. 85, as embodied in the 5th headnote of the report of that case. In the case of Goodlett v. Hansell, 66 Ala. 151, there is’ an expression in the 7th headnote which is not reconcilable with our views. The exact statement, as there expressed, is nоt found in the opinion, and it may admit of doubt whether the author of the opinion intended to be so understood. Whether he did or not, it does not seem to have been necessary tо a decision of the case. Wo decline to follow it, so far as it conflicts with our views expressed above. — See Sawyers v. Baker, 77 Ala. 461.

In Washburn v. Gardner, 76 Ala. 597, we left the question open, whether we would follow the rule laid down in McMillan v. Peacock, 57 Ala. 127, which interpreted а conveyance by husband directly to his wife as the ‍​​​‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌​‍equivalent of a conveyance to her sole and separate use. The ruling in McMillan v. Peacock has been so often followed in this court, that we decline to disturb it. If it be desirable to change it, the legislature can administer the proper relief, without the hazard of disturbing possessions that may rest on our many rulings which have follоwed that case.

Should there be an attempt to amend this bill, by showing either that Mrs. Mary McCullough’s estate, alleged to have been converted by her husband, was equitable, or that she hаd either no such estate, or that it was insufficient in amount to justify the conveyance made; or that it had not been used or converted by her husband, — then it will be well to consider the terms оf the alleged assignment of the mortgage by Blum to Loeb. If it did not transfer the legal title of the mortgaged premises to the latter, Blum should be made a party, so as to bring that title beforе the court.— Welsh v. Phillips, 54 Ala. 309; Buell v. Underwood, 65 Ala. 285; Prout v. Hoge, 57 Ala. 28 ; Fulgham v. Morris, 75 Ala. 245. _

The bill, in its present form, does not entitle complainant to relief, and the decretal order of the chancellor is affirmed.

Our brother Somerville concurs with us in holding the decree of the chancellor should be affirmed. He prefers, however, to place his conclusion on other grounds, and not now to inquire into or disturb the ruling in Turner v. Kelly, supra.

*538"Without intending to express either assent to, or dissent from his views, ‍​​​‌‌‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌‌​‌​‌​​‌‌‌​‌‌‌‌​‍we leave it for him to declare them, should he wish to do so.