BRICKELL, C. J.
These causes, in- all respects but one involving the same questions, and dependent upon the same state *93of facts, were argued and submitted together. The object of' the bill filed by Mrs. Turner, and of the bill filed by Masson, is to condemn to the satisfaction of promissory notes held by them respectively, made by Mrs. Kelly and her husband, the interest of Mrs. Kelly in certain real estate, situate in the city of Mobile, which is averred to be her equitable, as distinguished from her statutory estate. The interest derived by Mrs. Kelly under the conveyance from S. F. Slatter, pending these suits, was sold under a decree of the Court of Chancery, foreclosing a mortgage (the validity and priority of which is undisputed), executed by her and her husband, to secure the payment of the .purchase-money; consequently, the controversy is now limited to the liability of the estate derived by her under the conveyance from her brother, Hope H. Slatter, of date November 6th,. 1869. This conveyance purports to be made in consideration of natural love and affection, and of nine thousand dollars paid by her in money. The hJbendxi/m clause is, to have and to-hold “ as her separate property and estate, free from the debts and liabilities of her husband.” At the time of the conveyance, the estate it passes was of the value of eighteen thousand dollars. Mrs. Kelly had a debt due her from her brother, S. F. Slatter, of about forty-five hundred dollars, and moneys-coming to her from the estate of a deceased uncle, in the hands of his executors in New Orleans. "With this debt, and from the moneys in New Orleans, the moneyed consideration recited in the- conveyance was paid, the debt and money being her statutory estate. The object of the grantor was to make a gift .to her of one-half of the interest, and an investment of the debt and money, so that her husband could not- waste or. squander them.
A clear and unequivocal intention to exclude the common-law marital rights of the husband — to create a separate, independent ownership in the wife, free from the control or interference of the husband — is essential to the creation of an equitable separate estate. Particular language, technical forms of expression, need not be employed, though they may be more appropriate, and may not leave the intention embarrassed by doubt, or give room for controversy as to its existence. The question is one of intention; and whenever that can be clearly and certainly collected from the instrument creating the estate, or from the terms of a gift, the equitable estate arises.—Newman v. James, 12 Ala. 29; Brown v. Johnson, 17 Ala. 232;. Jenkins v. MoConico, 26 Ala. 213. Nor is it material in what’ part of the instrument the words excluding the control and interference of the husband; and declaring the independent ownership of the wife, may be found. The habendum clause of a. deed may not be'the ap test place for their insertion; yet, if *94found there, and they clearly indicate an intention to vest the entire interest in the wife, excluding the husband, the intention must prevail. The gift in the present case, as expressed in the habendum clause, is to Mrs. Kelly, as her separate property and estate/ and excluding the right of the husband, or ownership in any other person tiran the wife, creates an equitable separate ■estate. When the word separate is employed, as indicating the character and quality of the estate or ownership of a married woman, it would be difficult to understand it as signifying more or less than an estate or ownership unconnected with, severed and disunited from her husband.
2. As to her equitable separate estate, the doctrine which has prevailed in this court is, that in a court of equity she is to be regarded as a femme sole, capable of binding the estate as fully as if she was sui juris, unless her power is expressly, or by necessary implication, limited and restrained by the instrument creating the estate. Her engagements and contracts, whether verbal or written, with or without seal, in the form of negotiable paper, or of paper not negotiable, — whether she is a principal debtor, or a surety, — are her debts to the payment of which her equitable estate is liable. Entering into such engagements and contracts, on her own account or credit, and not on that of her husband, the intention to keep and perform them must be presumed, as is such intention imputed to those 'who are sui juris, when they enter into contracts and engagements. Of course, they are not legal contracts or liabilities, on which remedies can be pursued in courts of law, nor do they bind her personally. Her capacity is to charge or bind her . equitable estate; and while it can not be extended further, to that extent is plenary, thg instrument creating the estate not limiting or restraining it.—2 Brick. Dig. 86, §§ 211-15; Short v. Battle, 52 Ala. 456. Some dissatisfaction with this doctrine was expressed in Nunn v. Givhan, 45 Ala. 375; but it was said, while it could not be extended to cases not clearly and strictly within the principles settled by former decisions, it could not be departed from, or overruled. It is too well settled, by an unbroken current of judicial decision, from the time the question -was first presented in this court, — is too much relied on in the transaction of business, and the foundation of the title to too much property, — for any disturbance of, or departure from it, whatever may be the individual opinions of a
Whether the debt to Mrs. Turner was contracted through the agency of Mrs. Kelly, or of her husband; whether the money borrowed was applied to her uses, or to the use of, or wasted by the husband, is not material. She joined in the note given for it, and she had full capacity, by joining in it, to *95bind lier eqxiitable estate, whether she made the contract, and was the recipient of the consideration, or whether her husband made it, receiving the consideration, and she was only his surety. Standing in a court of equity as a femme sole, with the capacity to hold and dispose of her equitable estate, her capacity to contract debts, and assume liabilities, so far as her estate is concerned, is that of a femme sole¡ and in whatever form, or on whatever legal consideration, such debts- are contracted, a court of equity will charge the estate with their satisfaction. Not that her contracts are valid and operative only as appointments of and from the equitable estate; but upon the broader ground, that as to such estate she is a femme sole, with full capacity to contract.—Ozley v. Ikelheimer, 26 Ala. 332; Murray v. Barlee, 3 Myl. & Keene, 209.
3. The debt preferred by Masson is the note of Mrs. Kelly and her husband, for the second annual installment of the purchase-money of the interest in the real estate purchased by Mrs. Kelly of S. F. Slatter. At the time of the purchase, she paid in cash one-half of the purchase-money, and gave notes, in which her husband joined, for the other half. A conveyance in fee was made to her, and a mortgage executed by her and' her husband to secure the payment of the notes given by them, for the unpaid purchase-money. It is insisted, the facts exclude any intention on the part of Mrs. Kelly to charge any other estate she may have had, than that acquired by the conveyance to her cotemporaneous with the mortgage, and exclude any presumption that the mortgagee relied on any other security than that the mortgage afforded.
If Mrs. Kelly had not been under the disability of coverture — if she had been sui juris — the debt would have imposed a personal liability; the mortgage would have been a simple security for its payment. The creditor would have been under no obligation to pursue the mortgage security, to the relief of the debtor from personal liability. If the mortgage security proved unavailing, or insufficient, the debtor could not have claimed the debt was discharged, or extinguished. The debt would have continued, and whatever of estate he had, liable to the satisfaction of debts, would have been liable to its payment. "When a married woman is empowered with the capacity to contract — whenever the obligation of her contracts extends to her equitable estate, as fully and completely as if she were sui juris — if she gives a security binding a pai’t only of such estate, upon what principle, or upon what good reason, can it be said that the contract is operative only to the extent of the security, and, if that is xxnavailing or insufficient, the force and obligation of the conti-act perishes. It is not necessary to the validity and operation of her contracts that a purpose to charge *96her separate estate shall be expressed, or that she should entertain the particular intent that it shall be bound. Nor is it essential that those who deal with her should rely exclusively on the liability of her separate estate As surety for her husband, or for a stranger, her contracts bind her equitable estate, though credit is extended'as well on the integrity and solvency of the principal, as on the liability equity will fasten on the estate.
If her contracts were valid and operative only as appointments of and from' her estate — if an intention to bind the estate was an indispensable element of the contract — it may be that, when a particular security is given, the appointment would be co-extensive only with the security, and an intention to bind any other part of the estate would be excluded. But it is not upon the ground of intention, or of appointment, that a court of equity proceeds in charging her equitable estate. It is upon the broader ground, that as to such estate, her capacity not being limited by the instrument creating it, she is a femme sole— has a status independent of, and separate from that which, at law, coverture imposes. True, it is often said, when the question has been presented, whether contracts to bind her estate should not refer to or mention the estate, that from her contract, independent of her husband, not on his account and credit, the intention to bind her estate would be presumed; otherwise the contract, as to her, would be without validity. But it is no where, in the decisions of this court, affirmed or recognized, that an intention to charge her estate is essential, save so far as such intention is a necessary element of every contract of a person sui juris — that the contract will be kept and performed, and if broken, that to its satisfaction whatever of property the law subjects shall be appropriated, This intention the law conclusively presumes, and no evidence gainsaying it can be heard, unless' the contract, by its own terms and limitations, excludes it. Adhering to the law, as we find it settled by former decisions, the debt due to Masson is chargeable on the equitable estate of Mrs. Kelly, other than that covered by the mortgage, which she owned when the debt was contracted.
4. The statutes creating the separate estates of married women do not, in terms, refer to the equitable separate estate, nor indicate any purpose to affect such estate, whether existing at the time of their enactment, or subsequently created: Without interfering with the jus disjponendi of donors, and of the, capacity of & femme eovert to take and to hold, as recognized in a court of equity, they can not be construed as extending to the equitable estate. The estate the statute creates is a legal, not an equitable estate! All legal remedies for its protection are prosecuted in the name of the wife alone, and no judgment *97can be rendered affecting it, to which she is not a party. As was observed in the case of Warfield v. Ravisies, 38 Ala. 518, and as has been said substantially in other cases, property held by the wife under the statutes is not her sepcurate estate, in the broadest sense of that term. The qualities and characteristics of the two estates are essentially different. The unqualified right of the husband to receive, and to manage and control the statutory estate, taking the rents, income or profits, without the consent of the wife, express or implied, without liability to account for them; a right which she can not impair, and which can be affected only by his infidelity, or incapacity; the specific mode of alienating it, in which the husband must join; subjecting it to a narrow, limited liability only, for debts founded on a particular consideration, whether such debts are contracted through the agency of either husband or wife; the conversion of it into a strictly legal, rather than an equitable estate, — distinguish it from the latter estate, and render it peculiarly, as it is most often denominated in our decisions, a statutory estate. With the exception of some adjudications which have been either expressly overruled, or have ceased to be regarded as authoritative, the uniform course of decision has been, that the statutes “ relate to, and provide for estates of married women, which are made separate by operation of law; estates created by descent, gift, or in some other 'manner, without words which would have created a separate estate before our statutes on the subject; and not to estates which, independent of legislation, would have been separate by operation of the instrument or contract creating them.”—Pickens v. Oliver, 29 Ala. 528; Smith v. Smith, 30 Ala. 642; Cannon v. Turner, 32 Ala. 483; Cowles v. Morgan, 34 Ala. 535; Short v. Battle, 52 Ala. 456. The estate taken by Mrs. Kelly is, consequently, by force of the terms of the conveyance, an equitable, not a statutory estate; and her power to bind it is not derived from, or restrained by the statutes, but from the quality and incidents of-the estate, as it is by law defined from the terms employed in its creation.
5. The decree of the chancellor seems to rest on the proposition, that, as the moneyed consideration supporting the conveyance was the statutory estate of the wife, the same character is, of necessity, impressed on the estate the conveyance creates, whatever may be its terms. The argument is, that by no contract or transaction, in which husband and wife participate, whether between themselves only, or with a stranger, can a statutory be converted into an equitable estate. There are no words in the statute, forbidding such conversion, nor are there words which authorize it. Such conversion, it is supposed, contravenes the spirit and policy of the statute; and as the power *98of tlie wife over her equitable would, be larger than that she can exercise over the statutory estate, the purposes of the statutes could be defeated. If this be true, the statutes must often operate not only to disable husband and wife, but to lessen and narrow the power of donors to determine the character, quality and incidents of the estates they may create. Love and affection of a brother for a sister, is not only expressed as a consideration for the conveyance, but is shown by the evidence to liav.e entered into, and induced it as largely, as the pecuniary consideration. If it had been the only consideration, there could have been no doubt that it rested 'wholly in the power of the donor, to create an equitable or a statutory estate, without offending any law, he could have imposed on the gift such limitations, qualities or incidents, as he chose, there being no attempt to create a perpetuity. There are no provisions in the statute, which can be supposed to lessen his power of disposition, or the capacity 'of the donee to take, because the pecuniary consideration was derived from the statutory estate. Nor is it the spirit or policy of the statutes to impress upon the estate of the wife, irrevocably and immutably, a particular character and quality, though her necessities should require it to be changed. That such a change may be proper and necessary, is indicated by the facts of this case. The controlling purpose of the investment of the funds of the wife in real estate, was to prevent them from passing into the possession and under the control of the husband, as under the statute they must have passed, who it was feared would squander them. The same consideration may properly have induced the conversion of the title to the real estate into an equitable estate, so that the wife alone "would have the right to take its rents and profits, and not the husband freed from liability to account for them. So far from it being inconsistent with the policy or spirit of the statutes, that a statutory should be converted into an eqidtable estate, in the event of the removal of the husband from the trusteeship, the statute contemplates, and by its own terms works the conversion.—Code of 1876, §§ 2717-18 ; Locke v. Bell, 57 Ala. 112. Such a conversion operates a deprivation of no other rights than such as under the statute attach to the husband, and. attach to him as a trustee for the wife. lie can not be compelled to assert these rights, nor to assume the trusteeship, as he was not at common law compelled to the assertion of his marital rights. His capacity to refuse to reduce to possession the choses in action of the wife, or to take as 1ns own her personal property in possession, was undoubted at common law. He could repudiate all claim as husband to the property of the wife, elect to treat, control and hold it as hers; and if he did, the title of the wife was not divested; and none accrued to *99him.—2 Brick. Dig. 73, .§§ 65-66. A gift from the husband to. the wife was, if not otherwise expressly limited, a gift to her sole and separate use.—McMillan v. Peacock, 57 Ala. 127. Now, if the husband assents, as there is no doubt he did in the present case, to an investment of the moneys of the wife, her staUitory estate, in the purchase of real estate, and a conveyance to the wife, which excludes his trusteeship and rights under the statute, there is no one who can justly complain, as there was none who could justly complain at common law, if he waived and abandoned his marital rights. And if it be, that there was just cause to apprehend a waste and loss of the funds of the wife, because of his improvidence and incapacity to control them discreetly, there was cause of removal from the trusteeship, and, in the event of his removal, the statutory would have been converted into an equitable estate. Then, under that state of facts, the conveyance accomplished no more than could have been obtained by a decree of a court of equity. Parties may voluntarily do that which a court of equity would order done, and if they do, the court will support their acts. "We hold, that the character and quality of the estafe created by the conveyance to Mrs. Kelly, is not to be changed, because the pecuniary consideration entered into it was her statutory estate. The dictum in Coleman v. Smith, 55 Ala. 377, that a statutory can not be converted into an equitable estate, must not be regarded as authoritative, save so far as it may be applicable to contracts between husband and wife for an exchange of property, or by which the husband acquires, or seeks to acquire, an interest in the statutory estate of the wife. Reel v. Overall, 39 Ala. 138.
6. The cross-bill hied by Mrs. Kelly, for a reformation of the conveyance to her, can not be maintained. When there has been an innocent omission or insertion of a material stipulation, contrary to the mutual intention of the parties to a written instrument, a court of equity, on a timely application, after the discovery of the mistake, will interfere for its correction. Belief will be granted, however, only when there is a plain mistake, clearly made out by satisfactory proofs.—1 Story’s Eq. §§ 155-57. It is the intention of the parties at the time the contract is executed, which is to be considered and ascertained, and not what they could or would have done, if they had anticipated subsequent developments, or consequences, resulting from the contract. The substance of the evidence is no more than a disclaimer now by the parties, of all intention to change, by the conveyance, the tenure of Mrs. Kelly’s estate — to convert it into an equitable estate. It is not upon evidence of this kind a court of equity will reform a solemn instrument, which has been spread upon the public records, inviting transactions with *100the grantee, from which innocent parties must suffer, if the reformation is made.
The decrees of the chancellor must be reversed, and the causes remanded, for further proceedings in conformity to this opinion.