MICHAN AND WIFE vs. WYATT

MICHAN AND WIFE vs. WYATT. 1. When a bill is filed in the name of husband and 'wife, respecting the wife’s separate estate, and at the hearing the wife moves the court for leave to amend the bill, by making her husband a defendant, and inserting the name of some responsible person as next friend, the action of the Chancellor upon the motion is discretionary, and his refusal to grant it not revisable on error. 2. To authorize the dismissal of a bill on final hearing on account of the misjoin-der of complainants, the misjoinder must be of complainants whose interests are so diverse that the Chancellor cannot include them in one decree, or, at least, must differ so widely as materially to affect the propriety of the decree. 3. Where a bill is in form the bill of husband and wife, yet, in substance and fact, it only concerns the separate estate of the wife, and seeks only to establish her rights and protect her interests, and asks no relief for or against the husband, he will be regarded as her next friend or trustee, and the decree rendered will be conclusive on the wife. 4. But if the bill seeks relief either for or against the husband, the Chancellor should order it to stand over, until it can be reconstructed, so as to make the husband a defendant, and interpose a next friend to prosecute for the wife i and this, whether the objection be made by demurrer’, plea, answer or for the first time at the hearing; but in the last case, it is left to the sound discretion of the Chancellor, whether he will allow it, or dismiss the bill without prejudice to the wife. 5. A transcript of the record of a judgment against the husband, is not admissible evidence against the wife under a bill filed, in the name of the husband and wife, concerning her separate estate. 6. The statutes of this State requiring the registration of certain conveyances which create incumbrances on the title, do not include a deed of gift, executed in another State, by which slaves are given to a married woman, “ during her natural life, to her separate, sole aud exclusive use and behoof,” and at her death to her children. ' Such a deed is not an incumbrance on the title, but the evidence of the title itself; aud the possession of the husband and wife under it will be referred to the title, and the husband will be considered the trustee for the wife. 7. The statute of limitations does not bar a married -woman from recovering her separate property, sold under execution against her husband, -when her title accrued during coverture. Error to the Chancery Court of Perry. Heard before the Hon. W. W. MasoN. The bill in this case was filed by John Michan and wife against William N. Wyatt. It alleges, that, on the 4th of October, 1819, Nancy Renwick, the mother of Leah Michan, who then resided in the State of South Carolina, was possessed in her own right of three slaves, named Sarah, and her children, Spencer and Young; that on that day she conveyed said slaves to Mrs. Michan by way of loan for her life, for her sole and exclusive use and benefit, and at her death to her children in équal portions; that Mrs. Michan was then a feme covert, living with her husband, John Michan, in the State of South Carolina, and that the slaves were delivered into her possession; that since said loan and delivery, she, with her husband, has removed to Alabama, and brought the slaves with them; that the object and intention of Nancy Renwick in making the deed for the slaves in the terms in which it is made, was, to create a separate estate in said Leah, free from the control and interference of the husband, or any other person whatever, and to protect her in the sole and exclusive use of said slaves; that the woman Sarah had other children, to-wit: Ann (who has two children, Richard and an infant,) and Dick, together with others which are not named in the bill; that in the month of January, 1843, one Thomas R. Williams of Benton count}*-, and one James H. Michan, son of complainant, obtained possession of the slaves Young, Dick and Ann, also the children of Ann then in being, against the consent and will of Leah Michan, and carried them away from the county of Randolph, where they then were, in the employment of said Leah and her husband, to the county of Perry, where said Williams sold said slaves to William N. Wyatt, who still has them in his possession, and claims them as his own; that he refuses to deliver them to Leah Michan, the complainant, although they have been demanded of him. The bill then sets out the value of the slaves; that they are family slaves, to which complainant Leah is greatly attached, sbe having raised most of them in her dwelling house with her own children; that the slaves are greatly attached to her, and their value in money would be no adequate compensation to her for their loss. The bill prays for a restitution of the slaves, and an account for their hire since they have been in possession of the defendant. It is also prayed, that a trustee be appointed; and for general relief. The deed exhibited with the bill is in these words: “The State of South Carolina, Newberry District: Know all men by these presents, that I, Nancy Renwiclc, of the State and District aforesaid, for and in consideration of the natural love and affection which I have for my daughter, Leah Michan, of the District and State aforesaid, have freely and voluntarily lent, and by these presents do hereby lend unto my said daughter, Leah Michan, a negro woman named Sa* rah, and all her future increase, and also her two children, Spencer, about two years old, and Young, about nine months old, which said three negroes, and the future increase of the said Sarah, I lend to the said Leah Michan during her natural life, to her separate, sole and exclusive use and behoof; and after her death, I give and grant the said negroes, and the future increase of the said Sarah, to the children lawfully begotten of the said Leah, share and share alike, as tenants in common, without any right of survivorship. In witness whereof, I have hereunto set my hand and seal, this 4th day of October, A. D. 1819. In the presence of Nancy RkNWICK, [Seal]” JOHN Banskett.” Wyatt answers, that he knows nothing of the deed under which Leah Michan sets up her claim to said slaves, and calls for proof of its existence and terms; that if it does in fact exist, it has never been recorded; that he is a purchaser for valuable consideration; that said slaves were bought by one Williams at sheriff’s sale, under execution on a judgment against John Michan, and sold by Williams to him; that he inquired of one Groree, to whose house the slaves had been sent by the complainant, as to the title, who told him it was good; that Leah Michan knew of the sale by the sheriff, was present at it, by her agent, James H. Michan, and suffered the slaves to be sold, without in any manner making known her claim; that more than six years intervened between the sheriff’s sale and the filing of the bill. He insists on the lapse of time as a bar to the suit, and demurs for want of equity, and misjoinder of complainants. • The demurrer was overruled by the Chancellor. At the hearing, Leah Miehan moved the court for leave to strike the name of John Miehan from the bill, and to make him a defendant; and also for the privilege of inserting in the bill, the name of some person as next friend. This motion was disallowed, and a hearing was had on the bill, answer and proof. The proof is substantially this: B. L. Goodman proved the genuineness of the hand-writing of John Banskett, the subscribing witness to the deed for the slaves made by Nancy Renwick to Leah Miehan, mentioned in the bill, and attached to it as an exhibit. He also proved that said subscribing witness resides in Edgefield District, South Carolina. Nathan Renwick testifies, that he is the brother of Leah Miehan; that the complainants are husband and wife; that Leah Miehan has had possession of the slaves named in the deed from Nancy Renwick since 1819' — a part of the time in South Carolina, a part in Georgia, and then in Alabama;— that the slaves, Young, Dick and Ann, now in controversy in this suit, are the children of the girl Sarah mentioned in the deed, and were in possession of the defendant on the 31st of May and 1st of June, 1849; that Banskett, the subscribing witness to the deed of Mrs. Renwick, resides in the State of South Carolina. William. H. Anderson testifies, that complainants are husband and wife ; he proves also the color and age of the slaves, the possession in Georgia and Alabama by Leah Miehan; that they are family slaves; that Mrs. Michan’s possession continued up to 1842; that complainants knew when the slaves were taken out of their possession; has heard John Mi chan say, that the slaves were taken from his residence to prevent their being sold for the payment of his debts; he never heard Leah Miehan say the same; he is not certain, but thinks he heard complainants say, the negroes were about to be sold under an execution against John Miehan; heard them speak of the sale after it had taken place; heard them say, the ne-groes bad sold for more than enough to pay the execution, and heard John Michan say he had sent for the balance. John Long testifies, that he had seen the slaves mentioned in the bill in the possession of John Michan, in Georgia and Alabama, some of them for twenty years; that he and James Michan, the son of complainants, took the negroes, Ann and her child Dick, and the boy Young, to Perry county, and left them with Goree in the town of Marion; that James Michan asked him to aid him to take the slaves from Randolph county; that the negroes were taken from the gold mines, and not from the residence of John Michan, which, at the time, was in Cherokee county, about sixty or seventy miles from the mines; that neither John nor Leah Michan ever said any thing to him on the subject until after witness returned from Perry county, and not then until witness told John Michan where and with whom the slaves had been left; Avhen John Michan replied, it was all right. He does not know whether Leah Michan was present and heard this conversation or not; he has never heard her say any thing about it; he had hired these slaves before taken to Perry county, and settled with John Michan for their hire; John Michan managed them, and Leah Michan exercised over them only such control as wives ordinarily do over the slaves of their husbands; he does not know for what reason the slaves were taken to Perry county, but has heard that it was to prevent them from being levied on for a debt on which John Michan was security. ¥m, Michan testifies, that the slaves in controversy, which were bought by defendant, were reputed to be the children and grandchildren of the girl Sarah; that from witness’ earliest recollection they were in possession of John and Leah Michan, (his parents,) but claimed by Leah as her separate estate; that, in 1842, they were sent to Perry county, to be hired out; James H. Michan took them there, and was Leah Michan’s agent for that purpose; the hire was to be used for the support of the family; the slaves were raised by complainants, and treated as their own children; they were easily governed, and their characters and dispositions were good; there were executions against John Michan, but witness does not know whether the slaves were removed on that account; beard bis mother say that the negroes should not be sold; Leah Miehan knew when the slaves were taken to Perry county, and in whose possession they were there left, and was satisfied with the arrangement. John Hartsfield testifies, that he knew the complainants as husband and wife; knew the slaves from 1828 to 1888; they were family slaves; John Miehan, as head of the family, managed them, and Leah Miehan acted towards them as other wives do towards their husbands’ slaves; never heard her say they belonged to her husband. Blueford Gross proves substantially the same facts that were proved by Hartsfield. This, with the deed from Mrs. Renwick, and a transcript from the Court of General Sessions and Common Pleas for Newberry District, South Carolina, showing the deed to have been duly recorded in the clerk’s office of that court on the 7th October, 1819, was all the testimony introduced by complainants. Tabitha Cox testifies, that she resided within a half mile of the complainants when they lived in Cherokee county, Alabama; was intimate with them, and was visited by Mrs. Miehan; that Mrs. Miehan told witness, a few days after the slaves were taken away in 1842, that her husband and some other persons had held a conversation the night on which the negroes were sent away, and had resolved to send them off; that she, Mrs. Miehan, made preparations for their start, and they were taken away in the night, and that Long and Jas. H. Miehan had carried Ann and her child to Newberry District, South Carolina. Littleton Long testifies, that the slaves were in possession of complainants until 1841 and 1842; in the latter year, there being executions in the hands of the sheriff of Cherokee county against John Miehan, witness went to his house, and told Leah Miehan that such was the case, and gave it as his opinion that the sheriff intended to levy them on Ann and her child, who were the slaves then in possession of complainants ; on the night of this day the slaves were sent away by James H. Miehan, a favorite son of complainants; he af-terwards learned from them that they had been taken to Perry county, and hired to one Goree. The slaves were in the possession of John Miehan and his wife while witness knew them, and be never beard Leab Micban claim them as ber separate property. Jobn Long, when examined by defendant, proves substantially wbat be testified when examined by complainants, witb tbis addition, that be bad known complainants for fifteen or twenty years, and never beard Leab Micban claim tbe slaves as ber separate property until, after they bad been taken by bimself and James H. Micban to Perry county. M. B. Gary testifies, that be levied an execution in favor of one Crawford v. Jobn Micban, in tbe county of Sumter, on three slaves, and sold them, no person forbidding tbe sale; be does not remember tbe names of tbe slaves, or wbo bought them; they sold for more than enough to satisfy tbe execution, and be paid tbe balance to one Isaac E. Payne, on an order in favor of said Payne, drawn by Jobn Micban. Tbe order spoken of and tbe receipt of Payne are attached to bis deposition. Tbe former is drawn by Jobn Micban, and attested by Mordica Brown, J. P., and simply requests Gary to pay Payne the surplus on tbe sale of the slaves. A transcript of tbe record in tbe case of Crawford v. Micb-an, is next found in tbe record, which shows tbe judgment, execution, and return of Gary, by which it appears that one Thomas R. Williams was tbe purchaser of tbe negro slaves Dick, Ann and Young, at the sheriff’s sale in Sumter. Tbis return is dated January 8, 1848. Accompanying tbis return is found a paper in tbe following words: “ Tbe State of Alabama, Sumter county: I do hereby release Matthew E. Gary, sheriff of said county of Sumter, from all liability be has incurred, or may incur, by reason of bis levying upon and selling by tbis execution, as tbe property of Jobn Micban, tbe certain slaves named Dick, Young and Ann, and waive all suits against him. Given under my band and seal, tbis 2nd day of January, 1848. James H. MichaN, [seal.]” Joseph L. Long testifies, that be has known complainants sixteen or seventeen years; knows tbe slaves in controversy; beard Leab Micban, in 1842 or 1848, say they were at Goree’s in Greene or Perry county; she expressed ber uneasiness lest her husband’s creditors should find them, and sell them for bis debts; she directed ber • son Joseph H. Micban, and one Simms, to go and remove them, but to wbat place witness does not remember; John. Miehan was about the house when this conversation took place, but witness does not know that he heard it; Leah Miehan told her son and Simms to hurry and remove the slaves. Langston Groree proves, that James H. Miehan and John Long, in the Spring of 1842, brought the slaves Lick, Young and Ann, (with an infant child of Ann’s, which died shortly after he received them,) to his house; that they delivered him a letter (now lost) from John Miehan, stating that the slaves had been sent to him to prevent their being levied on and sold for his debts; that he desired the witness to take them under his management, until the danger was past; witness received and kept them until October of that year, when he delivered them to one Simms, who took them, by direction of witness, to one Ashford’s in Sumter county; he saw no more of them until he saw them in possession of Thomas B. Williams, who sold them to defendant; when defendant was about to purchase, he inquired of witness about the title to the slaves; witness told him he thought it was good, and if he had the money he would purchase them himself; defendant then bought them; witness knew complainants in South Carolina, never heard Leah Miehan claim said slaves as her separate estate, or even intimate such a claim. Isaac E. Payne testifies, that, after the sale of the slaves by the sheriff of Sumter, John Miehan gave him an order to said sheriff for an overplus of funds in his hands; he got the money on the order, retained a part which John Miehan owed him, and paid the remainder to a garnishment in favor of one of John Michan’s creditors; Leah Miehan did not sign the order, but was present when it was first spoken of, and said they would like to get the money, if it would not prejudice her right in a suit she had then brought, or was about to bring, for the slaves. The defendant purchased the slaves from Williams, on the 27th day of January, 1848, and the bill in this case was filed on the 19th day of January, 1849. On the hearing, the complainants objected to the reading of the transcript of the record from Cherokee county, in the case of Crawford v. John Miehan; but the objection was overruled by the court. The Chancellor dismissed the bill. The errors assigned are: 1. The court erred in dismissing complainants’ bill, at the costs of complainants; 2. The court erred in the final decree rendered; 3. The court erred in dismissing the bill, and refusing the relief sought by it; 4. The court erred in overruling complainants’ motion to strike out the name of John Miehan as complainant, and to make him a defendant, and to insert the name of some person as jvrochein amy of Leah Miehan; 5. The court erred in not decreeing relief to Leah Miehan, and in not appointing a trustee for her. Belser & Bice, for plaintiffs in error: 1. This suit is brought in relation to the wife’s separate property. The husband is joined as plaintiff, merely because the forms of law do not permit a married woman to sue in her own name alone. He has no interest in the subject-matter of the suit, and claims none; and no relief is sought by or against him. -The wife having no trustee, the law makes the relation of the husband to the suit, that of her next friend. Such a suit is the suit of the wife. Trustee and cestui que trust may join as plaintiffs; and there is no misjoinder of complainants in this suit. Boykin v. Ciples, 2 Hill’s Ch. B. 200; Berry v. Tibbats, 11 B. Monroe, 256; Wilson v. Wilson, 6 Ired. Eq. 236; State v. Beigart, 1 Gill’s B. 29; Kenny v. Udall, 5 Johns. Ch. 473; Bein v. Heath, 6 How. U. S. B. 239. 2. The modern English practice, alluded to in Bein v. Heath, supra, which seems to be followed in New York, rests upon one reason only, viz: that the decree, if adverse to the wife’s claim, will not bar her from a subsequent suit, in her own name, by her next friend, for the same matter. The utmost benefit that the defendant can derive from an objection to the form of such a suit, is, to have the suit put in proper form to make it conclusive on the wife; which the court will do at any time, even at the hearing. But when the complainant makes the motion, at the hearing, to put the suit in proper form, by making the amendments proposed in this case, and the defendant himself objects to the motion, and tbus prevents the correction, it is a waiver on bis part of his previous objection by demurrer, for the alleged misjoin-der of husband and wife; the objection itself is to a mere matter of form. The Chancellor was mistaken, in supposing that he could not grant the amendment at the hearing, against the defendant’s objection. Stuart & wife v. Kissam, 2 Barb. S.C. B. 493; McLane v. Biddle, 19 Ala. 180. The modern English practice ought not to be adopted here, since the passage of the act of 1848, which makes the husband a trustee for the wife. Key v. Yaughan, 15 Ala. 497. 3. The Chancellor overruled the demurrer for misjoinder of complainants; aud, therefore, that objection cannot be urged here to sustain his decree, dismissing the bill on another ground. Grimshaw v. Walker, 12 Ala. 101; Gibbs v. Frost, 4 ib. 730. 4. The separate estate of a married woman is not liable to be sold under execution at law, during coverture, either for her own or her husband’s debts. Haygood v. Harris, 10 Ala. 291. “ And the only ground on which it can be reached in equity, is that of appointment; that is, some act of hers, after marriage, indicating an intention to charge the property.” 1 Comstock’s B. 452. 5. The relation of the husband to such a suit as this being that of a next friend of his wife, his acts and declarations, in respect to the matters in litigation, are not evidence in the suit, nor binding on the wife. Stuart v. Kissam, 2 Barb. S. C. B. 493; Boden v. Murphy, 10 Ala. 804; 8 B. Monroe, 32. 6. If this suit is not regarded as the suit of the wife, it must be because the decree, although adverse to her rights, is not conclusive on her. But the decree here treats the suit as the suit of the wife, and decides that her right has been lost; if permitted to stand, it is conclusive on her, and would bar any subsequent suit by her next friend. 6 Howard’s B. 239, supra. 7. The statute of limitations has no application to such a case as this. It is a suit by a married woman, in relation to her separate estate in slaves of which she has been deprived during coverture. Her coverture existed when the separate estate was created, when she was deprived of the slaves, and still exists. No trustee has ever been appointed for her; she could not bave sued at law. Even if an action at law could bave been sustain ed, to enforce tbe right which she asserts in this bill, still, the statute could not affect her right, because she is within the express terms of the proviso. Clay’s Dig. 327, § 80. Even where the subject-matter of the suit is embraced by the statute, the right of a feme covert would not be barred or affected by it, when it is shown that she was under the disability of coverture when her right accrued, and has been so ever since. The statute does not begin to run until the coverture ceases, as to rights and causes of action accruing during coverture. Curll v. Compton, 14 Sm. & M. 56. 8. There is nothing in the idea that the wife is estopped. To maintain equitable estoppel, the defendant must be able to show that he has been injured by the deceptive and fraudulent conduct of the wife. 11 Humph. 435. ' Mrs. Michan did nothing, and said nothing, which influenced the purchase, either of Williams or Wyatt. The defendant swears, in his answer, that he never heard of her claim until after his purchase. The surplus proceeds of the sale were paid over to Payne, on the order of John Michan, long after the defendant’s purchase. Mrs. Michan gave no authority to Payne, and received none of the money. Payne proves her unwillingness to have her husband draw the money, if it would in any way affect her rights. She has done nothing to confirm the sale, and is clearly not estopped. Johnson v. Johnson, 5 Ala. 90; McLane v. Spence, 11 ib. 172; Einn & Dulany v. Barclay, 15 Ala. 626; Pounds v. Eichards et al., June term, 1852; 17 Conn. 861; 11 Humph. 435. 8. The deed creating the separate estate was executed in South Carolina, and no record of it was necessary. Lyde v. Taylor, 17 Ala. 270. A. B. Moobe, contra: I. The demurrer to the bill should have been sustained : 1. Because there is a misjoinder of parties complainant, in connecting John Michan with his wife, in a suit for her separate property. If made a party at all, he must be a defendant. Dan. Chan. Prac. 142, 143, 144; 16 Ala. 87; 17 ib. 631; 4 Bouv. Inst. 295. 2. She should have sued by her next friend. See authorities, supra. ' 8.John Micban has no interest as plaintiff in tbe suit; be is entitled to no relief, of course, as an improper party. 1 Dan. Oban. Prac. 347, 350 ; Story’s Eq. PL §§ 508, 318, 260, 261; Bowie v. Minter, 2 Ala. 406; 6 ib. 303; 9 ib. 351; 14 ib. 135. 4. Tbe bill could not be amended, after tbe trial bad proceeded for some time, in tbe manner proposed. If Mrs. Micban bad sued alone, ber bill would have been dismissed. If sbe improperly joined ber husband, tbe same consequences must follow. 5. Tbe practice permits some amendments, at this, or even a later stage of tbe case, as by adding parties in a creditor’s bill; but it does not allow such an amendment as was proposed in this case, at the time proposed. 6. There is no equity in tbe bill, as complainant bad a remedy at law, by action of detinue or trover. Hardeman v. Sims, 3 Ala. 747; Colburn v. Broughton, 9 ib. 351. 7. The allegations of the bill are not sufficient to give jurisdiction to a court of equity. 8. Equity follows tbe law, in regard to tbe statute of limitations ; and as complainants’ remedy at law is barred, it is also barred in equity. 2 Story’s Equity, § 1520, note 2. More than six years bad elapsed between the time of sale, January 2, 1843, and tbe time when tbe bill was filed, January, 19, 1849. 9. Tbe reservation in tbe statute, in favor of femes covert, does not extend to a case of this kind. So far as these slaves were concerned, Mrs. Michan was a feme sole. Tbe right of action which accrued to ber on tbe sale of tbe slaves, was as perfect then, as it was when this suit was commenced. Tbe proviso of tbe statute was only intended to reach those cases where tbe wife could not sue without joining ber husband. 10. Tbe defendant being an innocent purchaser, without notice, for a full consideration, and that paid, be will be protected by tbe statute of limitations, even if tbe property bad been taken secretly, and fraudulently, and without ber consent. Howell v. Hair, 15 Ala., 194; 1 Howard’s U. S. R., 189. But in this case they were taken neither secretly nor fraudulently. Sbe aided in sending them off; knew where they were all tbe time; knew that they were levied upon, and were about to be sold; knew tbat they were sold, and to wbom, ber agent being present at the sale. II. Upon the merits of the case, the superior equity is with the defendant: 1. Because he is an innocent purchaser, without notice. 2 Story’s Equity, §§ 1502,1503 ; 2 Yesey, 457; 1 Sumner, 507. 2. Because Mrs. Michan concealed her deed, and- voluntarily aided in putting the property out of her possession; she was perfectly cognizant of all the facts attending the levy and sale, and yet did not make known to any one that she had a deed or claim of any kind. She was careful not to make it known, until after the sale had taken place, her husband’s debts been paid, and the surplus of the proceeds drawn from the sheriff’s hands by her consent. Upon this state of facts, this court will not come to her relief, to the prejudice of an innocent purchaser. Baker v. Rowan, 2 Stew. & P., 372 ; 1 Story’s Equity, § 385; 7 Ala., 906 ; 1 Johns. Chan., 353; 6 Howard’s U. S. R, 228; 6 Johns. Chan., 167 ; 8 B. Monroe, 547; Sugden on Yendors, 299. 3. The testimony of Goree shows, that Wyatt was not a mere speculator, a heedless purchaser; that he made diligent inquiry about the title, and was told by Goree that it was good, and that he would himself purchase if he had the money. He used due caution, and paid a full consideration. 4. -It is manifest from the whole case, that Mrs. Michan has been guilty either of a fraudulent concealment of her deed, or of gross and culpable negligence; and in either case she will not be protected, at the expense of one who has been injured by her fraud or negligence. 2 Stew. & P., 372; Morris v. Moore & Hancock, 11 Humph., 434; Storrs v. Baker, 6 Johns., Ch., 167. 5. The drawing of the balance of the money from the hands of the sheriff by Mrs. Michan’s consent, was a ratification of the sale, or at least shows her fraudulent intent in letting the negroes be sold, for the purpose of paying the husband’s debts, getting the balance of the money, and then suing for the property. [MAJORITY — LIGON, J.] LIGON, J. — The Chancellor having overruled the demurrer, and no cross assignment of error being found in the record, the case must be here considered as though no demurrer had ever been interposed. The case, then, is this: John Michan and wife file their bill against the defendant, for the recovery of property to which the wife alone is entitled, as her separate estate. Neither the allegations nor prayer assert a right in, or- seek relief for the husband, in respect to the subject matter in controversy. The wife’s interest alone is propounded, and the relief sought is for her protection and benefit. The answer denies her right, and that of her husband, to the slaves in controversy, as well as the right of either to the relief sought. The proof shows, that the slaves were loaned by deed to the wife for life, to her sole and separate use, and at her death they were to vest in her children; that the slaves went into the possession of the wife, she being a feme covert at the time, and continued in the possession of husband and wife for more than twenty years, when they were levied on and sold as the property of the husband, and were purchased by one Williams, who sold them to the defendant for a valuable consideration. At. the hearing, the wife moved the court for leave to amend her bill, by striking out the name of the husband as complainant, and inserting that of some responsible person as next friend, and to make the husband a defendant. This motion was disallowed by the court. The rule is, that a bill filed by husband and wife is generally to be taken as the bill of the husband. 1 Danl. Ch. Pr. and Pl., 350 ; 17 Ala., 201; 5 Paige, 581. But if the bill shows, on its face, that it is filed in respect alone to the wife’s separate estate, and the defendant suffers the case to go on to final hearing, without taking exception to it, by demurrer for misjoinder of complainants, or by way of plea in his answer, he can then claim no advantage from it as a matter of right. On this subject Mr. Justice Story very justly remarks: “It is not safe, in any case, to rely on the mere misjoinder of parties as an objection at the hearing; for if the court can make a decree at the hearing, which will do entire justice to all the parties, and not prejudice their rights, notwithstanding the misjoinder, it will not then allow the objection to prevail.” Story’s Eq. Pl, § 237. Tbe rule wbicb allows bills of this kind to be altered in their form and structure at the hearing, or on demurrer, is intended for the protection of the defendant; and its aid, in all the cases which I have examined, has been invoked by him. For if the bill is so constructed as to show that the husband claims an interest in the thing in controversy, and it turns out that he has none, but that the controversy concerns only the separate estate of the wife, a decree on such a bill, although it be for the defendant-, will not conclude the wife, or offer the slightest impediment to her assertion of her rights by her next friend. I can see no reason, however, which will prevent the wife in such cases, if she apply in time, from asking for leave to amend her bill, so as to be able to present her case to the court fully and fairly, under the rules of practice, so that she too may be enabled to have her rights passed upon, and, (if she be entitled to it,) the relief she seeks granted to her. Yet her application for this purpose, when made at the hearing, must be subjected to the same rules, so far as they relate to the discretion of the Chancellor, that would govern it if made by the defendant. All the authorities, so far as I have had opportunity of examining them, agree, that it is at the discretion of the Chancellor, when leave thus to amend the pleadings is asked for the first time at the hearing, to grant or refuse it. This being the case, his action on such a motion is not revisable on error. Story’s Eq. Pl., § 63, and notes; 1 Danl. Ch. Pr. and Pl., 350; Bowie v. Minter, 2 Ala., 406 ; Boykin v. Ciples, 2 Hill’s Ch. Rep., (S. C.,) 200; Kenny v. Udall, 5 Johns. Ch. Rep., 473; 2 Barb. Sup. Ct. Rep., 493; Bein v. Heath, 6 How. U. S. Rep., 239. These authorities show conclusively, that, whether in this instance the refusal of the Chancellor to allow the amendment moved for by the complainant, Leah Michan, was a proper exercise of the discretion given by the law, or not, his action in this respect cannot be revised on writ of error. But the question arises, was there such a misjoinder of parties complainant in this case, as to authorize a dismissal of the bill, on a final hearing, for that cause alone. It is well set tied, that the misjoinder which will authorize this course must be of complainants whose interests are so diverse that tbe Chancellor cannot include them in one decree, or, at least, must differ so widely as materially to affect the propriety of the decree. Is this the case here ? John Michan, the husband, sets up no claim in the bill, either to the slaves or their hire. He asserts only his wife’s title, and exhibits with the bill itself a deed, as the evidence of that title, which, on its face, shows the slaves to be the separate estate of the wife, and expressly negatives any right in him whatever. The prayer of the bill, too, forbids the conclusion that it is filed to assert an interest in the husband; for it seeks only the restoration of the slaves to the possession of the wife, an account of hire for the time they have been adversely held, and the appointment of a trustee to hold and manage the slaves for her. Had the bill been filed by the wife, through her next friend, its allegations and prayer must have been the same, without addition or diminution. It is not then, in any proper sense of that term, the bill of the husband. Neither does it seek to divest him of any right, or deprive him of any interest, which renders it indispensable to make him a defendant. Nor is his position as complainant at all inconsistent with his rights and duties in another capacity, in which the law regards him as acting in respect to these slaves, which are clearly shown to be her separate property by the deed from her mother to Mrs. Michan. It is a well settled rule, that, where a deed creates a separate estate in the wife, and appoints no trustee to hold for her, and none has been appointed by a court of competent authority, the husband is the trustee, and in this capacity may protect, and, indeed, by every principle of legal and moral duty, is bound to protect the separate property of the wife, against wrongs and injuries from strangers. He would be recreant to every duty which the law imposes on him as trustee, if, when it was wrongfully or illegally taken away from his possession by a stranger, he did not use all legal means to recover and restore it. The deed in this case appoints no trustee, nor, does it appear that one has been appointed by any competent authority. John Michan then, in this proceeding, may be regarded as the trustee for his wife, and in this capacity he has a standing with her in a court or chancery. This is no new view of tbe rights of parties situated as these are; and it is so consistent with our views of the rights and duties springing out of the relations existing between them, that we willingly adopt it. As early as 1752, the Lord Chancellor (Hardwicke) in the case of Griffith v. Hood, 2 Ves. Sr., 451, said: “Where there is any thing for the separate use of a wife, a bill ought to be brought by her prochein amy for her; otherwise it is her husband’s bill. However, there have been cases of such a bill by the husband and wife, and the court has taken care of the wife, and ordered payment to some person for herand he retained the bill in that case. In Boykin & wife v. Ciples et al., 2 Hill’s Ch. Rep., (S. C.) 200, the facts were substantially these. One John Adam-son, the father of Mrs. Boykin, Mrs. Ciples and Mrs. Delesse-line, made his will, by which he gave to each of his daughters twenty-six slaves “ during their natural lives, alone, and to their sole and separate use, without being in any manner subject to the debts, contracts, or forfeitures of their husbands, and to the heirs of their respective bodies, who may be living at their respective deaths. In case either of my daughters should die without leaving heirs of her body, her share shall go to the other or others of them, subject to the same terms and limitations as her or their bank shares.” The bank shares were, in the event of a failure of issue with all the daughters, limited to certain grandsons named in the will. After the death of the testator, the husbands of the three ladies, in order to cut off the limitation in favor of their several wives and children in the portion of the sister or sisters who might die without issue, executed releases to each other; and in consideration that each had so released to the other, and for the further consideration of one dollar, each covenanted with the other, that neither themselves, their wives, nor the issue of their wives begotten by them, should ever set up any claim to the portion of the sister so dying without issue. Mrs. Delesseline died without, issue, and Boykin and wife filed their bill for the portion of the legacy of Mrs. Delesse-line to which Mrs. Boykin was entitled, by the terms of her father’s will, and claimed it as the separate estate of Mrs. B. Ciples and wife and Delesseline were made defendants, and set up tbe release made by Boykin in bar of tbe suit. Tbe Chancellor disregarded tbe form of tbe bill, disallowed tbe release as a defence against tbe wife’s claim, and decreed partition. Tbe case was taken to tbe Court of Appeals. Harper, J. in delivering tbe opinion of that court, said: “ Tbe only question necessary to be considered is, whether a married woman may sustain a suit for her separate property, her husband being joined in tbe bill. If she may, she certainly cannot be estopped by her husband’s deed made in bis individual capacity. When property is settled to tbe separate use of a married woman, and no trustee is appointed, it is a known rule of tbe court that tbe husband shall be made a trustee. Being a trustee, it should seem that be was a necessary party to tbe suit for tbe trust property, and being liable for costs, that any other prochtin amy was unnecessary.” And after citing Pawlett v. Delaval, 2 Vesey Sr., 663, in which Lord Hard-wicke said, “if a bill be brought by husband and wife, for tbe wife’s property, it is tbe bill of tbe husband,” be justly remarks, that, “in that case, for aught that appears, tbe suit was for tbe benefit of tbe husbandbe cites Griffith v. Hood, supra, in which it is said, tbe decree must be for tbe wife, and a trustee appointed, and proceeds: “This is, I suppose, what we are bound to do if tbe bill be sustained. A husband, from necessity, is construed to be tbe trustee of bis wife, but be is not tbe proper trustee. In general, tbe office of a trustee is to protect tbe property against tbe husband.” Tbe decree of tbe Chancellor was affirmed, and a trustee was appointed. In Stuart v. Kissam, 2 Barb. Sup. Ct. Rep., 492, tbe bill was in tbe name of tbe husband and wife, against tbe trustee, of tbe wife, to make him account with respect to tbe management of tbe wife’s separate estate. It was objected at tbe bearing, that there was a misjoinder of parties; and it was attempted to be shown by jDroof, that tbe husband bad made admissions and done acts with regard to tbe subject matter of tbe suit, which would bar a recovery on bis part. Tbe objection to tbe form of tbe bill was disallowed; andas it was a matter resting in tbe sound discretion of tbe Chancellor, tbe Supreme Court refused to review its exercise, retained tbe case as tbe. suit of tbe wife, rejected the testimony offered to prove tbe declarations and acts of the husband, injurious to the rights and interests of the wife, and proceeded to decree in her favor. In considering the position which the husband sustained to the suit, the court say: “ The husband is merely a formal party. He has no interest in the subject matter of the suit, and claims none; no relief is sought by, or can be decreed to him. He is joined plaintiff in this case, because the forms of our law do not permit a married woman to institute a suit in her own name, alone. Either her husband must join, or she must sue by her next friend. Where the suit relates to the wife’s separate estate, in which the husband has no interest, and he is joned as plaintiff, his relation to the suit is very similar, if not precisely analogous, to that of a next friend. The whole subject matter of this suit belongs to the wife. She complains that her trustee has dealt improperly with her property. It is no answer for him to say, that her husband, who has no interest in such property, no right to interfere with it any way, no power to bind or affect her interests in respect to it, consented to the breach of trust.” To the same effect is the case of Berry v. Williamson and wife et al., 11 B. Monroe, 245, and Bein et al. v. Heath, 6 How. U. S. Rep., 228. In the latter case, the form of the bill is identical with the one we are now considering, and sought to set aside a mortgage made by the wife, in which her separate estate was charged with the payment of a debt originally contracted by the husband, but as a security for which the wife had made her own notes and a mortgage on her separate estate. The bill sought no relief for the husband, and contained no allegation except such as were necessary to propound the interest of the wife. The Supreme Court of the United States say, in the opinion: “It is objected, that, the suit being brought in the name of husband and wife, it must be considered as the suit of the husband, and that a decree will not bind the wife. On looking into the bill it appears, that the name of the husband is used only as the prochein cimy of the wife. He asks no relief. The wife prays an injunction against the sale of the mortgage property, and a rescission of the mortgage and notes, and a release from all liability.” To these cases, if it were necessary, others could be added, but I deem it unnecessary. They are sufficient to establish the rule, that, where the bill is, in form, the bill of husband and wife, yet, in substance and in fact, it only concerns the separate property of the wife, and seeks alone to establish her rights, and protect her interests, without seeking relief against the husband, he will be regarded only as her next friend or trustee, and a decree rendered in it will be conclusive on the wife. But if the bill seeks relief, either for or against the husband, the Chancellor should order it to stand over, until it could be reconstructed, so as to interpose a next friend to prosecute for the wife, and make the husband a defendant; and this, whether the objection be made by demurrer, plea, answer, or for the first time at the hearing; but in the latter case, it is left to the sound discretion of the Chancellor whether he will allow it to be done, or dismiss the bill without prejudice to the wife. In this view of the case, it was proper for the Chancellor to dispose of the case upon its merits, and under the assignment of errors, it becomes our duty to pronounce whether he erred in the decree rendered by him. Before, however, I proceed to this, it may be well to remark, that there is no conflict between the ruling in this case and in that of Hamilton and wife v. Clemens, 17 A. R. 201, although there is a seeming one. I well remember the facts of that case, having decided it in the court below. They are wholly dissimilar from those of this case. In that case, the bill was filed for the purpose of asserting a resulting trust in favor of Mrs. Hamilton, in certain slaves held by the defendant, and the court was asked to declare and establish it for the benefit of both husband and wife. It was not pretended that this trust had been created for the sole and separate use of the wife. The husband sought a personal benefit by the bill, and joined with the wife in its allegations and prayer. It sought relief for him, deducing his claim through his wife. A release of his interest in the property sought to be recovered, made before the filing of the bill, and apparently on a good consideration, was pleaded by the defendant; and the bill was dismissed, but without prejudice to the rights of the wife. Here, the husband, as has been before remarked, asserts no interest in bimself, seeks no benefit, and asks no relief. He is a mere nominal party, standing here because tbe wife’s rights have been invaded, and by the rules and policy of our law, she cannot sue alone, and he, from necessity, is her trustee. In that case, it was in form and substance the bill of the husband; in this, it is substantially the bill of the wife. On the hearing, a transcript of the record of the proceedings, judgment and execution in the Circuit Court of Cherokee county, in the case of Crawford v. John Michan, was offered in evidence by the defendant. To the introduction of this the complainant objected, but his objection was overruled by the Chancellor, and the evidence received. In this, we think, the Chancellor clearly erred. This suit is the suit of Leah Michan, and not that of her husband; although he is a party to the record, yet he is only nominally so. He has no interest; the whole interest is in the wife. So far as she is concerned, this transcript is res inter alios, and is incompetent evidence. Neither a judgment against the husband, his declarations, or his deed of release, would be receivable, as they would be wholly irrelevant to the issue made by the pleadings. This issue is, are the slaves in controversy the separate estate of the wife ? Every thing that would legitimately tend to prove or disprove this, is relevant. The record offered does not connect itself even remotely with this proposition, and, consequently, should have been excluded. It was not denied that the deed from Nancy Eenwick to Mrs. Michan, invested the latter with a separate estate in the slaves. Has this estate ever been legally divested, or has she done any thing which will estop, or hinder her from setting up her title against the defendant in a court of equity ? I have examined the evidence carefully, and if it establishes one fact with greater clearness and certainty than any other, it is, that Mrs. Michan never intended to part with her separate interest in these slaves, nor to allow them to be sold for the payment of her husband’s debts. To prevent the latter, when she was told by a friend that it was threatened by the sheriff of Cherokee county, who had an execution in his hands against her husband, she consents to send them off to a distant county, and to take on herself the menial offices and drudgery of the household. Hearing that their place of concealment had been discovered by her husband’s creditors, she sends her son and another, and bids them hurry to change their location, and insure their safety from the officers of the law. And when, at last, they were hunted up and sold, and it was ascertained that they had brought an amount exceeding the debt for the satisfaction of which they were sold, she does not join her husband in collecting this surplus from the sheriff, but, in the language of one of the witnesses, she says: “We would like to have the money, but I will do nothing to prejudice my claim to the negroes.” Even her necessities could not wring from, her an abandonment of her claim. The Chancellor predicates his decree, in a great measure, upon the supposition, that Mrs. Micban knew of, and consented to the sale of the slaves by the sheriff of Sumter county, and that she did so for the fraudulent purpose of procuring her husband’s debts to be paid by a sale of the slaves, and then intending to set up her own claim against the purchaser. The proof does not warrant such a presumption; and it is a well established rule, that fraud will never be presumed ; it may be inferred, when facts are clearly proved to justify the inference, but this is not the case here. The Chancellor, however, predicates his assumption upon the supposed presence of her son, James H. Micban, at the sale of the slaves, and the further assumption, that he was the agent of his mother with full power to dispose of the slaves. Waiving the question, whether, under the deed, Mrs. Micban could herself make a valid disposition of her interest in the slaves, without the interposition of a trustee regularly appointed, and the sanction of a court of equity; it is sufficient for the purposes of this case to say, that the power given to James H. Micban by his mother, as shown by the proof, extended to the removal and hiring of the slaves, and no further. This was the extent of his power, and it cannot be tortured into an authority to sell, or otherwise to embarrass or intermeddle with the title to the property. Again; the proof is wholly silent, as to the presence of James H. Michan at the sale by the sheriff of Sumter. It is insisted, ■ however, that to give it validity, the deed from Nancy Eenwick to Leab Micban should have been recorded in this State. There is no necessity for this, as has been repeatedly decided by this court. It is no incumbrance on the title within the meaning of our act of assembly, but is the evidence of the title itself, held by the loanee of the slaves, who has had them in possession under it for more than twenty years. The husband does not claim any interest in them whatever; and the mere fact that the donee is a married woman, living with her husband, cannot affect her right. In such cases the possession will be referred to the title, and the husband will be regarded as the trustee for the wife. Hale v. Stone, 14 A. R. 803; O’Neil v. Teague, 8 A. R. 345; Newman v. James, 12 A. R. 29; Smith v. Ruddle, 15 A. R. 28. It is, however, contended, that, as the defendant is a bona fide purchaser for valuable consideration without notice, the complainant is barred by lapse of time, and the statute of limitations, from setting up her claim against him; Such is not my view of the law. The complainant here is a married woman, and was such when she acquired her right to this property, and when it was wrongfully sold for the payment of the debts of her husband. This being the case, she is within the saving clause of our statute of limitations, and that expressly excepts her from the operation of the statute. There is no difference, in respect to this point, between the case under consideration and that of Sledge’s Adm’rx et al. v. Clopton, 6 Ala. 589 ; and the same rule must govern it. In that case, the husband had borrowed money, and pledged slaves to the lender as a security for its payment; but made with him an agreement, that, if the wife of the borrower should repay the money, the slaves should be settled on her as her separate estate. The wife tendered the money, but the lender refused either to receive it, or make the settlement. This took place in 1830 or ’31. The husband died in 1836, and the bill was filed in December, 1841, nearly six years after his death. The statute of limitations, as well as the staleness of the demand, was relied on in defence of the bill. The court repudiated both, and after reciting the statute of limitations, (Clay’s Dig. 326 § 78, and 327 § 80,) go on to say, with regard to the former: “The case at bar is more like the action of detinue than any other form of action at law; and consequently, if either of our statutes of limitations be applicable to it, it is tbe one cited. But tbe proviso of this act declares, that it shall not operate against a feme covert; and there is, therefore, no pretence for supposing that the statute began to run against the complainant previous to the death of the husband.” This same statute, (the act of 1802,) or rather the proviso to it, passed in review before the Court of Errors and Appeals of Mississippi, and received a similar construction, in the case of Curll v. Compton, 14 Smedes & Mar. 56, and the same result was attained as in Sledge’s Adm’r v. Clopton, supra. The coverture of Mrs. Michan still exists, and consequently the defendant will not be allowed to set up the statute of limitations against her. From what has been said, it is evident, that the court below erred in dismissing the bill. It should have decreed for the complainants, and directed the master to report a suitable person to act as trustee for Mrs. Michan, to whom the defendant should be required, by peremptory order, to deliver the slaves, and the increase of the females among them. The master should have been also directed to state an account for hire during the time the defendant has had possession of the slaves, calculating interest on such hire from the end of each year until the time of such accounting; as well as to ascertain if any of those bought by the defendant of Williams have died since demand made, or the filing of the bill, and if so, to ascertain and report the value of such as have died. For the sums arising from the hire of the slaves, and the value of those which have died since the filing of the bill, or demand made by complainant, as above stated, he should have rendered a money decree against the defendant. We should not hesitate to render such decree here, but we are without the necessary .data. The decree of the Chancellor is reversed, at the costs of the defendant in error, and the cause remanded, that it maybe proceeded in according to the foregoing directions.