The appellants assign that the District Court erred,
1st. In refusing to dismiss the cause.
2d. In overruling demurrer to plaintiff’s petition.
3d. In sustaining plaintiff’s exceptions to answers of defendants.
And the defendant, Rebecca Shelby, separately assigns error in sustaining plaintiff’s exceptions to her separate answer.
As to the first ground, the appellants conceive that this suit should have been dismissed for the reason that a previous suit had been instituted by appellants against Walbridge, to whom the notes were executed, and against Moore, the trustee in the trust deed given on some negroes of the appellant Rebecca, to secure the payment of these notes, and a writ of injuction had been obtained, restraining the parties defendants in that suit, from attempting to enforce the said trust deed. But the plaintiff in this suit was no party to the former suit, and the notes had been passed to him (if the facts be not misconceived) long before the'commencement of the suit, and consequently he was not bound by the proceedings, nor was he in contempt of the process of injunction, it having, as against him, no operation. There was no error in refusing the motion to dismiss.
The appellants insist, under the second assignment, that the petition was defective for the want of parties, the trustee, D. D. Moore, not having been brought in as a defendant, and that upon that ground the demurrer should have been sustained. Had this objection been taken below, it should have prevailed. The trustee is not deemed, in a suit by the creditor against the debtor to foreclose a deed of trust given by way of mortgage, ■an absolutely necessary party. But he is a proper party, and should be joined as such ; and the objection, when apparent on the face of the petition, as it is in this case, may be taken by demurrer, and is believed to be of such a character that it might be insisted upon at the hearing, (Story, Eq. Pl. Sec. 541, 207;) but it comes too late when taken for the first time in the *649appellate Court. The result of the previous decisions of this Court is, that the legal title, as a general rule, remains in the mortgagor, as it does also in the debtor who, instead of executing a mortgage, gives a deed of trust. It might be somewhat difficult to define with precision the character and quality of the estate in the trustee. It is clear that the parties who have the substantial interest, are the debtor, who is the owner of the property, and the creditor for whose debt it has been pledged. But the trustee has some interest, and this becomes paramount to all other rights, should it become necessary that the trust should be enforced by him according to its terms. But if the creditor, instead of availing himself of his summary remedy of sale by the trustee, brings suit for foreclosure, the matter is taken out of the control of the trustee ; his interest becomes nominal, and has no such force as would require the appellate Court, where it is for the first time presented, to set aside the proceedings of a protracted litigation, in order that he might be made a party, so as to be bound by the decree.
The demurrer is general, and one of the inconveniences of a gen eral demurrer is, that the appellate Court is not apprised with certainty of the ground insisted upon below. But there is little danger of mistake in this case. There is no allusion to this ground in the original briefs for the appellants or appellee ; and in the amended brief of the appellee, he declares that it was presented for the first time in the argument before the Supreme Court.
Under the circumstances, we deem the ground insufficient, and that there was no error in overruling the demurrer to the petition.
It is not without some hesitation, that we have come to the conclusion that there was no error in sustaining the demurrer to the separate answer of the appellant Rebecca.
We have repeatedly decided, that since the introduction of the Common Law, a wife can make a valid mortgage of her separate estate, for the payment of her husband's debts. (Hol*650lis and wife v. Francois & Border, 5 Tex. R. 195; 6 Id. 102.) This was the reverse of the rule previously in force under the Spanish Law. Contracts, under that law, in which the wife joined with her husband as a surety, were absolutely void, and those in which she joined as a co-obligor merely, were void, unless they proved advantageous to herself. It is not to be disguised that her condition, to say the least, has not been improved by the change. Had her freedom of action been increased in a degree commensurate with her power to bind her estate, there would have been a manifest improvement on the ancient law. But her estate is now, as it was in former times, under the control of her husband. She has not the power to dispose, as a feme sole, of the corpus of her statutory estate, nor to receive and take for herself its profits, as a married woman has over her separate equitable estate, as recognized and sustained by Courts of Equity. And it was in relation to this latter species of estate, and to the powers of a married woman over such estate, that the rule giving her authority to encumber her estate for the benefit of her husband, was introduced. But it avails not to recur to these reminiscences or distinctions. By the law, as it exists, both the Court and appellant must abide. It was said in the case of Hollis and wife v. Francois & Border, that these mortgages by the wife, of her property, for the benefit of the husband, should be closely scrutinized, and they must be free from symptoms of fraud, coercion or undue influence. (2 Story, Sec. 1395; 3 Johns. Chan. 550; 2 Ves. Jr. 198, 500.) And the principal difficulty is to determine, upon the facts in this case, whether there was undue influence. It is believed, however, that though a strong influence, as represented, was brought to bear on the feelings and affections of the wife, yet there was not that species of undue influence, which is reprobated by the law. The power vested in the husband over the wife is very great. It exists in undiminished force over her person, and he still has a species of right or control over her property. The undue influence from which *651the wife is relieved, and which has the effect of invalidating her acts, is believed to arise mainly from some exertion of this power by the husband, so as virtually to deprive the wife of her capacity as a free agent, and not as in this case, where appeal is made merely to her sympathies, to relieve the property of her husband from a temporary pressure, until he could either avail himself of his defences against the claim, or until, as must be understood in such cases, he could raise the means to pay the debt out of the community estate, or out of his own property.
The wife, in her separate answer, charges that before signing, she was told by an attorney, employed by her husband, that her signing said notes and deed was a mere matter of form, and that she would not be bound by them, or either of them, and that the creditor, Walbridge, was present, and knew the most, if not, as she believes, all the facts stated in her answer. Had she averred distinctly that the creditor knew that she had been advised by counsel that her signature was a mere matter of form and not binding upon her, this, it is believed, would have been such a fraud upon her, by his consent and collusion, as to have been a ground for relief. But she does not charge distinctly as to this fact. And the fact as stated, occuring as it did between herself, her husband and his counsel, could, under the circumstances, have no effect against the creditor. If the husband, or any really free agent, had stated that his signature was merely matter of form, not intended to be binding, it would have had the effect to give, if possible, additional force to his acts. His statement would be regarded as a confession of a fraudulent design. Such imputation can not, however, be made against the wife, who is supposed to be not well informed of her rights, or of the effect of her acts. But while it should not be allowed to operate to her injury, it cannot have the effect of giving her relief.
Judgment affirmed.