— The Chancellor having overruled the demurrer, and no cross assignment of error being found in the *826record, 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.
*827Tbe 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 *828tbe 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.
*829This 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 *830set 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 *831prove 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.”
*832To 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, as*833serts 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 *834and 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 *835from 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 *836either 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.