The evidence introduced on the part of Mrs. Knight in the trial below, conduced to prove, that the slave Cynthia had been loaned to her about the year 1833, when she and her husband were about leaving North Carolina to come to Alabama, for the benefit of her and her children, ox that the loan was to her and her children; and that her husband had always held them in that way.
This loan conferred^ upon Peter Knight, her husband, whatever interest she acquired by it, because it does not appear that the loan, whether to herself alone or collectively with her children, was in any manner to her separate use. McCoy v. Odom, 20 Ala. 502. But this interest in the wife was never anything more than a bailment, and consequently never amounted to anything more when the law, by virtue of the marital right, vested it in her husband. He acquired her interest, whatever it was, and that only. Story on Bailments, 219, 220.
When this slave was sold under execution against Peter Knight, there can be no doubt but that Daniel, the purchaser at-the sheriff’s sale, acquired the absolute property as against Bell, the lender, and all claiming under him, by force of our statute of frauds. The three years’ possession by the debtor, without any deed or other instrument duly recorded, setting forth a more limited estate in him, subjected the absolute property to sale as against Bell, and this the purchaser acquired. Clay’s Dig. 254, § 2; Myers v. Peek, 2 Ala. 648.
But when Knight subsequently repurchased this slave from Daniel, what consequences did the law attach to that act? Did he acquire the title of Daniel, or did he only place himself in a position where, as between Bell and himself, he would be considered still as the loanee or bailee of Bell ? It cannot be doubted but that the latter was the true position in *205which he stood. Had he been sued by Bell for the slave, he could not have defended against him under title from Daniel, nor would he have been allowed, as a bailee, to set up against Ms bailor title in another. So far as Bell was concerned, he had violated his contract of bailment in suffering the slave of Bell to be taken and sold for his debt; and when he acquired her back by a purchase, he only restored things to that posture which good faith required him to do towards his bailor. This, then, did not enlarge his title or estate in the least. He remained after the repurchase from Daniel, where he was before the execution sale, the loanee of Bell by virtue of his marital rights, holding just such a possession and interest as was given to his wife by her father, when they were about leaving North Carolina, and no more. Story on Bailments, § 266, and authorities.
The repurchase took place about 1842, and in 1846 Bell made his will, by which he gave his daughter, Mrs. Knight, a life estate in the slave Cynthia and her children, “ to her sole and separate use,” with remainder over to his grand daughter. Hpon the supposition that' the slave was delivered as a loan or bailment, the lender had a perfect right to resume the actual possession at any time. This would include the right to convey to another, or to enlarge the interest of the bailee by the creation of a greater estate in him or her, either by deed or will. The creation of this life estate, then, to her separate use, in Mrs. Knight, by will, was a good and valid act, on the supposition that the original delivery was as a loan, and conferred upon her all the estate and interest which such an act can confer upon a feme covert. Gunn v. Barrow, 17 Ala. 743.
This brings us to the consideration of the extent and nature of that estate. A life estate in a slave, created by deed or will, in favor of a married woman to her separate use, and to her directly, without the interposition of a trustee, gives rise to a question, not as to the extent of her interest, but as to the nature of her title, about which there is found some difficulty in coming to precise and definite conclusions, which need not now be encountered. All the authorities agree, that such a deed or will vests the whole beneficial interest in the wife, and that the law makes her husband a trustee for its *206protection. And further, — waiving still the discussion of tbe question as to where the legal title is, or what becomes of it during the life of the husband — no doubt is entertained, that on his death a full legal title exists in the wife. Puryear v. Puryear, 16 Ala. 491; Same v. Same, 12 Ala. 13.
As long, then, as her husband lived, Mrs. Knight had no title under this will of her father, upon which she could either prosecute or defend at law under her own name. That right and that duty were cast by the law upon her husband as her trustee. But when her husband died, and she became again a feme sole, the legal title and the beneficial interest became operative together in her at once, and she was fully competent both to prosecute and defend at law, in respect to the slave in question.
It will be readily seen, that the charge which was given by the court was erroneous, according to the views here laid down, because it absolutely precluded the jury from considering the defence set up by the plaintiff in error; the judge being of opinion that chancery was the only forum in which that defence could be interposed, when, as we conceive, the case as presented by her proof conduced to show a good de-fence at law, she having, according to that proof, both the possession and the legal title to the slaves in controversy.
The charge which was asked by defendant, was correctly refused. In one feature of the case, the proof made by the plaintiff below, and that made by the defendant, is somewhat conflicting. I allude to that portion of the proof which relates to the manner in which Knight in his lifetime claimed to hold the slave Cynthia. If the administrator of Knight set up for his intestate a title acquired by an adverse possession against Bell for six years before the making of his will, the proof on this point became material, and is evidently conflicting. Such a charge as that which was asked, and which amounts in fact to a demurrer to evidence, may and should always be refused where the proof is at all conflicting, unless the party asking it will wholly abandon the evidence which conflicts with that of the opposite side.
It may not be amiss to add, that the proof set out in the record would not- establish an adverse possession in Peter Knight against Bell. A bailee, to throw off the obligations *207which, rest upon him as such, and become an adverse holder towards his bailor, must do .some open and unequivocal act evincing such an intention, and this, to affect the bailor, must be brought to his knowledge. The proof in this case does not show such a state of facts. Harrison v. Pool, 16 Ala. Rep. 167.
For the error in the¿charge of the court, the judgment below is reversed, and the cause remanded.