The statute of amendments, applicable to pleadings in chancery, is broad and liberal, providing : “ Amendments of bills must be allowed, at any time before final decree, by striking out, or adding new parties, or to meet any state of evidence which will authorize relief.” B. C. § 3356. Prior to this statute, a suit in equity may have been defeated, on the hearing, for a misjoinder, or a nonjoinder of parties; an amendment after the cause was ripe for hearing, curing the defect, not being matter of right, but resting in the discretion of the chancellor, — Michan v. *150Wyatt, 21 Ala. 813. Any other than mere formal amendments, it was against the practice of the court to allow, after the cause was at issue; and, at no stage of the cause, could an amendment be allowed, which was repugnant to, or inconsistent with the original bill, or which introduced a new case. The consequence was, that a complainant, having a just demand, was often denied relief, because of the insufficient allegations of the bill, or because there was a variance between allegations and proof, discovered too late for curing by amendment, or fatal because the case made by the proof was inconsistent with the averments of the original bill. The purpose of the statute is declared by its own terms— the allowance of amendments meeting “ any state of evidence which will authorize reliefThe stage of the cause is not material, if it has not passed to final decree. It may have reached issue, the testimony taken and published, and the hearing in progress; until final decree is pronounced, the right to amend is secured. It is. not matter of discretion in the chancellor, but of right in the complainant; the chancellor having a discretion only in the imposition of terms, which cannot extend beyond the payment of all costs. If the defect is a misjoinder, it may be cured by striking out the parties improperly joined; if it be a nonjoinder, by adding the parties omitted. Or, if it be in allegations, whether it is the want of proper allegations, or the introduction of allegations variant from, or inconsistent with, or repugnant to the facts found in the evidence, an amendment conforming the allegations to the evidence must be allowed. If there is not an entirely new case made, or a radical departure from the cause of action stated in the original bill, or an entire change of parties wrought, the right to amend is coextensive with the error which may be committed.
2. The cause of action, the subject-matter of suit in the present case, is the contract for the purchase of the lands, and the enforcement of the payment of the purchase-money is the relief sought. The legal title to the promissory note which is unpaid is in the husband. This contract was made with him and the wife; and if it had not. been, would have been voidable at the election of either party, if not void. He was, therefore, a necessary party to the bill; and being the trustee of the wife’s statutory estate, there is a manifest propriety, in the absence of all interest adverse to the wife, in joining him as a party complainant. The statute (R. C. § 2525), requiring that the wife, when the suit relates to her separate estate, shall sue and be sued alone, refers to suits at law only, and is incapable of application to suits in equity, A court of law is contented, as a general rule, if the parties *151having the immediate legal interest are before it, and its judgment will bind and conclude the legal title. A court of equity requires that all persons, having legal or equitable interests involved, shall be made parties, so that its decrees may be safely performed, and future litigation prevented. This case will serve as an illustration. The legal title to the unpaid promissory note resides in the husband, it being payable to him; but it is, nevertheless, a part of the wife’s statutory estate, having- been given for the purchase-money of her lands. The wife is, therefore, the equitable owner— has the beneficial interest — and the statute (B. C. § 2523) would have required that a suit at law must be in her name only, she being clothed with the capacity of suing alone, by the subsequent section, when the suit relates to her separate estate. In a court of equity, the husband becomes a necessary party, not only because he has the legal title, but because of his relation of trustee to the wife’s statutory estate. The amendment introducing the wife as a party complainant with him, did not work an entire change of parties — it was simply, as the statute authorizes, the addition of a new and indispensable party complainant.
True, the original bill proceeds on the ground that the contract of purchase was made with the husband, and that he has the exclusive interest, legal and equitable, in the payment of the purchase-money. The amended bill proceeds on the ground, that the wife has the equitable interest, and that the husband has only the naked legal title to the promissory note, and stands only in the relation of trustee. Tet there is no change of the cause of action — of the subject-matter of suit. That remains as stated in the original bill, and the relief prayed is unchanged; the enforcement of the payment of the purchase-money being the object of the bills, original and amended. The amended bill was not obnoxious to the causes of demurrer, resting on the ground that it made a new case, or produced an entire change of parties.
3. It is true, generally, that a defendant cannot have any positive relief against the complainant, even as to the subject-matter of the suit, except by cross bill.— Goodwin v. McGehee, 15 Ala. 232. But we do not think this case falls within the rule. Affirmative relief against the complainants was not sought; there was mere resistance of the decree which was claimed. When the vendor files a bill to enforce the lien for the purchase-money, the court acquires jurisdiction over the whole contract of purchase, and can adjust the recovery of the purchase-money, to meet the rights of each party. — Bell v. Thompson, 34 Ala. 633. An abatement of the purchase-money, because of a failure of title to part of the *152lands, is founded upon the ground that there is a partial failure of consideration; aad is matter in discharge, or reduction of the complainant’s demand. It operates to prevent, or reduce the decree, and is proper matter of defense by answer.
But, though the chancellor was in error, in holding the defense, because of an alleged failure of title to a part of the lands could not be made by answer, but was the subject of a cross bill, no injury resulted to the appellant. The defense was not sustained by the evidence, and must have failed, if the chancellor had regarded it as properly interposed. The evidence satisfies us, there was an inadvertent misdescription, in the bond for title, of the southern boundary of the lands. Accuracy of description of the boundaries was not intended, because, as is shown by the bond, a particular designation of them was postponed until the deed should be executed. It is probable the misdescription escaped the observation of the appellant, at the time the bond was drawn and executed. If it did not, he knew then that it would embrace lands which had not been sold to him, and to which his vendors had not, and did not claim title. The lands really purchased are the property of his vendors, and to them, on payment of the purchase-money, he can obtain a good title.
The bill, it may be proper to add, was filed prior to the act of March 4th, 1876, authorizing married women to sue in their own names, and is unaffected by that act.
Let the decree be affirmed.