The bill is filed to foreclose a mortgage, executed by husband and wife, conveying the wife’s real estate, to secure the payment of a debt contracted by them during coverture. The argument in support of the demurrer to the bill, so far as the demurrer is now insisted upon, is, that the averments of the bill, do not state with certainty, Avhether the estate of the Avife in the lands, was her equitable, or her statutory separate estate — the wife having capacity, if her estate Avas equitable, and her power of alienation was not limited by the terms of the instrument creating it, to execute the mortgage — but if her estate Avas statutory, she AAas without that capacity.
The general rule of the common law, applicable alike in courts of equity, and courts of law, is, that a wife can enter into no contract binding her personally, and can make no sales, gifts, transfers, or conveyances of property real or personal. In courts of equity, an exception was, and is recognized, in reference to property held to her sole and separate use. As to such property, that court has loDg recognized *432her capacity to contract, her contracts not binding her personally, bnt imposing a charge on the property, the court enforces. Not only does the court recognize her capacity to charge, but her power to alienate as if she were a feme sole; her power to charge or alienate not being limited by the instrument creating the estate. It is an elementary, or as is said in Duckworth v. Duckworth, 35 Ala. 70, a cardinal rule of equity pleading, “that a bill must show the complainant’s claim or title to relief with accuracy and clearness, and with such certainty that the defendant may be distinctly informed of the nature of the case which he is called on to meet; matters essential to the complainant’s right to relief must appear, not by inference, but by direct and unambiguous averment.” A bill to enforce the contract of a married woman, or a right derived from her alienation, will not show with accui’acy and clearness, a claim or title to relief, unless it shows the property to be bound by the contract, or which is claimed by the alienation. The separate estate which a court of equity recognizes, and recognizes the power of the Avife to charge by her contracts, or to dispose of as if she were a feme sole, when it consists of lands, must be created or declared by writing; by deed, devise, marriage settlement, or other appropriate instrument. The bill must not only desci'ibe the property, but it must also show the capacity of the Avife to charge or convey it. This can be shown only by stating the deed or other instrument conferring the capacity. It is not necessaxy to set it out in haec verba, but its sxxbstance must be shown, that the court may deterxnine whether the capacity to make the contract, or enter into the alienation is conferred. — McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Winter v. Quarles, 43 Ala. 692; Reel v. Overall, 39 Ala. 138; Cowles v. Morgan, 34 Ala. 435.
The averments of the px’esent bill are xxot sufficient to satisfy this rule. They show no more than that the lands Avere conveyed to a trustee for Mrs. Sprague, and that she held thexn as her separate estate by contract, and that she had a right to, and in this equitable court did bind the same, for the payment of said debts, &c. The interposition of a trustee, in AAhom the legal estate resided, does not necessarily create an equitable separate estate. Whether such estate was created, Avould depend upon the terms of the trust — whether it was expressed to be .for the sole and separate use of the Avife, excluding all marital right of the husband. — Lenoir v. Rainey, 15 Ala. 667; Short v. Battle, 52 Ala. 456. The manner in xvhich Mrs. Sprague held the *433lands, could not change the character of her title. The remainder of the averment, is simply the conclusion of the pleader, not the statement of facts showing the capacity of Mrs. Sprague. — Cockrell v. Gurley, 26 Ala. 405. The demurrer, consequently ought to have been sustained. An amendment may cure this defect in the bill, if the facts warrant it. We proceed therefore, to inquire whether the estate of Mrs. Sprague, in the lands, is her equitable separate estate, which she could alienate by mortgage, as a security for the debt contracted by her and her husband.
It is conceded the deed from Pope and others, to Hunter as trustee, by its terms created an equitable separate estate, which Mrs. Sprague, had the capacity of a feme sole, to alienate or charge. Whatever may be the operation, if any, on after acquired property, of the settlement into which she and her husband entered on the eve of marriage, that settlement can not affect, limit, or qualify the estate taken by her under the conveyance from Pope and others. The estate was derived from the bequest in the will of her father, and is subject to the trusts he imposed in that bequest, and not to the trusts and stipulations of the prior marriage settlement, to which he may have been unwilling to subject it. When a father or other person, makes a gift for the use of a married woman, he may, if he offends no law, impose whatever limitations or impart whatever qualities and incidents he chooses, to the estate he creates. — 1 Bishop on Married Women, § 797; Short v. Battle, 52 Ala. 456. No particular language, no particular form of expression, no technical words, are necessary to the creation of an equitable separate estate of a married woman. It is enough that from the terms of the instrument, it clearly and unequivocally appears, that the gift is to her separate use, excluding the marital rights of the husband. The gift in the will of Mrs. Sprague’s father, is of a third of the valuation of certain slaves, which when realized, “ is to go into the hands of John S. Hunter, as trustee of Elizabeth Sprague, for her use and behoof, and no other. ” It is impossible to doubt the intent of the testator, was the creation of a trust for the sole and separate use of his daughter, excluding the husband and all others from participation in its benefits, or from power to control and direct the appropriation of the money bequeathed. When the trustee, with the consent of Mrs. Sprague, (and that consent must be presumed from her continuous occupancy of the premises, for more than twenty years, claiming under the deed) invested the money realized *434án the purchase of real estate, it was his duty, to which a ■court of equity would have compelled him, if he had not voluntarily performed it, to take a conveyance to himself, as ■trustee, of the legal estate; and that the same trusts should ■be declared, and impressed on his estate, as the testator had •declared in the origin and creation of the trust. Neither by the terms of the bequest, nor by the terms of the deed conveying the premises to the trustee, is the power of Mrs. ■Sprague, to charge or alienate the estate, limited or restrained. She had capacity to alienate or charge it for the payment of her own debts, or debts contracted by her husband. The mortgage is therefore a valid security.
The defect in the bill, compels a reversal of the decree.
Reversed and remanded.