The 15th Rule of Chancery Practice (Code, 18Y6, p. 163) provides, that “all bills and petitions filed by married women in reference to their separate estate, if over twenty-one years of age, or relieved of the disabilities of cov-erture, shall be exhibited in their own names/ in all other cases, Try next friend.” This rule was adopted by this court in January, 1SYY, and was designed to carry out the legislative policy, as indicated by the act of March 4, 18Y6, entitled “An act to allow married women, in certain cases, to sue in their own names.” It was there enacted, that married women, over twenty-one years of age, might sue in their own names, in all cases in which they were previously “required to sue by or in the name of a next friend.” Though the act itself seems to have been omitted by oversight from the present Code, and, therefore, has no binding force, it serves to illustrate the design of the rule suggested by it. Its purpose, very clearly, was to abolish the former rule, which required married women to sue by their next friend, in all cases, in courts of chancery, where the suit related to their separate property. It is too obvious for argument that it has no reference to the question of the wife’s joinder, or non-joinder with her husband, as co-complainant, but leaves this to be settled by the established rules of equity pleadings. — 1 Dan. Oh. Pr. 109*. And we apprehend that no doubt can exist, that it is applicable alike to separate estates of both kinds, statutory and equitable.
The case, in our opinion, presents no improper joinder of parties plaintiff. The suit, as originally instituted, was brought in the name of the appellee, Henry Baker, to whom Boone had conveyed the land in controversy. The husband, however, having purchased the land with the wife’s property (being a part of her statutory separate estate), and having taken the conveyance from Boone in his own name, was a mere trustee for her; and it was ruled by this court, when this case was here before on appeal, that the wife, as cestui que trust, was a necessary party to the suit.—Sawyers v. Baker, 66 Ala. 292. We then said: “ If she freely assented to the purposes of the bill, she was a proper party complainant; otherwise, she should have been made a defendant.” — Ib. 295. The bill was afterwards amended, so as to make her a co-complainant with her husband; and it is now insisted that this is a misjoinder of parties.
The question is unaffected by the statute; section 2892 of the Code (18Y6), requiring the wife to sue alone when the suit relates to her separate estate, plainly having reference to suits at law alone, and being inapplicable to suits in equity. The doctrine as to parties is essentially different in courts of law, *54and in courts of equity; and it is often a matter of no grave concern, in some cases, whether a given party is complainant or defendant. — Story’s Eq. Plead., §76. Where, however, the husband has no adverse interest to his wife, and neither seeks any relief against the other, both being necessary parties to a suit instituted to enforce some legal right of the wife in a court of equity, the rule is, that they may unite as co-corn-plainants. — 1 Dan. Ck. Prac. 109;* Bein v. Heath, 6 How. (U. S.) 228; Story’s Eq. Plead., § 61-62; Booth v. Albertson, 2 Barb. Ch. 313.
In Pitts v. Powledge, a bill was filed by the husband alone, to enforce a vendor’s lien for the unpaid purchase-money, evidenced by a promissory note made payable to him. The wife was allowed to be made a co-complainant, by amended bill, alleging that the land belonged to her statutory separate estate. That case and the present are essentially the same in principle, and we can see no error in the action of the chancellor allowing' the amendment, to which objection is taken by demurrer.
We make yet another suggestion, corroborative of the correctness of the foregoing views. The husband here holds a deed to property, as a mere trustee for the wife. She is the beneficiary, or real owner in equity, and seeks relief, to which the husband consents. It is the duty of the court to protect the trust, by decreeing that the title be made to her, if to any one. In this view, she is certainly a proper, if not a necessary party plaintiff with the husband.
It is further insisted by the appellants, that their equity in the lands purchased by Baker is superior to Mrs. Baker’s. In Sawyers v. Baker (66 Ala. 292, 296), supra, w'e held that, although Baker was the purchaser of a mere equitable title from Boone, still his possession of the land was a fact which charged all subsequent purchasers with notice, and was equivalent to registration of his deed, which was unrecorded. And he having paid the purchase-money, before the mortgage on the same-land was executed by Boone to Sawyers and Gamble, his equity was held to be superior to that acquired by them through their mortgage. This conclusion was based on the principle, now well settled in this State, that the open, notorious and exclusive-possession of real estate, by a vendee holding under an unrecorded deed, and claiming the land as his own, whether in trust or otherwise, is constructive notice of the vendee’s title,, whether legal or equitable in its nature.—McCarthy v. Nicrosi, at present term. We are satisfied with the conclusion then reached, without adding more.—Hendricks v. Kelly, 64 Ala. 388; Wade on Notice, § 273; Ludlow v. Gill, 1 Amer. Dec. 294, note; Burt v. Cassety, 12 Ala. 734.
But it is contended, that as Sawyers and Gamble, the appel*55lants, were sureties of Boone on the note given for the purchase-money, which was a lien on this land in favor of the vendor, and as they paid the balance due on this note, they are entitled to be subrogated to the vendor’s lien, which is superior to the equity of the appellees. The authority of Knighton v. Curry, 62 Ala. 404, is cited in support of this view. Conceding that this case limits, if it does not modify, the old doctrine declared on this subject in Foster v. Trustees of Athenæum (3 Ala. 302), and that a surety can, in such cases, work out the equity of subrogation, there is one important feature in the case at bar, which would utterly defeat its assertion as against the appellees. The sureties were certainly liable for the whole of the purchase-money, due on the land purchased by their principal, Boone. This amounted to more than eleven hundred dollars, and was evidenced by the joint and several note of Boone and these sureties, Sawyers and Cambie. When Baker purchased the land in controversy, which was something less than half of the original tract, he paid for it the sum of five hundred and fifty dollars, which was credited on this note. The sureties have, therefore, gotten the full benefit of this credit once, and can not, in equity or good conscience, be permitted to enjoy it a second time, to the detriment of the purchaser. It does not appear that the price paid was inadequate, or the purchase unfair. If this claim is sustained, the sureties will virtually have been permitted to enforce their alleged equity twice against the same land — once by having the purchase-money paid by Mrs. Baker appropriated to pay about half of their own debt, and again by enforcing a lien against it for the other half. No principle of equity jurisprudence is known to us, by which such an inequitable proceeding can be justified, or tolerated.
The chancellor was clearly correct in overruling the demurrer filed to the bill by the appellants, and his decree is affirmed.