We have often held that section 2892 of the present Code (1876), which provides that a married woman “must sue or be sued alone, when the suit relates, to her separate estate,” applies only to actions at law, and has no reference to suits in equity. — Sawyers v. Baker, 72 Ala. 49 ; Sims v: National Com. Bank, 73 Ala. 248. The husbands of the two married women were properly joined with them, therefore, as complainants.
The complainant, J. D. Skinner, was not a competent witness, as to any transaction with or statement by the decedent, Mrs. Louisa Taylor, which transpired during-her life-time, unless he was called to testify by her personal representative, who was one of the defendants in the cause.-— Goodlett v. Kelly, 74 Ala. 213 ; Keel v. Larkin, 72 Ala. 473 ; Dudley v. Steele, 71 Ala. 423. In considering the testimony, we shall, for this reason, exclude so much of this witness’ deposition as falls within the prohibition of section 3058 of the Code, and to which objection was interposed.
Thomas Taylor is shown to have died in September of the year 1872, owning at the time about two hundred and fifty acres of land, which he. occupied at the time as a homestead. He left surviving him his widow, Louisa Taylor, and several minor children, who continued to occupy the premises until the widow’s death, which occurred in March, 1882. Taylor, prior to his decease, had excuted a deed of trust on these lands, bearing date in November, 1870, to J. T. Jones, as trustee, to secure the payment of a debt of nearly eight hundred dollars, due to one Danby, all of which was paid by Taylor, except the sum of one hundred and thirteen dollars. There was also a mortgage on a portion of the lands, executed by Taylor in April, 1872, to secure a debt of between one and two hundred dollars due Crenshaw, Lovelace, and others, for which they also held a mortgage on Taylor’s crops to be raised dufing the current year. The widow came into possession of the crops of the decedent, shown to have been about seventeen bales of cotton, besides several hundred bushels of corn, valued at between twelve and fourteen hundred dollars. The cotton she disposed of, and paid the mortgage debts, having the mortgages assigned to herself. In 1876 she foreclosed these mortgages, *380under a power of sale, and purchased the premises at her own sale, through the agency of one Woolf.
The exemptions of both realty and personalty, in favor of the widow and minor children, as against the heirs and distributees of the estate, are to be governed by the act approved February 8th, 1872, which was the law in force regulating the subject of such exemptions at the time of the decedent’s death. Davis v. Davis, 63 Ala. 293. This statute exempted one thousand dollars in personalty, and a homestead of one hundred and sixty acres, which was “to be ascertained by allotment, or in money, at the election of the widow,” if there be one ; otherwise, of the minor children. The title of exempted property under the provisions of this law, when selected, vested absolutely in the widow, “ with the ppwer of alienation” on her part.' — Acts of 1871-72,' pp. 91-93. In this particular it differed from existing exemption ■ laws, under which the homestead right continues only during the life of the widow and the minority of the infant children, with subsequent reversion to the heirs of the decedent; and the personalty goes to the widow and minor children, to be accounted for only in the event- of the estate proving solvent, and then only as so much advanced on their distributive shares of such estate. — Hunter v. Law, 68 Ala. 365. The cause is not before us in such shape as to require that we should settle the precise interest, if any, which the widow acquired in the lands by way of exemption. It is not shown that she procured to be allotted to her by appraisers any particular part of the land as a homestead, or whether she elected to receive therefor money by way of commutation. No title, therefore, perhaps to any particular “one hundred and sixty acres” of the homestead tract, vested in her. Turnipseed v. Fitzpatrick, 75 Ala. 297.
Mrs. Taylor’s-rights to the personal property are of chief importance, as the case is now presented before us. It is manifest, in the first place, that no right of exemption could attach to any portion of the crops, as against the mortgage debt due Crenshaw, Lovelace and othei’S, this lien having been created as a lawful incumbrance on such crops by the decedent during his life. — Loeb v. Richardson, 71 Ala. 311. The law required that this property should be appropriated to the payment of this debt, and the evidence satisfies us that this was done. The whole of this claim was, therefore, paid out of the proceeds of crops belonging to the estate, and the widow could reap no benefit from taking an assignment to herself of a satisfied mortgage — one paid off from trust funds in her hands for the purpose. The balance due on the Danby mortgage debt was about one hundred and thirteen dollars, and this was paid by Mrs. Taylor, in November, 1882. The witness, Phelps, says *381he loaned her the money with which to pay this amount, which she did, taking an assignment of the instrument for her own benefit. Admitting that this statement of the witness is based upon his own knowledge of the uses to which the money was put, and not upon mere information — which is not rendered clear — we can dispose of this branch of the case hv one observation. Mrs. Taylor is shown to have come into possession of about eighteen hundred dollars of persona] property belonging to the estate, including the crops, and giving her the full benefit of the thousand dollars worth allowed to hev by way of exemption-, which, however, the evidence fails to show she selected, the fact is patent, that she had on hand funds amply sufficient with which to pay this mortgage debt. If she used this money for other purposes, and afterwards borrowed other funds to pay the debt, the law will regard it as paid from the money of the estate. The Danby mortgage, then, being satisfied from trust funds, the assignment of it to the trustee conferred no right upon her which a court of equity can recognize.
The two mortgages, being satisfied, were furoti oficio. And although the payment of the mortgage debt did not, under the •law as it then existed in this State, operate to divest the legal title of the mortgaged lands out of the mortgagees, the power to sell these lands was abrogated in view of the extinguishment of the debts ; and the attempted foreclosure under the powers of sale accomplished no more than to transfer the naked legal title to Mrs. Taylor, which she held in trust for those entitled. Hayes v. Wood, 72 Ala. 92; Slaughter v. Swift, 67 Ala. 494. No title was acquired by Mrs. Taylor under these purchases, except that of a mere mortgagee after default and before foreclosure, the mortgage debt being paid. The sale and purchase could not operate, under the circumstances, to add any strength to this baj-e legal title.
- In this view, the complainants had no adequate remedy at law, and a court of chancery was evidently the only forum which had jurisdiction of the case made by the bill, inasmuch as the interest which all of the complainants had in the real property was purely equitable, and not legal.
The bill should not have been dismissed ; and the decree of the chancellor must be reversed, and the cause remanded, that the rights of the parties litigant may be adjudged in harmony with the foregoing views.