The court, on the disclaimer of J. W. Stephens, gave judgment against him, but E. E. Stephens, his wife, defended on the ground that the land sued for was hers, as her statutory separate estate; that the mortgage debt was that of her husband, and that *241she is and was a mere surety on said debt for her husband, and that it and the mortgage on her land, were of no force and effect, and void as to her.
That the land was her statutory separate estate, and did not belong to her husband, at the time of the execution of said note and mortgage, is not denied. Her title to the land was of record.
If it be true, that Mrs. Stephens executed these papers merely as the surety of her said husband, the act was one forbidden by statute to be done, was illegal and void as to her. The Code in terms (§ 2349) declares that ‘ ‘the wife shall not, directly or indirectly, become the surety for’ her husband.” Being an act forbidden by statute to be done, the note on which the wife becomes surety for her husband and a mortgage by her of her statutory separate estate to secure the debt are void.— Hawkins v. Ross, 100 Ala. 459; McNeil v. Davis, 105 Ala. 657; Lansden v. Bone, 90 Ala. 446; Dudley v. Collier, 87 Ala. 431; Robertson v. Hayes, 83 Ala. 291; Heard v. Hicks, 82 Ala. 484.
The evidence shows, without any conflict, that the husband of Mrs. Stephens applied for and conducted all the negotiations for this loan and procured it to be made. The debt as contracted was his. The purpose for which he needed the money was not disclosed. He represented that the land he proposed to mortgage to secure the debt was his own. The wife joined him in the execution of the note and mortgage. So far as appears, she knew nothing of the transaction, and nothing was done or said by her, to indicate that the money was for her or her purposes, or that she authorized her husband to act as her agent in the premises, or that she had any purpose to deceive or defraud the lender, or that she signed the papers otherwise than as a mere surety. There was nothing to show that it was her independent transaction, and that the husband was her surety, or signed the papers merely to express his assent and concurrence for her to contract.
It is said that she joined her husband in drawing a draft on parties in New Orleans for the amount of the money loaned, for which she and he had given their notes and mortgage. This draft was drawn, in the manner it was, as appears, by Long’s directions, who was the agent in procuring the loan, for which draft, after it *242was drawn and delivered to Long, lie gave J. W. Stephens, the husband, his check on a bank in Eufaula for the amount. This indicates nothing as to the character in which Mrs. Stephens executed said papers; and certainly not, that she was the principal in the transaction.
It is said again, that the money borrowed was used to improve and cultivate the lands sued for. That fact, however, would not validate the notes and mortgage, if invalid in their inception, on account of the wife having signed them as surety. In Wardsworth v. Hodge, 88 Ala. 506, — a case to enforce a mechanic’s lien on a wife’s land, where the debt for the materials was contracted by the husband, — it was held, that credit having been given to him solely,’he alone was bound, although it appeared that the wife knew that the building and improvements were in process of erection on her land, and said nothing, and that she and other members of the family afterwards occupied the building as a dwelling. Again in Hawkins Lumber Co. v. Brown, 100 Ala. 217, we held, that when lumber was purchased by the husband in his own name, and not as agent of his wife, and was used in improving his wife’s property, an estoppel could not be invoked against the wife, when there had been no misconduct on her part, nor false misrepresentations by the husband of which she had knowledge, or unless he contracted as her agent, and she with knowledge of that fact, acquiesced or gave countenance to the exercise by him of such authority as her agent.
It is shown that the defendant pleaded three pleas ; not guilty and two special pleas which are copied in the abstract, in which she set out that the land was her statutory separate estate, that the debt evidenced thereby was that of her husband, and that she was and is the surety therefor.
The only appropriate plea in an action of this kind is "not guilty,” under which a defendant may introduce any evidence which will bar plaintiff’s right of recovery ; and it is the only plea on which the plaintiff can be required to take issue. — Code of 1886, § 2698 ; Bynum v. Gold, 106 Ala. 427. Under the facts of the case, the legal title to the land sued for, by the mortgage executed by Mrs. E. E. Stephens, became divested out of her, and invested in the mortgagee. On foreclosure of the same, and purchase by the plaintiff below, and conveyance of *243the property to him by the mortgagee, he became invested with the legal title. The note and mortgage did not disclose on their face, that Mrs. Stephens was the surety of her husband for the debt to secure which they were given, but that fact appeared alone by extrinsic evidence. Such extrinsic proof was not competent to be made; to avoid the legal title of the plaintiff, and the wife’s only remedy to avoid it was in equity.
The two special pleas tendered an immaterial issue. They would, have been stricken on motion of plaintiff. But the plaintiff raised no objection to them in any form, so far as appears. He took issue and the case was tried upon them. The defense set up in them was proved, and the defendant was entitled to the general-charge, as given, on them. When parties go to trial on an immaterial issue, if the truth of the averment pleaded in bar or preclusion be established, this must control the finding and the judgment, irrespective of the inquiry whether or not it raised the question of merit in the contention.— Winter & Loeb v. Pool, 100 Ala. 503, 506; Taylor v. Smith, 104 Ala. 538.
Affirmed.