*617ON MOTION NOE EEHEABING.
Shebwood, J.Eor lots 5, 6, and 7, in block 28, in the town of Dexter, McCollum brings ejectment against Mrs. Boughton, a married woman, who, it appears, lived upon the lots, her husband having left her and disappeared in 1890. In 1877 she bought the lots with money in part obtained from her mother’s estate, and in part from the proceeds of her own labor. These lots, it is asserted by counsel for defendant, belonged to Mrs. Boughton’s “general estate.” It was her home, she having built a house thereon in 1880 at a cost of $1,500, of which she furnished $800 and her husband $700 at a time when he was free from debt.
This action had its origin in a deed of trust executed on the twenty-fourth day of August, 1888, on the lots aforesaid, by George N. Boughton and Mrs. Boughton, defendant, his wife. This deed of trust was in ordinary form, with George N. Boughton and his wife of the first part, E. M. Ladd of the second part, and Charles D. Matthews of the third part, and was given to secure the following note:
“$1,500. Sikeston, Mo., August 24, 1888.
“Two years after date, we promise to pay to C. D. Matthews or order, fifteen hundred dollars ($1,500), for value received, with ten (10) per cent per annum thereon from date, which interest shall be due and payable annually, and if interest is not paid annually the same shall become a part of the principal and bear interest at the same rate.
(Signed by) “Geo. N. Boughton,
“Thos. J. Ulen,
“J. W. McCollum, and
“E. J. Malone.”
*618After the insertion of the note, then follow the usual clauses about the payment of taxes, insurance of the buildings, etc. Then this common clause occurs:
“Now, if said promissory note shall be paid at maturity, and if the covenant aforesaid shall be met and truly kept, and all amounts expended as aforesaid shall be refunded and paid to the said party of the third part or his assigns by the said party of the first part or their legal representatives, then the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but if said promissory note, or either or. any part of any one of them shall be allowed to remain due and unpaid, or in case of payment of any amount expended as aforesaid shall not be made, or in case of said covenants or any part thereof shall not be fully kept, then this deed shall remain in force, and the said party of the second part, or in case of his death or absence from the state of Missouri, or failure or refusal to act, then the sheriff of the county of Stoddard, in the state of Missouri, acting as such for the time being, may proceed to sell the property hereinbefore described,” etc.
This deed was acknowledged by Boughton and wife on the twenty-fourth of August, 1888, the date of the note.
The answer of defendant was first a general denial, and then in substance sets up: That at the time of executing the deed of trust she was and still is a married woman and still the absolute owner in fee simple of the property in dispute; that the deed of trust was made to secure the debt contracted and promissory note of plaintiff, Geo. N. Boughton, Thos. J. Ulen, and E. J. Malone for the sum of $1,500; that defendant was not a party to said contract and promissory note so made and executed by said parties aforesaid; that no part of the consideration realized out of the *619deed of trust was received by her; that at most she was but a guarantor for the makers of said note, and the deed of trust was only collateral thereto; that plaintiff as one of the comakers of said note has paid off the note and thereby fully released her property; that the sale of the same was without lawful authority and is a cloud on her title. Then follows a prayer for the cancellation of the deed of trust, etc.
In his reply, plaintiff admits that his title rests on the sale under the deed of trust aforesaid, etc.; that such deed was made to secure the payment of the promissory note of Geo. N. Boughton, defendant’s husband, for $1,500; that the note became due and on the nineteenth of September, 1890, Ladd, trustee, sold the premises and made deed to plaintiff; that plaintiff, Ulen, and Malone were not comakers of said note, but only sureties of Geo. N. Boughton on the same, etc.; that Geo. N. Boughton agreed with them before they signed the note that a deed of trust of the premises in dispute was to be made to Matthews to secure payment of the same; that when said parties plaintiff and others signed the note as sureties, the deed of trust was already made and executed and in the hands of Geo. N. Boughton; that it was the express agreement between Geo. N. Boughton, plaintiff, and the other sureties at the time of signing the note, that said sureties were not to pay any part of it until Matthews had first exhausted his remedies by selling the premises conveyed by the deed of trust and applying the proceeds on the note; that it was upon the faith of such agreement that plaintiff and the other sureties were induced to sign the note; that Geo. N. Boughton failed to pay the note and in consequence the premises were sold and plaintiff became the purchaser, etc. The reply then admits that defendant is a married woman and *620had the legal title to the premises, and then denies new matter, etc.
At the hearing the common source of title was admitted, and the following evidence in substance and effect adduced: The deed of trust and the deed made by Ladd, trustee, to plaintiff.
Plaintiff then introduced his own testimony tending to support his reply and to show that an agreement was made between Boughton and himself whereby it was arranged by and between them that Boughton was to get Ulen and Malone to sign the note as sureties and plaintiff was to sign it also in that capacity, provided that Boughton would secure them on his home place; that on the twenty-fourth day of August, 1-888, Boughton came bringing with him the deed of trust already executed and plaintiff signed the note, which had at that time only the names of Boughton and Ulen on it. Objections taken to plaintiff testifying as to any agreement made with Boughton, defendant not being present, and exceptions saved on its admission.
Ulen also gave similar testimony to that given by plaintiff, that when he signed the note the deed of trust. was executed and in Boughton’s hands, and only Boughton’s name was on the note at the time witness •signed his name, and objection was made as before stated to a certain portion of it.
Defendant testified that she never read the deed of trust; that the note was attached to that deed and that the signatures to the note were on it when she signed the deed of trust. .
This is the substance of the evidence and a sufficiency of the pleadings bearing on the questions at issue.
1. The answer of defendant converted this action at law into a proceeding in equity, and therefore it becomes wholly unnecessary to consider declarations of *621law given or refused. Allen v. Logan, 96 Mo. 591; Wendover v. Baker, 121 Mo. loc. cit. 290, and cases cited; Durfee v. Moran, 57 Mo. 374; Hodges v. Black, 76 Mo. 537; s. c., 8 Mo. App. 389; Ells v. Railroad, 51 Mo. 200; Savings Inst. v. Collonious, 63 Mo. 290.
Notwithstanding this line of decisions, it is asserted “that the question of contribution can not be adjusted on these pleadings.” 'Why it can not be we are not told, and no authority is cited in support of the assertion. In this state it is abundantly settled as seen by the cases heretofore cited, and by other adjudications, that an equitable defense can be set up in and to any action at law. These adjudications are bottomed on the express statutory provision that: “The defendant may set forth by answer as many defenses * *. '* as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” R. S. 1889, sec. 2050.
Allen v. Logan, Durfee v. Moran, Ells v. Railroad, and Savings Inst. v. Collonious, supra, were all actions of ejectment, and yet it was held that the answers being of an equitable nature, converted the whole proceeding into one in equity to be determined on grounds recognized and enforced in courts of chancery. If, then, this defendant has any ground on the facts stated to be heard in a court of equity, I can discover no reason why her rights should not be adjusted in the present action as well as in any other; nor why she should be turned out of court, mulcted in costs, and forced to institute an affirmative equitable proceeding at additional expense and further delay. The rule is that when a court of equity once becomes possessed of a cause, it will not let it go until it has accomplished complete justice between the parties; it will not kick a party out of one door and then invite him to come in at another; it will not take two bites at a cherry. *622Savings Inst. v. Collonious, 63 Mo. loc. cit. 295, and cases cited.
2. Having thus disposed of these preliminary questions, it will be proper to examine the merits of the cause and of the defense set up by Mrs. Boughton as subsequent surety or guarantor.
Being the possessor of a mere legal estate under the married woman’s act, she was powerless to bind or in any manner charge that estate except in the precise method authorized and pointed out by the law. This point has been so frequently and flat-footedly decided by this court that it would seem needless to cite the authorities which announce the often declared principle.
The assertion that defendant, a married woman, possessed only of real estate in the ordinary way under the act mentioned, can not bind that estate except she does so in black and white as permitted and prescribed by law is by no means “a strict technical construction of the deed of trust.” It is no more technical than the law itself whose behests are thus obeyed. Outside of the terms, words, and letters of the deed, defendant could bind nothing, convey nothing, charge nothing. As to that real estate and as to any power of contracting, she is non sui juris, and for that reason can not contract so as to bind it except by going through prescribed written legal forms. Nor can she, for the same reason, have an agent in her husband who could bind her estate by his agreement with others, whether she were present or absent. Her husband could not bind her estate by his deed and his word of mouth is on par with his deed. Mueller v. Kaessmann, 84 Mo. 318, and numerous cases therein cited.
' This has been the doctrine in this state concerning the married woman’s act from Silvey v. Summer, 61 Mo. 253, down to Macfarlane v. Heim, 127 Mo. 327. See, also, Henry v. Sneed, 99 Mo. 407.
*623And in the very noticeable case of Hickman v. Green, 123 Mo. 165, that a married woman seized as aforesaid, could have no agent to bind her property by his representations, is distinctly announced.
After so many rulings on these points here involved, it ought not to be claimed for a moment that Boughton had any power by promises to McCollum and others to so bind his wife’s estate that it should first be exhausted before his sureties should be called on to pay the note. To hold otherwise is to make a ruling at war with a long line of decisions in this state and elsewhere.
Equally at war with all our former decisions on this topic is the declaration that Mrs. Boughton could make an “express agreement” either with her husband or with the “other sureties whereby she limited her liability to that of guarantor for all the other parties.” Nor was such an agreement made between husband and wife or between wife and sureties in Harris v. Warner, 13 Wend. 400, for there the 'agreement was made between men, parties laboring under no disability; and the like remark applies to Warner v. Price, 3 Wend. 397.
3. We have then left for examination the deed of trust as the sole representative, repository, and expositor of the contract between the parties. No outside agreement, no verbal understanding, no evidence aliunde can abate or alter the force and effect of the contract therein contained. What is that contract? It is this: That “if said promissory note shall be paid at maturity” “then the property hereinbefore conveyed shall be released,” etc.; “but if said promissory note shall remain due and unpaid, then this deed shall remain in force, and the said party of the second part may proceed to sell the property,” etc.
It will be at once seen that there is no hint or inti*624mation contained in the deed that the wife’s property should be first exhausted before the sureties could be called on to pay; on the contrary, the property mortgaged is to be sold only in the event that the parties to the note fail to pay it.
Now, in New York this case arose: The principal’s name, Hovey, was first signed to the note, then followed the names of Harris as surety; Spencer, surety; Warner, “surety for the above names” and thereupon it was determined that if after a principal and his sureties have signed a promissory note, and another party signs his name thereto as 11 surety for the above names,” that such surety was not a cosurety with the first surety and was not liable to him for contribution, and could not be made thus liable unless it was shown ‘ ‘positively or by legal intendment that the last signor had placed himself 'in that relation to him,” the plaintiff, who sought contribution, Nelson, J., remarking: “The defendant had a right to qualify his contract as he pleased, consistent with the rules of law. He refused to sign as cosurety with the other sureties, but did sign as surety for the whole, in which there was certainly nothing unlawful.” Harris v. Warner, 13 Wend. 400. To the like effect see Singer Mfg. Co. v. Bennett, 28 W. Va. 16; Sayles v. Sims, 73 N. Y. 551; Robertson v. Deatherage, 82 Ill. 511; Craythorne v. Swinburne, 14 Ves. 160.
When Mrs. Boughton executed the deed of trust, her land thereby became surety for the whole debt. The result of her act, so far as binding her land was concerned, was the same in legal effect had she been sui juris, and last of all signed her name to the note, adding the words “surety for the above names.” ■ In which case, under the authorities cited, she could not have been regarded as a cosurety; unless it were affirmatively shown by proof or by legal intendment *625that she had assumed the relation of cosurety to the other sureties.
But here, in the present case, Mrs. Boughton being incapable of contracting with the other sureties, except as expressed in the deed of trust, and no legal intendments being allowable against her (1 Brandt, Sur. & G. [2 Ed.], sec. 93 and cases cited), it must follow that her land is not bound as a cosurety but only as a subsequent surety.
In this case it would seem that the contract of Mrs. Boughton was that of guarantor rather than surety; it was collateral and secondary; her land was not to be sold but in the event the note was not paid. She was not bound with her principal and his sureties in the same instrument. She was only joined with her husband in the deed because of statutory conformity. 1 Brandt, Sur. & G. [2 Ed.], sec. 1, and cases cited.
But whether guarantor or subsequent surety is immaterial, the result is the same. As to her, the parties to the note were all principals, and her land was surety for them and not a cosurety in any sense of the term, and so is not liable to the rule of contribution., Harris, Subrog., sec. 170, and cases cited.
4. And it is wholly immaterial whether Mrs. Boughton acknowledged the deed of trust before all the sureties had signed it or not, since the deed would not take effect until delivery, and then the signatures of the sureties would take effect by relation, and in any event the terms of the deed of trust would not be affected.
Inasmuch as the sureties on the promissory note were all principals as toward Mrs. Boughton, the purchase by McCollum of Mrs. Boughton’s land inured to her benefit. Greer v. Wintersmith, 85 Ky. 516; 1 Brandt, Sur. & G. [2 Ed.], sec. 226.
For these reasons I think the motion for a rehearing should be denied, and the cause remanded with *626directions to proceed in conformity to the views expressed in this opinion.
Barclay, Macearlane, and Robinson, JJ., concur. Brace, C. J., and Gantt and Burgess, JJ., dissent.