#### BECTON et al. *vs.*SELLECK et al.

[BILI. IN EQUITY TO FORECLOSE MORTGAGE.]

1. *Married woman, owner of separate statutory estate; what power has as to collection cf debts due her.*— A married woman, a citizen of this State, who is the owner of a statutory separate estate, is clothed by law with the power to collect her debts, by suit or otherwise, and to “receive,” with the concurrence of her husband, any property to which she may become entitled after her marriage. — Rev. Code, § 2525, 2375, 2372.

2. *Same.*— In the exercise of this power, she acts without restraint, except that which may be imposed by her husband as her trustee. In collecting a debt or sum of money, to which she is entitled, she may take *land*in lieu of *money.*And in dividing the proceeds of a promissory note, in which her interest is one-fourth part, and the note is paid by a transfer of land, and the land is valued at more than her share, if she takes the land, she may pay the balance above her share in money or bind herself by her own and her husband’s promissory note for this balance, and secure the payment of the note thus given by mortgage on the’land thus “ received ” in lieu of her part of the note thus collected; provided the note and mortgage are executed as 'required by the law governing the “separate estate of wife.”

3. *Same; when mortgage signed by married woman and her husband may be enforced against both.*— Such mortgage may be foreclosed against the wife and her husband if she fails to pay the note when due, which has been thus entered into.

Appeax from tbe Chancery Court of Dallas.

Heard before Hon. Charxes Turner.

The ease is sufficiently set forth in the opinion.

Fexxows *&*John, for appellants.

Brooks, Harraxson *&*Roy, *contra.*

[No briefs came into the Reporter’s hands.]

PETERS, J.

This is a suit in chancery, commenced by the appellants, who are minors, against the appellees." There was an original bill and two amended bills, and the purpose of the suit is to foreclose a mortgage, executed by William Selleck and Caroline Selleck, who, at the time of *227its execution, were husband and wife, and citizens of this State. The facts set out in the pleadings, so far as they are material, are about these: On the 2d day of February, 1866, Frederick S. Becton, *Senior,*who was the uncle of Mrs. Selleek, and the step-father, or father by adoption, of the appellants, conveyed by deed, of the above date, to James Kent, as trustee, a considerable amount of property, consisting of money, bank certificates of deposit, and promissory notes, which are named in the deed, for the use of said William Selleek, and his wife, Caroline Selleek, and the appellants, the said Benjamin and Frederick Becton, who were then minors. This deed was made in this State. Kent, the trustee, was authorized by it to Collect the sums of money thus conveyed, to satisfy the expenses of executing the trust, and to- pay the balance as follows: that is to say, *one-fourth*to said William Selleek; *one other fourth*to said Caroline Selleek, his wife, and to hold the *other half*of the money thus conveyed for the use of the appellants, said Benjamin and Frederick Becton, (who were then minors,) until they became of age, and then pay it over to them. Among the claims thus, conveyed to Kent, as such trustee, to hold under said,deed of trust, was a promissory'note, on Joseph J. Alston, for $15,000, which bore date December 5, 1865, and became due in twelve months after date. Alston was a citizen of New Orleans, in Louisiana, and of somewhat doubtful solvency. He owned a house and lot in the city of Selma, in this State, • which he was willing to surrender in payment of his note, at an estimated value of $12,000, and pay the balance on his note in money. Mrs. Selleek and' her husband, said William Selleek, were the owners, as the beneficiaries in the deed to Kent, each of the *one-fourth*part of said note, and they were willing to collect their interests in said debt on Alston, by taking the house and lot in lieu of the money. But the estimated value of the house and lot exceeded their portion of the note on Alston, by a little above the sum of four thousand *dollars;*and the collection could not be effected in this way, unless they consented to pay to Kent, for the use of the other beneficia*228ries under tbe deed, the residue of the estimated value of the house and lot, above their shares of the Alston note. This residue was fixed at the sum of $4,148.33. For tiffs sum Selleck and wife executed their note to Kent, as trustee as aforesaid, bearing date the 1st day of July, 1866; and on the same day this note of Selleck and wife bears date, they executed a joint mortgage on the house and lot they had thus received in collection of their part of the Alston note for $15,000. Under this arrangement they received Alston’s title to the house and lot, his note was given up to him, and the Alston debt was thus collected. When the note of Mrs. Selleck and her husband, secured by the mortgage, fell due, it was not paid. Upon this the Bectons, the appellees in this court and beneficiaries in the deed to Kent, to whom this note belongs, and who were then still minors, bring their bill by then trustee and next friend, against Selleck and wife, said mortgagors, to foreclose the said mortgage. Mrs. Selleck sets up in her defense that she was a married woman, an inhabitant and citizen of this State at the time of making said note for • $4,148.33, and mortgage to secure the same to Kent, and that the property conveyed by her in said mortgage is her statutory separate estate, held under the Code of this State, and that as to her, the note and mortgage are void, and without any binding effect. Selleck, the husband of Mrs. Selleck, made no defense. The learned chancellor in •the court below decreed á foreclosure as to Selleck, but refused it as to his wife. The other parties to the suit are merely nominal. From the decree of the chancellor the complainants in the court below appeal to this court, and here insist that the decree of chancellor should have included in the foreclosure, the interest of Mrs. Selleck as well as that of her husband.

There was a demurrer to the bill by Mrs. Selleck in the court below, and I notice it simply to say that the facts contained in the original bill, and the amended bills, pertain to the same subject matter. They are the history of one transaction. They do not constitute two cases. Such amendments are pot objectionable on account of a seem*229ing departure in the amendments from the case made in the original bill. The bill was, therefore, properly retained.

Our legislation, to *secure*to married women their own estates, is esteemed a novelty in our system of laws. It runs counter to the practice and the principles of a thousand years, sanctioned by names of the highest authority in a profession where the opinion of such men more or less shape the laws themselves, and control the system of reasoning which belongs to their construction. Then, under the law of our Code, it is not to be expected that cases involving the wife’s rights over her estate will run smoothly in the old ruts. The law, whatever may be the judicial prejudice against its policy, is not to be defeated by construction, but should be upheld. It is proper, when we can, to resort to first principles, to give it vitality. The intent of the law is that which should govern in its appli-cation to the real affairs of life. What the opinions of distinguished and learned foreign judges and lawyers may be upon questions arising under their own systems, is nothing to us, under ours. One of the glories of this great nation is, that it needs no foreign aid to enable it to do its duty to its own citizens, or to those who come to deal or to reside with us. We are quite as able to be leaders as to be led. It is a happy thing in our country, that no man need to be born with a ring in his nose, or a yoke upon his neck; and as long as we make our own laws, and_ execute them, with an eye single to the highest interest of our own people, we will not be likely soon to forfeit the birth of all free men — -that is, the right to shape them institutions to suit their *own*national growth.

It seems obvious, that, under our statute to *secure*the property of married women to them, for their own separate use, they are clothed with full power to reduce such property to their possession. This may be effected by suit or without suit. This is clearly necessary to a full exercise of such dominion over it, as has been bestowed upon them by the law. The wife may collect her debts, or recover possession of her own property by action at law in her own name. — Rev. Code, § 2525. Then, she may do without suit *230what she may do by it, when the purpose is the same. Or, in the language of the Code, she may “receive” her property — Bev. Code, § 2388. To what extent her husband may interfere with ber right, in tbis respect, as ber trustee, need not be discussed in tbis opinion, as nothing of that kind arises in tbis case. Here, tbe husband concurred in all tbe .wife did. And whether sbe may proceed to collect ber debts or to get possession of ber property by suit, or “ receive” it without suit, sbe must be allowed tbe use of tbe means permitted by law for tbe accomplishment of such an end. Sbe is not bound to sue, wben by some other arrangement sbe may much more certainly promote ber interests. Of tbis, if there is no fraud or deceitful dealings, sbe and ber husband must be left to judge for themselves. Sbe may then submit to arbitration, or compromise a doubtful claim, and bind herself by a proper contract to tbe result. In collecting ber debts, sbe may *receive*money, or, in lieu of money, some specific property that suits ber as well. If sbe sues, sbe may employ an attorney and contract for tbe payment of bis fees. But tbis power belongs to ber as an incident of ber right under tbe Code to collect ber own debts, and to reduce ber own property to ber possession, or to “ *receive*” it. It is a maxim of construction, that if tbe power is given, and there is no necessary or express limitation, it is given with all tbe means to make tbe gift effectual. Tbis principle is universal and axiomatic. It has passed beyond tbe necessity of a resort to logic for. its demonstration. *Quando lex aliquid alicui concedet, concedere videtur id, sine quo, res ipsa esse non potest.-*— 5 Coke, 47; 3 Kent, 421; Coke 2 Inst, 326; 15 Barb. 153, 160; 8 Mass. 129; Broom’s Max. 203 *et seq.*(marg. pages.) In such a transaction tbe wife does not act as a *feme sole*or a *free-deader,*because sbe can not do tbis until tbe trust is destroyed by a decree of tbe court of chancery. — Rev. Code, § 2384, 2372. Tbe statute is not designed to make tbe wife a *feme sole*trader, else sections 2384 and 2372 of tbe Eevised Code would be destitute of meaning. Tbis is also not tbe legislative understanding of this law. Otherwise, it would not be necessary to make *231any woman, who is married, a free-dealer, who has a separate estate, or who might subsequently acqüiíe one. Yet this is a very common practice of the general assembly. *Vide*Index to Acts 1870, 1871, p. 335, 336, and the cases there referred to. And in conformity to this usage and construction, this court has heretofore held, that the Code does not make the wife a *free-dealer,*or a *feme sole*.general trader, but clothes her only with special *powers.*— Cheat*ham v. Wilkinson,*45 Ala. 337; *Cowles et al. v. Marks,*January term, 1872. Yet, at the same time, it is not intimated that she is limited in any of her rights to collect her debts, or to reduce her property to her possession, or to the possession of her husband, for her use. — Rev. Code, § 2372, 2379; *Glenn v. Glenn,*January term, 1872; *Marsh, adm’r, v. Marsh,*43 Ala. 677. Here, the transaction was not a loan of money by Kent, the trustee, but an arrangement by Mrs. Selleck and her husband to collect their portions of the Alston note. Such a transaction she could legally enter into, so far, at least, as her own portion of the Alston debt was concerned. As an arrangement to collect her debt, she could “ receive ” the land, and charge her portion with the payment of her part of the surplus above her interest in the debt — that is, one-half of the note to Kent, executed by her husband and herself, on the 1st day of July, 1866. Beyond this she is not liable on the note to Kent, or the mortgage. The balance, above her own portion of this note, is her husband’s debt, Eor this she can not make herself liable as his’ surety or otherwise. — Rev. Code, § 2371; *Cheatham v. Wilkinson,*45 Ala. 337, *supra ; Bibb v. Pope,*43 Ala. 190. Yery evidently, both by the note to Kent and the mortgage to secure it, Mrs. Selleck intended ‘to bind herself to the extent of her legal liability, if no more. To this extent, then, she ought to be bound. Such effect must be given to her contracts as the law will enforce her to perform. *Quando res non valet ut ago, valeat quantum valere potest.*— 3 Barb. Ch. B. 242. 261; Broom’s Max. 75, 76, marg.; *Jackson ex dem. v. Blodget,*16 Johns. 172, 178, 179. The decree of the *court*below was correct so far as it went, but it did not go far enough. *232Mrs. Selleck, in collecting her portion of the claim against Alston, had. had the benefit of one-half of the note to Kent. To this extent, she should have been charged. It should, therefore, have been referred to the register, as master, to ascertain and report this amount, with interest included, up to the date of the report, and there should have been a decree and foreclosure for this amount against Mrs. Selleck. For this error the decree of the court below is reversed, and the cause is remanded, with instructions to proceed in its further disposition in the court below, in conformity with the principles of this opinion.

The costs of this appeal in this court and in the court below, will be paid by the said Caroline Selleck.