PETERS, J.
This is a bill filed by William M.- Marks, as complainant, against Laura S. Cowles and her' husband, Thomas W. Cowles, as defendants, in the chancery court of Montgomery county, on the 16th day of August, 1869. The main purpose of the bill is to quiet the title of the said Marks to a certain tract of land lying in said county of Montgomery, and particularly described in the pleadings. The material facts are these: On the 13th day of September, 1859, John B. Scott attempted to sell the tract of land mentioned in the bill to the appellant, Mrs. Cowles, wife of Thomas W. Cowles, for the sum of $7,000. Seventeen hundred and .fifty dollars of this sum was paid in cash by Mrs. Gowles at the time of the purchase, out of the moneys of her statutory separate estate, and she and her said husband gave their four promissory notes, each for the sum of $1,312*50, due at different dates, for the balance of the purchase-money for said land. These notes were payable to Scott, and were secured by a mortgage in his favor executed by Mrs* Cowles and her said husband on said lands, which bears date said 13th day of September, 1859. Cotemporaneously Scott and wife executed a deed to Mrs* Cowles. It is also alleged, “that though the name of Thomas W. Cowles appears on said notes and iportgage, he was not taken as surety thereon, but to comply with what was supposed to be the law in reference to married women.” These notes were notiattested in the presence of two witnesses. This mortgage contained a power of sale in favor of Scott, upon a failure to pay said notes and interest théreon, or either of them, as they fell due. There was a iailure to pay the notes, except the sum of $500 paid on the 4th day of January, 1861. On the 13th day of February, 1868, Scott sold the said lands, under the power in his mortgage, and said Marks (appellee) became the purchaser at the sum of $4,000; and on the 11th day of March, [619]*6191868, Scott, as mortgagee, made a deed to said Marks, as purchaser at said sale, for said lands; and afterwards, on the 9th day of October, 1868, Scott and wife also made their deed to said Marks for said lands, in consideration of the sum of $1,000. And upon the title thus derived Marks brought his suit to recover said lands of Mrs. Oowles. Marks avers that he has the legal title to said lands, but that he “is willing, if the said Laura S. Oowles and Thomas "W. Oowles so elect, to let said sale be considered as of no effect, and that said lands may be sold under a decree ” of the chancery court. It does not appear with certainty that the said four promissory notes given by Mrs. Oowles to Scott for the purchase-money of said lands were assigned to Marks by Scott; but Marks avers, that if said mortgage is invalid, then “he is entitled to a vendor’s lien” on said lands. And Marks insists, that he is entitled to have the deed executed by Scott to Mrs. Oowles delivered up to him and cancelled, so that there may be ho cloud on his title; and he prays that Mrs. Oowles may be foreclosed of her equity of redemption, and for general relief.
Mrs. Oowles answers, and admits the allegations of the bill, and by way of cross-bill she elects to have the land sold, but insists that on account of her coverture, and under the laws of this State, she is not liable as the maker of said notes, and that the sale of said lands to her by Scott was unlawful and void, and that she is entitled to a resulting trust in said land to the amount of the money she had paid Scott for the same, with interest thereon, as her separate estate under the laws of this State; and prays that said lands be sold, and the proceeds applied first to the payment of her debt until that is satisfied. Marks and the husband of Mrs. Cowles are made defendants to the cross-bill, and each puts in a separate answer, and admits the coverture of Mrs. Cowles, and the sale to her of the lands as shown in the original bill. And Marks alleges that the lands sold to Mrs. Cowles were adjacent to lands owned by her as her separate property, and were necessary for the use of her plantation, and that large quantities of timber had been taken therefrom by her and her said husband; but it is not [620] shown that this happened since his title and right to the possession had accrued. He demurs to the cross-bill.
There was some testimony taken, but it does not materially alter the character of the case as made in the pleadings. The learned chancellor in the court below, by his decree, ordered the lands to be sold as upon a foreclosure of a mortgage, and .the proceeds of the sale to be paid over to Marks, and paid no attention to the cross-bill, so far as appears from the decree. Mrs. Cowles appeals to this court from this decree.
Under the facts the question arises, what are the rights of all the parties before the court? Did the transaction between Scott and Mrs. Cowles give him any right to hold on to her money obtained from her under sanction of the attempted sale, after she elected to repudiate it? Will the court, dealing with the land only, permit it to pass from its jurisdiction and leave her unpaid ? Can Marks be treated as an innocent purchaser without notice of her equity, if she has any; and to what extent, if at all, is she hable tó account fpr rents and profits of said land?
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PETERS, J.
This is a bill filed by William M.- Marks, as complainant, against Laura S. Cowles and her' husband, Thomas W. Cowles, as defendants, in the chancery court of Montgomery county, on the 16th day of August, 1869. The main purpose of the bill is to quiet the title of the said Marks to a certain tract of land lying in said county of Montgomery, and particularly described in the pleadings. The material facts are these: On the 13th day of September, 1859, John B. Scott attempted to sell the tract of land mentioned in the bill to the appellant, Mrs. Cowles, wife of Thomas W. Cowles, for the sum of $7,000. Seventeen hundred and .fifty dollars of this sum was paid in cash by Mrs. Gowles at the time of the purchase, out of the moneys of her statutory separate estate, and she and her said husband gave their four promissory notes, each for the sum of $1,312*50, due at different dates, for the balance of the purchase-money for said land. These notes were payable to Scott, and were secured by a mortgage in his favor executed by Mrs* Cowles and her said husband on said lands, which bears date said 13th day of September, 1859. Cotemporaneously Scott and wife executed a deed to Mrs* Cowles. It is also alleged, “that though the name of Thomas W. Cowles appears on said notes and iportgage, he was not taken as surety thereon, but to comply with what was supposed to be the law in reference to married women.” These notes were notiattested in the presence of two witnesses. This mortgage contained a power of sale in favor of Scott, upon a failure to pay said notes and interest théreon, or either of them, as they fell due. There was a iailure to pay the notes, except the sum of $500 paid on the 4th day of January, 1861. On the 13th day of February, 1868, Scott sold the said lands, under the power in his mortgage, and said Marks (appellee) became the purchaser at the sum of $4,000; and on the 11th day of March, [619]*6191868, Scott, as mortgagee, made a deed to said Marks, as purchaser at said sale, for said lands; and afterwards, on the 9th day of October, 1868, Scott and wife also made their deed to said Marks for said lands, in consideration of the sum of $1,000. And upon the title thus derived Marks brought his suit to recover said lands of Mrs. Oowles. Marks avers that he has the legal title to said lands, but that he “is willing, if the said Laura S. Oowles and Thomas "W. Oowles so elect, to let said sale be considered as of no effect, and that said lands may be sold under a decree ” of the chancery court. It does not appear with certainty that the said four promissory notes given by Mrs. Oowles to Scott for the purchase-money of said lands were assigned to Marks by Scott; but Marks avers, that if said mortgage is invalid, then “he is entitled to a vendor’s lien” on said lands. And Marks insists, that he is entitled to have the deed executed by Scott to Mrs. Oowles delivered up to him and cancelled, so that there may be ho cloud on his title; and he prays that Mrs. Oowles may be foreclosed of her equity of redemption, and for general relief.
Mrs. Oowles answers, and admits the allegations of the bill, and by way of cross-bill she elects to have the land sold, but insists that on account of her coverture, and under the laws of this State, she is not liable as the maker of said notes, and that the sale of said lands to her by Scott was unlawful and void, and that she is entitled to a resulting trust in said land to the amount of the money she had paid Scott for the same, with interest thereon, as her separate estate under the laws of this State; and prays that said lands be sold, and the proceeds applied first to the payment of her debt until that is satisfied. Marks and the husband of Mrs. Cowles are made defendants to the cross-bill, and each puts in a separate answer, and admits the coverture of Mrs. Cowles, and the sale to her of the lands as shown in the original bill. And Marks alleges that the lands sold to Mrs. Cowles were adjacent to lands owned by her as her separate property, and were necessary for the use of her plantation, and that large quantities of timber had been taken therefrom by her and her said husband; but it is not [620] shown that this happened since his title and right to the possession had accrued. He demurs to the cross-bill.
There was some testimony taken, but it does not materially alter the character of the case as made in the pleadings. The learned chancellor in the court below, by his decree, ordered the lands to be sold as upon a foreclosure of a mortgage, and .the proceeds of the sale to be paid over to Marks, and paid no attention to the cross-bill, so far as appears from the decree. Mrs. Cowles appeals to this court from this decree.
Under the facts the question arises, what are the rights of all the parties before the court? Did the transaction between Scott and Mrs. Cowles give him any right to hold on to her money obtained from her under sanction of the attempted sale, after she elected to repudiate it? Will the court, dealing with the land only, permit it to pass from its jurisdiction and leave her unpaid ? Can Marks be treated as an innocent purchaser without notice of her equity, if she has any; and to what extent, if at all, is she hable tó account fpr rents and profits of said land?
' One who deals with a married woman in this State about her property, must take notice of her powers and her disabilities. These are the creatures of the law, and every one is bound to take notice of the law. The ignorance of the individual does not suspend the law. — Gwynn and Wife v. Hamilton’s Adm’r, 29 Ala. 233; 2 Bent, 655, and notes, (11th ed. by Comstock, 1866); Story’s R. 353; 1 Story Eq. § 116; Broom’s Max. 190. This is so with regard to all the statutes of the State. A person can not lend out his money at usurious interest. — Rev. Code, § 1831. So, likewise, a person can not be bound to perform a contract founded on a gambling consideratiqn.“-Rev. Code, § 1874. So, also, a person can not. loan his money on a “ Sunday, unless for the advancement of religion, or in the execution or for the performance of some work of charity, or in case of necessity.” — Rev. Code, § 1882. If this is done, and a note is taken on the sabbath for its repayment, the lender) when he finds himself confronted by a plea of the illegality of his contract, can not answer such plea, by replying that [621] he did not know the. law, and that to disallow his plea was to swindle him. The rights of- a married woman are just as sacred as the rights of an infant; or .the law for the protection of the sabbath. It is not by her means or by her device that her powers over her estate are hampered by disabilities. The sovereign power,' in which she has no voice to speak, and which intends all its regulations for the best, has so fixed it. It is not, then, her fault that she clings to all the disabilities which afford her protefetion. It is her right to do so, and it is among the highest duties of the courts to see that this right is upheld. Since the first of March, 1848, the general assembly of this State, upon repeated occasions, has attempted by a peculiar system of regulations to secure to married women their estates as their separate property. In this effort they have not attempted to patch up the old system with amendments, as by pouring new wine into old bottles, but by devising a wholly new system which is unique and complete in itself. And to make this more secure,- they have stricken down the old system by a sweeping repeal “ of all laws and parts of laws in conflict with the provisions” of the new system. — Acts 1849-50, p. 65, § 11; Rev. Code, §§ 2370 to 2388, both inclusive. In conformity with these enactments, now of more than twenty years’ standing, it has been settled by this court that a married woman with a statutory separate estate can not go into the market as a feme sole trader or free-dealer; she can not contract debts as such trader, or execute a mortgage for the security of such debts.— Wilkerson v. Cheatham, 45 Ala. 337; Bowen v. Blount, in MSS. Then, the sale of the lands named in the complainant’s bill by Scott to Mrs. Cowles, her notes for the purchase-money, and her mortgage to secure them, were all made without authority, and - they are without any legal validity, unless she chooses to affirm them; and this she refuses to do. Therefore, the notes and the mortgage were invalid, and the sale under the mortgage can not effect her rights. And Marks does not show that he has done more than to step into Scott’s shoes. He must be visited with a knowledge Qf all the facts and all the law connected with his title. — . [622] Thweatt v. Johnson, 18 Ala. 781. His equities and Scott’s áre the same. He comes into court and says that he “is willing, if the said Laura S. Cowles and Thomas W. Cowles so elect, to let said sale he considered as of no effect, and that said lands be -sold under a decree” of the chancery court. He also alleges, “ that although the name of Thomas W. Cowles appears on said notes and mortgage, he was not taken as a surety thereon, but to comply with what was supposed to be the law in reference to married women.” It is also insisted by Marks, “ that he is entitled to the vendor’s hen.” These allegations are not denied by Mrs. Cowles, and she elects to have the land sold, and insists that she shall have returned to her the money, with interest, which she paid to Bcott on the abortive sale, out of the proceeds of the sale thus to be made under decree of the chancery court.
This is the main question in the case. And the learned chancellor in his decree in the court below anted without due regard to her rights. There was no controversy as to the balance of the sums due upon the notes, and there can be none, if the notes and the mortgage to secure them payment are voidable and' illegal, and no controversy about the land. Mrs. Cowles does not claim it, but the proceeds of the sale under the chancellor’s decree are before the court within its potential jurisdiction. Then, as between Mrs. Cowles and Marks, the sole question is, what shall be done with it? Shall she lose her money, which can not be legally taken from her in this way, and turn it over to Marks, because he did not know the law, or because he acted under a misapprehension of her powers and her rights? or shall justice, administered according to law, be done her in the first instance, and leave him, and others like him, to grow wiser by their mistakes? I think the latter course is the true one. It is vain to say that the wife can defend herself against the solicitations, or more often against the gentle restraints, of the husband, when he wishes to use her estate, “All know and feel,” says Chief-Justice Marshall, “ the plaintiff, as well as others, the sacredness of the connexion between husband and wife. All [623] know, that the sweetness of social intercourse, the harmony of society, the happiness of families, depend on that mutual partiality which they feel, or that delicate forbear.ance which they manifest, towards each other.” — Sexton v. Wheaton, 8 Whea. 239, 229. And all know, that in a great number of instances, this marital congeniality would soon •end, and that thorns and thistles would soon spring up in ¡suffocating abundance, where but yesterday the rose and the lily bloomed, if the wife should be so luckless as to oppose the husband in the eontrol and the management of her estate. "Women are naturally amiable and yielding; and it is only by the impassable and impregnable barriers •of the law that their estates can be defended and secured .against the powerful and often fatal influence of the husband. On this important conviction our law is founded. .It is a grant to the married women of the State not less important to the protection of their interests than Magna G harta itself has been to all who speak our native tongue. The husbands of the State have made this pledge to their wives; let it be kept in sacred good faith, and in the fullest protective power of its generous intent. I therefore think that the learned chancellor fell into grave error, both in the spirit and in the legal principles of his judgment in the court below. He should have ascertained, in a proper way, the amount of money of the separate property of Mrs. Laura S. Cowles which went into the hands of said John B. Scott on said abortive sale by him to her, as mem tioned in said bill of complaint, and interest thereon, whether the moneys had been paid by her, or by hey said husband, or by any one else for her, on said abortive contract of sale of said lands to her, and also the value of the rents and profits derived from the use and occupation of said lands by her, if any such rents and profits there were, which were used by her, or her said husband as her trustee, for her, for articles of comfort and support of the household, suitable to the degree and condition in life of the family of her, said Laura, for which the husband would have been responsible at common law, and deducted the sum so ascertained for rents, and profits, if any, from the. [624] sum so paid by her on said abortive sale aforesaid, and decreed the balance, if any, in favor of said Laura, a charge upon said lands, and order the said lands, or so much thereof as may be necessary to pay and satisfy the charge so raised, if the said Marks shall fail or refuse to pay the same within such time as the court below shall appoint.
I am unable to consent to the position of the learned counsel for the appellee, said Marks, that the transaction between said Scott and Mrs. Cowles in reference to said abortive sale of said lands mentioned in the bill and cross-bill was “re-investment” of “the proceeds” of a sale of the separate estate of Mrs. Cowles, under section 2374 of the Bevised Code. The protective force of that statute depends upon its literal enforcement. Where this is insufficient, the husband, as trustee, or the wife, must resort to a court of chancery. — 2 Story Eq. §§ 1327, 1366, et seq.
Let the decree of the court below be reversed, and the cause remanded for further proceedings in the court below in conformity with the principles announced in this opinion. The appellee (Marks) will pay the costs of this appeal in this court and in the court below.