CHILTON, C. J.
1. We shall first examine the questions raised upon the demurrer to the bill. It is insisted that the demand sought to be recovered is legal merely, and constitutes no charge upon the separate estate of Mrs. Crocker, but is recoverable at law, by suit against husband and wife, out of the effects of the husband; that, being the debt of Mrs. Crocker dura sola, it became the debt of her husband upon the marriage, and no longer hers, and that it therefore constitutes no charge upon the estate which is secured to her sole and separate use by the marriage contract. It is further contended that the liability of the wife, if any exists, is only an implied undertaking to refund the money which she has received, and that no equity attaches in virtue of such liability upon her separate estate.
In England, there appears to have been some contrariety of decision upon the question as to what kind of pecuniary engagements on the part of the wife shall be considered as amounting to an appointment of her separate property for its satisfaction ; but, with respect to demands arising under circumstances from which the law would imply a contract, it seems to be well settled that they do not attach upon her separate estate.—Bolton v. Williams, 2 Ves. Jr. 150; Jones v. Harris, 9 ib. 486; Aguilar v. Aguilar, 5 Madd. 414; 2 Roper’s H. & W. marg. p. 241 n. a.; ib. 22, Law Lib. top p. 1434; Clancy’s Rights of Married Women 331 to 346. The same doctrine seems-to be countenanced by this court in Forrest v. Robinson, 4 Por. 44. Conceding, however, such to be the law in this country, we do not think the principle applies to the case before us. This property was subject to this demand before the marriage con[304] tract was entered into, and the effect of the contract is, to reserve the property to the wife, or, in other words, to exclude the marital rights of the husband, and prevent them from attaching to it.
Although the claims of creditors are never considered an objection to the execution of marriage articles, unless they are creditors by judgment or other matter of record, so as to constitute a lien upon the property before the articles were entered into, and notwithstanding marriage is in law deemed a valuable consideration to support such ante-nuptial contract, nevertheless, when the debtor makes the settlement in anticipation of marriage, or declares a trust, not for the benefit of another, but in her own favor, and to her sole and separate use, she retains it after the marriage, in the view of a court of equity, as though she were sole. It is unaffected by the marriage, and must be considered liable to her previous debts.
True, the husband, upon the marriage, by the common law, became immediately bound for the debts of the wife, whatever might be their amount, and this irrespective of whether he obtained any property by her or not: ho is said to have adopted her and her circumstances together. — 1 Bla. Com. 443; but, although he becomes charged with her debts, the wife is not by the marriage released from them. The coverture protected her from personal execution, but this protection was afforded only in cases where she has no separate estate.
It appears to be well settled by the authorities, that aside from the statutes exempting the person of the wife from arrest, upon civil demands, both she and her husband might be taken in execution, and when so taken, she was not entitled to her discharge, unless it was made to appear to the court that she had no separate property out of which the demand could be satisfied.—Tidd’s Pr. (9 Ed.) p. 1026; McQueen H. & W. 40; Sparks v. Bell, 8 B. & C. 1. These authorities show, that, even at common law, the separate property of the wife was made liable to satisfy her prior debts, in cases where it was in the power of that court to reach it. But our statute, exempting the wife from imprisonment for debt, effectually takes away the power of the common law forum thus to afford relief.
The remedy here pursued is, however, clearly given, by the act of 5th Feb. 1846, (Pamp. Acts ’45 — 6, p. 17,) authorizing [305] a bill in chancery against non-resident debtors, upon simple contract demands, to subject either a legal or equitable interest in real or personal estate, to the payment of such demands, upon making affidavit as to the facts of indebtedness and non-residence of the defendants; and the sheriff is to be authorized by process, in the nature of attachment, to take into his possession personal property of the defendants, repleviahle on security, in such manner as the judge granting it may direct, sufficient to satisfy the claim. The required affidavit accompanies the hill in the case before us.
As this act confers the remedy, and the effect of the marriage settlement is not such as to exempt the property which the wife reserves to her sole and separate use from liability to demands existing against her when the settlement was made, it follows that the plaintiff is entitled to the relief which he seeks, unless he should be defeated upon some other ground. We therefore turn to the second objection to the granting of relief, which is—
2. That the hill was not filed in due time, and that the retainer of the money has been acquiesced in too long to he disturbed at this late period.
Before proceeding to consider the facts, we premise first, that the remedy here pursued being concurrent with the legal process of attachment, the same limitation which would have been applied had the suit been commenced in the common law forum, should be applied in equity. This is a familiar doctrine. — 2 Story’s Eq. Jurisp. § 1520; Angelí on Lim. 25 — 6.
In the next place, we premise that the action in the case before us accrued, if at all, upon the reversal of the decree by the Supreme Court, under which the money was collected by Mrs. Crocker; for until the decree was annulled, she had a right to the money which she had collected under it, and no action could have been maintained against her for its recovery.— In the third place, we feel constrained, in making an application of the legal statute of limitations, to carry out the analogy which obtains between this and the common law court, as to the exceptions and qualifications with which it; would have been applied in the latter forum; for we should violate the spirit of the statute just as much by making an application of it without these, as to refuse to regard it at all.—Demarest v. Wynkoop, 3 John’s Ch. R. 129; Angell on Lim. 27. We must, there[306] fore, exclude from the computation the time the defendants were absent from the State, as the statute requires that “ the time of such persons’ absence shall not be accounted, or taken as part of the time limited by this act.” — Clay’s Digest 327, §84. Under this clause of the statute, it has been decided by this court, and we think correctly, that the debtor must have been within this State, subject to be sued, during the whole period prescribed, as a bar, but that this need not have been continuous. He may add together the different portions of time, so as to complete the period fixed by the statute.—Smith, adm’r, v. The Heirs of Bond, 8 Ala. 386. Applying these principles to the case before us, we have but little difficulty in arriving at a correct conclusion. The bill was filed on the 16th May, 1851, and the decree of Mrs. Crocker, then Miss Kellogg, against the administrator of Clements, was rendered at the . January term of the Supreme Court, say the 1st of January, 1840. She left the State in January, and her husband in March, 1845, and she returned and remained in it four or five months after that time; so that they could not have been in this State more than five years and eight or nine months, from the time the cause of action accrued.
But the bar is not made out, even dating the cause of action from the time when the sheriff collected the money — the 8th of August, 1849 — unless we say that Mrs. Crocker, when she returned, remained jive months. She says she remained four or jive, and stating the time in the alternative, her answer must be taken most strongly against her. We must, therefore, take the shorter period of four months, in the absence of proof of any longer time. In either aspect, therefore, the plaintiffs in error can derive no benefit from the statute of limitations.
But it is argued, that the plaintiffs in error are barred from again renewing the suit against Clements’ estate, and although the statute of limitations may not in strictness protect them, yet a court of equity will regard the delay in bringing this suit as an acquiescence in the demand, on the part of Clements’ administrator, at least to the extent of this payment. We need only say, in reply to this argument, that the want of mutuality in the bar is the result of the voluntary non-residence or absence from the State of the plaintiffs in error, by which they bring themselves within the exceptions contained in the statute; [307] and we are aware of no rule of equity which would justify us in refusing relief, by reason of delay, in such a case as this, where the statute of limitations would not constitute a bar, had the remedy been sought at law instead of in this court. Neither have we seen any case which takes a distinction between implied, and express promises to pay money, as respects the application of the statute.
But we have said enough upon this point, and proceed to consider the case upon the merits. We agree with the Chancellor, in holding that the reversal of the decree which Miss Kellogg had obtained against Clements’ administrator, rendered it null and void, and this, with the subsequent abandonment of the suit, whereby it was dismissed for want of prosecu tion, entitled thej administrator of Clements, prima facie, to recover back the money which had been collected in virtue of such decree, and clearly casts upon the plaintiffs in error the burthen of showing an equitable right to retain it, notwithstanding such reversal and subsequent dismissal of the bill for want of prosecution. It is true, the reversal was had upon technical grounds; but the decree was nevertheless annulled, and if the complainant had a meritorious ground of complaint, that should have been shown when the cause was remanded in the primary court; but it was not done, and the prosecution was abandoned. This, prima facie, concedes that nothing was due, and, as we have said, devolves on the plaintiffs in error the necessity of showing the right of retainer.
The counsel for the plaintiffs in error relies upon the fact, that Clements, in his answer to the original suit, admitted that Kellogg had at one time a joint interest in the land, but set up, by way of avoidance, that he had sold and conveyed the land to him, Clements, for $2500, by deed of conveyance bearing date the 9th of Dec., 1816, which deed he proposed to exhibit, See. It is said this deed was neither then shown, nor has it ever come to light since; and it is insisted that, inasmuch as Clements’ answer set it up as affirmative matter in avoidance, it was incumbent on the defendant in that case to sustain it by proof. — ■ Now, conceding that this position would have been correct, if taken in that case, we do not think it applies to this ; for here, the parties are reversed. We are not called upon to try that case, and determine the effect of the answer of Clements, a [308] subserving the double purpose of pleading and proof. In this case, we are to consider it as proof merely, and thus considering it, so far as its allegations are pertinent to the matters in issue, they must be regarded as proof, whether strictly responsive or affirmative merely. In other words, if the plaintiffs in error desire to make it proof, the whole answer, if pertinent, must be taken together.—See Saltmarsh v. Bower & Co., 22 Ala. 221, and cases there cited.
The complainant in the court below, upon the production of the record of the decree, its reversal, and the abandonment of the suit by Miss Kellogg, and proof of her receipt of the money, made out a prima facie case, and satisfied the averment in the amended bill, that the defendants had no right to retain the sum so received. If the defendants had the right of retainer, this being an affirmative fact, and within the knowledge of the defendants, it was incumbent on them to set up such right in their answer, and sustain it by proof. They have averred it, but have they proved it? We give them the benefit of the position taken by their counsel, that after the lapse of so long a period, they should not he held to such strict proof of their right as would be required under other circumstances; and we will further give them the benefit of the evidence which the Chancellor excluded; and considering the case in the most favorable light for them, we think the record fails entirely to establish in them an equitable right to retain the money.
This brings us to a consideration of the proof taken in the cause, and which is subtantially as follows :
For the complainant in the court below three witnesses were examined: Augustine Demmy deposes that soon after he became acquainted with Joshua Clements, in 1814, the latter removed from Mobile to the middle fork of Dog River, called Grand Bayou, where he was erecting a mill called Clements’ Mill; that before its completion, Clements took Kellogg into copartnership with him, and they finished it together, and became part owners of the mill and land belonging to it, which was called the mill tract, under the firm of Clements & Kellogg; that some years after the mill went into operation Clements bought Kellogg out, the firm was dissolved, and Clements became the sole possessor of the mill and mill tract, which comprised about twelve hundred acrés; that said Clements continued to occupy the premises unin[309] terruptcdly, down to the period of his death, with the exception of two years, when he had conveyed to Johnson and Beardsley, but after said conveyance he became re-possessed, and died in the possession, and his heirs have since occupied it. He does not recollect the time when Clements bought of Kellogg, but says it was notorious that he did purchase his entire interest. Witness never saw any deed conveying such interest, but lived where they had the mill, was intimate with both Clements and Kellogg, and heard them both talk over their business together.
William Grelat testifies, that Joshua Clements removed upon the premises and commenced the erection of the mill some three years after the close of the late war with England; that he claimed the premises in his own right; that he occupied the same until his death, and that Kellogg, from whom he claimed to have purchased the premises, lived on some land adjoining the mill tract, down to the period of his death, but witness does not know whether ho claimed to own it or not; never heard any one make claim to the mill but Joshua Clements.
Graham Davenport testifies, that he became acquainted with Clements in 1813; he was then residing in the vicinity of Mobile ; purchased lumber from Clements, though he never was at the mill, which was known as Clements’ Mill; remembers that Clements and Kellogg were in co-partnership in the mill, but does not know whether Kellogg had any right or title to the land; the partnership was dissolved; Kellogg left Clements, and died. Witness does not know whether Clements purchased out Kellogg or not.
On the part of the defendants in the court below, Mrs. Ogden testifies as to their residence for several years past, but says nothing respecting the merits of the controversy.
The deposition of S. H. Garrow was taken in the case of Miss Kellogg against Clements, and was excluded by the Chancellor. This witness testified, that Kellogg died in 1820, and was at the time of his death the owner and occupant of a tract of land in Mobile County with a mill situated thereon, on Dog River, about ninejjr ten miles from Mobile, and containing six hundred and forty acres; that at one time it was owned by Clements and Kellogg, and the latter sold his share to Clements, but afterwards re-purchased the whole tract back from Clements. The witness states, that he obtained a knowledge of these [310] facts from conversations with both Clements and Kellogg. He further states, that the land and mill were afterwards sold by him, the witness, as administrator of Kellogg, under an order of the Orphans’ Court, and Clements became the purchaser, but refused to complete the purchase, because Mrs. Kellogg would not relinquish her dower ; that Clements occupied the land, and used the timber making lumber, from 1824 until the period of his death, which happened in 1833.
The witness, Tatum, whoso testimony as taken in the original cause the Chancellor also excluded, merely proves, that Clements occupied the premises and used the mill from the time Kellogg died until he, Clements, died, and thinks that the annual net income of the mill should have been twelve hundred dollars.
Two deeds of mortgage were introduced by the complainant in the court below, one dated 28d May, 1821, signed by Joshua Clements, Ebonezer Johnson and Cyrus Beardsley, to Joshua Kennedy, to secure the payment to the latter of $2,794, due one year after the date of said deed, and in which mortgage it is recited. The land is described as situate on Dog River, and containing six thousand four hundred arpents, and was granted to George Tucker by the Spanish Government, by him conveyed to Joshua Kennedy, and by the latter to Clements and Kellogg. The other deed hears date the 5th November, 1821, and is made by Ebenezcr Johnson and Cyrus Beardsley to Joshua Clements, for one undivided moiety of the same land, in which it is recited that said land is the same conveyed by Joshua Kennedy to Joshua Clements and Thcron Kellogg in 1814, and the undivided half of which was since sold by the said Kellogg to said Clements, and since, viz., on the 17th January, 1820, sold by said Kennedy to said mortgagors. This deed was made to secure the payment of $5000 in yearly installments of one thousand dollars each year, the first to fall due the 17th January, 1821, and further to secure the payment of one half of a certain note given by Clements and Kellogg to Joshua Kennedy, as the purchase money for said lands, and to pay one half the costs and charges of what the parties might thereafter have to pay in the event,the United States should refuse to confirm their title and the land should be sold.
The defendants below read the deposition of W. Ogden, who deposes, that he learned from conversations with Clements and [311] Kellogg that they used and occupied the mill until 1820, claiming the same as owners ; that Kellogg died in August, 1820, and Clements continued to use said mill until his death, in 1832 or 1833 ; and that in his opinion the net yearly value was about $500.
This is a synopsis of all the evidence in the cause, and we think that it is needless to comment upon it ; for it is very certain that it furnishes no data for a satisfactory conclusion that the defendants have a right to retain this fund. It is said that much of the testimony is illegal and secondary ; and this is true, but the objection goes to the testimony on both sides. Concede that the mortgages were improperly admitted, and that the testimony of Grelat is but the declarations of Clements himself, which are not legal evidence, the testimony of the defendants, showing an ownership in land and a sale by an order of court by parol evidence merely, is liable to the like objection. Aside, however, from this, and waiving the objection to the testimony of Garrow, as not being relevant to the issue made by Miss Kellogg’s bill, the most that can be said of it, when taken together, or of that portion of it which is legal, is, that it shows that Kellogg at one time had some interest in the posséssion of the mill and claim of ownership as a copartner with Clements. This copartnership in the mill was dissolved, but as to the respective rights of the parties, as growing out of the title to the land, neither of them has shown any title, unless, indeed, the continued possession of Clements and those claiming under him has ripened their claim into a title by virtue of the statute of limitations. The only documentary evidence of title is the copies of the mortgages; and if the recitals in these are relied upon to show that the land once belonged to Clements and Kellogg, the same recitals, which must be taken all together, show that the latter (Kellogg) sold out his interest to Clements. As the defendants below insisted on their title, as conferring the right of retainer of the fund received, they should have produced some evidence of it, before the complainant could be required to produce his title and thus to negative the idea of the title being in them or their ancestor. Upon a careful examination and consideration of the proof, wo are led to the conclusion that it does not uphold the claim set up by the plaintiffs in error to retain this fund.
[312] The counsel for the plaintiffs in error endeavors to strengthen his case, by relying upon the report of the master made in the case of Miss Kellogg v. Clements, to which no exception was taken; but this cannot be looked to, as affecting the merits of this controversy. The defendant (Clements) might well have reposed upon the objection which proved fatal to the complainant’s case, that there was no proof of the allegations of the bill, and have suffered the complainant to proceed ex parte as to the reference of the matters of account. Having shown no equity or title to relief, as alleged in the bill, the complainant gained nothing by taking tho account, as the report and confirmation of it fell to the ground with the decree, upon tho general reversal.
4. Upon tho subject of interest we think there was no error. Courts of chancery upon this, as upon tho subject of the application of tho statute of limitations, follow the law, and allow interest in cases where it would have been recoverable had tho suit been instituted in the common law court.—See Hughes’ Adm’r v. Standeford’a Adm’r, 3 Dana’s R. 288, and cases cited; 2 Danl. Ch. Pr. 1440-1. The sum to he 'refunded in this case was certain, -and the law implied a contract or raised a promise to pay it. In sucli case interest is properly allowed.—2 Danl. Ch. Pr. 1441, n. c ; 19 Ala. Rep. 468.
There is no error in tho record, and the decree is consequently affirmed.