WALKER, J.
We thinlr the chancellor erred in rendering a decree for a partition of the lands. Both George Horton and George H. Horton deny thatunder the deed of William Lanier any title could pass to the complainant, and that complainant’s birth was anterior to the death of Thomas A. Sledge. The former of those, two denials is the controversy of a pure and naked question of law. The latter is the controversy of a question of fact. In the case of Delony v. Walker, 9 Porter, 498, this court decided, without the previ[493]*493ous intervention of a trial at law, a question of legal title arising under a statute, notwithstanding it was disputed in the defendant’s answer to a bill for partition. The reasoning upon which that decision rests, applies to this case, 'so far as the question of title under Lanier’s deed is concerned. A bill for partition must show title in the complainant; and the court therefore could not pass upon a demurrer to a bill for want of equity, without deciding the propositions of law upon which the title, though legal, depends. In determining a question of title, turning alone upon the interpretation of a statute, or of a deed of undisputed validity, the court exercises a power not unlike that which is involved in the decision of a demurrer questioning the title set forth in the bill. Therefore, we conclude, that the dispute by the defendant in a suit for partition, of a pure question of law, determinable on the face of an uncontroverted deed, on which the complainant’s title depends, is not a sufficient reason for withholding or delaying a decree for partition.
But in this case the defendant denies the fact, that complainant was born before Thomas A. Sledge died. Upon the question raised by this denial, the defendant was entitled to a jury trial; and the law, as recognized in the books, forbids that the chancellor shall proceed to make partition without a trial at law, when the complainant’s title is legal, and controverted upon such a ground. Indeed, the decision in .De-lony v. Walker, rests upon the reason given for it, and the manifest convenience and propriety of the rule laid down, rather than upon its entire consistence with all the authorities. The complainant’s title is legal, and the fact upon which it depends is denied; and that title ought to have been subjected to a trial at law, before a decree for partition was rendered. We think the correct practice in such a case is, to stay proceedings until a trial can be had at law. If the practice should be to dismiss partition suits upon the denial of the complainant’s title, the rights of parties bringing such suits would be at the mercy of an unscrupulous respondent. The authorities are generally in favor of retaining the bill, and delaying the suit until a trial can be had at law. — Delony v. Walker, supra; Wilkin v. Wilkin, 1 Johns. Ch. R. 111 ; Phelps v. Green, 3 ib. 305 ; Straughan v. Wright, 4 Rand. [494]*494495 ; Wiseley v. Findlay, 3 ib. 370 ; White & Tudor’s Leading Cases, vol. 2, part I, marg. page 354, (71 Law Library, top page 536) ; Bruton v. Rutland, 3 Humph. 455 ; Garrett v. White, 3 Iredell’s Eq. 131 Manners v. Manners, 1 Green’s (N. J.) R. 384. We think the facts stated in the answers, and the denials contained in them, are equivalent to an actual ouster. But, as the defendants subject the complainant by their denials of her title to the necessity of a suit at law, we deem it proper that she should be free from all embarrassment with the question of ouster; and we therefore direct that, unless the defendants will admit that the complainant was born before the death of Thomas A. Sledge, the chancellor shall require the defendants, or either of them, against whom suit at law may be-brought pending this cause for the recovery of the land in controversy, to admit the ouster of the complainant upon the trial at law. The case of Garrett v. White, supra, is an authority for the making of such a requisition ; and such a course is consonant with reason and justice. As to what constitutes an ouster among tenants in common, see Smith v. Dunn, ex’r, 27 Ala. 315 ; Edwards v. Bennett, 10 Iredell’s Law, 361 ; Doe, ex dem. Anders, v. Anders, 9 ib. 214; Abercrombie v. Baldwin, 15 Ala. ; Tillinghast’s Adams on Ejectment, 54, note 1.
The appellants assign for error in this court the refusal of the chancellor to sustain the demurrers contained in the answers. The grounds of demurrer are, the misjoinder of the parties defendants, multifariousness, and want of equity in the bill. The first two objections, so far as they concern George and George IT. Horton, are both determined by ascertaining whether the causes of action against those two defendants can be joined. If they can, the bill is not multifarious ; nor is there a misjoinder oí parties, as to them.
In our opinion, the bill is not multifarious. In the account for rents, the defendants are both interested. In the partition of the land, George Horton has no direct and immediate interest, but he has an indirect interest in it. If the complainant has a right to partition, she will be entitled also to an account for rent against her tenant in common. The defendant, George Horton, held for the tenant in common, and for the persons who may be entitled to the other undivided [495]*495moiety. George Horton and George H. Horton have, since the latter attained majority, been in possession of different parcels of the land. George Horton claims, since the death of Thomas A. Sledge, to have held the land for George H. Horton alone. In the rents and profits in George Horton’s hands George H. Horton is interested ; and George Horton is interested in the account against George H. Horton, because, to the extent to which the latter may be charged for rents, the former will be relieved from accounting. It is thus manifest, that the accounts against the twro are so connected, that the one cannot well be taken without the other. Besides, the liability of George Horton to account with the complainant depends upon precisely the same facts and questions with the right of partition in the complainant. The defense of George Horton against an accountability to the complainant for rents, and the defense of George H. Horton against the prayer for partition rest upon common ground, and grow out of facts the same in every way. The title, upon which complainant claims against both, is precisely the same ; and from the establishment of the right of partition the liability of both the defendants to account results. In sucli a case, we think we are sustained by the authorities, in concluding that the bill is not multifarious. — Halstead v. Sheppard, 23 Ala. 568 ; Gaines and Wife v. Chew, 2 Howard’s U. S. R. 619.
We now proceed to consider the question of the equity of the bill raised by the demurrer. The decision of that question turns upon the construction of the deed of William La-nier. If the complainant has any title, it is derived from it.
The deed conveys a fee in a moiety of the land to Thomas A. Sledge ; and in the event of his death before his majority, to his brothers and sisters in fee ; and if he leaves no brothers, to George H. Horton. Under the old common law, the limitation over to the brothers and sisters after the death of Thomas A. Sledge, during minority, would not be a good remainder. A remainder could not be limited upon a contingency, which would abridge or defeat the particular estate ;and afee could not be limited on a fee, or, in the language of some of the books, a fee could not be mounted on a fee. — Eearno on Remainders, § 3, p. 10 to 20 ; ib. p.
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WALKER, J.
We thinlr the chancellor erred in rendering a decree for a partition of the lands. Both George Horton and George H. Horton deny thatunder the deed of William Lanier any title could pass to the complainant, and that complainant’s birth was anterior to the death of Thomas A. Sledge. The former of those, two denials is the controversy of a pure and naked question of law. The latter is the controversy of a question of fact. In the case of Delony v. Walker, 9 Porter, 498, this court decided, without the previ[493]*493ous intervention of a trial at law, a question of legal title arising under a statute, notwithstanding it was disputed in the defendant’s answer to a bill for partition. The reasoning upon which that decision rests, applies to this case, 'so far as the question of title under Lanier’s deed is concerned. A bill for partition must show title in the complainant; and the court therefore could not pass upon a demurrer to a bill for want of equity, without deciding the propositions of law upon which the title, though legal, depends. In determining a question of title, turning alone upon the interpretation of a statute, or of a deed of undisputed validity, the court exercises a power not unlike that which is involved in the decision of a demurrer questioning the title set forth in the bill. Therefore, we conclude, that the dispute by the defendant in a suit for partition, of a pure question of law, determinable on the face of an uncontroverted deed, on which the complainant’s title depends, is not a sufficient reason for withholding or delaying a decree for partition.
But in this case the defendant denies the fact, that complainant was born before Thomas A. Sledge died. Upon the question raised by this denial, the defendant was entitled to a jury trial; and the law, as recognized in the books, forbids that the chancellor shall proceed to make partition without a trial at law, when the complainant’s title is legal, and controverted upon such a ground. Indeed, the decision in .De-lony v. Walker, rests upon the reason given for it, and the manifest convenience and propriety of the rule laid down, rather than upon its entire consistence with all the authorities. The complainant’s title is legal, and the fact upon which it depends is denied; and that title ought to have been subjected to a trial at law, before a decree for partition was rendered. We think the correct practice in such a case is, to stay proceedings until a trial can be had at law. If the practice should be to dismiss partition suits upon the denial of the complainant’s title, the rights of parties bringing such suits would be at the mercy of an unscrupulous respondent. The authorities are generally in favor of retaining the bill, and delaying the suit until a trial can be had at law. — Delony v. Walker, supra; Wilkin v. Wilkin, 1 Johns. Ch. R. 111 ; Phelps v. Green, 3 ib. 305 ; Straughan v. Wright, 4 Rand. [494]*494495 ; Wiseley v. Findlay, 3 ib. 370 ; White & Tudor’s Leading Cases, vol. 2, part I, marg. page 354, (71 Law Library, top page 536) ; Bruton v. Rutland, 3 Humph. 455 ; Garrett v. White, 3 Iredell’s Eq. 131 Manners v. Manners, 1 Green’s (N. J.) R. 384. We think the facts stated in the answers, and the denials contained in them, are equivalent to an actual ouster. But, as the defendants subject the complainant by their denials of her title to the necessity of a suit at law, we deem it proper that she should be free from all embarrassment with the question of ouster; and we therefore direct that, unless the defendants will admit that the complainant was born before the death of Thomas A. Sledge, the chancellor shall require the defendants, or either of them, against whom suit at law may be-brought pending this cause for the recovery of the land in controversy, to admit the ouster of the complainant upon the trial at law. The case of Garrett v. White, supra, is an authority for the making of such a requisition ; and such a course is consonant with reason and justice. As to what constitutes an ouster among tenants in common, see Smith v. Dunn, ex’r, 27 Ala. 315 ; Edwards v. Bennett, 10 Iredell’s Law, 361 ; Doe, ex dem. Anders, v. Anders, 9 ib. 214; Abercrombie v. Baldwin, 15 Ala. ; Tillinghast’s Adams on Ejectment, 54, note 1.
The appellants assign for error in this court the refusal of the chancellor to sustain the demurrers contained in the answers. The grounds of demurrer are, the misjoinder of the parties defendants, multifariousness, and want of equity in the bill. The first two objections, so far as they concern George and George IT. Horton, are both determined by ascertaining whether the causes of action against those two defendants can be joined. If they can, the bill is not multifarious ; nor is there a misjoinder oí parties, as to them.
In our opinion, the bill is not multifarious. In the account for rents, the defendants are both interested. In the partition of the land, George Horton has no direct and immediate interest, but he has an indirect interest in it. If the complainant has a right to partition, she will be entitled also to an account for rent against her tenant in common. The defendant, George Horton, held for the tenant in common, and for the persons who may be entitled to the other undivided [495]*495moiety. George Horton and George H. Horton have, since the latter attained majority, been in possession of different parcels of the land. George Horton claims, since the death of Thomas A. Sledge, to have held the land for George H. Horton alone. In the rents and profits in George Horton’s hands George H. Horton is interested ; and George Horton is interested in the account against George H. Horton, because, to the extent to which the latter may be charged for rents, the former will be relieved from accounting. It is thus manifest, that the accounts against the twro are so connected, that the one cannot well be taken without the other. Besides, the liability of George Horton to account with the complainant depends upon precisely the same facts and questions with the right of partition in the complainant. The defense of George Horton against an accountability to the complainant for rents, and the defense of George H. Horton against the prayer for partition rest upon common ground, and grow out of facts the same in every way. The title, upon which complainant claims against both, is precisely the same ; and from the establishment of the right of partition the liability of both the defendants to account results. In sucli a case, we think we are sustained by the authorities, in concluding that the bill is not multifarious. — Halstead v. Sheppard, 23 Ala. 568 ; Gaines and Wife v. Chew, 2 Howard’s U. S. R. 619.
We now proceed to consider the question of the equity of the bill raised by the demurrer. The decision of that question turns upon the construction of the deed of William La-nier. If the complainant has any title, it is derived from it.
The deed conveys a fee in a moiety of the land to Thomas A. Sledge ; and in the event of his death before his majority, to his brothers and sisters in fee ; and if he leaves no brothers, to George H. Horton. Under the old common law, the limitation over to the brothers and sisters after the death of Thomas A. Sledge, during minority, would not be a good remainder. A remainder could not be limited upon a contingency, which would abridge or defeat the particular estate ;and afee could not be limited on a fee, or, in the language of some of the books, a fee could not be mounted on a fee. — Eearno on Remainders, § 3, p. 10 to 20 ; ib. p. 313, 271, §7, 261, 248, 390, 391, 392 ; 2 Thomas’s Coke, first American from the last Lon[496]*496don edition, (1827) top p. 1, marg. p. 201, note A ; 1 ib. top p. 583, marg. p. 504; 2 Blackstone’s Commentaries, 155,156, 175, note 20. ■
The authorities are also clear that, in conveyances under the statute of uses, a conditional limitation (which is the denomination of a limitation over to take effect in abridgment of the particular estate) may be created, and that a fee may be limited on a fee determinable on condition. — See authorities above ; Note 20 to p. 175, 2 vol. Wendell’s edition of Blackstone ; 4 Kent’s Commentaries, 249, 250 ; Simmons v. Augustin, 3 Porter, 69.
The English statute of uses was enacted “ before the emigration of our ancestors to America; is applicable to our situation, and not inconsistent with our institutions and government ; and has been generally recognized and acted upon by the courts of this country, and therefore constitutes a part of the common law” of Alabama, and is in force unless repealed. Carter and Wife v. Balfour’s Adm’r, 19 Ala. 829 ; Simmons v. Augustin, supra. Besides, our own statute is strikingly similar, and perhaps in effect the same, with the English statute. — Simmons v. Augustin, supra.
The deed appears upon its face to have been made upon consideration of natural love and affection for the grantees, who are the grantor’s great grand-children, and of five dollars paid. The words of conveyance are, “give, grant, bargain, sell, alien, enfeoff and convey.” It is disputed by the counsel for appellants, that a deed upon such a consideration, with such words of conveyance, can be deemed a conveyance under the statute of uses. In Greenleaf’s Cruise on Beal Property, 140,'§ 10, the law is thus laid down : “ If a man, in consideration of natural love and affection, and of money, gives, grants, bargains, sells, enfeoffs and confirms to B. in fee, by deed indented, with a letter of attorney in the deed to make livery, and the deed is after enrolled in six months ; this shall pass as a bargain and sale, notwithstanding the letter of attorney in the deed. For the feoffor has given the feoffee an election to execute the estate one way or the other, and that way which first executes the estate shall stand.” In 2 Lomax’s Digest, 192, it is said : “ When a deed may enure in different ways, the person to whom it is made may have his election [497]*497which way to take it. Thus, if a deed be made by the words dedi et concessi, this in law may amount to a grant, feoffment, gift, lease, release, confirmation or surrender ; and it is in the choice of the grantee to plead or use it in the one way or the other.” Again, the same author says, on page 191, “ Where a deed cannot operate in the manner intended by the parties, it will be construed in such a manner as to operate in some other way. Quando quod ago, non valet ut ago, valeat quantum valere potest. In consequence of this principle, it has been determined, that a deed which was intended to operate as a lease and release, or bargain and sale, but could not take effect in that manner shall operate as a covenant to stand seized.” It is also held, that a conveyance in form a deed of bargain and sale, although upon consideration of love and affection, will be classed with some other species of conveyances under the statute of uses, “utres magis valeat quam pereat.”— 2 Lomas's Dig. 191; Sprague v. Woods, 4 Watts & Serg. 192; 2 Greenleaf’s Cruise on Real Property, 115, 116, 107, 108, 109. From the authorities quoted, and from those cited below, we conclude, that the following are unquestionably correct propositions of law : 1. If the deed in this case cannot operate otherwise, it will be deemed, for the purpose of upholding it, a conveyance under the statute of uses. 2. If it cannot operate as a deed of bargain and sale, because its consideration is natural love and affection, it will be deemed a covenant to stand seized, or some other of the conveyances under the statute of uses ; and 3. A covenant to stand seized is maintainable upon the consideration of the natural love and affection of a grand-narent. — Simmons v. Augustin, supra ; Marshall v. Fisk, 6 Mass. Rep. 24; Rowlets v. Daniel, 4 Munford, 473 ; Jackson v. Swart, 20 Johnson, 85 ; Barrett v. French, 1 Conn. 362 ; French v. French, 3 N. Hamp. 234, in which will be found a full discussion of the entire subject. If the deed in this case may be considered a covenant to stand seized to the use, or any other of the conveyances which grow out of the statute of 27 Henry YIII, the limitation over upon the death of Thomas A. Sledge during his minority must be sustained upon principles herein before set forth.
It is true, as contended by the counsel for the appellants, that to sustain conveyances to uses there must be a person [498]*498seized to the use, and there must be a cestui que use in esse. At one time the courts puzzled themselves with the question, whore is the seizin, which is to support the limitation over by way of use, in such a case as this ? The grantor, it was said, had divested himself of all possession, and could not be seized to the use of him in remainder; and he, upon the defeat of whose estate the limitation over was to take effect, was himself but a cestui que use. It was finally concluded, that the limitation over is supported by a possibility of seizin, remaining with the grantor, until the contingency upon which the remainder is limited, occurs. — See Note A, Thos. Coke, marg. p. 576, top p. 676 ; 4 Kent’s Com. 237 to 252. These authorities also show that it is sufficient, that the person who is to take the limitation over should be in esse when the contingency happens.
From what is said above it follows, that upon the facts stated in complainant’s bill, she has a title to an undivided moiety of the land in litigation, and that the bill contains equity.
The demurrer on the ground that Washington and Sally Sledge are made parties defendants, was properly overruled. They were unnecesary and improper parties, because they had no interest in the suit; but it is an objection of which the other defendants cannot avail themselves. — Story’s Eq. Pl. § 544 ; ib. 264, § 287 ; Hunley v. Hunley, 15 Ala. 91 ; Toulmin v. Hamilton, 7 Ala. 370 ; Erwin v. Ferguson, 5 Ala. 158.
Here we might close this opinion; but as the case must be remanded, and as the question of George Horton’s right to compensation for permanent and valuable improvements may again arise in the further progress of the case, we deem it proper to lay down the legal principles, which we think ought to govern the court below in its action upon that subject. George Horton can in no event be entitled to compensation for improvements made beyond the rents charged against him ; nor can he be entitled to compensation for any improvements, unless made at a time when he really and bona fide believed himself to be the true owner of the land, and unless he was induced to make those improvements by that belief really entertained. He will not be entitled to any compensa- • tion for improvements, if made when he knew his title was [499]*499disputed. Under the answer, George Horton can have no allowance for improvements, unless they may have been made by him after he made the purchase from Joel M. Sledge, and before lie was apprised that his title was disputed ; and then only if the circumstances indicated above concur. We have consulted and refer to the following authorities in -support of our positions in reference to the question of improvements : Barlow v. Bell, 1 A. K. Marshall, 246 ; Bell’s Heirs v. Barnet, 2 J. J. Marshall, 516 ; 1 Story’s Eq. Jurisprudence, 729, § 655 ; Parkhurst v. Van Courtlandt, 1 J. C. R. 273 ; Wendell v. Van Rensalaer, ib. 354; Town v. Needham, 3 Paige’s Oh. 554 ; Smith v. Brown, 3 Richardson’s Eq. 299 ; Thurston v. Dickinson, 2 ib. 317 ; Gunn v. Brantley, 21 Ala. 646 ; Goodwin v. Lyon, 4 Porter, 316.
We lay down the above principles, upon the assumption that no improvements were made before the death of Thomas A. Sledge. We are not at all certain from the record that the defendant intends to claim any improvements to have been made before that*time ; and we do not intend to express any opinion as to whether George Horton may be entitled to compensation for such improvements, and if he made them, what would be the measure of that compensation. We deem it proper to add, lest we might be misunderstood, that Apples Sledge would only be chargeable with one half of any improvements made by George Horton. The charge for the other half of such improvements must be a matter to be settled between him and George H. Horton.
The decree of the chancellor is reversed, and the cause remanded for further proceedings in accordance with the principles laid down in the foregoing opinion.
George Horton, who filed the cross-bill, was entitled to no relief upon the facts alleged. It is contended, in the first place, that Apples Sledge must be compelled to elect, whether she will take the negro conveyed to her by her father, or the rents due by George Horton to her. Conceding that an election could be forced upon an infant, the doctrine has no application here. The contract for the purchase of the land of Apples Sledge from her father by the appellee has been rescinded ; and by the contract of rescission it was agreed, [500]*500that Horton should have the proceeds of the sales of certain goods, and an indemnity against his liability for rent to Apples Sledge, in discharge of the debt to him for the reimbursement of the money paid for the land. It appears from the bill that, before the rescission of this contract, the father of Apples Sledge had made a deed to her of a certain negro woman, in payment of the money received on the sale of her land to George Horton. By the rescission of the contract for the purchase of the land from the father of Apples Sledge, and by making a contract for the discharge of the debt due Mm for the purchase money he had paid, George Horton stood, in reference to Apples Sledge, as if be had never bought the land, and had never paid for it. He was relieved from the purchase, and voluntarily accepted certain goods and a promise of indemnity as an equivalent for the money he had paid. It is, therefore, a matter of no concern to him, whether Apples Sledge shall retain the negro conveyed to her by her father. If any person has a right to complain, it is her father. The fact that she has received from her father, and wrongfully retains the negro against him, does not lessen, or in any wise affect, jier rights against Horton. If there is anything in the detention of the negro inconsistent with the rights of the creditors of the father of Apples Sledge, and Horton is a creditor, he must proceed in the mode pointed out by law to subject the property to the payment of the debt. If Apples Sledge were compelled in this case to elect between retaining the negro and prosecuting her claim for rents against Horton, she would hold on to the negro, if more valuable than the prospective recovery against Horton. In that event, Horton would get as a gratuity the entire rents of the half of the land, to which he has no pretense of right. It is thus seen that the application of the doctrine of election might operate unjustly and unreasonably.
The argument that George Horton is entitled to be subro-gated, or substituted, to the right of Apples Sledge to the negro, is obnoxious to several objections ; but we shall notice only one, which seems fatal to it. The deed of her father conveys to Apples'Sledge the negro, and her increase, subject to the condition, that the property is to remain with the grantor until the grantee shall attain the age of 18 years ; [501]*501and upon certain contingencies the slave was to go to her brothers and sisters. Now, under the doctrine of substitution, the party substituted accedes to the rights of the person into whose place he comes.' By. substitution one person is placed in the shoes of another, and he acquires rights neither greater than nor different from the rights of that other person. If George Hortbn were subrogated' to the rights of Apples Sledge in reference to the negro woman, he would get an interest in the specific property corresponding with that conveyed by the deed. A creditor would obtain an appropriation of specific property towards his debt, and that, too, without any estimate of its value. Such a result has ■ no precedent ftr sanction in our law- — Foster v. Trustees of the Atheneum, 3 Ala. 302.
This court has no right to convert an absolute conveyance in payment of an obligation to one person, into a mere security for the debt of another.
For the reasons above stated, we think the cross-bill does not make out a case for any relief for the complainant; and therefore the decree of the' chancellor is reversed, and a decree must be here rendered, dismissing the said cross-bill, and the appellee must pay the costs of this court, and of the court below.