BRICKELL, C. J.
— The original bill, filed by Mrs. Reese and her children, to enjoin a sale of thp premises under the power in the mortgage executed by her husband, and the bills for foreclosure filed by the mortgagees, were silently regarded as forming but one suit, and a single decree rendered by the Chancery Court. There is but one proposition involved, as the case has been presented in argument; and that is, whether the mortgagors had in the mortgaged premises, or in the rents and profits accruing from them, an estate, or an interest, which they could alien by mortgage for any purpose, other than as a security for debts contracted for necessaries in the support of themselves or family, during the life of the mortgagor, Lewis 0. There can be no doubt that the will of the testator, Nathaniel Reese, creates a trust estate strictly, and that it is not, in technical classification, a passive trust, which, under the statute, would merge in the equitable estate, clothing the cestui que trust with the legal [139]*139estate. It is an active trust, the statute preserves, and continues in the trustee a legal estate, commensurate with the necessities and exigencies of the trust as declared.— You v. Flinn, 34 Ala. 409; Comby v. McMichael, 19 Ala. 747.
2. There is a question overlooked in the argument of counsel, which must be considered and decided, before entering upon a consideration of the question to which we have referred; and that is, whether the mortgagor, Lewis 0., or his wife, who joined with him in the execution of the mortgage, can now be allowed to deny that either, or both joined, had an alienable estate in the premises. In Stewart v. Anderson, 10 Ala. 508, it was said by this court, that it was a principle of the common law, “ that a mortgagor can not dispute his mortgagee’s title, nor can he, while in possession, bar his title by fine or recovery. In accordance with this rule, it has been held, that a mortgagor shall not be heard to allege that he had no estate in the premises. By the mortgage, he professes to convey, and thus declares that he had an interest coextensive with that he undertook to transfer ; and he will not be heard to say, in contradiction of his own deed, or in opposition to a claim founded thereon, that he was guilty of a falsehood, and had no estate or interest therein.” Whether this doctrine rests upon the privity of estate existing between mortgagor and mortgagee, or depends on the insertion in the mortgage of covenants of warranty, binding and estopping the mortgagor, we need not consider. The mortgage to Mrs. Jones employs the words, grant, bargain and sell, and that to Mrs. Evans the words bargain and, sell; either of which, when used in a conveyance of real estate, the statute declares must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, and for quiet enjoyment. The statute .embraces not only absolute and unconditional conveyances, but also conveyances of estates upon condition. — Stewart v. Anderson, supra.
3. So far as the mortgagor Lewis C., who is sui juris, is concerned, it results, that he cannot be heard to gainsay the title of the mortgagees — to deny that they have an indefeasible estate in fee simple, and are entitled to quiet enjoyment of the premises. It is also true, that the wife, having joined in the covenants of the mortgages, is estopped from denying the title of the mortgagees, if the interest or estate claimed by her is an equitable, as distinguished from a statutory estate. And this brings us to the principal question, what is the true construction of the will of the testator ? Does it vest in Lewis C. a beneficial interest in the mortgaged prem[140]*140ises, or in the rents, incomes or profits, which is not so joined and blended with the estate or interest of his family, as to be incapable of severance ? Is there such an estate or interest vested in Mrs. Eeese, which at common law would, by the silent operation of the marriage relation, have passed to her husband, or are the marital rights of the husband, as existing at common law, excluded by the terms and the purposes of the gift ?
4. The intention of the testator can not be doubted, or misunderstood. The son was the primary object of his solicitude and bounty. The gift, in its entirety, is declared to be for his use, and benefit and, behoof, during his natural life. No terms more expressive, to pass the entire beneficial interest, could have been employed. The subsequent words are, that the rents and profits are to be discreetly used for the genteel and comfortable support and maintenance of my said son, also for ■any family he may hereafter have. The estate and interest of the son are qualified by these words, but there remains to him a large and valuable beneficial interest; and it must be observed that his enjoyment of it does not depend upon the discretion of the trustee. In no event can the trustee withhold or withdraw it, though it should comprehend the entire rents and profits. It was the duty of the trustee, with prudence, with care and circumspection, in view of the social position of the son, to see that the rents and profits were applied to his genteel and comfortable support and maintenance, and that of his family, which it was anticipated he would have, sooner or later, dependent upon him legally and morally. When he married, the gift opened, and let in his wife, and the children as they were born, entitling them also to a genteel and comfortable support and maintenance. So far as an interest'is conferred on the wife, it is exclusive of the husband: to it his marital rights, at common law, would not have attached: it enured to her sole use and benefit as completely, to avoid defeating the trust, as if in the most formal terms it had been declared her equitable separate estate. — Fellows v. Tann, 9 Ala. 999 ; Spear v. Walkely, 10 Ala. ,328; Jasper v. Maclin, 12 Ala. 652 ; Hill v. McRae, 27 Ala. 175.
5. It may be admitted, that the testator did not intend that the interest thus created should ever be aliened by the ¡son, or the wife, or subjected to the payment of any other ■debts, than such as were contracted for their support and maintenance. But, without departing from the law, as it has been declared in repeated decisions of this court, and the general policy of our legislation, that intention can not prevail. The interest is equitable; but it is affected by all the incidents, properties and consequences, which would [141]*141affect a corresponding legal interest. Of these is- the power of disposition, a restraint upon which is repugnant to, -and inconsistent with the gift. Another incident or quality is a liability in invitmn for the payment of debts. — 2 íátory’s Eq. § 974. Ao beneficial interest, legal or equitable, in or to property, real or personal, or in its income, rents or profits, can be created, fréed from the power of the beneficiary to dispose of it, or from liability to the payment of debts, unless it is conferred and to be enjoyed jointly -with others, in such manner that it -would be destructive of the purposes of the gift to sever the interests. — Rugely v. Robinson, 10 Ala. 731-743; S. C., 19 Ala. 404; Robertson v. Johnston, 36 Ala. 197; Smith v. Moore, 37 Ala. 327.
76. We do not understand that it was intended in Hill v. McRae, 27 Ala. 175, to depart from this doctrine.
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BRICKELL, C. J.
— The original bill, filed by Mrs. Reese and her children, to enjoin a sale of thp premises under the power in the mortgage executed by her husband, and the bills for foreclosure filed by the mortgagees, were silently regarded as forming but one suit, and a single decree rendered by the Chancery Court. There is but one proposition involved, as the case has been presented in argument; and that is, whether the mortgagors had in the mortgaged premises, or in the rents and profits accruing from them, an estate, or an interest, which they could alien by mortgage for any purpose, other than as a security for debts contracted for necessaries in the support of themselves or family, during the life of the mortgagor, Lewis 0. There can be no doubt that the will of the testator, Nathaniel Reese, creates a trust estate strictly, and that it is not, in technical classification, a passive trust, which, under the statute, would merge in the equitable estate, clothing the cestui que trust with the legal [139]*139estate. It is an active trust, the statute preserves, and continues in the trustee a legal estate, commensurate with the necessities and exigencies of the trust as declared.— You v. Flinn, 34 Ala. 409; Comby v. McMichael, 19 Ala. 747.
2. There is a question overlooked in the argument of counsel, which must be considered and decided, before entering upon a consideration of the question to which we have referred; and that is, whether the mortgagor, Lewis 0., or his wife, who joined with him in the execution of the mortgage, can now be allowed to deny that either, or both joined, had an alienable estate in the premises. In Stewart v. Anderson, 10 Ala. 508, it was said by this court, that it was a principle of the common law, “ that a mortgagor can not dispute his mortgagee’s title, nor can he, while in possession, bar his title by fine or recovery. In accordance with this rule, it has been held, that a mortgagor shall not be heard to allege that he had no estate in the premises. By the mortgage, he professes to convey, and thus declares that he had an interest coextensive with that he undertook to transfer ; and he will not be heard to say, in contradiction of his own deed, or in opposition to a claim founded thereon, that he was guilty of a falsehood, and had no estate or interest therein.” Whether this doctrine rests upon the privity of estate existing between mortgagor and mortgagee, or depends on the insertion in the mortgage of covenants of warranty, binding and estopping the mortgagor, we need not consider. The mortgage to Mrs. Jones employs the words, grant, bargain and sell, and that to Mrs. Evans the words bargain and, sell; either of which, when used in a conveyance of real estate, the statute declares must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, and for quiet enjoyment. The statute .embraces not only absolute and unconditional conveyances, but also conveyances of estates upon condition. — Stewart v. Anderson, supra.
3. So far as the mortgagor Lewis C., who is sui juris, is concerned, it results, that he cannot be heard to gainsay the title of the mortgagees — to deny that they have an indefeasible estate in fee simple, and are entitled to quiet enjoyment of the premises. It is also true, that the wife, having joined in the covenants of the mortgages, is estopped from denying the title of the mortgagees, if the interest or estate claimed by her is an equitable, as distinguished from a statutory estate. And this brings us to the principal question, what is the true construction of the will of the testator ? Does it vest in Lewis C. a beneficial interest in the mortgaged prem[140]*140ises, or in the rents, incomes or profits, which is not so joined and blended with the estate or interest of his family, as to be incapable of severance ? Is there such an estate or interest vested in Mrs. Eeese, which at common law would, by the silent operation of the marriage relation, have passed to her husband, or are the marital rights of the husband, as existing at common law, excluded by the terms and the purposes of the gift ?
4. The intention of the testator can not be doubted, or misunderstood. The son was the primary object of his solicitude and bounty. The gift, in its entirety, is declared to be for his use, and benefit and, behoof, during his natural life. No terms more expressive, to pass the entire beneficial interest, could have been employed. The subsequent words are, that the rents and profits are to be discreetly used for the genteel and comfortable support and maintenance of my said son, also for ■any family he may hereafter have. The estate and interest of the son are qualified by these words, but there remains to him a large and valuable beneficial interest; and it must be observed that his enjoyment of it does not depend upon the discretion of the trustee. In no event can the trustee withhold or withdraw it, though it should comprehend the entire rents and profits. It was the duty of the trustee, with prudence, with care and circumspection, in view of the social position of the son, to see that the rents and profits were applied to his genteel and comfortable support and maintenance, and that of his family, which it was anticipated he would have, sooner or later, dependent upon him legally and morally. When he married, the gift opened, and let in his wife, and the children as they were born, entitling them also to a genteel and comfortable support and maintenance. So far as an interest'is conferred on the wife, it is exclusive of the husband: to it his marital rights, at common law, would not have attached: it enured to her sole use and benefit as completely, to avoid defeating the trust, as if in the most formal terms it had been declared her equitable separate estate. — Fellows v. Tann, 9 Ala. 999 ; Spear v. Walkely, 10 Ala. ,328; Jasper v. Maclin, 12 Ala. 652 ; Hill v. McRae, 27 Ala. 175.
5. It may be admitted, that the testator did not intend that the interest thus created should ever be aliened by the ¡son, or the wife, or subjected to the payment of any other ■debts, than such as were contracted for their support and maintenance. But, without departing from the law, as it has been declared in repeated decisions of this court, and the general policy of our legislation, that intention can not prevail. The interest is equitable; but it is affected by all the incidents, properties and consequences, which would [141]*141affect a corresponding legal interest. Of these is- the power of disposition, a restraint upon which is repugnant to, -and inconsistent with the gift. Another incident or quality is a liability in invitmn for the payment of debts. — 2 íátory’s Eq. § 974. Ao beneficial interest, legal or equitable, in or to property, real or personal, or in its income, rents or profits, can be created, fréed from the power of the beneficiary to dispose of it, or from liability to the payment of debts, unless it is conferred and to be enjoyed jointly -with others, in such manner that it -would be destructive of the purposes of the gift to sever the interests. — Rugely v. Robinson, 10 Ala. 731-743; S. C., 19 Ala. 404; Robertson v. Johnston, 36 Ala. 197; Smith v. Moore, 37 Ala. 327.
76. We do not understand that it was intended in Hill v. McRae, 27 Ala. 175, to depart from this doctrine. That decision rests upon the ground, that the interests of the beneficiaries were so blended that they could not be severed. We but carry out the doctrine of our former decisions, when we hold that, here, the son and his wife have an interest which may be severed from that of the children, and which passed by the mortgages. It is not because there may be several entitled to participate in the income, rents and profits, or in the corpus of a trust estate, that the beneficial interest ceases to be alienable, or liable to the payment of debts. The interest or estate must be so blended or united in the beneficiaries, as to be incapable of identification and separation. The gift we are construing can not be distinguished from that considered in Rugely v. Robinson, supra, in which it was held, that the son, and the members of his family, his wife and his children, took equally, and that the interest of the son was capable of separation and division, and subjection to the payment of his debts.
7. The interest of Mrs. Beese being an equitable, as distinguished from a statutory estate, as to it she has the capacity of a feme sole, and could alien it by mortgage for the security of her own, or the debt of her husband. — Demarest v. Wynkoop, 3 Johns. Ch. 129; Short v. Battle, 52 Ala. 456.
8. Though a purchaser, at a sale under a foreclosure of the mortgage, would acquire only the interest of the mortgagors, and would be entitled only to participate with the children, upon terms of equality, in the rents and profits during the life of Lewis C.; yet a court of equity may intervene for the protection of the rights and interests of the children, and to separate them from that of the mortgagors. But, upon the present bill, in which they are joined as plaintiffs with Mrs. Beese, they can not obtain relief. A want of right to relief, and of title to sue in respect to the subject-[142]*142matter, in one of several plaintiffs, is, as a general rule, fatal to tbe right of all.
9. There is one other question apparent upon the record, which must arise in tbe Court of Chancery, we deem it necessary to pass upon, that it may not be left in doubt, resulting, it may be, in prolonging tbe litigation. That is, tbe regularity and propriety of tbe amendment of the bill of Mrs. Jones, averring that the estate of the mortgagor Lewis 0. was a legal estate, derived, not from tbe will of Nathaniel Reese, but from a purchase made at a sale of tbe lands for tbe purposes of division, among tbe devisees under said will. The statute of amendments, in reference to pleadings in chancery, is very liberal and broad: as to subject-matter, they are to be allowed so as to meet any state of evidence which will authorize relief. — Code of 1870, § 3790. We concur, however, in the opinion of tbe chancellor, that tbe statute is not broad enough to allow, under the form of an amendment, tbe introduction of matter which would constitute a new bill. But it is not in this light tbe amendment can be regarded. It does not change the title of tbe plaintiff to relief, nor vary, except in degree, the character of the relief sought; and this the statute certainly allows. — Pitts v. Powledge, 56 Ala. 147.
Let the decree be reversed, and the cause remanded.