BRICKELL, C. J. —
1. A mere general demurrer, which, under the general rules of chancery practice and pleading, directs attention to and draws in question only the equity of a bill, does not exist now in our practice, and can not be heard or sustained. The statute is express: “A demurrer to the bill must set forth the ground of demurrer specially, and otherwise must not be heard.” — B. C. § 3350. The assignment, that “ there is no equity in the bill,” is nothing more than a general demurrer; it is not an assignment of a special cause of demurrer. It does not point out in what respect the bill wants equity, so that, if facts exist warranting the correction of the defect, they could be introduced by amendment. It could not be heard by the chancellor, nor can it be considered here. — Hart v. Clark, at the present term.
2. All the causes of demurrer are loosely assigned; but we will consider such as can, by fair intendment, be considered as conforming to the statute. The first of these is, that usury is no ground for equitable interference. We presume it was intended to assert, that a subsequent mortgagee, or the assignee of a mortgagor, could not interpose usury as a [350]*350ground for equitable relief, or in a bill to redeem set it up in bar of a recovery of tbe debt and interest, as tbe debt may be expressed in tbe mortgage, and tbe mortgagor bad promised to pay it. Tbis ground of demurrer was well taken, to so much of tbe bill as claims relief because tbe mortgage debt is tainted with usury. In tbis court, usury bas uniformly been treated as a defense personal to tbe parties to tbe usurious contract, or their personal representatives; and in Gain v. Girnon, 36 Ala. 168, it was decided that tbe assignee of a mortgagor, seeking redemption, could not avail himself of it.
3. Tbe next assignment is, that the mortgage is valid, and folloioed the new note as security. Tbis is addressed to tbe allegation of tbe bill which avers tbe extinguishment of tbe mortgage, because tbe form of debt was changed by tbe substitution of a new note payable to Eail, in lieu of tbe note payable to tbe mortgagee, described in tbe mortgage. Tbe acceptance of tbis note, and tbe surrender of tbe former note, in tbe absence of any agreement to tbe contrary, was a discharge of tbe mortgagee from liability as assignor. Tbe mortgage was not, however, a mere personal indemnity to him, extinguished by tbe extinguishment or discharge of bis liability. It was a security for tbe debt, continuing as an incident to it, passing in equity with its assignment, incapable of extinguishment, except by payment, satisfaction, or a release. No change in tbe form or evidence of tbe debt impaired tbe security tbe mortgage afforded; and tbe new note was but a change in tbe evidence, showing tbe debt was due to tbe assignee, and no longer to tbe mortgagee. — 2 Wash. Real Prop. 173; Boyd v. Beck, 29 Ala. 712. This ground of demurrer was well taken, to tbe part of tbe bill to which it is applicable.
4. We do not understand tbe bill as claiming relief, because of a failure to pay over a surplus of tbe proceeds of sale, or that there was a surplus, unless tbe fact of usury could be made available to tbe appellant. It is unnecessary, therefore, to notice tbe third assignment of demurrer. Tbe fourth assignment proceeds on tbe hypothesis, that a mortgagor, or bis assignee, seeking redemption in a court of equity, must aver that be bas tendered to tbe mortgagee, or bis assignee, payment of tbe mortgage debt, offered to redeem, and been refused, or tbe bill is without equity. It is true, that a bill to redeem must contain, in express terms, an offer to pay tbe mortgage debt, or tbe amount admitted to be due. — 2 Dan. Ch. Prac. 1386; Beeknan v. Frost, 18 Johns. 560. Tbe default of tbe mortgagor, at law, vests tbe estate in tbe mortgagee ; and equity lets him in to redeem, only on bis doing equity — indemnifying tbe mortgagee against loss from tbe [351]*351default. Tbe bill usually avers a tender of tbe mortgage debt, prior to its filing; but sucb averment is material, only as it affects tbe question of costs. It is not essential to tbe equity of tbe bill. Ordinarily, tbe payment of costs is one of tbe terms on wbicb tbe mortgagor is permitted to redeem. If tbe mortgagee, by bis refusal to accept tbe mortgage debt, when tendered, or by interposing groundless objections to a redemption, compels tbe mortgagor, or bis assignee, to resort to equity, be will not be allowed, and sometimes will be compelled to pay costs. — 2 Dan. Ch. Prac. 1386 (n. 4); Slee v. Manhattan Co., 1 Paige, 81; Vroom v. Ditmas, 4 Paige, 535. Tbe decree usually rendered fixes a future day, on wbicb tbe mortgage debt must be paid, and, in default of payment, declares tbe bill must stand dismissed at tbe cost of complainant. — 2 Dan. Ch. Prac. 998; 1 Smith’s Ch. Prac. 546. If tbe decision in Daughdrill v. Sweeny, 41 Ala. 310, was intended to assert, as tbe chancellor seems to have supposed, that a tender of tbe mortgage debt must bo made before seeking redemption in equity, it.is erroneous, and not supported by authority. It may be that, under the facts in that case, it was necessary to aver a tender, with tbe precision necessary in a plea of tender at law, and that tbe sum tendered should be brought into court. Tbe ground of equitable interference was, tbe fact that tbe complainant was entitled to restrain tbe mortgagee from proceeding to sell under tbe mortgage, because be bad tendered tbe amount of tbe mortgage debt, wbicb bad been refused. But, in an ordinary bill to redeem, tbe tender is not necessary. Tbe right springs out of tbe mortgage, and tbe court protects tbe mortgagee, by decreeing tbe payment of tbe mortgage debt, and, if be is free from blame, tbe payment of costs also, as the condition of redemption. If tbe bill discloses that tbe appellant was entitled to redeem, this ground of demurrer should have been overruled.
5. It is scarcely necessary to say, that if tbe bill shows tbe appellant has tbe rights be claims, be is without remedy at law, and tbe last ground of demurrer is not well taken. Bedemption of mortgages pertains only to a court of equity; and tbe appellant, being in possession, was without legal remedy to test tbe validity of tbe mortgage. Tbe bill does not, however, disclose that tbe appellant has an equity of redemption; on tbe contrary, it appears, if tbe mortgage is not void, tbe equity of redemption has been barred. Tbe power of sale contained in tbe mortgage was not, as is suggested in tbe bill, a naked power- — a mere personal trust in Frank Boykin, Jr. It was a power coupled with an interest, irrevocable, appendant to tbe land, and passing with it, by [352]*352assignment of tbe mortgage and debt. — 4 Rent, 160; 2 Wash. Real Prop. 72. Tbe statute expressly declares tbat a power to sell lands, contained in a mortgage, is part of tbe security, passing witb tbe assignment of tbe debt, and may be executed by tbe assignee. — R. C. § 1589. Sucb powers are introduced into mortgages, to avoid tbe delay, expense, and other inconvenience, attending a foreclosure by bill in equity, and render tbe security more valuable and desirable. Tbe effect of an exercise of tbe power — of a sale in pursuance of it — unfairness or oppression not being imputed, is tbat of a foreclosure, cutting off tbe equity of redemption, and vesting tbe estate in tbe purchaser. — 2 Wash. Real Prop. 78. Of course, we speak of a sale like tbat disclosed by the bill, in which it is not denied there has been compliance witb tbe essential requisites of tbe power. Tbe sale by Fail to Yan Pelt divested tbe appellant’s equity of redemption; and as a bill to redeem, tbe bill can not be maintained.
6. Tbe theory of tbe bill, in its remaining aspect, is, tbat tbe mortgage is an alienation of tbe homestead of the mortgagors, denounced by tbe constitution of 1868 as invalid, tbe wives of tbe mortgagors not having joined in its execution. Tbe constitutional provision is in these words: “-Every homestead, not exceeding eighty acres of land, and tbe dwelling and appurtenances thereon, to be selected by tbe owner thereof, and not in any town; city, or village, or, in lieu thereof, at tbe option of tbe owner, any lot in the city, town, or village, witb tbe dwelling and appurtenances thereon, owned and occupied by any resident of this State, and -not exceeding tbe value of two thousand dollars, shall be exempted from sale on execution, or other final process from a court, from .any debt contracted after tbe adoption of this constitution. Sucb exemption, however, shall not extend to any mortgage, lawfully obtained; but sucb mortgage, or other alienation of such homestead, by tbe owner thereof, if a married man, shall not be valid, without tbe voluntary signature and assent of tbe wife to the same.” — Constitution 1868, Art. SIY, sec. 2. This, and tbe remaining sections of tbe constitution of 1868, in reference to property exempt from liability for debts, witb the exception of tbe fourth section, and of the amount and value of tbe property exempt, are borrowed from tbe constitution of Michigan. — -1 Laws Michigan Comp. 1857-72..
Similar constitutional and statutory provisions have been accepted as intending to secure to every family an absolute right to tbe homestead — not as a mere personal privilege which tbe husband may, at bis election, waive, or claim, or part witb; and of it they shall not be deprived, without tbe [353]*353joint conveyance of himself and wife. The title to tbehome-stead remains in the husband; but the power of alienation, an incident of ownership, is restrained and limited to the mode prescribed, and alienation in any other mode prohibited. The conveyance of the husband alone is as invalid and inoperative, under this construction, as would be the deed of a married woman conveying lands, not executed and acknowledged in the mode statutes may have enabled her to convey. It will not support ejectment against the husband, nor will it operate against the subsequent conveyance of husband and wife. — Smyth on Homesteads, §§ 240-242. If the mortgagors had a homestead in the premises, it passed to the appellant, by the conveyance in which the wives joined; and he is entitled to claim it, as against the appellees. It is the homestead only the appellant can claim. The mortgage was not void, except as a conveyance of the homestead. The constitution confines the homestead to eighty acres, including the dwelling and appurtenances. The husband’s disability of alienation extended only to this eighty acres, to be carved from the entire tract of five hundred and twenty-one acres. As to the remainder of the tract, there was no disability of alienation. The power to alienate was limited only by the quality and quantity of the estate. — Dye v. Mann, 10 Mich. 291; Wallace v. Harris, 32 Mich. 380.
7. But, had the mortgagors a homestead in the premises, exempt under the constitution from liability for debts, and which they were disabled from alienating without the concurrence of their wives? The averment of the bill is, “that they were tenants in common, seized in fee simple,” and, “at the executing of the mortgage, were living and residing upon the said lands as their homestead.” The homestead right owes its existence wholly to constitutional provision, or statutory enactment. At common law, there is no analogous estate, or right, or interest. The nature, character, and extent of the right, depend wholly on the law creating and defining it. — Thomas v. Thomas, 45 Miss. 263. It must be accepted under the qualifications and limitations which are imposed by the law. The courts cannot abridge these, nor recognize the existence of the right, under circumstances and considerations variant from those which are specified in the constitution. — Helfenstein v. Cave, 3 Iowa, 290.
It is true, the statutes preceding the constitution, making exemptions for the benefit of families, were liberally construed, in furtherance of the humane and beneficent policy in which they had their origin. The largest, not the narrowest, or the usual significance of the words, if thereby the benefit of the statutes was circumscribed, was adopted. The [354]*354press and type of a practical printer were deemed tools, or implements of trade, though the usual acceptation of these terms may not have embraced them. — Sallee v. Waters, 17 Ala. 482. The term work-horse was not limited to a draft-horse, but extended to the horse performing, or intended to perform, the common drudgery of the family. — Noland v. Wickham, 9 Ala. 169; Allman v. Gann, 29 Ala. 240. The word cart was applied to a vehicle having four wheels, employed in the uses of the family, to which a cai't is ordinarily appropriated. — Favers v. Glass, 22 Ala. 621. This liberality of construction did not involve the power of extending the words of the statute beyond a just and fair interpretation— it did not authorize the courts to draw within the operation of the statute persons or things to which the words could not be extended, nor to dispense with the conditions on which the right of exemption could be claimed. The exemption was to the head of a family: uniformly, a relation of legal dependence on the debtor, by persons resident within the látate, was held indispensable. The resident of another State, accompanied by a son of full age, here pursuing a mechanical occupation, having • at his domicile a family legally dependent on him (and it may have been for the better sustenance of that family), could not claim the statutory exemption. — Allen v. Manasse, 4 Ala. 554. The horse of a resident of Mississippi, protected there by statute from levy and sale, temporarily found here, was not protected. — Boykin v. Edwards, 21 Ala. 261. A married woman, having no children, residing here, her husband residing in another State, could not claim the protection of her separate estate under the statute. — Keiffer v. Barney, 31 Ala. 192. Actual occupancy of the premises claimed, as a homestead, was necessary, though the statute, in describing the premises exempt, employed only the word homestead. — Kaster v. McWilliams, 41 Ala. 302. The exemption was lost, if not claimed before a sale, whether the property was real or personal.— Gresham v. Walker, 10 Ala. 390; Bell v. Davis, 42 Ala. 460.
We do not doubt, that the constitutional provision, so far as it admits of construction, must receive a similar construction — a liberal, as distinguished from a strict, or narrow construction, preserving and advancing the jDolicy in which it originates. So far as the question under consideration is concerned, the constitution, in its ■ language, is plain and clear, and the sense and meaning of its terms distinct and perfect. The duty devolving on us is that of interpreting, not of construing these terms. The constitution does not operate on lands, or an estate in lands, merely. There may be an estate in fee simple, or for life, or for years, held in [355]*355severalty or in common — in a large, or in a small quantity of land — of great, or of insignificant value — residing in one wbo has not a residence within the State-, and it would not be affected by the constitutional provision creating and defining a homestead right. Or, the estate may reside in a citizen of the State, having here a permanent abode, a family dependent on him, who may, by his improvidence, be reduced to destitution; and if the lands are not occupied by him 'as a homestead — if they are occupied for a different purpose, as for commercial, manufacturing, mechanical, or agricultural pursuits; or if held that the means of maintaining the family may be derived from the rents and profits — the constitution does not operate on it.- — McGoneghy v. Baxter, MSS. An analysis of the constitutional provision shows, that it is the homestead which is owned, and occupied, and which the owner has the unqualified right of selecting — of separating from other lands, and devoting to use and occupancy as a home— which is protected from liability for debts, and the alienatipn of which is restrained, if the owner be a married man. Prof. Washburn says: “A homestead, in law, means a home-place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.” — 1 Wash. Real Prop. 326. The power of selection, and devotion to use and occupancy as a homestead, separating and distinguishing it from a mere estate or interest in lands, is as essential to the right, as is the personal status of residence within the State', or of actual occupancy, if that status exists.
Are tenants in common within the words of the constitution, fairly and justly interpreted ? As long as they hold in common, have they, or can they have severally, the occupancy, or the power of selecting, and devoting to use and occupancy as a homestead, any specific part of the common estate? Unity of possession is the essential element, and one of the distinguishing characteristics of this species of tenancy. Whether held by several distinct titles, or by the same deed, devise, or descent, the tenancy exists, so long as this unity of possession continues, “ so that each tenant knows not his own severalty.” — 4 Kent, 404; Thompson v. Mawhinney, 17 Ala. 362. The possession of the one tenant is the possession of the other, and the taking of the whole profits by the one is not an ouster of his companions.- — 4 Kent, 407; Johnson v. Toulmin, 18 Ala. 50; Williams v. Avery, 38 Ala. 115. One tenant in common can not convey a distinct portion of the estate by metes and bounds. Such a conveyance will, in favor of the grantee, operate against the grantor by way of estoppel; but, as against the co-tenants, it is inoperative and [356]*356void. — 4 Kent, 404. In tliis case, if a homestead could be selected from the premises, which of the tenants would have the right of the selection ? Which of them would take the dwelling and appurtenances ? Can a homestead be allotted to each, leaving them in joint or common occupancy of the premises? How much of the contiguous land can each select ? If each selects eighty acres, the exemption defined by the constitution is increased, and the quantity of land on which limitations of alienation rest is doubled. If there is only one homestead selected by the two tenants, and one tract of • eighty acres, the constitutional homestead is dwarfed to one-half. It is a homestead as an entirety, which is created, defined, and contemplated by the constitution — not an undivided interest in a homestead, uncertain in the duration of occupancy, because of the character of the ownership and possession. Suppose there are two dwellings and appurtenances on the tract, and these should be severally selected; could the interest of the one tenant, in the homestead of the other, be subjected to sale for the payment of debts? Would it pass by an alienation in which the wife did not join? These questions must be affirmatively answered; and yet it is apparent that freedom from liability for the payment of debts, and restrained alienation, are of the essence of the homestead right the constitution contemplates. If, under judicial process, the undivided interest of the one tenant is sold, or if it is aliened, the alienee immediately becomes a tenant in common, entitled to enter and to share in the rents and profits. Suppose he claims partition, and the dwelling and appurtenances are assigned to him, while the share of the tenant selecting them as a homestead is located on lands not capable of use and occupancy as a homestead; the family is deprived of a home, without the assent of the wife. '
' I must not be understood as intimating that an unqualified title in fee simple is necessary to support the homestead right. The right will attach to a less freehold estate, or to an estate for years, or to any defined interest, to which the absolute power of selecting and appropriating the premises, or a specific part of them, as a homestead, is an incident. But, when such incident can not be imputed to the ownership — when the possession and occupancy is not several and exclusive, so that it will separate and distinguish the lands which are exempt from liability for debts, and the alienation of which is restrained, from other lands not exempt, and the alienation of which is unrestrained — the right can not attach. West v. Ward, 26 Wise. 579. The selection of a specific part of the lands as a homestead, by the one tenant in common, would be as inoperative as his conveyance of such part. It [357]*357would not secure to Mm, or to bis family, a permanent borne — ■ a dwelling place — protected from tbe entry and possession of all tbe world, while bis estate or interest endured, and bis or tbeir occupancy continued.
It may be said, tbe selection can prevail against all tbe world but tbe co-tenant, and, if be does not complain, others have no cause to complain. Tbe right would then depend for its continuance and preservation, not on tbe constitution, but on tbe sufferance of tbe co-tenant. Tbe right was incorporated into tbe constitution, to render it fixed, permanent, absolute, free from legislative invasion, and as inviolable as tbe rights of property which have always been recognized and protected by constitutional guaranty. It can not be made to depend on tbe sufferance or volition of. any other person than him in whom it resides.
Creditor’s may be placed in tbe same condition, if a tenant in common is allowed to retain a homestead, that they would be if bis title was absolute and unconditional. It is- not tbe right of creditors which is alone to be considered. Exemption from liability for debts is but one of tbe objects of the constitution. The owner may be free from debt, and tbe homestead right exist, incapable of destruction by alienation in which tbe wife does not join. On bis death, tbe right of tbe widow, and tbe right of tbe minor children, would exist, and must be enforced, though not a debt is chargeable on bis estate, real or personal. The framers of tbe constitution may well have intended to attach tbe right only to an estate or interest in lands capable of supporting it, so long as that estate or interest endured, if there was not alienation in tbe mode prescribed, and to withhold it from another estate or interest, because of its character, not capable of supporting it, when a right residing in another was asserted. No just interpretation of tbe constitution, in my judgment, authorizes tbe extension of tbe right to an estate held in common.
Upon this, as on many other questions arising under homestead and exemption laws, there is great contrariety of judicial decision. The following authorities support my conclusion. — Amphlett v. Hibbard, 29 Mich. 298; West v. Ward, 26 Wisc. 579; Thurston v. Maddocks, 6 Allen, 427; Wolf v. Fleishacker, 5 Cal. 244; Giblin v. Jordan, 6 Cal. 416; Elias v. Verdugo, 29 Cal. 418. Unless it can be asserted that tbe constitution operates on a mere estate or interest in lands, and not on a homestead only, this conclusion seems to me inevitable.
Tbe mortgage now assailed, because the wives of tbe mortgagors did not join in its execution, conveys a tract of land [358]*358containing five hundred and twenty-one acres. The want of the concurrence of the wives of the mortgagors would not, as we have said, render it invalid, except so far as it operated a conveyance of the homestead. How much land can be withdrawn from the operation of the mortgage, if the homestead right can be attached to the estate of the mortgagors ? Can one hundred and sixty acres, allowing .a homestead to each mortgagor, or only eighty acres, the extent of the homestead, inalienable under the constitution, without the assent of the wife ? If the appellant, deducing title under a subsequent conveyance, can claim, as he may if the homestead exists, that His conveyance passes the homestead on which the mortgage does not operate, the homestead of which tenant does not pass by the mortgage, and the homestead of which passes to the appellant? Is the mortgage inoperative as to the homestead of the other, and the appellant’s conveyance likewise inoperative ? If such homestead exists, how is the co-tenant deprived of his common estate in it ?
The constitution clearly defines the quantity and value of the homestead right, and selection and occupancy by the owner as the facts which distinguish the lands to which it attaches from all other lands which the person on whom the right is conferred may own. If it had been intended the right should attach to lands held in common, the tenure of which forbids an exclusive occupancy by one of the tenants, and with which the right of selection is inconsistent, it seems to me manifest a mode of selection and of partition would have been prescribed. No hardship or injustice can result to the tenants in common. If they desire the homestead right should attach to the lands held in common, partition can be had whenever they claim it. When it is had, the land allotted to each in severalty, becomes subject to the right of selection — of devotion to use and occupancy as a homestead, and separable and distinguishable from all other lands which he may own. The use and occupancy gives notice to all the world of the land exempt, the alienation of which is restrained. When the use and occupancy is joint, or in common with others, such notice is not .given.
A majority of the court do not concur with me in these views. They hold that the homestead right does attach to the estate of tenants in common, and are supported in their conclusion by numerous authorities. I have no disposition to extend this opinion by a review of such authorities, or by a discussion of the reasons controlling them. I regret the disagreement between us. We have labored patiently to reach harmonious conclusions on the various questions arising under this article of the constitution; and if my convic-[359]*359iions were less strong, I would yield them to the judgment of my brothers.