STONE, J.
Section 2144 of the Code reads as follows: “A defendant, against whom an action is pending upon any contract for the payment of money, may, at any time before issue joined, make affidavit in writing, that a person not a party to the action, and without collusion with him, claims the money in controversy, and deposit the money iu court, praying an order that the person so claim1 ing the money be substituted in Ms place. The court must thereupon direct notice to be given to the claimant of the money and the plaintiff, and may, in'its discretion, after such notice has been served, make the order prayed for; and thereupon the substituted defendant stands in the place of the original defendant, and the latter is discharged from liability.”
For appellee it is contended, that inasmuch as the sum of money which is the subject of this suit is the proceeds of cotton which Mr. Goree, in liis life-time, had consigned to Messrs. Marrast & Lee, as his commission-merchants, and the money.was in the hands of said commision-mer-chants as the agents of Mr. Goree, that the substituted [574]*574defendant, Mu. Nelson, can not make to tbis action any defense which Marrast & Lee could not have made, and that Marrast & Lee were estopped from setting up against their principal, Mr. Goree, any outstanding, title in a third person.
This record nowhere discloses that the plaintiff interposed any objection in the court below to the substitution of Mr. Nelson for Messrs. Marrast & Lee, as defendant in this case. No exception was taken to the action of the court, which resulted in the dismissal from the record of the former defendants, and the formation of a new issue or suit, between Mr. Goree’s administrator as plaintiff, and Mr. Nelson, as administrator of Mrs. Goree, and as guardian of the infant, Caroline N. Goree, as defendant. After this change of parties had taken place, the parties submitted their cause upon an agreed statement of facts, and a judgment was rendered by the circuit court. The record does not iuform us upon what ground the judgment of the circuit court was rendered. "We propose, in the first place, to construe the section of the Code above copied, and to define, so far as the wants of this case render it necessary, the practice to be pursued under said section.
Our labors in this connection are.much alleviated by the fact, that wo are not pionéers in an unexplored region. In the State of New York there is a statute, of which ours, so far as the question in this cause is- concerned, is almost a literal copy. Its language is as follows :
“ § 122. A defendant, against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person' and the adverse party, apply to. the court for an order to. substitute such person in his, plaee, and discharge him from liability to either party, on. Ms depositing in court the amount of the debt, or delivering, the property or its value to such person as the court may directand the court may,, ip. its, [575]*575discretion, make the order.” — Voorhies’ New York Code, (5th ed.) 93 ; Willard’s Eq. 315.
In the case of Sherman v. Partridge, 11 How. Pr. Rep. 154, Justice Duer, in delivering the opinion of the court, said : “ The provisions in section .122 of the Code are founded upon the English statutes, 1st and 2d Will. IV, ch. 58.” We have not access to the English statute, and hence must rely on the reference in Judge Duer’s opinion for its contents.
In the case of Sherman v. Partridge, 11 How. Pr. Rep. 154, (S. C., 1 Abbott’s Pr. Rep. 256,) the plaintiffs brought suit against defendants, and alleged that one Searle had sold logwood to the defendants, at the price and value of five hundred dollars; and that Searle, for a valuable consideration, had assigned and transferred to plaintiffs his said claim against defendants; and that in consideration of said assignment, the defendants had expressly promised to pay the plaintiffs the amount they owed Searle. One of the defendants submitted an affidavit, stating that one Delafiekl, a person not a party to the action, and' without collusion with the defendants, demanded of them the proceeds of the logwood, alleging that it belonged to him, and that Searle had not the possession as owner, nor any right or authority to sell the same or assign the price thereof. The motion was, to discharge the defendants, and to substitute Delafield in their stead.
On the trial of the motion, it appeared that the defendants had received the logwood from Searle; and that Searle, afterwards, for a valuable consideration, had transferred the claim to plaintiffs, and that defendants had promised the plaintiffs to pay them. The court overruled the motiou to substitute, saying, among other things, “ An order of interpleader, under section 122 of the Code-, can only be properly made where the whole controversy turns upon the right of property — that is, upon the question whether the plaintiff in the suit, or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or other property for which judgment is demanded. When the plaintiff insists, as in the present ease, that the defendant, by a personal contract or other[576]*576wise, has rendered himself liable in all events for the debt sought to be recovered, and is precluded from setting up the title of a third person as a bar, it would be manifestly unjust to make the order, since it would deprive the plaintiff of his legal remedy, and might involve the sacrifice of his legal rights, without affording him any equivalent or compensation. * * * Nor is it only upon the ground that has been stated that I must refuse, by substituting Delafield, to discharge the defendants. Had this action been brought by Searle himself, or by the plaintiffs merely as assignees, I must still have said that the facts do not exhibit a case for an interpleader under a just construction of the Code. The plaintiff's seek to recover a debt arising upon contract; but Delafield is not ‘ a third person, nor a party to the suit making a demand 'for the same debt,’ as the words of the Code require him to be, to justify an order for 1ns substitution. As he denies that Searle had any authority to make the sale, his demand as owner is for the logwood itself, or its value, which may be greater or less than the price agreed to be paid; and at any rate, is nota debt, of which, as such, he may compel the payment.” lie then proceeded to state that the words of the English statute do not at all differ in meaning from those found in section 122 of the New York Code.
The English statute of 1st and 2d "William IV., ch. 58, has been frequently construed; and the opinions of the English judges fully sustain those copied above from the opinion of Judge Duer. — See Lindsey v. Barron, 6 Man., Gr. & Scott, (60 Eng. Com. Law,) 291; Palonic v. Campbell, 2 Dowl. N. S. 397 ; Slaney v. Sidney, 14 Mees. & Wels. 800; also, Chamberlain v. O’Connor, 8 Howard’s Prac. 45.
The authorities place the practice under the inter-pleader statutes in England and New York on the same principles as those which govern that remedy in equity. In Willard’s Equity, pp. 318, et seq., this subject is treated in connection with the New York statute ; and it is obviously the opinion of that writer, that the statute, while it is in some respects less comprehensive than the remedy [577]*577by bill of interpleader in equity, is, in the matter we have been discussing, governed by the rules which uniformly obtain in the chancery court. Under those rules, Messrs. Marrast & Lee, as to the proceeds of the cotton sold before the death of Mr. G-oree, could not have maintained a bill of interpleader ; and hence had no authority to demand that Mr. Nelson should be substituted in their stead, as defendant in this action. — Gibson v. Goldthwaite, 7 Ala. 281; Marvin v. Elwood, 11 Paige, 365 ; Costigan v. Newland, 12 Barb. Sup. Ct. 456; Crawshat v. Thornton, 2 Myl. & Cr. 1; Croskey v. Mills, 1 Cr. Mees. & Ros. 298.
As to the eighteen bales of cotton received and sold by Marrast & Lee after the death of Mr. Goree, probably a different rule prevails. Those bales remained in kind, and unchanged in the hands of the bailees, until after the appointment of Mr. Walthall as administrator of Mr. Goree, and the appointment of Mr. Nelson as administrator of Mrs. Goree, and as guardian for the infant. It was then sold by Marrast & Lee, by consent of both said Wal-thall and said Nelson. In this, probably Messrs. Marrast & Lee could not with propriety be styled the agents or factors of the intestate, Mr. Goree, or of his administrator, Mr. Walthall. They were acting under the joint authority of both Walthall and Nelson. In Pearson v. Garden, 2 Russ. & Myl. 606, it was said, that when goods in the hands of a bailee have been subsequently so treated and dealt with by the bailor, as to constitute or acknowledge an apparent title to them in two distinct parties, the rule which prevents an agent from filing a bill of interpleader against his principal does not apply.
In the present case, it seems to us that, as to the proceeds of the eighteen bales of cotton, Messrs. Marrast & Lee, under the agreement of Messrs. Walthall and Nelson, filled much more nearly the relation of stakeholder to both, than of agent to either representative. But we need not decide this question.
It being shown above that, as to a part of the money in the hands of Messrs. Marrast & Lee, they were not in condition to call on their principal to interplead; and the entire sum being sued for in one action, it was not [578]*578permissible to divide that action into two distinct suits. The order of substitution, under section 2144 of the Code, must be an entirety. In this case, the rule declared in the case of Chamberlain v. O’Connor, 8 How. Pr. Rep. 45, would apply.
[2.] Notwithstanding the or'der of substitution in this case was irregular, and should not have been granted, the appellee, by failing to object, to the action of the court, has forfeited all right to “claim any advantage in consequence of the order. The cases cited above show, that the proper mode and time for raising the question of the right to substitute a new defendant,' is when the motion is acted on. It is not a question of what defense the substituted defendant can make, after he is, by the order of the court, admitted into the place of the original defendant; but a question of right in the original defendant to have him substituted. When he becomes the defendant, he defends, not on the title of the original defendant, but on his own title. This is fully shown in the reasoning of Judge Duer supra, and in the other cases cited.
After the defendant was changed, the parties, by entering into an agreement with each other, forming an issue, and engaging in the trial of the cause; and this without objection by the plaintiff to the previous action of the court, must be regarded and treated as submitting their several claims on the fund to the relative strength of the titles they represented. — Bryan v. Wilson, 27 Ala. 208 ; Byrd v. McDaniel, 26 Ala. 582; Gager v. Gordon, 29 Ala. 341.
It is, then, our duty to determine the relative strength of the plaintiff’s and defendant’s titles.
The entire real and personal property, of which the cottou in controversy is part of the product, was acquired under contracts executed in Alabama, by parties resident in Alabama, after the intermarriage of Mr. and Mrs. Goree, and after the “ woman’s law ” became operative. Mr. and Mrs. Goree were citizens of Alabama when the deeds were made, and continued so until their several [579]*579deaths. The infant ward has always been a resident of Alabama.
The two deeds of September 8, 1854, from the older Nelson to Mrs. Goree, conveyed property, real and personal, to her sole and separate use during her life,'and at her death, to such child or children as'she should leave surviving her. The- deed of July 21st, 1855, from the youngerNelsontoMrs. Goree,is expressed in general words of sale, without words of exclusion. Under the deeds from the elder Nelson, Mrs. Goree acquired the east half of section 23, township 12, range 6, 320 acres, and an undivided two-thirds of section 17, same township and range; also, an undivided two-thirds of the negro property. Under the deed from the younger Nelson, she acquired the remaining third of section.17, ánd of the slave property. The land is in the State of Mississippi, and the slaves were also there when they were acquired ; and were still there at the death of Mr. Goree, in January, 1858. The cotton sold by Messrs. Marrast & Lee was grown on said lands, by the labor of said slaves. Mr. Goree was in control of said property until his death ; but neither he nor any one else had been appointed administrator of Mrs. Goree, or guardian of the infant.
[3.] Neal estate, as to its enjoyment and transmission, is governed by the law of the place where it is situated. Hence, the rights of the parties in and to the lands are determined by the laws of Mississippi. — Story’s Confl. of Laws, §§ 382, 483, and notes; Smith v. Wiley, 22 Ala. 396; Shep. Dig. 476, § 13. Personal property has no local habitation. It pertains to the owner, wherever he may have his domicile. Saving the paramount rights of Mississippi creditors, if such there be, the succession of the personalty and its enjoyment must be, as between these parties, determined by the laws of Alabama. Story’s Confl. of Laws, § 383; Turner v. Fenner, 19 Ala. 355; Inge v. Murphy, 10 Ala. 885.
[4.] In regard to the lands, the extent of Mr. Goree’s claim to their enjoyment, after the death of Mrs. Goree, is, under the laws of Mississippi, with us a matter of difficult solution. Their statutes, providing for the separate [580]*580estates of married women, are substantially different from ours. They are in evidence in this record, and hence we are authorized — nay, required — to regard them. Their decisions are not in evidence, and wo are only authorized to consult them as other reported cases, to aid us in arriving at correct conclusions upon their statute laws. TJnder these circumstances, we are not permitted to regard them as authoritative and biudiug expositions of their statutes. Walker v. Forbes, 31 Ala. 9 ; Bloodgood v. Grasey, 31 Ala. 579, and authorities cited; McArthur v. Carrie, 32 Ala.
Another embarrassment is thrown over this question, by the circumstance that loe limit the operation of all our statutes in relation to the separate estates of married women to such estates as are made separate by law, while wo can not shut our eyes to the fact that with them the rule seems to be different. — See Pickens v. Oliver, 29 Ala. 528; Smith v. Smith, 30 Ala. 642; Willis v. Cadenhead, 28 Ala. 472.
A still further obstacle is encountered in the conflict observable in their reported cases. We confess a decided preference for the conclusions attained in the cases of Marshall v. Xing, 24 Miss. 85 ; Lyon v. Knott, 26 ib. 548; Rabb v. Griffin, ib. 579, over that announced in the later case of Cameron v. Cameron, 29 Miss. 112, and apparently recognized in Bates v. Cotton, 32 Miss. 266.
[5.] There can be no question that Mr. Goree was tenant by the curtesy of an undivided third part of section 17, township 12, range 6. — Hutchison’s Miss. Code, 498, §§ 2, 6, and act of 1846; see, also, act of 1839, pp. 496-7, §§ 1, 2, 3. Whether he was such tenant of the east half of section 23, and the other two-.thirds of section 17, we deem it unnecessary, embarrassed and cramped in our investigations as we find ourselves, now to decide. — See Planters’ Bank v. Davis, 31 Ala. 626, and authorities in opinion and briefs; Shep. Dig. 476, § 13.
Under the laws of Alabama, at the death of Mrs. Caroline M. Goree, an interest equal to two-thirds of the slaves passed directly, and without administration, to the infant, Caroline N. Goree, under the deed of the elder [581]*581Nelson. As to the remaining third of the slaves, Mrs. G-oree dying intestate, the title remained in abeyance until the appointment of an administrator to her estate, when the legal title vested in him, with relation back to the time of her death, as-to the rights of such administrator. No title whatever, as to any of the slaves, passed to Mr. Goree. lie was not, without appointment, the personal representative of liis deceased wife’s estate, and hence he could not take as administrator. He could not, under our law, take an interest in the personalty, as a quasi ten ant by the curtesy.
[6.] It may be supposed that, inasmuch as Mr. Goree, on the death of Mrs. Goree, became and was the natural guardian of his infant child, Caroline N. Goree, he, as such guardian, had the right to control and manage her property; and that his estate can not, in an action at law, be brought to account for the proceeds. If Mr. Goree, as guardian, was authorized to control and direct the labor of the slaves belonging to his infant child, his estate cannot, in this action, be brought to an account. — Chapman v. Chapman, 32 Ala. 106 ; Vincent v. Rogers, 30 Ala. 471. The argument is at fault, however, in supposing that Mr. Goree, as father and natural guardian, had any authority over the estate or effects of his infant child. Code of Ala. § 2014 ; Hutch. Code of Miss. 509 ; Alston v. Alston, at the last term ; 2 Rent’s Com. m. pp. 220-1. This case, then, stands as if amere stranger had employed these slaves in making the crop, a part of the proceeds of which is the subject of this suit. In such case, -there could be no recovery, unless there is something in the iimt that such stranger owned the land, or some part thereof, on which the cotton was grown. — Carpenter v. Going, 20 Ala. 587 ; Bailey v. Miller, 5 Ired. Law, 444; 1 Lomax on Ex’ors, 180; Code, § 1933; 1 Williams on Ex’ors, 211; Hill v. Henderson, 13 Sm. & Mar. 688.
[7.] It is contended for appellant, that the doctrine of confusion of goods applies to this ease. Being, as stated above, unable to determine the extent of interest in the lands which Mr. Goree owned when this cotton was grown, we prefer not, at this time, to determine this question, [582]*582further than may be necessary to a correct result in this suit. The subject is treated in the following authorities: 2 Kent’s Com. side pages 368-4-5; Lupton v. White, 15 Vesey, 432, 437; Attorney Gen. v. Fullerton, 2 Vesey & Beames, 263; Betts v. Lee, 5 Johns. 348; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Pratt v. Bryant, 2 Ver. 333; Willard v. Rice, 11 Metc. 493; Brackonridge v. Holland, 2 Blackf. 377; Hesseltine v. Stockwell, 30 Maine, 237 ; Bryant v. Ware, ib. 295; Dillingham v. Smith, ib. 370; Pulcifer v. Paige, 32 Maine, 404; Dunning v. Stearns, 9 Barb. 630.
We stated above that the rights of these parties must depend on the relative strength of the two titles. It follows that, to maintain this action, it rests with the plaintiff to show a better title at law to the money in the estate of Mr. Goree, than there is in the estate of Mrs. Goree, and in the minor. The question thus stated is easily answered, without asserting to the extent of some of the cases cited above the doctrine of confusion of property or goods. Conceding, for the purposes of this argument, that Mr. Goree was tenant by the curtesy of the entire tract of land during the year 1857, when the cotton was grown, it is nowhere shown that Mr. Goree has not already received and enjoyed his full share of the crop of that year. This, if the rule of confusion of goods be applicable, would forbid that the present suit should be maintained.
There is another principle, however, sufficiently comprehensive for the purposes of this case, and which, we think, is decisive of the plaintiff’s right to recover in this action. Waiving, for the present, all consideration of the want of authority in Mr. Goree to employ these slaves in the cultivation of his own lands — even if we place the question on the doctrine of part-ownership, or tenancy in common, it does not appear that the estate of Mr. Goree has not received its full proportion of the money for which the cotton was sold. Thus considered, Mr. Goree has received and used near $3,000 of the money, while Mr. Nelson, in his double representative capacity, can receive by this suit less than $2,000. It should be [583]*583borne in mind, the latter is not suing to recover money, but is defending a suit which seeks to appropriate this balance of the fuud. This places the plaintiff in a legal dilemma. If the doctrine of confusion of goods apply, his intestate created the. confusion, and he must suffer the consequences. — See, in addition to the authorities above, Pearson v. Darrington, 32 Ala. 227, 3d headnote, p. 241. If, on the other hand, it be contended that a severance of the joint ownership has been effected by the sale of the cotton, and that either party can maintain an action against the other for his or her proportion of the money, it does not appear that the intestate of the plaintiff in this action had not enjoyed more than his share. See Perminter v. Kelly, 18 Ala. 716.
The reasons which influence us in withholding an expression of opinion on this question of confusion of goods, are partly stated above — namely, our inability, in the state of this Record, to determine satisfactorily the extent of Mr. Goree’s curtesy iu the lands. To this we may add, that there will probably be other differences of opinion and of claim between these parties, growing out of the cotton crop of 1857. Should such contest arise, a fuller statement of the facts, as well as the laws of Mississippi as understood and expounded in their jurisprudence, will probably bo brought before the court trying the questions.
It results from what we have said above, that the judgment of the circuit court is reversed, and the cause remanded.