113 Ky. 871 | Ky. Ct. App. | 1902
Opinion of titk covin' by
Affirming.
This action was brought by the Mutual Life Insurance Company of Kentucky against Darwin W. Johnson and his
The following questions are raised by appellant, and interestingly discussed, but Avere all decided unfavorable to her by the chancellor, to-wit: She urges- (L) That the deed from Johnson and his wife to Bartley, and the deed from Bartley immediately back to Johnson, ivas one colorable transaction, was bad for the purpose of avoiding the limitations and restrictions of Mrs. Johnson’s title, and they were not effective to pa.ss the title of Mrs. Johnson to her husband, or to destroy the restrictions and limitations in her father’s will. (2) That Mrs. Johnson is not estopped by- the recital in her deed, or otherwise, from showing that she did not receive any consideration for the conveyance to Bartley, or for the conveyance from Bartley to her husband, or from showing that the whole transaction was colorable, and done for the purpose of avoiding the limitations and restrictions on her title contained in the will of her father., (3) That the public, record, which shows the limitations and restrictions contained in the will of Richardson Burge, and which shows the simultaneous execution and recording of the deeds from Johnson and wife to Bartley, and from Bartley back to Johnson, was sufficient notice to the Mutual Life Insurance Company and to the German National Bank of the fact that the transactions by which these -two deeds Avere executed Avere colorable, and that they 'are hound by all tlie knowledge Avbich they could have obtained had they made diligent inquiry, as a reasonable and prudent man would have made under the circumstances. These questions, embodying the defense of appellant, present the question of the nature of Mrs. Johnson’s title, and whether it
The will of Richardson Burge created in appellant a separate estate in this property. Tts sole limitation was that it should he free from the debts and liabilities of any bus-band that she might have. The words, “as her separate estate, for her own separate use and behoof in fee, free, from the use” of her husband, served only to create a separate estate in fee. These estates' came into more favorable, regard by the Legislature1 for a period, when it was provided Rev. St., e. 47, art. 4, section 17) that the separate estate of a married woman could not be alienated by her, even though her husband joined in the conveyance; nor could it be charged or ineumbei'ed but by order of a court of equity, and then only for the purpose of exchange and reinvestment, which was required to he under the supervision of the court. If flie property was a gift to her, and the donor or his personal representative consented to it, the wife, might convey her separate estate. Thus, substantially, the state of tlie law on this subject continued till the adoption of the General Statutes, when a radical departure was adopted; section 17, art. 4, c. ¡12, providing: “Separate estates and trust estates conveyed or devised to married women may be sold and conveyed in the same manner as if such estates bad been conveyed or devised absolutely, if there be nothing in the deed or will under which they are held forbidding the same, and if the husband (and trustee, if there be one) unite with the wife in conveyance. But her interest shall "be the same in the proceeds as it was in the' estate.” Independent of specific limitations, the effect of the deed or will creating the separate estafe was merely to exclude the husband from what won hi have been his legal right with re
In the important case of Scarborough v. Watkins, 9 B. Mon., 540, 50 Am. Dec., 528, opinion by -Judge Simpson,the court treats of Ararious phases of conveyances of married woman's property by deed or bargain and sale or gift. That case involved a transaction where the Avife and her husband conveyed her land to a stranger for the pmpose of reconveying it to the husband, so as to invest him Avith title. It was her'general estate. On one particular point the decision in that case strikes us as being aptly in poi,nt here. It is: “The statutes authorizing.a married woman to execute a deed of conveyance'"in conjunction with her husband make the deed, when acknowledged by the parties, Avitlr certain legal formalities upon the part of the wife, and recorded, as effectual for every purpose, as if she were an nn
It is argued that this transaction is colorable, is patently an attempt to defeat the provision of the will restricting the estate from incumbrance for the debts of appellant’s husband; that the two deeds were in fact but parts of one transaction, and. were without consideration; that the facts shown as above stated are sufficiently apparent from an in-
This section of the General Statutes (chapter 52, art. -I, section 17) was passed to enlarge the rights of married women with respect to their separate estates. T.t was the evident purpose of the Legislature to remove those, restrictions contained in the Revised Statutes that had been found burdensome to married women because they hampered the use, and defeated in many instances the practical enjoyment of +liis class of property by its owners. When the Legislature determined to again permit married women to deal
The courts have not. been uniform in applying the doctrine of estoppel to acts of married women. We shall not attempt a discussion of the question further.than it affects her separate property. Pom. Eq. Jur.. section 41R, thus slates the matter: “Upon the question how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enforcement of the estoppel against married women as against persons sui -juris, with little or no limitation on account of their disability. This is plainly so in Slates where the Legislature has freed their property from all in-' terest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single.” In Herm. Estop.,section 1105, it is stated: “Under various statutes removing the common-law disabilities from married women, corresponding liabilities have necessarily been imposed on them. They take the civil rights and privileges conferred subject to all the incidental and correlative burdens and obligations, and their rights and obligations are to be determined by the same rules of law and evidence by which the rights and obligations of the other sex are determined under like circumstances. To the extent and in the matters of business in which they are permitted by law to engage they owe the same duty to those with whom they deal and to the public and may be bound in the same manner as if they were unmarried. Their common-law capacity can not serve as a shield to protect them from the consequences of their acts, where they have
The judgment of the circuit court, being in accord with these conclusions, is affirmed.