Aрpellant brought this suit against .appellee to quiet title to the real estate described in the complaint, and to recover possession thereof. Appellee’s demurrer to the complaint for want of facts was sustained, and when appellant refused to plead further, judgment was rendered against her.
The only error assigned calls in question the action of the court in sustaining said demurrer.
The facts alleged in the complaint are substantially as follows: Appellant was the widow of Henry Probst, deceased, he being her first husband. At his death he left as his' heirs the appellant and three children by said marriage. On January 10, 1890, there was set off to appellant in partition proceedings in thе Dekalb Circuit Court, in which appellant and said children were parties, the lands described in the complaint as the one-third interest of said widow in said lands, her husband having died intestate. After said lands were so set off, and while appellant, as the widow of said decedent, was holding said land under and by virtue of said first marriage, she married George N. Knepper; and during
It was also held that real estate so held by a widow who has married a second or subsequent time cannot be sold on execution against her during such subsequent marriage by reason of the restraint upon alienation imposed by said section of the statute. Schlemmer v. Rossler (1877),
It has also been held by this court, that if a conveyance is made contrary to the provisions of said section, the widow may recover possession of, and have her title quieted to, the lands so conveyed. Knight v. McDonald, supra; Connecticut Mut. Life Ins. Co. v. Athon, supra; Sebrell v. Hughes, supra, and cases cited.
It will be observed that under the section as amended, a widow holding real estate, in virtue of any previous marriage, is only prohibitеd from alienating it during any second or subsequent marriage in case there be living children or their descendants by the marriage in virtue of which the widow holds such real estate, and that such widow and her living husband may alienate such real estate even in such ease, if her children by the marriage, in virtue of which such real estate came to her, shall be of the аge of twenty-one years and join in such conveyance.
The prohibition of the conveyance of such real estate in ease there be a child or children or their descendants alive by such marriage in virtue of which the widow holds such real estate during a second or subsequent marriage is the same under said §18 as amended as it was under §18 befоre its amendment.
It was said by this court in the case of Maynard v. Waidlich (1901),
It has been held under §3015, supra, that a deed or mortgage exeсuted by a married woman during a second or subsequent coverture, her husband joining therein, upon land held by her in virtue of a previous marriage, there being living children by the marriage in virtue of which she held such real estate, is void. Aetna Life Ins. Co. v. Buck, supra; McCullough v. Davis (1886),
It was also held by this court in the case of Wright v. Wright (1884),
In the case of Forgy v. Davenport, supra, the court held that said §18 did not preclude the widow during her second marriage from leasing for the period of her natural life real estate held by her in virtue of a previous marriage, where there were living children by such marriage. It was said, however, in that ease, that this holding was not inconsistent with the holding in previous cases under such section, that any attempt to mortgage or deed the fee simple of such real estate during a second or subsequent marriage was void. This is true because such deed or mortgage if void was ineffectual for any purpose.
The case of Forgy v. Davenport, supra, must be limited to the question presented by the record and decided therein, and not extended to all the illustrations made argumenta
It was held by this court in the cases of Mattox v. Hightshue (1872),
It is said in 11 Am. and Eng. Ency. Law (2d ed.) 393: “No question of estoppel by deed can arise where the instrument is absolutеly void. And when the deed is invalid, the mere fact that it contains covenants of warranty will not make it operate by way of estoppel. * * * A deed void as given in contravention of a statute works no estoppel. ’ ’
It was said by this court in the ease of Mattox v. Hightshue, supra, on page 104: “A party can never be estopped by an act that is illegal and void. * * * An equity cannot grow out of an illegal and vоid transaction.”
Although a married woman, under §7854, supra, is “bound by her covenants of title in conveyances of her separate property, аs if sole,” in cases where she has the capacity to convey it, and under §7853, supra, is “bound by an estoppel in pais, like any other person,” appellant’s want of capacity to convey the land in controversy by the warranty deed in which her second husband joined, under the authorities cited cannot be supplied by estoppel, because said warranty deed was void and the covenants therein do not estop her. Parsons v. Rolfe (1891), 66 N. H. 620,
In the case of C. Aultman & Co. v. Olson (1886),
In the case of Maxfield v. Schwartz (1890),
In 1 Bigelow, Fraud 525, 526, it is said: “Every man or woman, even though illiterate, is presumed to know the contents of a written instrument signed by him; but no presumption of knowledge will stand in the way of a charge of fraud made in regard to the contents of the writing. No doubt it would be imprudent, in a sense, not to read or to require the reading of an instrument before signing or accepting it; indeed the courts would turn a deaf ear to a man who sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be. But the courts would not refuse to listen, on the contrary they would give relief, where a plaintiff charged fraud upon the defendant in reading the contract to him, or in stating its nature or terms; and also in leaving out terms agreed upon, or in inserting terms not agreed upon. This would obviously be true of cases in which the complaining party could not read, or could read only with difficulty, or in which a printed document was concerned containing much fine print. But the rule is not confined to such cases; on the contrary it is very general.” See, also, Shrimpton & Sons v. Philbrick (1893),
It is clear from the allegations of the complaint that ap
To say that the facts set out in the complaint in regard to the manner in which the execution of said quitclaim deed was procured did not constitute a cause of action, would sanction bad faith in appellee’s agent, and allow her an advantage she is not entitled to. The demurrer admits the truth of the facts alleged, and should have been overruled.
Judgment reversed, with instructions to overrule appellee’s demurrer to the complaint, and for further proceedings not inconsistent with this opinion.