Johnson v. Mutual Life Insurance Co. of Ky., &c. the law is in force, and the question can not be relitigated in each prosecution that may be instituted for its violation. To allow this would be in effect to nullify that judgment, and to ignore the rule that the well-being of society requires that matters once judicially settled shall not be relitigated. Judgment affirmed. CASE 105-ACTION TO ENFORCE A MORTGAGE LIEN.-SFPTEMBER 30. Johnson v. Mutual Life Insurance Co. of Kentucky, &c. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. JUDGMENT FOR PLAINTIFFS AND DEFENDANT APPEALS. AFFIRMED. HUSBAND AND WIFE-SEPARATE ESTATE-POWER TO CONVEY-ESTOPPEL OF MARRIED WOMAN-RECITALS IN DEED. Held: 1. Under Gen. St. c. 52, art. 4, section 17, providing that "separate estates and trust estates conveyed or devised to married women may be sold and conveyed in the same manner as if such estates had 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 (or trustee if there be one) unite with the wife in the conveyance," where the only restriction in the will creating the separate estate was that the property was not to be sold, mortgaged, or incumbered for the payment of any liability of the husband, the wife had the right to sell the property upon any terms that were satisfactory to her, or to convey it by deed of gift, provided only that her husband joined in the conveyance. 2. Where husband and wife conveyed property which was the wife's separate estate to one who at once re-conveyed the property to the husband, each conveyance reciting a cash consideration, a subsequent purchaser from the husband was not charged with notice of the fact that the transaction was only colorable, and intended to evade a provision of the instrument creating the estate, by which the wife was prohibited from selling or incumbering the property for any debt of the husband. Johnson v. Mutual Life Insurance Co. of Ky., &c. 3. As against a subsequent innocent purchaser, a married woman is estopped to deny the recital of her deed conveying her separate property to the effect that she had received the cash consideration recited. KOHN, BAIRD & SPINDLE, FOR APPELLANT. AUTHORITIES CITED. 1. A gitt by appellant to her husband of the property in controversy is not authorized by statute. General Statutes, chap. 52, art 4, sec. 17; Hirshman v. Brashears, 79 Ky., 258. 2. The two deeds contemporaneously executed, one from appellant and her husband to Bartley, and the other from Bartley back to the husband, constitute but one transaction, and should be so construed. Early v. Douglas, 23 Ky. Law Rep., 299; A. & E. Ency. Law, 2 Ed., vol 17, p. 9; Parks v. Crook, 3 Bush, 163; Smith v. Theobald, 86 Ky., 141; Honore v. Hutings, 8 Bush, 687; Shuttleworth v. Ky. Iron, Coal, etc., Co., 22 Ky. L. R., 1341. 3. The appellant is not estopped by her deed or otherwise to show that the execution of the deed to Bartley, and the deed from Bartley to her husband, was one colorable transaction, was without consideration and in violation of the terms of her father's will. Louisville, etc., Railway Co. v. Stevens, 96 Ky., Grubbs, 1 J. J. Mar., 390; Bourne v. Bourne, 92 Ky., 213; Sharpe v. Proctor, 5 Bush, 398; Glidden v. Strupler, 52 Pa. Rep., 400; Jackson v. Vanderheyden, 17 Johns Rep., 166; Richardson v. Stevens, 25 S. R., 39; McNeal v. Davis, etc., 17 S. R., 101; Elston v. Comer, 19 S. R.. 324; Bigelow on Estoppel, 600. 403: Gully v 4. No trustee being named for appellant by her father, in his will, her husband became her trustee by operation of law. Campbell v. Gailbreath, 12 Bush, 463; Cotton v. Brown, 3 Ky. Law Rep., 679. 5. The record showing R. Burge's will, and the simultaneous 'deeds from Johnson and wife to Bartley, and Bartley back to Johnson, were notice to appellees of the infirmity in the husband's title to the property in controversy, and that they were taking a mortgage on property he had no right to incumber. Pomeroy's Equity Jur., vol. 2, secs. 597 and 608. 6. The restrictions on the appellant's power of disposition over the property in question, placed by Richardson Burge in his will are not in contravention of any law, statute or common; the will, therefore, is the law of this case, and is the yardstick by which the appellant's power of disposition over this property is to be measured. Johnson v. Mutual Life Insurance Co. of Ky., &c. GORDON & GORDON, FOR APPELLÉES, The propositions which we submit to the court and for which we confidently contend, are these: 1. The title to the property conveyed is a fee simple separate estate, and as such could be conveyed by the wife under the form provided by the statute. 2. The limitation upon the title, as made in the will, was only, that the property should not be pledged or mortgaged or sold for the husband's debts, but did not limit the power of sale or gife either to the husband of another. 3. Having sold the property and made conveyance under the form prescribed by the statute, having stated in the conveyance that the consideration was $15,000 cash, the appellant is estopped, as to an innocent purchaser for value without notice, from alleging any fact, or setting up any right or defense which is inconsistent with the terms of her deed. 4. The mortgage for value without notice, occupies the place of the purchaser for value without notice, and is entitled to the same rights. LIST OF AUTHORITIES. Chap. 52, art 4, sec. 17, p. 743 of the General Statutes; Parrott v. Kelly. 79 Ky., 490; Scarborough v. Kennedy, 9 B. M.. .540; Kennedy v. Ten Broeck, 11 Bush, 251; Scarborough v. Watkins. 9 B. M., 546; 2 Story's Equity Jur., sec. 1398, p. 637; 2 Story's Equity Jur., sec. 1394; Kennedy v. Ten Broeck, 11 Bush, 251; Lillard v. Turner, 16 B. M.. Pomeroy's Equity Jur., vol. 3, sec. 26; Gillespie v. Simpson, 18 S. W., Rep., 1050; Little v. Dodge, 32 Ark., 459; Scott v. Ward, 35 Ark., 480; Sellmeyer v. Welch, 35 Ark., 485; Jacques v. M. E. Church, 8 Am. Dec., 447 (17 Johnson, 549); Wright v. Arnold, 14 B. M., 513; Davis v. Tingle, 8 B. M., 543; 1 Story's Equity Jur., 517; Pomeroy's Equity Jur., sec. 418; Chapman v. Miller, 130 Mass., 289; Con- * nelly v. Breatzler, 3 Bush, 702: Hicks v. Fisher, 78 Ky., 646; Broussard v. Broussard, 45 La., 1085; Gailbraith v. Longsford. 1 L. R. A., 523; Long v. Crossan, (Ind.) 4 L. R. A., 783; King v. Ray, 56 Ind.. pp. 17, and 19; Grout v. Townsend, 2 Hill. 554 (Cent. Law Jour., vol. 4, p. 579); Grout v. Townsend, 2 Hill, N. Y., 552, &c.; Jones v. Frost, 7th Chancery App., 773; Halbert v. McCulioch, 3 Metcalfe, 456. OPINION OF THE COURT BY JUDGE O'REAR-AFFIRMING. This action was brought by the Mutual Life Insurance Company of Kentucky against Darwin W. Johnson and his Johnson v. Mutual Life Insurance Co. of Ky., &c. wife, Mary Louise Johnson, for the purpose of foreclosing a mortgage lien on certain real estate which had been mortgaged by Darwin W. Johnson and his wife. Mary Louise Johnson, the appellant, to said company, to secure a debt of the said Darwin W. Johnson. The German National Bank held a second mortgage, on this property, execnted by Johnson and his wife to it, and for that reason R. H. Courtney, receiver of the bank, was made a party defendant, and has filed a petition seeking to foreclose his mortgage lien on the same property. The appellant, Mary Louise Johnson, answered both the petition of the insurance company and the petition of Courtney, receiver, and alleges that, because of the express restriction of her power to alienate the property involved, contained in her father's will, under which she holds the property and the deed of partition made in pursuance of that will. she had no power to sell or mortgage said property for her husband's benefit, such power being expressly taken away from her by said will: and that, therefore, her deed and mortgages upon which the appellees relied are of no effect. The will of Richardson Burge, deceased, the father of Mrs. Johnson, and. the deed of partition referred to, contained the following limitation and restriction on the powers of Mrs. Johnson to incumber this property for the payment of her husband's debt: "And I will and direct that the two stores which shall be decreed under said partition to each of my said children shall vest in said child or children under this. my will, as follows: That is to say, the two stores which shall be decreed and deeded under said partition suit to each of my said daughters shall vest in them, and each one, as her separate estate, for her own separate use and behoof in fee, free from the use, debts and liabilities of their husbands, or any they may bereafter marry, and ever to remain free Johnson v. Mutual Life Insurance Co. of Ky., &c. and exempt from said husband's liabilities, and not to be sold, mortgaged or incumbered for the payment or satisfaction of any of said husband's debts or liability, whether said debts or liabilities be existing at the time of such sale, mortgage or incumbrance or thereafter contracted.“ Some years prior to the execution of the mortgages sued on, and after the deed of partition had conveyed the property to appellant, she and her husband, Darwin W. Johnson, executed a deed to one David Bartley, in which the consideration was recited as being $15,000 cash in hand paid and in which they conveyed the fee-simple title to the property involved in this litigation. Thereafter, and on the same day. Bartley executed the deed to Darwin W. Johnson, husband of appellant, in which he conveyed to said Johnson the same property, reciting that the consideration was $15.000 in hand paid. It was shown on the trial by Mrs. Johnson that she in fact received nothing as consideration for the conveyance executed to Bartley. After this conveyance to Darwin W. Johnson, he borrowed $10,000 from the Mutual Life Insurance Company of Kentucky, and executed the mortgage sued on by it herein to secure the payment of the same. He also executed to the German National Bank the mortgage sued on herein by R. Courtney, receiver of that bark, to secure the payment of $2,500, a part of which was an old debt of his, and a part of which was a debt thereafter created by the loan of an additional sum to Johnson. When the application for the loan was made to the appelle life insurance company by Darwin W. Johnson, he represented the title as being in himself. The insurance company referred the matter to their counsel, the late Judge Mix, who investigated the state of the record, and reported that Darwin W. Johnson had the fee simple title to the land, and unincumbered save a mortgage to the trust com |