izens' Bank v. Leonhart, 126 Ind. 206, 25 N. | Dr. Magee had a note which, I think, was E. 1099; Giberson v. Jolly, 120 Ind. 301, 22 N. E. 306. [4] Where the circumstances show that the purchaser refrained from making inquiry lest he should thereby become acquainted with the transaction, out of which the note originated, he cannot occupy the position of a holder in good faith without notice. Schmueckle v. Waters, supra; Shirk v. Noible, 156 Ind. 66, 59 N. E. 281, 83 Am. St. Rep. 150; Coffin v. Anderson, 4 Blackf. 408. [5] In Bank v. Bennett, 8 Ind. App. 679, 36 N. E. 551, that court said of the above doctrine: "The rule thus laid down we regard as an extremely equitable and salutary one. No man should be permitted to willfully close his eyes, and then excuse himself upon the ground that he did not see." When the illegality of the consideration of the note was shown, the burden devolved on appellant to show the purchase was made in good faith, without notice. Schmueckle v. Waters, supra. purchased by the Commercial Bank. In It is shown by the evidence that appellant bank was located in Greentown, Howard county; that it was organized in 1903, and was the successor of the Commercial Bank, a private institution, which did business in the same building since 1896. In the latter year Frank R. Hill became cashier of the old bank, and continued as such until the reorganization in 1903, since which time he has been appellant's cashier. Dr. S. T. Murray was president of appellant bank since its incorporation. Both Murray and Hill were directors. In this case the note was offered for sale to the cashier, who consulted the president about it. After consulting, He occasionally loafed, without invitation, these officers investigated appellee's solvency through the auditor of Huntington county and the Bank of Warren, in the same county. The president and cashier then purchased the note for the bank. No inquiry was made except as above stated. The bank frequently purchased commercial paper, and the purchases were always made by Hill and Murray. At the trial, which occurred in 1908, Dr. Murray testified that, before he became president of the bank, he was, for many years, practicing medicine in Greentown and vicinity, and was a member of the Howard County Medical Association. "Dr." Magee was not a member of the society. About six years ago, the witness heard through his patients that Dr. Magee, a traveling specialist from Chicago, was practicing in that vicinity, and since that time Magee has made frequent visits there, did not become acquainted with him personally until after he became president of the bank, when he was introduced to him by the bank's bookkeeper at the bank as "Dr. Magee." Witness knew Magee as a Chicago specialist, and did not know that he had any other profession or business in that vicinity. Hill, the cashier, testified, in substance, in the space inclosed in the bank by the railing. He was at my residense three or four times as a visitor. Once he was a guest there at supper. He was greatly interested in my little boy. At one time, about when the note in issue was purchased, a loan of $200 was made to Magee by the bank, and he assigned several notes as collateral for the loan, aggregating $800 or $900 in face value. These notes were in various amounts ranging from $40 to $75, and were executed by various persons, some of whom lived in Grant, Huntington, and Wells counties. Some of these notes were good, others bad. The bank employed a collector to collect them, and told him to get what he could on them. The bank had authority to compromise them, and got enough on them to pay the $200 note. Don't recollect when the note in issue was purchased, but think in September, 1905; knew that some of the notes handled by the bank were given 'for spectacles and fitting their eyes.' I have known people to pay as high as $120 for having their eyes treated and spectacles fitted; though the notes handled were given, some for having spectacles fitted and others for treatment of the eyes and fitting also." that Magee was a Chicago specialist, and I sions of the statute are wholly for the benefit that he was offering to treat eyes and per- of the children. form operations thereon, and that some of the notes handled by the bank were given for the treatment of eyes. They knew he called himself a doctor. The treatment of the eyes, either by medicine or by surgical operation, is prohibited by our statute, unless the physician or surgeon is licensed. Burns' Stat. 1908, §§ 8401, 8405, 8409, 8410. Section 8408 prescribes under what contingencies a physician or surgeon licensed in another state may practice here. The evidence does not disclose any fact that would have warranted Magee in practicing in Huntington county, even if he had a license to practice in Chicago. The note in suit shows on its face that appellee's post office address was in Huntington county. [6] The evidence introduced by appellee showed that Magee had no license to practice in Huntington county, and that he was a resident of Chicago, Ill. This was sufficient to prove prima facie the allegation that Magee was unlicensed. Melville v. State, 173 Ind. 352, 89 N. E. 490, 90 N. E. 467; Witty v. State, 173 Ind. 404, 90 N. E. 627, 25 L. R. A. (N. S.) 1297. There was no evidence tending in any way to show that Magee had a license to practice medicine or surgery anywhere. Burns' Stat. 1908, § 700, provides that no judgment shall be reversed where it appears that the merits of the cause have been fairly tried and determined in the court below. We think that the statute is applicable here. Whatever, if any, errors were committed by the trial court, could not have affected the verdict. Appellant, under the facts disclosed by the evidence of its president and cashier, who bought the note, was, in the exercise of ordinary care, under the legal duty to inquire into the consideration of the note. No inquiry was made. Such inquiry would have resulted in disclosing the illegality of the consideration. Judgment affirmed. (No. 21,908.) KEMERY v. ZEIGLER. (Supreme Court of Indiana. Jan. 4, 1912.) 1. DESCENT AND DISTRIBUTION (§ 85*)-CONVEYANCES-POWERS OF WIFE. Under Statute of Descent (1 Rev. St. 1876, p. 411, c. 98) § 18, as amended by Acts 1879, c. 44, now Burns' Ann. St. 1908, § 3015, providing that if a widow shall marry a second or subsequent time holding real estate in virtue of the previous marriage, and there shall be a child or children, such widow may not during such second or subsequent marriage, with or without the consent of her husband, alienate such real estate, provided that, if such children shall all be of the age of 21 years and join in the conveyance, a valid conveyance may be executed, a widow who remarried, having children by her first marriage, is not bound by her deed executed during coverture to land received by reason of the first marriage, though the provi [Ed. Note. For other cases, see Descent and Distribution, Dec. Dig. § 85.*] [Ed. Note.-For other cases, 2. ESTOPPEL (§ 19*)-ESTOPPEL BY DEED. Although by Burns' Ann. St. 1908, §§ 7853, 7854, a married woman is bound by an estoppel in pais and by her covenants of title in conveyances where she has capacity to convey, covenants in a conveyance by a married woman of property which she received from a prior marriage, of which marriage there were children, do not work an estoppel; the deed being invalid. see Estoppel, Cent. Dig. § 25; Dec. Dig. § 19.*] 3. DEEDS (§ 70*)-VALIDITY—FRAUD. Where an ignorant woman, under a misapprehension as to its character, signed and ac knowledged a quitclaim deed to property to which she was entitled, and such misapprehension was caused by the false representations of defendant's agent, who told her that she was only signing a receipt for a payment then made. the deed was invalid for fraud, though the signer did not read it, but relied upon the representations of the agent. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 165-182; Dec. Dig. § 70.*] Appeal from Circuit Court, De Kalb County; E. A. Bratton, Judge. Action to quiet title by Myrtilla Kemery From a judgment against Eunice Zeigler. sustaining a demurrer, plaintiff appeals. Transferred from the Appellate Court under Acts 1901, c. 259 (section 1405, Burns' Ann. St. 1908). Reversed and remanded. P. V. Hoffman, D. D. Moody, and Chas. E. Emanuel, for appellant. J. H. Rose, for appellee. MONKS, J. Appellant brought this action 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, appellant refusing to plead further, judgment was rendered against her. The only error assigned calls in question the action of the court in sustaining said de murrer. [1] The facts alleged in the complaint are substantially as follows: Appellant was the widow of one Henry Probst, deceased, she being his first wife and he having died, leaving as his heirs the appellant and three children by said marriage. On the 10th day of January, 1890, there was set off to appellant in partition proceedings in the De Kalb 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 was holding said land under and by virtue of said first marriage, as the widow of said deceas ed, she intermarried with one George N. Knepper; and during the existence of such marriage, and while the children of said former marriage were still living, she and her husband sold and conveyed said land by warranty deed to appellee, who entered into possession under such deed. Afterward appellant was divorced from said husband; said children by her former marriage all living. After said divorce in the fall of 1898, appellant had some corn and other crops out on some land in the neighborhood of said land so conveyed. The cattle and hogs of appellee broke into said crops, and ate and destroyed the same, and appellant made a claim upon appellee for damages caused thereby. Thereupon a brother of appellee, a lawyer and shrewd business man, came to appellant, professing to act for appellee, and proposed to appellant that he would, for and on behalf of appellee, settle up said claim of damages and pay the same if appellant would go to one Phillip Noel, who lived in the neighborhood and who was a justice of the peace, and sign and acknowledge a receipt for said money so paid to settle said damages; the amount agreed upon being $15. Appellant did accompany said agent to the home of the justice, and there signed a paper which said agent of appellee took out of his pocket already prepared and written out, and which he informed her was such receipt for said money. Appellant signed and acknowledged such paper without reading it, believing it to be the receipt which said agent informed her it was; neither said agent nor said justice reading such paper to her. She was ignorant and inexperienced in business, and did not know what was necessary in executing said receipt, and supposed appellee's said agent acting in all things according to the purport and tenor of the business he and she were transacting, he saying or doing nothing to lead appellant to suspect that he and she were doing anything else than settling up the claim for damages for said crops so destroyed, and the amount of damages for said crops so destroyed not being any more than that caused by said stock. At the time appellant was ignorant of the fact that said first deed given by her and her husband was void, and did not convey any title to said land; and she did not know or suspect that she any longer had any right to, or title in, said land, and did not know it was necessary to get another deed when she was unmarried to confirm and make said title good in appellee. Subsequent to executing said second deed, appellant married one James Kemery, from whom she has since been divorced. One of the children of said Henry Probst and appellant is still living. Before the commencement of this suit, appellant's attorney made a written demand upon appellee for possession of the premises described in the complaint, when appellee brought to said attorney a quitclaim deed executed by appellant in the name of Myrtilla Knepper, bearing date of the 20th Justice Noel, which is the date of said transaction relating to settling the damages for said crops. Appellee never put said deed on record until after she brought it and exhibited it to the plaintiff's attorney on said demand. Said deed purported on its face to be executed to confirm and establish the title to said lands in the defendant by reason of said first deed being illegal and void, and purports to have been executed in consideration of $1, though no consideration at all was actually paid therefor. Under section 18 of the act "regulating descents," etc. (1 G. & H. p. 294, 1 R. S. 1876, p. 411), which reads as follows: "If a widow shall marry a second or any subsequent time holding real estate in virtue of any previous marriage such widow may not, during such marriage, with or without the assent of her husband, alienate such real estate, and if, during such marriage, such widow shall die, such real estate shall go to her children, by the marriage in virtue of which such real estate came to her, if any there be"-it was uniformly held that, when a widow remarried, she was prevented by said section from conveying or mortgaging lands received by her by virtue of a previous marriage so long as such subsequent marriage continued; that any deed or mortgage made during the existence of such subsequent marriage was void. Vinnedge v. Shaffer, 35 Ind. 341; Knight v. McDonald, 37 Ind. 463; Mattox v. Hightshue, 39 Ind. 95; Jackson v. Finch, 27 Ind. 316; Bowers v. Van Winkle, 41 Ind. 432; Edmondson v. Corn, 62 Ind. 17; Avery v. Akins, 74 Ind. 283; Insurance Co. v. Athon, 78 Ind. 10; Sebrell v. Hughes, 72 Ind. 186; Horlacher v. Brafford, 141 Ind. 528, 40 N. E. 1078; Forgy v. Davenport, 146 Ind. 399, 401-403, 45 N. E. 592. It was also held that such real estate so held by such widow who has married a 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, 59 Ind. 326; Smith v. Beard, 73 Ind. 159; Haskett v. Hazel, 83 Ind. 534; Forgy v. Davenport, 146 Ind. 399, 403, 45 N. E. 592. 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, 37 Ind. 463; Connecticut, etc., Co. v. Athon, 78 Ind. 10; Sebrell v. Hughes, 72 Ind. 186, 188, and cases cited. However, said section 18 was amended in 1879 (Acts 1879, p. 123; R. S. 1881, § 2484; Burns' 1908, § 3015), and appellee claims that under said section as amended the warranty deed made by appellant and her second husband conveyed said real estate during her life, and that only the children by the first husband can assert any title to said land, Said section as amended, being section 2484, | N. E. 373]; Forgy v. Davenport, 146 Ind. R. S. 1881 (section 3015, Burns' 1908), reads 399, 403 [45 N. E. 592].” It has been held as follows: "If a widow shall marry a sec- under said section 18, as amended in 1879, ond or any subsequent time, holding real es- being section 2484, R. S. 1881 (section 3015, tate in virtue of any previous marriage, and Burns' 1908), that a deed or mortgage exethere be a child or children or their descend-cuted by a married woman during a second ants alive by such marriage, such widow or subsequent coverture, her husband joining may not, during such second or subsequent therein, upon land held by her in virtue of marriage, with or without the assent of her a previous marriage there being living chilhusband, alienate such real estate; and if, dren by the marriage in virtue of which she during such marriage, such widow shall die, held such real estate, is void under said secsuch real estate shall go to her children by tion 2484 (3015), supra. Etna, etc., Co. v. the marriage in virtue of which such real Buck, 108 Ind. 174, 9 N. E. 153; McCullough estate came to her, if any there be: Provid-v. Davis, 108 Ind. 292, 9 N. E. 276; Haskett ed, however, that such widow and her living husband may alienate such real estate, if her children by the marriage in virtue of which such real estate came to her shall all be of the age of twenty-one years and join in such conveyance; and provided, further, that in case there be no child or children or their descendants by the marriage in virtue of which such real estate came to such widow, then, in such case, such widow may, during such second or subsequent marriage, by her second or subsequent husband joining in the conveyance thereof, alienate such real estate in fee simple." It will be observed that, under the section as amended, a widow holding real estate, in virtue of any previous marriage, is only prohibited from alienating the same during any second or subsequent marriage in case there be a child or children or their descendants alive 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 case if her children in virtue of which such real estate came to her shall be of the age of 21 years and join in such conveyance. The prohibition of the conveyance of such real estate in case 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 section 18 as amended as it was under section 18 before its amendment. It was said by this court in Maynard v. Waidlich, 156 Ind. 562, 569, 570, 60 N. E. 348, 351, under said section 18 as amended: "It is settled law that a woman during a subsequent marriage is prevented by section 2641, Burns' 1894 (section 3015, Burns' 1908), section 2484, R. S. 1881, and Horner 1897, from conveying by deed or mortgage the real estate received and held by her by virtue of her previous marriage, so long as there are children by such marriage or their descendants alive. Avery v. Akins, 74 Ind. 283, 291, and cases cited; Edmondson v. Corn, 62 Ind. 17; Etna Ins. Co. v. Buck, 108 Ind. 174 [9 N. E. 153], and cases cited; United States, etc., Co. v. Harris, 142 Ind. 226, 239 [40 N. E. 1072, 41 N. E. 451], and cases cited; Horlacher v. Brafford, 141 Ind. 528 [40 N. E. v. Hazel, 83 Ind. 535; Pence v. Long, 38 Ind. App. 63, 73–76, 77 N. E. 961; Polley v. Pogue, 38 Ind. App. 678, 78 N. E. 1051. It was also held under said section 18, as amended in 1879, being section 2484, R. S. 1881 (section 3015, Burns' 1908), by this court in Wright v. Wright, 97 Ind. 444, that the same prevents the sale on execution against a married woman during her second marriage of lands held by her in virtue of a previous marriage, if she have children alive by such marriage. In Forgy v. Davenport, 146 Ind. 399, 45 N. E. 592, the court held that said section 18, as amended in 1879 (section 2484, R. S. 1881; section 3015, Burns' 1908), did not preclude the widow during her second marriage from leasing for the period of her natural life real es tate held by her in virtue of a previous marriage, where there were children alive by such marriage. It was said, however, in that case 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 argumentatively as applicable to contentions of counsel. McCul lough v. Davis, 108 Ind. 292, 294, 9 N. E. 276. [2] It is next contended by appellee that appellant is estopped by the covenants of warranty in the deed of herself and second husband from asserting any title to said land. It was held by this court in Mattox v. Hightshue, 39 Ind. 95, 103, 104, and in Sebrell v. Hughes, 72 Ind. 186, 188, that the widow was not estopped by the covenants in such a deed. Appellee contends, however, "that said cases were decided as to deeds executed prior to the taking effect of the act of 1879 (Acts 1879, p. 160, § 5; Acts 1881, p. 528, § 3, being section 7854, Burns' 1908), which provided that "a married woman shall be bound by her covenants of title in a conveyance of her separate property as if sole" that by section 2, Acts 1881, p. 528, being section 7853, Burns' 1908, a married woman fore the taking effect of said act, a married woman was not liable on her covenants of warranty (1 R. S. 1852, p. 233, § 6), and such was the common-law rule." The rule is, however, that to work an estoppel the deed or mortgage must be a valid instrument. The covenants can have no greater validity than the instrument itself. No estoppel is created by an invalid instrument, nor by one made in contravention of a statute. Bigelow on Estoppel (4th Ed.) 338-340, (5th Ed.) 349-351; 11 Am. & Eng. Ency. of Law (2d Ed.) 393; 16 Cyc. 706, 707; 57 Am. St. Rep. note page 180, "Void Contracts"; Doe v. Hayes, 1 Ind. 247, 48 Am. Dec. 359; State v. State Bank, 5 Ind. 353; Connor v. McMurray, 2 Allen (Mass.) 202; Barton v. Drake, 21 Minn. 299, 304, 305; Alt v. Banholzer, 39 Minn. 511, 512, 40 N. W. 830, 12 Am. St. Rep. 681; Smith v. Ingram, 130 N. C. 100, 106, 107, 40 S. E. 984, 986, 61 L. R. A. 878, 881, 882, and cases cited; Collins v. Benbury, 25 N. C. 277, 285, 38 Am. Dec. 722, 726; Altemus v. Nickell, 115 Ky. 506, 74 S. W. 221, 103 Am. St. Rep. 333; Kercheval v. Triplett, 1 A. K. Marsh. (Ky.) 493, 495, 496; Central Land Co. v. Laidley, 32 W. Va. 134, 9 S. E. 61, 3 L. R. A. 826, 25 Am. St. Rep. 797, 801-803; Breen v. Morehead (Tex. Civ. App.) 126 S. W. 650, 655; Dougal v. Fryser, 3 Mo. 40, 22 Am. Dec. 458, 461; Sturgeon v. Hampton, 88 Mo. 203; Winsted, etc., Ass'n v. Spencer, 26 Conn. 195; Wallace v. Miner, 6 Ohio, 367; Merriman v. Boston, etc., R. Co., 117 Mass. 241; Burroughs v. Pacific, etc., Co., 81 Ala. 255, 259, 1 South. 212; Brick v. Campbell, 122 N. Y. 337, 25 N. E. 493, 10 L. R. A. 259; Langan v. Sankey, 55 Iowa, 52, 54, 7 N. W. 393; Chapiewski v. Campbell, 29 Ont. 343; Canada, etc., R. Co. v. Niagara Falls, 22 Ont. 41, 53, 54; Doe v. Ford, 3 Ad. & El. 649, 30 E. C. L. 301; Fairtitle v. Gilbert, 2 T. R. 169; Harkness v. Underhill, 66 U. S. (1 Black) 316, 17 L. Ed. 208. Nor by any act or contract that is illegal and void. Caffrey v. Dudgeon, 38 Ind. 512, 520, 521, 10 Am. Rep. 126; Pettis v. Johnson, 56 Ind. 139, 151; Mattox v. Hightshue, 39 Ind. 95, 104; 2 Herman on Estoppel, § 793, p. 722 (5). It is said in 11 Am. & Eng. Ency, of Law (2d Ed.) p. 393, citing many cases: "No question of estoppel by deed can arise where the instrument is absolutely void. And, when a deed is invalid, the mere fact that it contains covenants of warranty will not make it operate by way of estoppel. 串 * * A deed void as being in contravention of a statute works no estoppel." It was said by this court in Mattox v. Hightshue, supra, on page 104 of 39 Ind.: "A party can never be estopped by an act that is illegal and void. * 19 On page 105 of 39 Ind.: "An equity cannot grow out of an illegal and void transaction." In Gordon v. Ctly of San Diego, 101 Cal. 522, 526, 36 Pac. 18, 19, 40 Am. St. Rep. 73, 75, the court said: "It is essential to an estoppel by deed ment; and if void, though under seal, it does not work an estoppel at law or in equity." Bigelow on Estoppel (4th Ed.) p. 338; Id. (5th Ed.) p. 349. Although a married woman, under section 7854, Burns' 1908, is "bound by her covenants of title in conveyances of her separate property, as if sole," in cases where she has the capacity to convey the same, and under section 7853, Burns' 1908, "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, 66 N. H. 620, 27 Atl. 172. [3] The next question is in regard to the quitclaim deed, the execution of which by appellant is alleged to have been procured by fraud. It was said by this court in Keller v. Equitable, etc., Co., 28 Ind. 170, 173: "The rule that the law favors those who are diligent and careful rather than the reckless and indifferent is not applied for the protection of those who avail themselves of the ignorance existing in the community to perpetrate fraud upon its members. ** * And in the same case on page 174 of 28 Ind., this court said, quoting from Botsford v. McLean, 45 Barb. (N. Y.) 478: "In that case it is said: 'If one party is trusted to reduce a contract to writing, he is bound to do it truly, and any variation from it, either by omitting some of its terms or by inserting provisions not embraced in it, if not known to the other party and distinctly assented to by him, is a clear fraud.'" In C. Aultman v. Olson, 34 Minn. 450, 453, 26 N. W. 451, 452, it was claimed that the note sued on was by the fraud of the payee's agent procured to be executed in terms materially different from those agreed to by the maker. The court said: "There is certainly evidence reasonably tending to support the verdict by showing that defendant was induced to execute the notes by the fraudulent representations of plaintiff's agent as to their contents. Whether, in trusting to these representations of the agent, defendant was negligent, does not appear to be important. The notes are still in the hands of the original payee, and it would hardly lie in its mouth to say that the defendant was not in law defrauded because he was careless in trusting to its representations. Cole v. Williams, 12 Neb. 440 [11 N. W. 875]; Mackey v. Peterson, 29 Minn. 298 [13 N. W. 132, 43 Am. Rep. 211]; Foster v. Mackinnon, L. R. 4 C. P. 704." In Maxfield v. Schwartz, 45 Minn. 150, 151, 152, 47 N. W. 448, 449, 10 L. R. A. 606, 607, the court said: "If Berens & Nachtsheim were seeking to enforce the written contract, a plea of fraud such as is here presented would constitute a defense, even though the |