I concur in the result, but prefer to rest my conclusion upon the ground, that defendant, having borrowed the money from the intestate under a representation that' it was wanted for the purpose of paying off a previous mortgage on her land, the consideration of which was not known to the lender, is estopped from denying that the contract now in question was made in reference to her separate estate.
Mr. Chief Justice Simpson.I cannot concur in so much of this opinion as bases the conclusion upon the ground, that the decree of Judge Kershaw could not be reviewed by this court. I think that decree w'as an intermediate decree, and subject to review upon appeal from the final order of Judge Hudson, which order allowed judgment of foreclosure. Section 11, subdivision 1, (Code) is distinct and express authority for such review, I think. I, however, concur in the result under authority of the recent cases decided by this court, holding that married women may borrow money and secure its payment, provided the lender has no knowledge that it is to be used by the husband.