OPINION OF THE COURT BY
JUDD, C.J.,(Frear, J„ dissenting).
This is ejectment for a portion of the land covered by Royal Patent No. 1774, and Royal Patent 6515, (L. C. A. 7832) at Hamakua, Hawaii. Defendant disclaimed as to three-fourths of the land and claimed title by inheritance as to the other fourth. The Circuit Court, jury waived, found for the plaintiff as to the three-fourths disclaimed and for the defendant as to the other fourth. Plaintiff brings the case to this Court on Exceptions. The land at one time belonged to one Keaweopala, and upon his death it descended to his son Kaopua and daughter Maiau, who together afterwards, on the 13th November, 1876, executed a deed of it to the plaintiff Kemilia and her sister Rode, daughters of Kaopua. Kemilia claims under this deed and a release from Rode.
When this deed was executed Kaopua had a wife, Honuaiwa, and Maiau had a husband the defendant Kaaukai, neither of whom joined in or gave any written consent to the deed.
*498Maiau afterwards died, leaving as her only heirs her brother IKaopua and her husband Kaaukai, defendant. Evidence was ‘offered by plaintiff to show that Kaaukai assented orally to his 'wife’s conveyance, but it was ruled inadmissible by the Court, to which ruling exceptions were taken. If the wife’s deed were void for want of the husband’s joinder or written consent, he would upon her death have inherited one-half of her interest, that is, one-fourth of the whole land; and the only question submitted on the exceptions is whether under the Statutes then in force a wife’s conveyance of her own land was valid if made with the oral consent of her husband.
Section 1287 of the Civil Code, in force at the time of the execution of the deed, provided that “The wife * * * shall be deemed for all civil purposes to be merged in her husband, and civilly dead. She shall not, without his consent, unless stipulated by anterior contract, have legal power to make contracts, or to alienate and dispose of property” except under certain circumstances not involved in this case. By the previous Section, 1286, the husband was responsible for the debts of his wife and was entitled to1 the income of her real estate which he could lease with her written consent, for a term not to exceed that of his natural life.
If we were called upon to construe this Statute immediately upon its enactment it might be open to us to hold that as the Legislature has not prescribed how the husband’s consent was to be made, it might be either written or oral.
This Statute Section 1287 was first enacted in 1846 (see Yol. 1, page 59, Laws of 1846) and re-enacted in the same language .in the Civil Code of 1859.
Eour years before the conveyance in question was made Chief • Justice Allen held that a wife, could not convey her own lands to her husband and added “neither can a wife convey her own lands to a stranger unless her husband joins in the conveyance.”
Cummins v. Wond, 6 Haw. 69. Decided in 1872.
In 1881 in Nawelu v. Auld, id, 297, it was held by a Jus*499tice of this Court that as the wife cannot without her husband’s consent make a contract or alienate or dispose of her property, her contracts and conveyances to which her husband does not consent by joining in their execution, are void and convey nothing. The Justice from his familiarity with the rulings of his associates declares that “this principle has been frequently laid down by, different judges of this court.”
In these reported cases the Justices make no distinction between the husband’s joining in the wife’s deed and “consentir. g” to it; thus assuming that the husband’s joinder would be hL method of assenting to it. We agree to this proposition. And we draw the inference that as a husband cannot join in the written deed without his name appearing in it, the court meant that his consent must be in writing when it said that “joining” in the deed was his “consent.”
Since these decisions the public has acted upon them and real property has passed by descent in accordance with these principles. Conveyances of real estate belonging to a married woman have been made generally on the principle that in order to the validity of a wife’s deed of her land the husband’s consent must be evidenced by some writing.
Where the Statute does not say that an oral consent of the husband may be proved to validate such a deed and there is good reason for holding that the consent must be in writing we should hesitate to hold what would be destructive of many valuable titles in this country. To allow oral evidence of an act (the husband’s consent) which would validate an otherwise void deed, leaving it in the uncertain memory of fallible and possibly interested witnesses would be within the spirit of the Statute of Frauds enacted for the very purpose of preventing frauds and perjuries perpetrated orally.
Clague v. Washburn, 42 Minn. 271, is to the contrary. There it was held that “Inasmuch as the mere consent of the husband to his wife’s act does not create or pass any estate, nor affect any estate or interest he may have in the land and her separate con*500veyance could only operate on her own estate or interest such consent could hardly come within the terms of the Statute last referred to.” (Statute of Frauds). But in the State of Minnesota, married women’s personal and real estate owned by her before marriage or acquired during marriage, continued upon her marriage to be her estate to the same extent as it was before her marriage. Her husband had no right to the rents. But in our case the husband had a right to the income from his wife’s land and he therefore had an estate therein and her alienation ,of the land would deprive him of this. His consent to the conveyance should be in writing. The wife’s deed must by the Statute of Erauds be in writing. She is civilly dead and cannot contract. Her husband’s consent vitalizes her and gives her power to contract. It therefore should appear on her deed, or by some other writing, that her deed is not void and that she is thus made capable of contracting.
Kinney & Ballou for plaintiff. J. T. Be Bolt for defendant.The case before us is a good example of the mischiefs of holding that such consent may be proved orally. The husband here says he never knew of or consented to the deed. Two witnesses, after a lapse of twenty-two years swear, that he did consent orally. ¥e deem it unnecessary to discuss in detail the correctness of the statement often made in this court that Sections 1286 and 1287 were substantially the common law upon the subject of marital rights affecting property.
"We hold that the Circuit Judge was right in excluding oral evidence of the husband’s consent to his wife’s deed and overrule the exceptions.