concurring specially.
I concur in the result reached in the majority opinion and in the special concurring opinion of Justice Pederson. However, I have reservations regarding the rationale by which the result was reached in the majority opinion.
The warranty deed in question, in the opening paragraph, stated:
“THIS INDENTURE, Made this 22nd day of May, 1978, in the year of our Lord one thousand nine hundred and seventy-eight by and between CLYDE E. BOETTCHER and DOROTHY M. BOETTCHER, his wife, parties of the first part, and LORETTA JEAN BOETTCHER MALLOY, party of the second part:”
After the granting clause, the deed stated:
"... RESERVING HOWEVER, to parties of the first part a life estate in the one-third (⅛) interest hereby conveyed.”
Dorothy was named in the instrument as a party of the first part and was not a stranger to the instrument, whereas the person receiving the reserved interest in Stetson v. Nelson, 118 N.W.2d 685 (N.D.1962), was not a party to the instrument. Consequently, the rule of law stated in Stetson that a reservation or exception in favor of a stranger to the instrument is void and inoperative as to such stranger is not applicable in the instant case.
Furthermore, under the current laws of this state a spouse has an interest in the other spouse’s property. Anyone having doubt about this interest in property need only examine the practices followed by banks, savings and loan associations, and other lending institutions to resolve the doubt and conclude that the spouse has such interest. The lending institutions require both spouses to sign deeds or other instruments conveying an interest in the property. This interest has been implicitly recognized by our Legislature in the enactment of North Dakota Century Code §§ 47-10-23 and 47-10-23.1. In addition, the courts in divorce cases have considered the property of both spouses in making equitable distribution of the property to the respective parties. These items clearly establish that one spouse has an interest in the other spouse’s property. The “inchoate rights” of one spouse in the other spouse’s property have been recognized by the courts and, accordingly, a reservation to a spouse not being a stranger has been upheld. Vol. 6 Oklahoma Law Review 127, 136, and cases cited therein.
As to the abrogation or abandonment of the common law doctrine or rule, pursuant *12to NDCC § 1-01-06 this was accomplished when the Legislature enacted NDCC § 47-09-17. It is a fait accompli. Section 1-01-06, NDCC, provides:
“In this state there is no common law in any cases where the law is declared by the code.”
In my opinion, merely noting that the Legislature has enacted a law which supersedes the common law on that subject is controlling and is adequate.
Nevertheless, because NDCC § 47-09-17 has been a part of the North Dakota Code since 1877 but has not been followed with any annotation or indication of having been used by this Court in a previous opinion, leaves me with an uneasy feeling.