I dissent from the opinion upon the two grounds of (1) that it is in total disregard of a mandatory requirement of the stare decisis doctrine, and (2) because it misinterprets and misapplies section 2128 of Baldwin's 1936 edition of Carroll's Kentucky Statutes (being section *Page 733 404.020 of the 1942 Kentucky Revision of the statutes), which is a part of what is commonly known as the "Wiessinger Act" of 1894. As correctly pointed out in the opinion, the common law of England forbids contracts between husband and wife, and also forbids the transfer of her title to real estate without her husband joining as grantor in the conveyance. That, of course, became the law of the American Colonies, and of the states of this Union when and as they were formed. It, of course, was competent for the legislature to abolish or alter the law in such respects by express enactments. Hence, there appeared enactments, whereby wives might be made femme soles, which enlarged their rights of contract with reference to their property, as well as curtailed the dominion over it of their husbands and the latter's rights in it. Kentucky had such a statute long before the enactment of the Weissinger Act. But none of such statutory modifications dispensed with the necessity of a husband joining in the deed of his wife in transferring her title to her real estate, or by executing his separate conveyance prior to the wife's deed conveying her real estate, and which was so required by our legislature in the enactment of section 506 of the same edition of Baldwin's Statutes, supra (section 382.050 of KRS). It was enacted prior to that of the Weissinger Act. In the notes to the two sections, as contained in the Baldwin Revision many cases are cited wherein this Court held that an attempted conveyance by the wife of her real estate — without her husband appearing therein as a grantor in the manner prescribed by the sections of the statute, was void, and which holding, it will be perceived, was continued to be followed after the enactment of the Weissinger Act. That conclusion, following the enactment of the Weissinger Act, necessarily resulted from the express terms of the section of that act supra, wherein it is said: "She may make contracts and sue and be sued, as a single woman, exceptthat she may not make any executory contract to sell or conveyor mortgage her real estate, unless her husband join in suchcontract." The italicized part of the excerpt expressly preserves the necessity at common law for the husband to join with his wife in the conveyance of her real estate, and the cited cases in the notes to that section hold that unless her husband did so join, then his wife's sole conveyance of her real estate would be ineffectual, invalid and void. *Page 734
The universal holdings of this and other courts of the Union — both as to the necessity of the husband joining in the conveyance and the wife's inability to contract directly with her husband — thus became rules of property, which, under the stare decisis doctrine, should continue to be followed by courts, unless changed by statute. It will be seen that the last-cited section, supra (506 of the Baldwin Revision of our Statutes), was in effect at the time of the enactment of the Weissinger Act, and, also, that the latter act did not change the statutory or common-law rule as to conveyance of the title of the wife to her real estate, but expressly retaining it. Nevertheless, the opinion of the majority of the Court has interpreted it, not only in disregard of the stare decisis rule, but in direct conflict with the express exception contained by the excerpt supra from the Weissinger Act itself — thereby, in effect, repealing that exception.
But it is said in the majority opinion that we have heretofore interpreted the provisions of the Weissinger Act as authorizing the wife to make certain character of contracts with reference to the use and appropriation of her individual property, and which may be done directly with her husband; but in every case where such interpretation was made and applied it was with reference to contracts other than the conveyance of title to her real property. Therefore, under such interpretations the wife may enter into tenancy contracts with her husband relating to the use of her real estate, but not involving the conveyance of her title to it; likewise when the wife may contract under the terms of such enlarging statute as the Weissinger Act, she also may have remedy in the courts to enforce her rights thereunder.
Since, therefore, the majority opinion violates the fundamental principles of the stare decisis rule, and since it conflicts with the express provisions of the Weissinger Act, and, since it is not attempted to be supported by any other principle of adjudicated or statutory law (according to my interpretation) I most respectfully dissent.
Rees and Ratliff, Judges, joining me therein. *Page 735