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Nickel v. Gregory

March 27, 1953

NICKEL
v.
GREGORY



Moremen

MOREMEN, Justice.

The heirs of Susan Tuttle, who are appellants here, filed suit whereby they sought to be adjudged the absolute owners of a tract of land which appellee, Hugh Gregory, was occupying and of which he was claiming ownership. The chancellor decreed that it belonged to appellee.

In the year 1903, Susan Tuttle obtained title to the parcel of land here involved. On January 26, 1906, she conveyed the property to her husband, Alex Tuttle. By the terms of the deed she reserved 'the right to the use and occupancy and benefit of said land during her lifetime.'

Susan Tuttle and her husband, Alex Tuttle, resided on the property until she died in April, 1934. Alex Tuttle continued to reside there until he died in 1948. However, he had theretofore and on October 7, 1941, conveyed the land to appellee, Hugh Gregory, by a deed which reserved to the grantor the right to live upon the land the remainder of his life.

Immediately upon the death of Alex Tuttle, the appellee entered and took actual possession of the property. This suit was filed within a year.

Appellants contend that under Kentucky Statute 506 -- in effect in 1906, but repealed in 1942 -- a woman was denied the right to convey the property to herself and her husband by direct deed; that a deed so executed was void. Howard v. Turner, 287 Ky. 206, 152 S.W.2d 589; May v. May, 311 Ky. 74, 223 S.W.2d 362; Schaengold v. Behen, 306 Ky. 544, 208 S.W.2d 726; Moore v. Terry, 293 Ky. 727, 170 S.W.2d 29.

In this opinion we must discuss again the right of a married woman to convey property without the joinder of her husband, and attempt to trace the tortuous path leading to the final emancipation of women.

Sections 505 and 506 of the Kentucky Statutes were originally a part of Chapter 186 of the Acts of 1893. Section 506 was later amended, but the parts with which we are concerned here read as follows:

'§ 505. Married women may convey any real or personal estate which they own, or in which they have an interest, legal or equitable, in possession, reversion, or remainder.'

'§ 506. The conveyance may be by the joint deed of husband and wife, or by separate instrument; but in the latter case the husband must first convey, or have theretofore conveyed.'

Following the enactment of the foregoing statutes, this court held that direct conveyances from wife to husband were void. Hall v. Hall, 236 Ky. 42, 32 S.W.2d 536; Ray v. Bushakra, 237 Ky. 178, 35 S.W.2d 19; Hensley v. Lewis, 278 Ky. 510, 128 S.W.2d 917, 123 A.L.R. 537; and Howard v. Turner, 287 Ky. 206, 152 S.W.2d 589.

Howard v. Turner was decided June 10, 1941, and in it the court again affirmed its conviction that an attempted conveyance by a married woman to her husband, or to anyone else, in which the husband does not join as a grantor, is absolutely void.

However, less than eight months after that decision, by a court whose personnel was divided in opinion, in Smith v. Hughes, 292 Ky. 723, 167 S.W.2d 847, 851, it was held that the ruling prohibiting a wife from conveying her property direct to her husband has had no proper place in our jurisprudence since the enactment of the Weissinger Act.

The majority opinion pointed out that in 1894 (one year after Sections 505 and 506 had been enacted) the legislature enacted what is known as the Weissinger Act by the terms of which married women were vested with all the rights theretofore possessed by single women respecting the acquisition, ownership and disposal of property except that they might not make executory contracts to sell, convey or mortgage their real estate, unless their husbands joined in such contracts, and might not become security for the fulfillment of other persons' obligations without setting aside by mortgage, or other ...


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