JUDGE DAYNTER
delivered the opinion op the court.
It appears from the petition, to which the court sustained a demurrer, that the appellant is the wife of appellee J. A. Rose; that they were married in the year 1890; that a separation has taken place, which is permanent; that they will never live together as husband and wife. It also appears from the petition that' after the marriage took place, and before the passage of the act of 1894 (sections 2127, 2128, Ky. Stat.), defining the rights of married women, the appellant by gift acquired title-to a tract of land containing 308 acres, and by purchase another tract of 120 acres. It is alleged that the husband is in possession of the land, and refuses to surrender it to the appellant. She therefore prays that the possession of it be adjudged to her. The question involved is whether under the act referred to, the rights of the husband — as. they existed at the time of its passage — to the use of the land have been destroyed; that is to say, did the legislature intend to deprive husbands of their interests in the lands of their wives, or, if it so intended, did it have the power to do so?
At common law the husband became the owner of the personal property of the wife. He likewise became seised of an estate for their joint lives of her freehold lands and chattels real. He could sell the personal property thus acquired, and vest the vendee with a title thereto. He could sell the interest which he acquired in the real estate,. and vest the purchaser with the title to the interest which became vested in him by operation of law. 2 Dembitz,. Land Titles, 788; 2 (Kent, Comm., 130; 2 Bl. Comm., 126.. [50]*50The court held in McClain v. Gregg, 2 A. K. Marsh. 454, that marriage gives the husband an estate in the lands of his wife, which he could sell, and that his vendee could maintain ejectment. That opinion was before an act of the Legislature reducing the interest of the husband in the wife’s land. A divorce restores to the wife the exclusive right to her land. Hays v. Sanderson, 7 Bush, 489. As civilization advanced, and as the .men who made the laws began to recognize that a wife should not be compelled to surrender practically all of her estate to the husband, but should be given a reasonable protection in the enjoyment of her property, the Legislature of Kentucky passed an act which supplanted the common law with reference to the rights of a husband in his wife’s real estate. It is section 1, art. 2, c. 52, p. 720, Gen Stat., and reads as.follows: “Marriage shall give to the husband, during the life of the wife, no estate or interest in her real estate, including chattels real, owned at the time, or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and receive the rent. If, however, the wife die during the term for which her land is rented, the rent shall go to the husband, if alive, subject to her debts, contracted as stated in the next section. But if during such term the husband die, the rent accruing thereafter shall go to the wife or her representatives, subject to her debts as aforesaid.” This section was in force at the time the parties to this action were married, and at the time the wife acquired the land. It gives the husband the use of the wife’s land, with power to rent it for not more than three years at a time, and receive the rent. It does not allow this rent to be subjected to the payment of his debts, because the Legislature thought it wise to place it in the power of the [51]*51husband to appropriate the rents for the benefit of his: wife and children, if he chose to do so. In obedience to • the requirements of the statute, this court has repeatedly held that the rents of the wife’s land could not be subjected to the payment of the husband’s debts. If the husband cultivates the land himself, then the products of the • land have been adjudged to belong to him. The court, in Moreland v. Myall, 14 Bush, 474, held that corn standing-on the wife’s land (her general estate) is subject to levy and sale under execution against the husband. While the • rent of the Avife’s land is not liable for the husband’s debts, yet, as between the husband and wife, the rent belongs-to him. Barnes v. Burbridge, 7 Ky. Law Rep. 445. While,., under the act in force when the parties married and when the land was acquired, the husband’s interest in the wife’s - land was not so great as at common law, still it is a vested right; and the Legislature could not deprive him of the use • of his wife’s land, and the right to rent it for three years at-a time. The act of 1894 declares that marriage shall giA^eto the husband no interest in the wife’s property, and that she shall hold it and own it for her separate and exclusive-use, free from the debts and control of her husband. The act is not retrospective in its operation. It can not take-from a husband the rights which existed under the law • in force at the time of its passage.' It is said' by Mr. Cooley, in his work on Constitutional Limitations (5th Ed. p. 442): “At the common law the husband, immediately - on the marriage, succeeded to certain rights in the real and personal estate Avhicli the wife then possessed.. These rights became vested rights at once, and- any subsequent alteration in the law could not take them away.” It is held in Junction Railroad Co. v. Harris, 9:-Ind. 184 [68 Am. Dec., 618], that a- husband’s--. [52]*52estate in tlie wife’s land is not impaired by a statute declaring it separate property. Under the law of New York, a husband had a certain interest in his wife’s property. Subsequently the Legislature passed an act which, in effect, declared that such property should no longer belong to the husband, but should become the property of the wife, as though she were a single female. The court held that, the husband’s rights could not be impaired by the act of the Legislature. Westervelt v. Gregg, 12 N. Y. 202. It was held in Rose v. Sanderson, 38 Ill. 247, that a legislative enactment can not take from the husband a vested life estate in the wife’s land, and give it to her. Bishop on the Law of Married Women (volume 2, section 40), after stating what are the rights of the husband at common law in the wife’s real estate, says: “This is a vested estate in him; and, within the doctrine discussed under our first subtitle, it is not competent' for legislation, without his consent, to take it from him and give it back to the wife.” The views we have expressed are supported by Jackson v. Jackson, 144 Ill. 274 [33 N. E: 51]; Clark v. Clark, 20 Ohio, 135; Wyatt v. Smith, 25 W. Va. 813. Many authorities could be cited in support of these views. A wife who was married before the act of 1894 took effect is entitled to all the rights in property acquired after the act took effect which it purports to give her. Although the marriage took place before the act took effect, the husband has no right to complain that the Legislature has given his wife the control of such property as she acquired after the act took effect. The act did not impair any vested right of the husband in property so acquired. His right was expectant, not vested. Mr. Cooley in his work on Constitutional Limitations (page 443), in speaking in regard to the husband’s expectant interest in the after-acquired [53]*53property of the wife, said: “It is subject to any changes made in the law before his right becomes vested by the acquisition.” In Allen v. Hanks, 136 U. S. 300 [10 Sup. Ct.
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JUDGE DAYNTER
delivered the opinion op the court.
It appears from the petition, to which the court sustained a demurrer, that the appellant is the wife of appellee J. A. Rose; that they were married in the year 1890; that a separation has taken place, which is permanent; that they will never live together as husband and wife. It also appears from the petition that' after the marriage took place, and before the passage of the act of 1894 (sections 2127, 2128, Ky. Stat.), defining the rights of married women, the appellant by gift acquired title-to a tract of land containing 308 acres, and by purchase another tract of 120 acres. It is alleged that the husband is in possession of the land, and refuses to surrender it to the appellant. She therefore prays that the possession of it be adjudged to her. The question involved is whether under the act referred to, the rights of the husband — as. they existed at the time of its passage — to the use of the land have been destroyed; that is to say, did the legislature intend to deprive husbands of their interests in the lands of their wives, or, if it so intended, did it have the power to do so?
At common law the husband became the owner of the personal property of the wife. He likewise became seised of an estate for their joint lives of her freehold lands and chattels real. He could sell the personal property thus acquired, and vest the vendee with a title thereto. He could sell the interest which he acquired in the real estate,. and vest the purchaser with the title to the interest which became vested in him by operation of law. 2 Dembitz,. Land Titles, 788; 2 (Kent, Comm., 130; 2 Bl. Comm., 126.. [50]*50The court held in McClain v. Gregg, 2 A. K. Marsh. 454, that marriage gives the husband an estate in the lands of his wife, which he could sell, and that his vendee could maintain ejectment. That opinion was before an act of the Legislature reducing the interest of the husband in the wife’s land. A divorce restores to the wife the exclusive right to her land. Hays v. Sanderson, 7 Bush, 489. As civilization advanced, and as the .men who made the laws began to recognize that a wife should not be compelled to surrender practically all of her estate to the husband, but should be given a reasonable protection in the enjoyment of her property, the Legislature of Kentucky passed an act which supplanted the common law with reference to the rights of a husband in his wife’s real estate. It is section 1, art. 2, c. 52, p. 720, Gen Stat., and reads as.follows: “Marriage shall give to the husband, during the life of the wife, no estate or interest in her real estate, including chattels real, owned at the time, or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and receive the rent. If, however, the wife die during the term for which her land is rented, the rent shall go to the husband, if alive, subject to her debts, contracted as stated in the next section. But if during such term the husband die, the rent accruing thereafter shall go to the wife or her representatives, subject to her debts as aforesaid.” This section was in force at the time the parties to this action were married, and at the time the wife acquired the land. It gives the husband the use of the wife’s land, with power to rent it for not more than three years at a time, and receive the rent. It does not allow this rent to be subjected to the payment of his debts, because the Legislature thought it wise to place it in the power of the [51]*51husband to appropriate the rents for the benefit of his: wife and children, if he chose to do so. In obedience to • the requirements of the statute, this court has repeatedly held that the rents of the wife’s land could not be subjected to the payment of the husband’s debts. If the husband cultivates the land himself, then the products of the • land have been adjudged to belong to him. The court, in Moreland v. Myall, 14 Bush, 474, held that corn standing-on the wife’s land (her general estate) is subject to levy and sale under execution against the husband. While the • rent of the Avife’s land is not liable for the husband’s debts, yet, as between the husband and wife, the rent belongs-to him. Barnes v. Burbridge, 7 Ky. Law Rep. 445. While,., under the act in force when the parties married and when the land was acquired, the husband’s interest in the wife’s - land was not so great as at common law, still it is a vested right; and the Legislature could not deprive him of the use • of his wife’s land, and the right to rent it for three years at-a time. The act of 1894 declares that marriage shall giA^eto the husband no interest in the wife’s property, and that she shall hold it and own it for her separate and exclusive-use, free from the debts and control of her husband. The act is not retrospective in its operation. It can not take-from a husband the rights which existed under the law • in force at the time of its passage.' It is said' by Mr. Cooley, in his work on Constitutional Limitations (5th Ed. p. 442): “At the common law the husband, immediately - on the marriage, succeeded to certain rights in the real and personal estate Avhicli the wife then possessed.. These rights became vested rights at once, and- any subsequent alteration in the law could not take them away.” It is held in Junction Railroad Co. v. Harris, 9:-Ind. 184 [68 Am. Dec., 618], that a- husband’s--. [52]*52estate in tlie wife’s land is not impaired by a statute declaring it separate property. Under the law of New York, a husband had a certain interest in his wife’s property. Subsequently the Legislature passed an act which, in effect, declared that such property should no longer belong to the husband, but should become the property of the wife, as though she were a single female. The court held that, the husband’s rights could not be impaired by the act of the Legislature. Westervelt v. Gregg, 12 N. Y. 202. It was held in Rose v. Sanderson, 38 Ill. 247, that a legislative enactment can not take from the husband a vested life estate in the wife’s land, and give it to her. Bishop on the Law of Married Women (volume 2, section 40), after stating what are the rights of the husband at common law in the wife’s real estate, says: “This is a vested estate in him; and, within the doctrine discussed under our first subtitle, it is not competent' for legislation, without his consent, to take it from him and give it back to the wife.” The views we have expressed are supported by Jackson v. Jackson, 144 Ill. 274 [33 N. E: 51]; Clark v. Clark, 20 Ohio, 135; Wyatt v. Smith, 25 W. Va. 813. Many authorities could be cited in support of these views. A wife who was married before the act of 1894 took effect is entitled to all the rights in property acquired after the act took effect which it purports to give her. Although the marriage took place before the act took effect, the husband has no right to complain that the Legislature has given his wife the control of such property as she acquired after the act took effect. The act did not impair any vested right of the husband in property so acquired. His right was expectant, not vested. Mr. Cooley in his work on Constitutional Limitations (page 443), in speaking in regard to the husband’s expectant interest in the after-acquired [53]*53property of the wife, said: “It is subject to any changes made in the law before his right becomes vested by the acquisition.” In Allen v. Hanks, 136 U. S. 300 [10 Sup. Ct. 961], it was held competent for a State, in its fundamental law or- by statute, to provide that all property thereafter acquired by or coming to a married woman shall constitute her separate estate, not subject to the control or liable for the debts of the husband. Such requirements do not take away or impair any vested rights of the husband. The same doctrine was announced in Jackson v. Jackson. It is hardly necessary to observe that, if Mrs. Rose should be divorced from her husband, she is entitled to be restored to the possession and use of her land; or should she, in an appropriate proceeding, show herself entitled to alimony or equitable settlement, the products of her land, or the rents thereof, would be subject to the payment of it in the same manner and to the same extent as they would be if the land belonged to the husband. This is upon the idea .that the products of the land, or the rénts of it, belong to him.
The only case to which the court’s attention has been called which militates against the conclusion we have reached, as to the incompetency of the Legislature to take from a husband his vested rights, is the case of Rugh v. Ottenlieimer, 6 Or. 231. To sustain its conclusion in that case, the court cited Maguire v. Maguire, 7 Dana, 183. A similar question to the one involved in this case was not before the court in the Maguire case; neither did the court express an opinion on a question like the one involved in this case. The part of the opinion which the Oregon court relied upon to sustain its conclusion was dictum, and that does not even sustain the conclusion of the court. The court in Gaines v. Gaines, 9 B. Mon. 308, did not ad[54]*54here to tlie doctrine which was declared in Maguire v. Maguire, but said: “And if it were conceded, as intimated in Maguire v. Maguire, supra, that the marriage contract is not, as a contract, wholty removed, like other contracts from the potver of the Legislature to dissolve it in any particular case by special act of dtoorce, and that the dissolution of a marriage, if required by the public good, maj' be a legislative function, still it can not be admitted that a power thus deduced, uncertain, upon principle, as to its existence, and still more uncertain as to the grounds of its legitimate exercise, can override the express and highly conservative prohibitions in the Constitution, intended for the protection of private rights of property. We are of opinion, therefore, that whatever power to be exercised in view of the public good, the Legislature may have to enact divorces in special cases, as it can not, even for the public good, change the right of private property from one to another without compensation, much less can it do so by a special act of divorce, sought by one of the parties against the consent of the other, with the purpose or effect of operating upon the rights of property incident to the marriage relation, as created and sustained by the general laws applicable to that relation.” The act of the Legislature in question does not attempt to dissolve the marriage contract, nor does it give any additional grounds upon which a court might do it. So the dictum in the Maguire case, to-wit, “and therefore marriage, being much more than a contract, and depending essentially on the sovereign will, is not, as we presume, embraced by the constitutional interdiction of legislative acts,” could be regarded as a correct statement of consti-' tutional law, and still would have no application to the question at bar.
[55]*55We have not felt it necessary to discuss marriage as a social relation, nor the necessity of the regulation and control of it by the sovereign power of the State. Neither have we felt it necessary to discuss the question as to the power of the Legislature to prescribe the causes for which the marriage contract or relation may be'dissolved. Neither would it be profitable to determine the question whether marriage is a contract sui generis, or one publici juris, or both. The marriage relation was assumed by the parties, it still exists, and no effort is made to have the court dissolve it. The questions we have been called upon to determine were: (1.) What rights did the marriage give the husband in the wife’s property? (2.) Can the rights thus acquired to be taken from the husband by the Legislature and given to the wife? Our conclusions are supported by the common law, by the consensus of judicial opinion, and by the ablest writers on constitutional law. We have thought it neither wise nor judicial to disregard the rules of law, which are the crystallization of judicial opinion. Neither do we think, because lawmakers may have been slow in giving to wives freedom in the control of their property, that we should give our sanction to a law which, if upheld, will take the property of the husband and give it to the wife. If change and transition are to take place in the domestic relationship, although right and for the public good, still it should not be done at the sacrifice of vested rights. Judgment affirmed.