The opinion
.Brannon, PRESIDENT
(dissentiucj):
Before the act of March 14, 1891, at law a married woman could not in any mode take property from her husband, though equity would sustain transfers from him to her in certain cases. So read the commonlaw and section 3, c. 66, of the Code. Humphrey v. Spencer, 36 W. Va. 11 ( 14 S. E. Rep. 410 ); McKenzie v. Railrond Co., 27 W. Va. 306 . Chapter 3, Acts 1893, again enacts this incapacity to take from her husband. The act of 1891 removed this incapacity, by giving her capacity to acquire property from her husband by grant or gift, but such gift must be under the law regulating gifts in the case of other persons. Section 1, c. 71, of the Code broadly declares :
“No estate of inheritance or freehold, .or for a term of more than five years, in lauds, shall be conveyed unless by deed or will; and no gift of any goods or chattels shall be Valid, unless by deed or will, or unless actual possession *364 shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession within the meaning of this section.”
This section prescribes the very manner of acquiring the property interests of which it treats. That is its office. It says that certain estates in lands and gifts of chattels shall not be valid, uuless created in certain ways. As to gifts of chattels, they must either be by deed or will, or, if oral, be accompanied by actual possession in the donee as a consummation of title; and if donor and donee reside together possession there shall not be sufficient to consummate the gift. Delivery of possession is necessary to a perfect gift, but it can not operate whgn the residence is common ; and the gift is then abortive, unless by deed or will. It goes to the very essence of title. This is a salutary provision as to gifts. A husband and wife reside together, and the personal property given by the husband to the wife is at the place of common residence. Subsequent creditors of the husband suppose it to be his and extend him credit. A purchaser buys it supposing it to be his. The law defeats the gift, not only as to them, but wholly: There is no title in the wife, even against the administrator or distributees of a dead donor; though it might occur to one at first thought, that it would be good in the latter case. But not so, as it is a want of title. The gift is abortive and passes no title. There is no exception to the prohibition of the statute. The wife must in such case take a deed. She may take under section 2, c. 66, Code 1891, by gift from her husband ; but that gift must conform to section 1, c. 71 of the same Code, as in gifts between father and son or other person having common residence.
The married woman’s act of 1891 can not be regarded a special act creating an exception to section 1, c. 71; for both are parts of one act — the Code act. To give the married woman’s act this effect is to work a repeal of section 1, c. 71 by implication as to gifts between husband and wife whereas both can stand and operate in harmony; and, when this is so, repeals or exceptions by implication can *365 not be allowed. State v. Enoch, 26 W. Va. 254 . The'mission of one statute is to change the former law disabling her from taking; while the mission of the other is to define the manner of acquisition. There is no repugnancy between them. If you say that a gift from the husband with possession at the residence of husband and wife shall be good against subsequent creditors, what a wide door of danger you leave open to the perpetration of fraud upon creditors by fictitious gifts — one of the very doors the statute was intended to close. There is more danger of harm to creditors from such a repeal of the statute than in any other instance. Will you say that such gifts shall not be good as to such creditors? Then you add an exception not in the married woman’s act (section 2) which avoids a gift only as to existing creditors. If you make an exception to save creditors, why not make one for subsequent purchasers from the husband ? There is as much authority for one as the other.
The case of Fox v. Jones, 1 W. Va. 205 , has no application, because it was in equity, and the gift was upheld on the theory of a reasonable settlement by husband upon the wife, and also because not a reference was made to the statute in question. This is an action of detinue inquiring legal title in the plaintiff. Burns v. Morrison, 36 W. Va. 423 ( 15 S. E. Rep. 62 ). The administrator represents existing creditors; for there must be debts for funeral and administration if not for taxes and other considerations. In the one month between the going into operation of the act of 1891 and the death of Good a gift may have been made, its date not appearing. If so, and the gift were valid under chapter 71, § 1, the wife would have legal title, as title in a wife under the enabling act is legal not merely equitable ; but, if before the act of 1891, her title would not be legal. But the trouble is that, whenever the gift -was made, she has no title, by reason of the fact that the gift was consummated by a possession at the common residence, and void under chapter 71, § 1.
Again, being plaintiff the wife must show the date of the gift to have been at such time under the law, when it was not unquestionably void, as would be the case, if made be *366 fore April 1, 1869 — tlie beginning of our first separate estate act. The record says the parties were living together for fifty years before July 14, 1891. We do not know but that some of the property was given to the wife before the separate estate act. As no deed to attest the wife’s right is shown, I interpret the agreed facts as showing an oral gift, void under the law; and I would affirm the Circuit Court, as I think we ought to say what the agreed facts show, and decide the case finally for one side or the other.