J.Ini""'"'^ .-.<■ VVfishinptoii Gift of. Ilerritt, Sunners & Bucey June , -19- 49 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY /' -o ./ / '^^^^^^, ^ J^ / ^ ^ 3 v? J^iiEffiMtt^fefe;^.;;^:!:^^ '*' \ 7, -i^ iJ i-V*^; COHUUKITY PBOPEilTY ^^ IHTKCiDUCTIOIT VSkT IS CCBE SYSTHi IH UASHIEGTOII? Coastruotioa of Statutes. i^utliorities — Ballixiger, CSiaptor IZ. ^ca-iieX': 1 0.1 f Q^ CONTENTS Page Ctltline I-III Introduction I-II Bow should the statutes bo construed? 1. CHAPTER II What is the nature of the consmuttitsr? 18. How is it formed? CENTER III How is it disaolved? 109. CHAPTER IV . VWiat are the rights and powers of the Spouse*^: • ;;-■. 190. Powers of husband to nianage and control. ,.■'•.'" CHAPTER V PoT/er of the wife to ma'iage or convey. 254. Power of wife to contract. CHAPTER VI Sight a of the Borvivov, — 299. To own. To administer. To inlierit. Of Reimbursement. CHAPTER VII Chaiaoter of wife' s interesrO. 396. Can the conmunity Le altsresi by contraci? OUTLIHE OF COLMJIIITY PRGPERET. Introduction. TThat is the System in TTasliinston? I Construction of Statutes. How should they "bo construed? II TThat is the nature of the Coramunity? a. Is it a partnership? "b. Is it an entity? A. How is it formed? a. By lav/-ful marriage. t. Is more tlian the mere fact of marriase necessary? B. How is it dissolved? a. By separation — either through separation agreement or merely in fact. h. By divorce. c. By death. C. What are the rights and powers of the spouses? a. Powers of Hustand to Manage and Control. l3. Power of the vafe to Manage or Convey. c. Power of the wife to Contract. d. Rights of Survivor. 1. To oxsn — half or all. 2. To convey in parent of debts. 3. To administer. 4. To inherit, e. Sight of Wife to Love and Affection of HusTDaod and to Reconciliation. II. OOiCLIES OP COI.illUHITY PRGPER3Y (COHTinnED) f. Right of Eeiin"btirsement . g. Character of Wife's Interest. h. Ciiaracter of the Hustand's Interest. i. Can ThQse Interests, or, in other words. Can the Comratinity "be Altered hy C£on tract? D. TThat are the Interests of the Spouses? a. TJhat is Coinmunity Property? "b. VhsLt is Separate Property? Ill D. a. 'Sniat is Community Property? 1. Property acquired after marriage hy purchase. 2. Damages for injuries. 3. Property acquired hy occupancy, 4. Property acquired after marriage "by prescription. 5. Property acquired hy accretion. 6. Property acquired "oy accretion and confusion. 7. Property acquired by contract. 8. Property purchased on credit. 9. Proceeds of insurance policy. 10. Property acquired hy illegal means. 11. Property acquired in a foreign state or country. Ill D. Tj. Wliat is Separate Property? 1. Property and pec^Jniary rights ovvTied hy the hushand before marriage, "The property and pecuniary rightF of every narried \7Dman at the time of her marriage." 2. Property and pecuniary rights acquired "by either spouse during marriage by gift, devise, or descent. '•rv?- III. ouuiuE OF coiiruniTy PEOPiiR^rr {COHTIIjIO)) 3. All property and pectmiarj' rights acquired by eitluer spouse in e:;chan5e for separate property or funds. 4. Bio rents, issues and profits of separate property. 5. Property acc^uired 03^ either spouse under law -which en:cludes necessary legal incidents of cocmon property. 6. Property acquired hy either spouse "by conveyance or transfer directly from tlae other. 7. Property acquired by the -vife tlirough a conveyance to her xdiich recites that the goods belonged to her separate estate, or which liMts the property to her separate uses, and -naiich ■•.Tas directed to bo made to her by her husband. 8. Property accuired in a foreign state or country and there laaovni as the husband's property or his separate property or as the wife's separate property. 9. Ihe personal earnings of the wife isGien living separate and apart from her husband. 10. tChe conmonity property law is not applicable to prop- erty rights 'vVhich are acquired prior to its passage. Ill E. V/liat are the liabilities of tlie Spouses? 1. Wiiat are separate liabilities? 2. YThat are conaaunity liabilities? 3. TiThen is cocitmjnity property liable for separate debts? 4. ¥]aen is comnunity liable for torts? 5. Yfeen is separate property liable for conmunity debts or torts? Ill P. 1. Homesteads. S- Miscellaneous. COMlIUiriTY PROPERTY lUTECiDUOTiaEr I3IAT IS THE SYSTSi IH U^HTIICtTOII? Construction of Statutes. Authorities — Ballinger, Chapter IS. iNTROrUCTlOH. 252. ••The community eyotera from the fact that its cardinal principles are based upon the separate identity of the apousea and their mutuality of interest in all marital acquiaitiona, as opposed to the common law doctrine of the merger of the identity of the wife in that of the husband renders it absolutely imcompatible with the law of property rights of married per- sons as administered under the common law," ibower and curtesy are expressly abrogated. Code sections 1343 & 5922. Even vi/here not expressly repealed, Judge Ballinger is of the opinion that the two systems are so "utterly incompatible" that the common law system must be regarded as impliedly abrogated. 253. The community property system may be said to be in derogation of the common law. The rule of construction in such case is that the statute in derogation must be construed strictly. "The basis of the rule is that "the legislature is presumed to have expressed the limit intended to be conceded to such departure from the common law by the expressions and terms of the enactment itself, and to have inhibited a construction of intendment enlarging its scope or mean- ing. "Ballinger, see 254. Ballinger and Bemington's Code 143 recognizes possible incompatibil- ity between over statutory aclierae and the common law, for it says: "The common law, so far as it is not inconsistent with the constitu- tion and laws of the United States, or of the state of Washington, nor incofiipatible with the institutions and conditions of the society on this state, shall be the rule of decision in all the courts of this state." Recognizing also the doctrine of strict construction of all statutes in derogation of the common law, the code, see 144, provides: "The provisions of this code shall be liberally construed and shall not be limited by any rule of strict construction." and again in 5923 B. & E: "The rule of the comnion law that statutes in derogation thereof are tc be strictly construed has no application to this chapter. This chapter establishes the law of this state reEi:ecting the subject to which it re- lates, and its provisions and all proceedings under it shall be liberally construed with a view to effect its object." And yet, in spite of the plain wording of these statutes, we find Stiles, J. in Board of Trade vs. Hayden, 4 Wash. 263 at 265 saying: II. IWG."S0DUCT1C'K. "prior to the act of 1G81, but for the acts commencing 1869, the common lav- would have regulated the property rights of husbal^d and v/ife. It did then and still does regulate thera excepting so far as the statute has directed otherwise; and notwithstanding that this act provides that the "rule of the common la\/ that statutes in derogation thereof are to be strictly construed has no application to this act." It is not to be supposed that the legislature intended or proposed to extend the scope of the act beyond the language used further than the implications natural- ly floivlng therefrom-" To this, at p 283, Dunbar , J. dissenting, replied: "As shov;ing the danger of leaving the ^Icin provisions of the statu- tory lav/, 1 note the fact that the majority recite at length the provisions of the common law, and draw deductions from its cnalogies, vhen the act in question, to avoid the very thing which the court now insists on doing, provides especially that the; "rule of common law that statutes in deroga- tion thereof are to be strictly construed has no application to this chap- ter. This chapter establishes the la'./ of this territory respecting the subject to which it relates, sn& its provisions and all .proceedings \inder it shall be liberally construed with a view to effect its object." Tlie legislature evidently attempted to emancipate this law from the rule of construction nov; insisted upon by the court; and the plain rtile of con- struction provided ty the legislatxire is waived aside by the remark that "it is not to be supposed that the legislature intended or proposed to extend the scope of the act beyond the language used further than the im- plications natTorally flowing therefrom. "I think that it is to be pre- sumed that the legislature realized the fact that it was enacting a stat- ute in derogation of the common law, and that it did not v/ant the law hampered by the rule of construction mentioned, it seems to me that the language of 2417 is also so plain that there is no room for construction. In fact, tt seems that if the £>l, a hu'-,bond and v;ife become partners in trade in this state? It is cl_aiujed that they maj' under the act of November 21, 1881, conmonly knovn as chapter 133 of the code of that year. Of that chapter the following sections are supposed to be especially pertinent to the matter in hand: '•Sec. 2396. Every married person shall hereafter ha.ve the same right end liberty to acquire, hold, enjoy and dispose of every species of property, and to sue a;ad be sued, as if he or she '-erG unmarried." "Sec. 2398. All lav.'s vhich impose or recognize civil disabilities upon a pife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights, she shall have the ssime right to appeal in her ov7n individual name, to the courts of law or equity for redress and protection that the husband has." "Sec. 2400. The property snd pecuniary rights of every nr.rried "'onan at tne ti:.-.e of h^r ri:c.rriage, or alten'^rds acquired by gift, de- vise or inheritance, vith tlie rents, issues and profits thereof, shall not be subject to the debts or contracts of ner husband, and she may manage, lease, sell, convey, encnmber or devise by v, ill such property to the saiue e;ctent and in the saiT.e manner tliat her husband can property belonging to him." '•Sec. 2i01. Should either husband or r/ife obtain possession or control of property belonging to tlie other, either before or after marriage, the ov.'ner of the 'property may maintain an action therefor, or for axiv ri;-,ht growiiig out of the sar.:ie, in the s?x.e r:an:.er and to tic sarre extent as if thei' vere uraiarried." "Sec. 2406. Contracts may be made hi'- a vife snd liabilities in- curred, and the sane i^aj' be enforced by or against her to t:.e same ex- tent and in the same mariner as if she \ere tuunarried. ■' 2. Prior to the act of 1861, but for the acts commencing in 1669, the cormon lav; rould have regulated the property rights of hustiand and wife. It did then and still does regulate them excepting so far as the statute has dr.rected othenvise; and not withstanding that this act provides in Sec. 2417 tiaat the "rule of common law that statutes in derogation thereof are to be strictly construed has no application to this act," it is not to be suppoced that the legislature intended cr proposed to extend the scope of the act beyond the language used further than the implications naturally f lo-.ving therefrom, ^..t the common lav? a wife could not be a partner in business with any one, because partnership is based on a contract, as to which she was under a disability, and yet in equity she had alv/ays been permitted to enforce contracts made for her benefit, even ■■ith her husband, and her claim against him as her debtor had always been sustained. Story, Zq. Jtir. , Sec. 1372, 1373; Valensin V. Valensin, 28 Fed. Rep. 599; Clark v. Hezekiah, 24 Fed. Rep. 663; Huber v. Huber's ..djnr. , 10 Ohio, 372. She could have a separate estate, meaning an equitable estate held by a third person in trust for her. This estate she could charg-e in equity, but not at lav/. Judgments upon her debts went not against her person, vjhen allowed at law, but were allored as eqiutctle burdens upon her estate or personal property in possession at the tirue of the marriage, and that acquired afterward; her choses in action when reduced to possession, and her earnings becaii-.o her husband's; in her freeholds and lands in fee the husband took a life estate; he became liable for her antenuptial debts and jointly with her for lior torts during coveture; her responsibility at law for contracts was entirely svispended; and in equity, before the courts vould hear any- thing against her, it mvist appear tliat she v;as possessed of a separate estate in the common law sense. Kov this act of 1881_ does certain things for a married woman: First, It gives her full dominion over her ovn property \.hether acquired before or after marriage, to enjoy and dispose of it without the intervention of her husband, or responsibility for him or his debts; second, it removes frou her all civil disabilities not imposed upon her hiisband; third, she can sue and be sued as if she were unmarried, either at lav or in equity; foarth, for ner debts she alone is responsible; fifth, her property is chargeable with family ex- penses. In sliort, the purpose of the act seeiriE to be . to set her frea from all influence or dominion of her husband in so far as her property "Ti^ts^af'e^oncernedT" end leave lier to manage, control and dispose ofV them as slie pleases, -he the r to her gain or loos_. In this opinion ve slia.ll not discuss the qviestion how large her po>'er is, but confine ourselves to the single matter before us. Counsel for respondents contend tliat, as it is the evident purpose of these pro- visions to emancipate the wife from the control of the husband, and to enfranchise her with zle peer, denied to her under the common law, to acquire, hold, enjoy and dispose of property, and do business on }ier ovm. account as freely as he can, or even more freely than he can, under the same act, it must follov; that she can enter into a contract of partner- ship in all tiTe ways, and v;ith all the liabilities that her hxisbsiid can., and that unless she is permitted and held to be able to enter into tl-fi saiie contracts with hiir. that she can ^ ith others, she is deprived of the full measure of liberty i-raich the law intends to confer upon her. 3. It may be said that she can and in some cases will be held to become a genoral .'')artner 'Wjth third xziersons under the terms of the act, a-ad the necetisary inplicaticns thsreof. It has been so held in Ile-.Mnan V. Morris, 52 Miss. 402; Abbott V. Jackson, 43 Ark. 212, and elsev.-here, v.hen no one of the ;fersons en^ja^^ed v;ith her as partners vas her husband. ?nt the questiori still regains, does the statute intend that she can enter into ordinary contracts vith her husband, and particularly the contract of partnership? On th:' s point we think the positron of the respondents is antagonistic to itself. In the foreground of the dir.cussion is xalaced the proposition that the purpose of the statute is to free the wife from the control and. influence of husband and to relieve her property from Ms debts and management; but the next following suggestion, tlis.t unless she cpn becomo bis n^rtver she '-ill not be r/holly free, if yielded to will place her antl her property r ithin touch of the very dangers which it is sought in the lirst place to withdraw her from. Her improvident husband, by the most ordinary persuasion, or by his mere declaration made in her presence, as in the case at bar, could, in spite of her, unless she assumed a hostility, which would endanger the continuance of the marriage relation, ^'aste and dissipate her entire estate, and thus the very purpose which, it seems to us, strnds out the most clearly in the act in question, i.e. to secure her protection in the management and enjoyment of her estate, would be defeated. In Massachusetts the married woman's property acts, which existed until 1874, when the legislature expressly forbade husband and wife to contract, provided: "Any -'oman may, v;hile married, bargain, sell arji convey her real and personal property, which may be her sole and sep- arate property, or which may hereafter come to her by descent, devise, bequest or gift of any person, except her husband, and enter into any contract in refereixe to the sane, in the same manner as if she "'ere sole;" and "an3'- inarried w'oman may carry on any trade or business, and perform any labor or services on her own, sole and separate accoimt; and the earnings of any married woman from her trade, business, labors or services shall be her sole and separate property, and may be used and invested by her in her ov.'n name; and she may sue and be sued as if sole in regard to her trade, business, etc., and her property ac- quired by her or her trade, etc., may be taken on any execution against her." This act covers every raaterial point of our own, aiid notably the wife if? peruitted to make "any contract" in reference to her property; whichis all that any person can do. But in Lord v. Parker, 3 Allen, 127, it was held tlis-t she could not be a partner in a firm where her husband \:a.s a partner. Speakir^ of the statutes the court said; "Their legal object is to enable married women to acquire, possess and manage property, without the intervention of a trustee, free from the interference or control, and vitboiit liability for tbe debts, of their husbands. They are in derogation of the common law, and certainly are not to be extended by construction, i.nd ^e cannot perceive in them any intention to confer upon a married woman the poi..er to aajze any con- tract with her husband, or to convej/- to hun any property, or receive any conveyance from him. The po''er to form a copartnership includes the po'./er to create a coi^imujaity of property, with a joint power of disposal 4. and a mutual liability for tlio contracts and acts of all tlio partners. To enter into a partnership in 'businoCE vath her husband would subject her proper ty to his control in a niaanor hardly consistent v/ith t]ic sep- aration vjiich it is the purpose of the statute to secure, and misht Eu^ject her to an indefinite liability for his engagcnents. Tlio prop- erty invested in such an enterprise would cease to be her "sole and Eoparato"property. The power to arrange the terras of such a contract would open a wide door to fraud in relation to the prapcrty of the hus- band. If she could contract vdth her husband, it vjould seom to follow that she could sue him and be sued by him. How such suits could be conducted, vdtli the indidents in respect to discovery, the right of parties to testify, and to call tlie opposite party as a vatness, vath- out interfering vath the rule as to pri-.-ate communications bet\/ccn the husband and vlfo, it is not easy to perceive-, and the consequences wliich viDuld f ollov7 in respect to process for the enforcenunt of rights fixed by a judgment, arrest, imprisonment, chai-ges of fraud, proceedings in invitum under the insolvent laws, and tlie lite, are not of a cliaractor to bo readily reconciled vdth the marital relation. \7c ccainot suppose that an alteration in the law involving such momentous results, and a cliangc so radical, could have been contemplated by the legislature, without a mucli more direct and clear manifestation of its will." To tho sane effect is Gic construition of the siiBilar statute by the suprcmG court of tJio State of Haine. T^mith v, Gorman, 41 He. 405; LIoKeen v. Frost, 46 lie. 239. In I'.ichigan, Hov;ell's Stat., Sec. 6295, provides that the separate property and estate of a married v/oraan ''may bo contracted, sold, transferred, mortgaged, conveyed, devised or be- queathed to her, in tho same manner and mth the lilm effect as if she were unmarried." And Sec. 6297 provides that "actions may be brought by and against har in relation to her sole property, in the same manner as if she were unmarried." It is true that these provisions in tlic Ilichigan statute (and those of several other states) spealc particularly only of her separate estate, but licr separate estate is by Soc. 6295 expressly defined to be tho same as tliat whicli is equally her separate property in this state; but if slic be thus enabled to contract vath ab- solute freedom in refercnco to her separate estate, then, according to tho logic of respondent's argument, her freedom in tint respect v;ould be unlawfully curtailed by holding that she could not contract -.Ith ref- erence thereto with her husband. Yet the supreme court of Ilichigan, in Artman V. Ferguson, 73 Ilich. 146 (40 NA7. Rep. 907), after alluding to decisions in other states v/herc it is held that a mrrriod woman inay bo, where she has separate estate, a partnci with persons otlaor tl'^an her husband, uses this language: "It is Gic purpose of tlieso statutes to secure to a raarried v;oman the rigit to acquire and hold property sopcxatc from her husband, and free from his influence and control, and if she might enter into a business partnership with her husband it would subject her propertj^ to his control in a manner vholly inconsistent with the separation vZiich it is tho purpose of the statute to socuro., and might subject her to an indefinite liability for his cngagonents. A contract of partnersliip vath her husbancL is not included within the po-.^er G;ranted by our statute 5. to married women. This doctrine rras laid dov?n in Bassett v. Shepard- Gon, 52 Mich. 3, and re see no reason for departing fron it. The im- portant and sacred relations between man and v.ife, which lie at the very .foundation of civilized society, are not to be disturbed and des- troyed by contentions vhich nay arise from such a coiniriunity of property and a joint pov/er of disposal and a niutual liability for the contraxjts and obligations of each other." In Indiana, under the third section of the act of I.Iarch 25, 1879, it was provided that a married \voinan might enter into anj- contract in reference to her separate personal estate, trade, business, labor or services, and the management and iiiiprovement of her separate real prop- erty, the sajiie as if she \jere sole, and her separate estate, real and personal, should be held liable and on execution sold. But in Kass V. Shaw, 91 Ind. 384, and in Scarlett v. Snodgrass, 92 Ind. 262, it v;as distinctly hold that she could not bind herself by a contract of copartnership rith her husband. These citations from eminent co-urts are sustained in Schouler's Husband and life. Sec. 517, and 2 Bish. Married V/omen, Sec. 435. Opposed to those adjudications counsel cites us to a line of authorities of v.hich Hay v. May, 9 Keb. 16 (2 IT.V/. Rep. 221), is a sample. There a husband made and delivered his promissory note to a third party, vho endorsed and delivered it to the maker's wife, and a second note he rnade directly to his wife. She brought an action at law against him on both notes, and the court held that the demurrer of the V'ife to the husband's ans'-er setting up the marriage of the parties in the nature of a plea of abateir^nt should ha^e been sus- tained. The statutes of that state with regard to the separate prop- erty of married v;omen are substantially the same as our orn, and we see no reason for dissenting from the views therein expressed, and the conclusions therein arrived at. The holding of the ooiirt was in effect simply to substitute an action at lav for a suit in equity. In its decision, on page 226, the court said: "Even under the old system of practice, and before the benefi- cent legislation defining the rights of married women herein quoted, this could hare been done by resorting to the circuity of proceeding in the name of the trustee cind a court of equity. But now not only is the administration oi la.\' and equity vested in the one court, but all forms of procedure vhich heretofore distinguished legal and equi- table suits are abolished, and the need of the intervention of a trustee is done a- "ay 'ith by the statute 'hich provides tliat "every action must be prosecuted in the name of the real party in interest." But, notvithstanding these cases, and the doctrine establsihed by then, no case is cited, and we have not been able to find one in which either husband or ■ ife has been permitted either at law or in equity to enforce a purely e:cecutory contract against the other, and in thc'.t lies the kernel of this controversy, because such a contract must be enforcible by both parties, and at its beginning it is entirely executory. The toiins of the pai-tnersMp may be tliat it sliall continue lor c. certain leuf-^tli oi time, that certain capital slicll "be iuirestod, that the cervioec of the part ice to the contract chall be devoted to the busincbs of the partnership, that the profits and losses of tjie 'business shall be divided equally or in certain proporttor-s, and ,jiany others, all of which are executory, and some of '.-liich ere abEOlr.teljr iudispeusible to the prosecution of any partnership ''ausiness to advantage. It is also insisted, and citations are made to authorities to shov; that the husband and v/ife in states where the doctrine of coninunity property prevails, are in a sense partners at all events. One of the citations is Fuller v. Fersiison, 26 Cal. 54";, and another is Schnidt's Civil Lav/ of Spain and Ilexico, but turning to Fuller v. Ferguson, pa^e 567, we find this language: ■'The la\/ recotrnises a partnership betv/een the husband and wife as to the property acquired d-uring marriage, and which e::i5ts until expressly i-enounced in the raaimer prescribed. To this comi-nunity or pai'tnership belongs: First, .'.11 the property, of 'whatever nature, v/hich the spouses accpaire by thoir o^rn labor and industry. Second, 'i'he fruits a^id income of the individual property of the husband and vdfe. Third, V/hatever the liusbaniS. gains by the e::ercise of a profession or office. Fourth, Tiie gains from the money of the spouses, althou^ui the capital is the separate property of one of them." It is scarcelj'- necessary to say that because the relation of hvisband and \;ife as to their coraTion property is likened to a partner- ship, the reason for the similitude is totally wanting when their separate property is concerned. Lut the respondent x^roduces tv/o decisions of Uev; York and Llississippi, respectively, which eir^a-ecsly hold that a husband and v/ife may be paitners. Euau v. Caffo, 122 H.Y. 308 (25 N.Ii. Rep. 486); ^oof V. 3re'.7er (Hiss.), 5 South. :.:ep.571. The statutes of Kev/ York governing the former case v/ere almost identical v/ith those of Liaseachucetts above ruoted. Husband and v/ife filed a certificate by v/iiich they r-ssumed to form a limited partnarsh-ip under the firm name of 'C-eorge Gaffe-/' the husbsuid ./as the genei-al and the v/ife the special partner, che contributing t\Ajnt3r-f ive thoucand dollars. Tlie i^ir;j bccij.ic indebted, and both lva^\ ::■('. j.nd .Ifu ■ rcvz cued. The court, .-.iter revio'.lng ITdw York car.o:. only, ^aid: •"'upon principle end authorit;-, v/o think tliat vfsiyn. a husband and v/ifo a:.t-UiaG to cz'^'-z on c b-cincw- _.>. partner::, and contract debts in thj course of it, the 1x3 CcOmot Gsc?.pe liability on the ga-ound of coverti^:i-s»'- Eiis, as is soen b^- tlia f'^.cts ?bove stated, v/as an e::tremo cane in \*iich the ' 'ifc had by a .;oloun instraaent placed upon file among public records, shovn her intontio:i ox assiiming a partnership relation v/ith her hutband, and contributing to the fixiii largo cuiiis of monoy. vyiiether or not the firr. './as insolvent is not disclosed; all that 7. i appearn is that she v/as retained as a party "to the 'action. But v/o find that of the cavea juclges of the New York court of appeals "but ff.i.r joined in the opiniou. -/hile tli^-ee uicsent on ta? very poii^ in quar.t-i.ou. KaiG'ht, J., in his diceenting opinion, reviews the course of decision in the State of ITev; York, as well as in Either otates, and cones ;. to the conclusion -.'hic:! is, v.e thinic, unascailatleV that the majority opinion '.vac '.vro'ng. Tlie decision in this case is to us a curious one, inasmuch at ".'e find the sai^e court, only one year previous, in the case of Hendricks v. Itaacs, 117 ll.Y, 411 (22 H.E. ?ep. 1029), holding Vy a unaniiTiouE court that under these same statutes a husljand and wife cor.ld not contract uitli each other at all. Toof v. Bre-./er was a controversy which './as controlled by the statutes of Arkansas, \/hich axe again almost en:act duplicates of thote of Jiaesachusetts. The court o,fter alluding to ^'.bbott V. JaciT.on, 45 lUrk. 212, in viiich it was held that a married woman could "becor.ie a partner as a sole trader v;igh a third person other thca her huGlDaud, ^jid would as to her propertjr "be bound by all the contracts of the firui a& effectualljr and to the saine e:.:tent as if she '..'ere a man, disci-sses cases in Massachusetts, ilev/ Yoi'*; -**-. oo^^ci.' ^.tcitct., and cones to C^a conclusion that a married womsoi under the la'.v of Arkansas coold c.lso beccae the business partner of her husband. Just why it becomes necesScr3'" for the court in this case to decide this ciiestion is not cl9.,r fro'ra the report. It is said that the Brewers, husband and vdfe, were cai'i-pir^^; on i-lanting operations in .U-kansas, and Toof and others iTiade to thaa advances of supplies, jlfter this tie Brev;ers moved to Tennessee, and there gave to Toof and others four notes in payment of theindebtednets due t';em, in 'v/hich notes lirz Bre'.ver charged her sepa^'ate estate for their payment. From tliis it 'rould ceem tliat the question of pairtnerchip \7as not necessarily involved in the case, but that the real question was whether upon her note which assumed to er.pressly charge her separate estate, a perso'nal juc'tgrnent at law should be entered against her. The case of ',/ells v. Cay/ood, 5 Ool. -2-69, is alco cited by respondents, and the general laiigtiage used hy the court in tliat case, on p. 494, is abundantly broad enovv^h to support the citation were it not tliat the point in issiie had no anology -.fh.s.tevei to tliat of the case at bar. "He conclude upon tlie whole tiiat the better reason as v;ell as authority is with the position tliat these married women's stat'ates generally agree on their material Ipoints, and that it v/as not intended thereby that a husband and \/ife could become pai-tners. But in our statutes there are one or tvjo provisions ^'^?lich we thin'.: ;.iake this position clcc^i-e;.- thc-i it is, perhaps, in any of the othe:. s.. Bee. 2597 substantially ioaket erch of .then, as to all transactions b3t\;ean them, a trustee for the otl.e- . Ths bui-der of proof, as b3o^.-3^:■. t:;.3;i5 is upon the party assei-tiiig- the good faith. Persons \.-ho a^e f-t^e to contract with each other aie not subject to such a i"ule. I'hey st:^:. ■s..t Sims length, and rjnless there is actual fraud the law gives no -.eliof . .'-.gjin, it v-ould seem that if husbsnd and vaie are at liberty to couti..ct with- each other './ith perfect freedom, as strangers, the provisions of £ec . 2416 would have been left out. By that section husband and \7ife, when tPey attempt to make any agreement as to the status or disposition of the community property, must do so by the e.:ecution of an instrument i"n "-itin^, and under seal, "v/l.ich must be ac:niov;leci^e>.. and certified, c*,£- a ^:.3ed to real estate. "Hxj co much solem-.iity -./ith regard to her interest r ■/^ x-'-"^-^*^ , ,-*^ .^ii^^^a^^^^^f^ a. ^^ ^ -^*^ e. in commimity property, and such loosenecs and absolute v/ant of protection with regard to her separate property, which, it is. concedod by all, it was the first pui-poL;e of this act to secure to her? The case at bax' is, perhaps, ac strong an e::ajiiple as e:cperience could produce of the evil effects of such a construction of this statute as .is contended for by respondents. The wife held certain real estate v;hich she oiairas is her separare property — it is all she has. Thj husband_en£aged^ in^ a mercantile business in a buildins built by her _ upon her land, and painted over the door a sign, "J. P. Hayden £; Co." > ^^-Tj He went to Seattle to buy goods for his stock, and his vn.fe went with ' him. In a certain store where ho was asked v5io constituted the firm. His answer v/asr "I.Tj' v/ife is the only partner I have_." She sat within a few feet of where this \/aE said, and the witness who testified to the statement of ITr. Haj'^dcn thought she might have heard what ho said. Again, a traveling agent for a firm in Can Francisco, who sought to sell Hayden goods, when in the store at Fairhavon, aslced a question similar to the one aslced in Seattle, and received a similar answer; and on this Occasion llrs. Hoyden \;aE sitting at a desk in the view of the two men, and again the testimony was that she might have heard what her husband said. The jury found as a special verdict that these were the only two men to whom any such statement was made, although others v;ere testified to. Yet Uipon this testimony, and some othor of as slight moment, and because, as it is said, the wife remained silent and did not deny v.i«a.t her husband said in her hearing, she v^ai; held to be a general partner by "holding out," and a judgrasnt was rendered against her not only for the claims of the two firms to whose representatives her husband had said that she was his partner, but also for the claims of eighteen or tv/enty other firms, none of whom, with the e:.ception of one or two, pretended to have heard that she v/as in any v/ise interested in the business, or that she e::i5ted as the wife of J. I. Eaydon. It is clear that _tia_siisjtain. such a judgment v;ould be to render the estatj of evcrjr married woraaji wholly unsr.fe, and all but destroy the most beneficial li^urpose designed to be s ubse rved by the statute as v;e understand itV , Judgment reversed, and cause dismissed. \- o -v-- \I^ Anders, C. J. and Hoyt, J., concur. -^' t^ Scott, J. (concurring). — I concur in holding that_aJiu£band ajad-wife cannot enter into a partnership with each othor to carx-y on a business. !lr Eiis_ is tho lav; in most of the states, and all arguriiontc advanced in — ^ favor of such a holding elsev^iere, in so far as their laws relating to \ th3 removal of the diS3,bilitics of married -"-OTien arc like our O'^vn, derive much greater force in a state 'here conr.vanity property la'>/s prevail as hero. Our statutes recognize but tv/o kinds of property \iiich can be held i\| ^-^ or o./ned by married persons — separate property axid community property. Tlie statutoE point out ho\: this property may be acquired and define v.hat < it is, according to the manner and time in \/hich it is acquired. The Pro,>ertv and prini-n;i,q r-' rights Of every married ./oraaa^at t3ie_time of her raar£i£i^e^_0T_Mte5:iards acquired by gift, device or inheritance, \;ith the ^ 9. ^rents, issues and profits thereof, is her separc:te proi-'^rty, and the j some is true v/ith regard to like property ovaieC Tjy the husband. ' ^f' Section 1399, Gen. Stat, (former £ec 2409), provides tliat-.all property -^ not accuired as prescribed in any one of the vvere it not for the statutes prescrib- ing and defining the icinds of yro^erty a husband and wife may- o-^oi ana scruire. It is a matter o£_5i;:eiieiiC9_ that their ^roverty rignts anc t-)^ relations become compricTtod at best under the practical \Tor:angv oi ui« , la/ as e::.-ressed an^. inteiprateu, b^ ac .. aatter of -f IJ'^^^^J^^^^J- ., •;dulVbe-verv undesirable to still fUL^ther allo^.' the^ to becoiue involve, in mercantile partnership relations mth all its possj ole resulting 11. consoquancec, couflicts aad complications. Dunbar, J. (dissenting). — I dissent. It seems to me that the decision in this case is another instance (too coinmon in the history of the courts of the United States) of the judicial repeal of a statute. It is not only a fundamental principle of our govertmont well ujaaerstood and universally recognized that the legislative and judicial departments of the govGT-ninent must be kept di;:tinct and sepai'ate, but the first warnirg note sounded by all -vvriters on statutory interx^retation is that when the la'oguage of a statute is plain and unambiguous, the duty of interj^retation by the court does not arise. Sec, 23^6 provides that "every marriod person shall hereafter have the same right and liberty to acquire, hold, enjcy and dispose of every species of property, and to sue and be sued, as if he or she v/ere umnai'ried," 21iere seems to be nothing ambiguous or doubtful in the language or provisions of this statute,' and applying any and every loiov.-n rule of interpretation to it we must conclude that there is no room for construction, and that the only duty of the court is to declare it the law, and to decree its enforcement. The real intention of the lav.malcers must be gathered from what they say, and v.here the language is not teclinical it must be given its ordinary and popular meaning. The statute provides that "every married person can enjoy and dispose of every species of property as if he or she v;ere unmarried;" is there anything doubtful or ambiguous about that language? Could language be more plain, pointed or incisive? Could the idea of unrestricted enjoyment of one's property bo eirpressed more tersely, plainly and emphatically? There are no provisos, and no ex- ceptions e:;cpressed. V/hat right, then, lias the court to step in and under the guise of construction, inject a limitation \mich the legislat- ure did not provide for, and which in effect renders nugatory the lav/ passed by that body? It is an easy but dangerous thing for courts to wander off in hazy theories and speculations concerning \;hat the legislature meant, and to bass their conclusions on the policy or im- policy of the law. This should only be done v;hen the patent ambiguity of the law compels it. And here, in support of T,.hat 1 have said, I desire to quote from Eadlich on the Interpretation of Statutes, Sec. 4, wliich is the embodiment of the authorities upon this subject: "YJhen, indeed, the language is not only plain but adiaits of but one meaning, the task of interpretation can hardly be said to arise and , •those incidental rules which are mere aids, to be invoked -.hen the meaning is clouded, are not to be regarded.' It is not allov;able, says Vattel, to interpret what has no need of interpretation. Absoluta sententia e::positore non eget . Such language best declares, -.ithout more, the intention of the lawgiver and is decisive of it. ' Tiie legislature nust be intended to mean \iha.t it has plainly e::preEsed, and consequently there is no room for construction. It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or u^ose graomatical construction is doubtful, that courts can e:-tercise the po'./er of controll- ing the language in order to give effect to what they suppose to have been the real intention of the lavvmalcers . Tihere the \;ords of a statute are plainly ei^Jressive of an intent, not rendered dubious by the context, the interpretation must conform to and carry out that intent. It matters not in such a case vhat tlio consoauences imy be. 'It has, therefore. 12. "been distinctly statod from early times dovm to the present day, that judges are not to mould the languacjc of rtatutes in order to meet an alleged convenience or an alleged equity; are not to be influenced "by any notions of hardshii3, or of v;hat in their viev/ is right and reasonatle or is px*ejudicial to society; are not to alter clear words, though the legislature may not have contemi^lated the consequencec of using them; are not to tamper v/ith words for the riii-pose of giving them a construction which is "supposed, to he more consonant vith justice" than their oi^inar3'' meaning.' V/liero, hy the use of clear and unequivocal language, capable of only one meaning, anything is enacted "by tlie legislature, it must "be enforced, even though it ho absurd or mischievous. If the v/ords go beyond what was probably the intention, effect must nevertheless be given to them. Hhey cannot bo construed, contrary to their meaning, as embracing or e:ccluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the intention conveyed may be, it must receive its full effect. Indeed, it is said that it is only when all other means of ascertaining the legislative intent fail, that courts may loolc to the effects of a law in order to influence their construction of it. But, v/hilst it may be conceded tliat, v.here its provisions are ambiguous and the legislative intent is doubtful, the effect of several possible constructions may be looked at, in order to doter:nine the choice, it is very certain, that when once the intention is plain, it is not the province of a court to scan its vdsdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands according to the real sense of the words." Ana. yet the majority, by an argument based on the supposed hardships v/hich v;ould be imposed ni^on msirried women, have come to the conclusion that the legislature did not meaii what it plainly said. And if the language of Sec. 2396 could possiblj' be tortured into anything doubtful. Sec. 2406 plainly shows tliat the legislative intent \;as to remove all civil disabilities so far as property rights are concerned, when it provides that "contracts may be made by a wife and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were luanarried." Tlie legislature evidently understood the full scope of tlie law it v/as enacting and its far-reaching effects, and v.here in its opinion the limitation was necessary it provided for it, as in the proviso to Sec. 2396 that "nothing in this chapter shall be construed to confer upon the vdfe any right to vote or hold office, except as other-'ise provided "by law." Hac'. it intended the law to operate as claimed by the majority it v/ould evidently have incorporated a proviso in Sec. 2405 substantially as follovi/s: ''Provided, Wo married woman shall enter into a contract of partnership -^Ity. her husband." But it is left for the court to enact this provico by judicial construction, something very near approaching, in my opinion, a judicial enactment . As 5ho-7iug the danger of leaving the plain provisions of the statut- ory la-w', I note the fact fnat the majority recite at length the provisions of the coiunoii law, and draw deductions from its analogies, '.hen the act in question, to avoid the very thing vhich the court uo' • insists on doing, provides especially in Sec. 2417 that the "rule of coramon lav.' that statutes in derogation tiiereof are to be strictly construed has no ai^plication to t:iis chapter. This clia:^jter establishes the la^' of this 13. territory respecti:ic the subject to •..'hich it relates, aiid its provisions and all proceedings under it s^iall "bo liberally coustrued \."itli a view to effect its object. ' Tho legislature evidently attonrpted to emancipate this law from the. rule of construction now insisted upon by the court; and the plain rule of construction provided by the legislature is waved aside by the rojTiark that "it is not to be supposed that the legislature intended or proposed to e:Lteud the scope of the act beyond the lan£'uai;e used further than the implications naturally flowing therefrom." I think that it is to be presumed that tl-^e legislature realized the fact that it was enacting a statute i:i derogctioxi of tiie coranoa la\/, and tliat it did not want the la'vv hajnpered by the rule of construction raentioned. It Eeei:Bto rne that the language of Loc. 2417 is also so plain that there is no room for oonsti-uction. In fact it seems that if the plain provisions of this law can be ar^ed out of e::idtonce, all the lav/s of the state are at the mercy of judicial cons true ti on. . I Bin unable to see in what \}z.j tiie enactments of Sec. 2397 and Sec. 2416 sustain the theory of the majority. It is perfectly competent for the law to i-^rovide who sliall bo subject to the burden of proof in a:ay given transaction, noi is it by any means a nevf provision of the lav:. It is especially a wise prevision in this instance and can in no wa that I can ;ijerceive, thro\; auy light on the subject discussed. '^•J 9 So far as Ceo. 2416 is concerned, there is the ver;- best of reasons why transactions concerning couiiiuuity property should be attended with solemnity and certainty-j botli parties have an interest in such property, and delicate relations e::ist which do not e::ist at all concerning the separate property of either of the spouses. The separate property is more independent, and the fact tiiat the lav; irTL-oses these solemn protect- ions ui-on corainunity property and not upon separate property v/ould rather strengthen the idea that the use of separate property v/as entirely un- restricted, T!ie fact is that for many j'ears tlve law, in obedience to popular demand, giov.ing out of feudal education, stood in loco parentis to woman; she was regarded as not being able to transact business, and had to act under a trustee or guardian, iidvancing thought has demanded other legislation, and v/oman's independence and capability have been re- cognized by the legislation of different states in different degrees. In this state I thinlc the legislature has seen fit to grant to a married woman an untranraeled control of her separate property. Tlie lav; presumes that she is capa.ble of protecting her ov.'n property, and it is not in my opiiiion the duty of the court nov; to' ascjime to stand in loco parentis or to sally forth in Qui::otic zeal to relieve v/omen iron conj^^gal oppressors, or from burdens real or imaginaiy. It is argued by the majority/ tl:ia.t the case at bar is aii instcnce of t;.-.e evil effect of the construction con- tended for by respondents, because the wife v/as held to be a partner by "holding out," -./hen t£:e testimony did not justify suc3i a conclusion. This aigwaent, in my opinion, is entirely without force, aid ■-111 apply equally to nearly eveij lav/ on the statute bool'is. Juries are continually rendering verdicts and courts eiitering judgrasnts, based oa inad-equate testimony; it is simply a question of fact to be tried as aiiy other cuestion of fact is to bs tried. 14. ■ ELLIOTT V. HAVasy. ^ "^ V ' (Ho, 4966. Decided April 6, 1904.) »4 Uash. 585. Appeal from a jud^iment of the superior court for King county,' Albertson, J., entered August 11, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing an, a ction to sub,iect real estate to execution sale. Affirmed. Hailey, J. — Tlie purpose of this action is to subject certain real ©state in the city of Seattle to execution sale. The suit v/as brought "by the appellant, as administrator of -the estate of E. B. Earle, and against the respondents, who are husband and wife. Cn the 3d day of Juae, 1698, respondent Prank B. Hawley executed his promissory note_ ^r the sum of ^l,000, payable to the""ofaer of "one Ehedd, V/ho afterwards transferred it to the said E. B. Sarle, the latter being now deceased. Said Hawley claims that the note was given merely as an accommodation to said Shedd to enable him to raise some money, but tha.t question is immaterial here, since a judgment founded upon the note was rendered in favor of tho administrator of Lhedd's deceased assignee, and against said respondent in the superior court of King county, on the 6th day of January, 1902. There v/as no appeal from said jud^gment, and it is sought here to have it declai-ed that the judgment is a lien upon the said real estate, and that the land is subject to levy and sale for the satis- faction of the judgment ._ J.tthe time said note v;as made the said Prank R. Hawley was ua- ^^ married,. Afterv-'ards, on the 9th day of July, 1898, he and his co- ' -' ^ respondent became husband and wife. The obligation represented by the note Was therefore the separate debt of Prank R. Hawley. "The real ^'"^'s^- estate in controversy v;as conveyed to the respondent Katherine \7. Hawley on or about October 24, 1899, and the complaint alleges that it v/as purchased with the separate funds of the husband. It is averred that the conveyance was made to the wife vdthout consideration paid or agreed to be paid by her, and in furtherance of a fraudulent scheme and, design, on the 'part of both husband and wife, to cheat, delay, and defraud the creditors of the husband. The answer denies said allegations, and affirmi^tively alleges that the property was -purchased ^ with tlie separate funds of Ka,therine V'. Hawley, and that the same is " ^^ f ■ her sole and separate property. ^ A trial was had before the court without a jury. Tiie findings of the court cover many details, cOid, -.vhile we deem it unnecessary to set them all out, yet a some\;hs,t extended statement of the facts found will lead to a better understanding of the case. The co^nrt found, that respondent Franlc R. Hawley had not been a resident of the state of Vashington i.t any time during the ten yesrs last past, and that respond- ent Katherine './. Hawley has never been s resident of the state; that the respondents were married in the state of California, and therefore. 15. in the aiiUmm of lG9fi, living togethar as liuslDand aad v;ife, they took up th-Bir a'bodo at or near cl.?ira No. d dJocre Dl"oovGry, on. Little LMncolt (ixnalZf Alar.'tca; tlvac saJd. rtla?.m 77o, S was ov.red by a corporation xn which said rranlc R. Hsr.vlny v/a-s a. slo'.::i::i.".d.3r; that atc-ut said time said Hav/ley and-hi"3 upde, one RvacjC^br, p:*.2j;nf.d tb irlio a la.y, or contract for v/orkirg on sharer., on a pcrrt.io:i cC ra'Ld oliim; t?;3t -choreafter sa:d Eav,-j.py was mude maiiager of sr.id corporation, a'^d of its cporations on seid claim, and said lay vas then taken "by said Reasoner and Katherine V/. Hc.v/ley in equal chares. It was found, that the %/ork upon the lay was performed by said Reasoner and gnothor, tha latter "being paid for his ser^/ices frora Mrs. Hav'ley'u sh.-re of the clean-up; tht^t Itrs. Hawley did not perform actual Dan"al labor upon the claim; but that she was frequently on said lay ground while the work was progressing, inijpected ths s^ime, and consulted with her partner Keascner concornicg the work; tliat, as a result or the work upon the lay and the cloaiv-up therefrom, lirs. Hawley's net share of the proceeds was about 0^50. -.vhich sum, by her authority and direction, was, by her husband, invested for her in the spring of 1809; that said investment was in. a partnership known as Mitchell & Co., composad of tlie two respondents and one Irchj e Mitchell; that the husband in^rected in the partnership an e^uai amount of his o-^.n funds, and that said Liitohell o-vne-i a half interest in the partnership, leaving a one- fourth interest each to ilr. and ilrs. Hawley; that the partnership operations were on /jiril Creek, near l^cim^ Alar;ka, and the gold represent- ing the partne.rship's share of 1h.e clean-up was brou'icht to th^ United States assay office at Seattle, T/ashington, in one entire lot, converted into money, and deposited in a bcnk at E-^attle to the credit ai»d in the name of Litchell & Co.; that the purchase price of said real estate was paid by a check on said deposit, dra'..'n by reLpondent F. L. Itav.'ley, in the fii-m name of Mitchell & Co., in favor of E. LI. Carr, who was acting as attorney and agent for Llr^. Hawley in the purchase of tiie lots; that it was imderstood, and in good faith believed, both by Hswiey and his '.vife, that the money so invested Y/ac the separate money of Mrc e Hawley. The findings also set out in full a number of sections from Hill's Annotated La">7s of Oregon, as being, by virtue of the United States statutes, in full force and effect throughout the territory of Alaska until June 6, 1900. A.-nong other provisions of said statutes are the ■» following: "Sec. C992. The property and pecuniary ri^shtf' of every married r?omcn at the time of her marriage, or afterwcrds acquired by gift, devise or inlieritpjice, shall not be subject to the debts or contracts of her husbr.nd, and she iTt.y manage, sell, convey, or devise the same by vn.ll to the same extent and in the saine manner tliat her husband can property belonging to him." "Sec. 2995. The p:.'Operty, either real or personal, acquired by any married woman during coverture, by her ov.n la.bor, shall not be liable for the debts, contracts or Ij^sbilities of her husband, but^ shall, in all respects, be subject to the same e::cepticns and liabilit- ies as property ov.ned at the time cf her marriage or aftenvards acquired by gift, devise or inlaeritance." 16. "Sec. 2873. neither huslD^nd or wife is liable for the debts or lialjlilities of the other incurred liefore niarria^'e, and except as herein otherwise declared they are not lialile for tlie separate debts of each other, nor is the rent or income of such property liable for the separate debts of the other." "Sec. 2997. Contracts may be made by the v/ife and liabilities incurred, and t?ie sa;ae enforced by or against her to the same e::tent and in the same manner as if she were unmarried." It was further found that, at the time said conveyance was made to Ifrs. Ka'.vley, her husband -.'/as wholly solvent, and that he then and after- vrards had on deposit, in the V/ashington National Bank of Seattle, moneys belonging to him largely in e;:cess of his total indebtedness. From the facts found, the coiurt concluded tloat the lands purchased became the sole and separate property of Lirs . Hawley, and that her husband has never at any time hau, ^.-jad has not now, any interest therein. Judgment was entered denying the demand of the complaint and dismissing the action. Tlie plaintiff has appealed. Errors are acsi^^ned upon the court's findings, but v;e are satisfied, after reading the evidence, that the factt as found by the court are EUbtained by the evidence submitted. If there -.vas no error in the conclusion that the purchase money for the lots involved — acquired in the manner it was — beca:ae the sopai'ate money of Itrs. Ha'vley, then the judg- ment v;a£ right. It -ill be observed by reference to Sections 2092 and 2993 of the Oregon statutes quoted above, and which vere in force in Alaska when Krs Ha'vley v.'as engaged in her enterprises there, that neither real nor personal property, acquired by a married \vromaii during coverture by her own labor, chall be liable for the debts of her husband, but shall be absolutely her own, and subject to her disposal. Under the ^ evidence and the findings, Kirs. Hawley agreed with Reasoner to v;ork the lay above mentioned in shares. This she had a legal right to do, under the terms of Sec. 2997, supra. Appellant, ho\/ever, insists that the proceeds of tiie lay work could not have become her separate property unless she had actually performed manual labor upon the clain. Ue do not think the • 'ords "by lier ov.n labor;' used in Sec 299;:, supra, were intended to be so restricted, but, as suggested by respondents' coinisel, thst they rather mean, by her ovm efforts. She deliberately agreed with Reasoner to work a lay, and to pay for tlie services of a man as a helper in her place. She v;as often upon the ground to see how the ^-ork progressed, and advised -ath Reasoner about it. The helper v.'as paid from her share of the proceeds. V/e think, under such circumstances, that the money was acquired, by her OMi e::ert- ions, and that, under the lav;, it beca-ne her separate money. Tne court in its findings traced that noney to a subsequent investment, and found that it yielded yet more. The iindings do not disclose the anount, but the evidence shows that her share of the proceeds of such investment in the ITome partnorchiveater-.Jrise v;as more than C'i.OOC, and that said srm was placed in tLie berttle bank, and from it came tlie money \vhich purchased the lots in question. Thus the money war acquired by llrs. Hartley in Alaska under la's -.-hich made it her separate property, and when it was brought to Seattle it still remained such. 17. Appellant, however, insists tllat undor Board of Trade v. Haydeti, 4 Wash. 263, 30 Pac. 87; 32 Pac. 224, 31 Am. Ct. 919, 16 L. R. A. 530, the wife could not enter into a conti-act o:^ partnership with her toi- band. Tt will be remembered that the husband and wife and one Mitchell composed the Home partnership of Mitchell & Co. The ivile diccu&ced and decided in the case cited is for the protection of the wife's sep- arate property, to prevent her from entering into such engagements v;ith her hucband that her separate property may be taken from liev in satis- faction of his debts. The purpose of uhe rile is, not to worlc a loss to the wife, but to prevent it. In this inrtanoe money which went into the Home enterprise vas sho\.'n to be her separo-te roney. It yielded a" lar^e pei'centa^e of increase. 2Iie wife was entitled to the le.c^itimate increase upon the investment of her sep rate money. It is further urged that these funds hcve been comiaingled with those of the hasband, and that, under Yesler v. Hochstettler, 4 vfesli. C49, 30 Pac. 398, they are not separate funds of the wife. There has never been a comming- ling v/hich leads to any confusion. The amount invested by each was a definite sum; each sum yielded its definite increase, and the v^hole of each lias at all times been easily ascertainable. ISais -/as not con- fusion, and the separate interests did not loce their identity as such. The judgment is affirmed, V~"o-.~ .^ ^i~^ _^^ FDILERTON, C. J-, and MDOTT, AHDERE, and DUHBAR, JJ., concur. (/wi~i/^^ u i::^"\x.^;.^a~>^ ---^.-g-A-^:^*-*^ oO a__ I _^-^X.'0-<7 't^(^C^^ ^>^ y > O- CHAJ^TER I CITATIOns. How should the statutes be construed? City Ins. Co. v. Simmers Go:: V. Killer. Green v. Ferguson. AUace v. Finherg Miller v. llarx Ryan v. Ferguson Ee Hill's Estate Wiarhurtori v. 'I'Zhite Less V. legs. Magee v. Big Land Co# Marie v. Vi/hit taker Schlasl) V. Castaing Wiley V. Verliaest State ex rel. Guy v. Su.per Ct, King Cotuity Crovre V, Atiason Construction Co. iNortheni SarJr Va Graves. 19 (La.) Annual 249, 54 Tex. 16 62 Tex. 525. 46 Tex. 35. 65 ffiex. 131. 5 V;ash.356. 6 T/ash.285. 16 V/ash.511. 34 Wash. 132. 51 Wash. 511. 10 Wash- 556. 50 Wash. 331. 52 Wash. 54 Wash.264. 67 Y/ash.420. 79 Wash.411. )\-^ 1^ ^y^ .^:2'!^>«:fe^ ^^C^'^l^^ a^'T-^ ^I^-l-A*-^^!*^ ' /'-'<^^<^2V' -"V « I ^ (Decided July 22, 1882.) ^ (3 T.T, 255, 1882), Error to the District Court holding terras at Seattle. Ohird District. In thi.s cs.se, D. B^ Jaclrson ■brotx^ht his sction :igs.inst R. Eolyoke, _alle3"iuj in h.i's^cSiilJia'iiit that on April 7, 1880, dofendcJit was tLe -Q\niQi-_ of certain .rec-1 estate j tliat on said day the parties made an agreement in Vifritiug, wherehy plaintiff "bought and defendant sold the property, paying tv.'o htmdred dollars as part pa^inent, and defendant jwas to maice and deliver a good deed for the property upon the paj^nent of two thousand eight hundred dollars, being "balaince ofpurchaa© price. The alleged contract was in v/riting as follov;s:- "Port Gamtle, April 7, 1880. "Received of D. B. JacKson #200, to apply on trade, made this day for lot 1, in ■bloclc 12, on Front Street, Seattle, for $3,000, to be paid on delivery of deed, ten days from date. Richard Holyoke." The complaint further alleged tender "by plaintiff of balance of PurcKssG-prico, refusal by defendant to execute conveyance ^ and an offer by plaintiff to perform his contract upon delivery of deed. ' Plaintiff also alleged damage sustained by defendant's breach of con- tract, the enhancement of the value of the property between date of contract and time fi::ed for performance, and other facts shovdng spec- ' ial dajmges. Plaintiff prayed for a specific performance of the con- tract, or for damages sustained by the breach. Eie defendant, appear- ing, moved that plaintiff be required to elect whether to pursue his equitable remedy for specific performance or prosecute his action at law to recover damages, liotion granted, and plaintiff elected to pro- ceed at law. In his answer, the defendant denied the agreement in v;riting, and denied the sale, except on condition that his wife should consent to the sale; and also denied tender, and all allegations of damages. As an affirmative defense, he pleaded his marriage relations before and ever since 1873 with his wife, now living, the acquisition of the property in 1873 as community property, and the continued owner- ship of the property as such thereafter, and the refusal of the v;ife to join in the sale, and immediate notice thereafter to plaintiff of such refusal, and a tender back of the money paid, \7ith interest, which was deposited in court. Ihere \;as also an allegation that plain- tiff Icnew of the marriage relation at the time of the contract, and ^. that defendant's -wife hid not consented to the sale, and that the — agreement v^as made upon the condition tliat she would consent. Plaintiff in his reply denied the matter set forth in the affirmative defense. There was a judgment for the plaintiff, from \ifhich defendant appealed. 19. Mr. Chief Juctice O-reene delivered the opinion of the court. The primary question iuvolved in tliit case is.vAidther, cubsequeat Q^^ to the husTDc.nd and -/if e" act of 1879, the plaintiff in error, being a -^-^. husband, could, ■vithout his '.;ife joining, make a valid contract to cell ^ to defendant in error conmunity property. By the provisions of the husband and \dfe acts passed in 1879, and previously, the husband and \7if0 are considered as constituting together a compound creature of the statute, called a corimunity. This creature is sometines, thoii£;h inaccu- ffttelj'-, denominated a species of partnership. It probably approaches more nearly to that kind of partnership called universal than to any other business relationship kaovm to the civil or coramon la*/* A convent i on ajL_ o Oioauai ty , in a state where statutes uould permit, k%1~ migiht be contrived which would be substantially a partnership; but an ""^v-^^. ordinary legal coramunity is, in many important particulars, quite distinct. It is like a pai'tnership, in tiaat some property coraing from or through one or otlier or both of tlie individuals forms for both a coramou stocky which bears the losses and receives the profits of its. taunagement; , and. T^ich is liable for individual debts; but it is unlike, in that there is ^ jao regard paid to proportionate contribution, service, or business^ fidelity; that each individual, once in it, is incapable of disposing of his or her interest; and tlaat both sxo pov/erless to escape from the relationship, to v^y its terms, or to distribute its assets or its profits. In fi::ity of constitution, a oonimunity receables a corporation. It is si.ailar to a corporation in this, also, tiiat the state originates it, and that its powers a rt^ liabilities are ordained by statute. In it, the proprietary interests of husband and wife are equal, and those interests do not seem to bo united merely, but unified; not mixed or blent, but inc'.entifiod.- It is sui generis, —a creature of the statute. By virtue of t:".e statute, this husband and vdfe creature acquires property That property must be procurable, aanaseable, convertible, and trans- ferable in some way. In somebody must be vested a pov/er in behalf of the comnimity to deal with and dispose of it. To somebody it must go in cas"© of death or divorce. Its euenptions and liabl3.ities as to indebtedness must be defined. All this is regulated by statute. Ilanag-emeut and disposition may be vested in either one or both of the members. If in one, then that one is not thereby made the holder of larger proprietary rights than the other, but is clothed, in addition to his or her proprietary rights, wi^tl- a bai*e pov;er in trust for the cortmunity. This power the statute of If " chose to lay upon the husband, v.hile the statute of k879 thoiight proper to take it fro,j the husband, and lay it upon husband and -:ifo together. As husband's "like absolute power of dis- position as of his own separate estate," bestowed by tlie ni-itl: section of the act of 1875, \7S£ a mere trust conferred upon him as member and head of the conanunity in trust for the community', and not a proprietary right, it was perfectly competent for the legislature of 1879 to take it from him and assign it to himself and his vafe conjointly. This -/as done. TAhen, therfore in 1880, tlie plaintiff in error, without his wife, entered into an agreement to sell the land Ciuestion, he agreed to do what he himself, by himself, could not do, and therfore could not agree to do. To make an actual sale or conveyance without his wife, he had no power. The lav; says such a thing shall not be done. An agreement proposi'ig it is i^ conflict ■. Ith the law, and. void. As the defendant in error Imew of t:^ ^.r/-"^'- i*-'^^i< -^-^rr/. i,.^^ / -> ^ r^ ■^ , --1 f <*«t?-^'V«s**-#»t<' 2— ip^l.^^ ^..^^*<^'-i^ 20. the marriage, and that the property was corcmunity property, he was a participant in an invalid transaction wherein the lav? cliarged hira with ■knowledgo of the invalidity. He was doinj v/hat he is presumed to have laio\7n was aeainst the lav/. So circumstanced, he is entitled to no re- dress for the failure of plaintiff in error to carry out the void con- tract to sell. Let the judgment of the District Court Tse reversed, and the cause te remanded to that court, with directions to vacate the order setting aside the judgment of nonsuit. Hoyt, J,, concurred, /* On a motion for a rehearing, the opinion of the court was delivered "hj llr. Chief Justice 3-reene, as follows: — ^Comnvunit?j-property \;as created by a statute of December 2, 1869, - >. .^thoush called "common property" "by tloat statute and by tLe statute of • ^ 1873. By the statute of 1879 it was first denominated "community; property." The rights referred to in the thirty-first section of the act of 1879 are proprietary rights, and not such nalcedpower of management, control, or disposition as are devolved upon any mai^ried person to "be e::ercised in trust for the coimunity. Therefore, all the provisions of the act of 1879 rhich operate to create, vai-y, or assign powers of that description aa-e applicable to property previously accuired. By section e of the statute of 1879, the husband is clothed with a certain trust in respect to community real property. The management and control of it is vested in him, not for himself, but for the community. Besides this, he with the wife is endo-./ed with the power to dospose of it. Tliis po'./er, too, is in trust for the coirmunity, for we must distinguish the community called into e::isteuce by the statutes from the two individuals who composed it. By a like distinction, a corporation is conceived to differ from its stocl-iiolders. Vihen the husband, therefore, thus situated, under- takes to dispose of the community property as his own, he stands differ- ently from the absolute proprietor of a homestead, who has the power to shift the domicile of his famly at pleasure, and who is required to have his wife join, not because she is joint trustee Vvlth him, nor hecause he without her is not -omner, but merely as a check on his power of dis- position, lest certain consequences follov/, injurious to the proper policy of the state. In the matter of disposing of consnunity real property, husbaiai and wife are, by the law of 1879, joint trustees for their mutual benefit in the community. JVithin the scope of their trust, neither can act v^jthout the other. ITo contract of disposition undertalcen^ by either husband or ./ife, in contravention of his or her fiduciary re- - ^-^ lation to comraunity real property, can be enforced so as to reach any i such property directly or indirectly. And if, at the time of malzing the supposed contract, the would-be purchaser Imo-.-s it to be in breach of fiduciary duty, then it is void in every aspect, and canno_t "be the foundation of any lia"bility whatever. In the case at bar the supposed contract was made without consulting the wife, vvlthout her laiO\.ledge, against her v/ill, notwithstanding the defendant well Icnev/ that under the statute she vjas entitled to and "bound to e^iercise an equal voice and responsibility in the matter with her husband. Let the motion for a reheai-ing be denied. 21. Stans V. Baitey 9 Wash.. 115, 18S1 Janes S. Stazis et al., ?Les;,.-ondentE, v. Jaaes E. Baitey et al., Def endaxits , :Jllen I.I. Ilalfby et al.. Appellants. Appeal from Superior Court, Pierce County. 5Ihe opinion of the court \/as delivered "by Scott, J. — ^Ellen LI. lilaltby served notice of an appeal in this action and gave security therefor, 7;hich v/as in form an undertal:ing instead of a bond. Eiereafter appellants Cvveus anc. Looraic undertook to join in said appeal "by filing \7ith the cleric of the superior court a statement that they joined therein, in pursuance of Sec. 5, Lav/s, 1893, p. 121, "but e::ecuted no bond, ate respondents move to dismiss — as to Llalfby on the ground that an imdertalo-ng for costs is not a sufficient compliance with the statute relating to the r;lv?.ng of a "bond, and as to Owens and Loomis on the ground that they failed to give any security ",7hatever. j&.£p ellant lialfby during the times herein mentioned vras a resident of the £tate of Hew Yorlc, and on the loth cf i:ay, 1690, she purchased of CaveixLor & Po-jlor, loan "brolcers of ^acome, a mortgage for $1,500 on lots seven and eight,, in hlock 5219, in the city of Tacoma, paying therefor the sum of ^1,500 ajcd accrued intercBt. This mortgage was executed to Gavender & Fov/ler on the 24-th day of Iferch, 1890, "by one "James E. Baitey, in whose name the legal title to the premises stood. Thereafter this, suit v?as "brought by the plaintiffs, claiming to be succeLbors in interest of one Henrietta Baitey, whovvas alleged to have been the real owner of the property, it being clairaed that the same was held in trust for her by said James S. Baitey, and that appellant had notice thereof^ The case v.^s tried upon this theory, and after the testimony vra.s in the court indicated to the plaintiffs tliat the proofs failed to establish a trust, and the only issue in the case v/as as to whether said property --^s the community property of the said James E. Baitey and Henrietta Baitey, and suggested to the plaintiffs that the complaint be amended for the purpose of trying that issue, '.".hereupon twenty days v/ere allov/ed the plaintiffs v/j.thin which to amend their complaint, which they did by inserting an allegation as follows: "And these plaintiffs further allege, that on or about the year 1881 the said Henriotta Baitey, deceased, intermarried vVith the defendant James E. Baitey, in the State of California, and at all times after and until death of said Eem-ietta Baitey, on the 2d day of 2Jarch, 1890, the said Henrietta Baitey ajid the said James E. Baitey lived and cohabited together as husband and vife, and the property described in this com- plaint vas acquired after the marriage of fee said Henrietta 2. Baitey ard the said James E. Baitey ari while they «/ere living together as husband and wife in the State of Washington." 22. It is contended that said James E. Baitey and Keuxiotta Baitey "be- came husband and wife by virtue of a ccmmon law marriage, which -was good 'in the State of California, and tliat having assumed such relationship _ther0, and continuad it thereafter in this territory anc*. state up to tho time of her death, they were husband and wife, and, if so, the proof is satisfactory tliaJ;„tli,e-.j3rQpexty acquired v/as the coomtmity property of said pai'ties. A good deal of proof was introduced in the case to chow tliat said parties had a.l\jarjs held themr elves out as husband and mfe in this ter- ritory, and w'Q thin!: this fact was clearly ostablished, but we rogard it largely imriiatcrial, as laarriages under the coniaon law do not, and did not, obtain here, and it vfas only relevant as some evidence of a prior marriage. Tlicre is no proof of any agreement having been entered into bot\.'aen said parties to take each other as husband end wife in the Stat© of California, and absolutely no proof that thoy ever hold each other out to the coinmunity there as husband and -jTife. Ihe bare fact that they cohabited there appears, but this was insufficient, standing alone, to establish a common law marriage. OSieir subsoquont conduct in this territory and state, where they openly assurned the relations of husband and wife, -was of no avail, and we are constrained to find from the testimony that Henrietta Baitey -nas never the wife of James E. Baitey. Consequently the judgment of the court, finding that the real estate in question v;as the comitunity property of said James E. Baitey and Henrietta Baitey must be re versed . ZVUUBAR, G. J., and HOYT aM AHDEBS , JJ., concur. SIIIiEB, J., not sitting. \- c. ^^ -Cs k .^•^jt-^-^— *-i-y 2 ^^^■^ 1 23. m HE LIcLB.U(;HLlJSr'S ESmTE. , r 4 Wash. 570, 18?2. In the Mattel' of the Estate of Hir.-im C. MoIc.u.gM.5r., Deceased: HOEilUT P. HSC3EI.T.nffi, Appellant, v. BU'.CK A. LIcLri-UGHLIE, Respcadent. Appeal from Superior Court, King Co-uuty. 2he opinion of the court was delivered by Scott, J. — On th e 12th day of December, 3691, Hiram C. Mclaughlin died intestate at la GraEde, in the State of Oregon. He v.'as a citisen cJ^tMs state, residing at Seattle, and left perr>on£>,l property to the amount of aVout five thousand dollars in King county. He had a daugh- ter over twenty-one years old, v/hose mother is not now living, and this daughter claims to be the only heir. .One Ruth A. McLaughlin, wxth -whom he was living at the time of his death, claims to be h5.s wife by a mar- riage under the common law. _ She v.as married 'ro Kiram C. Hclaughlin on the 13th day of August, 1687, by a judge of probate, at OSicoca, in this state. At that time she had another hu?3band living by the name of Van Every. There was some testimony to show that at the time she was mar- ried to McLaughlin she believed Van Every was dead. She continued to live with McLaughlin as his wife until July, 1690, at v/hich time she received information that her first husband was still living, v;hereupon she and IIcLau^lin separated, and divorce proceedings were instituted by her against Van 2very, wherein she obtained a divorce from him in January, 1891. "Whereupon she and McLaughlin resumed theii- former rela^ ,^ » ^-^ tions, although no marriage ceremony vas ever performed between them ■=5~ subsequent to the time she obtained a divorce from Van Every. There is testimony to shov/ that she and McLaughlin continued to live together as husband and wife up to the time of his death; that they held them- selves out to tiiG public as husband and wife, and believed themselves to be suoh, and believed no marriage ceremony was required to render the marriage valid, inhere v;as some testimony to contradict this state of affairs, and to show they did not regard themselves as husband and wife. It appeatrs that at one time while they were living together, prior to her obtaining the divorce from Van Every, she left McLaughlin and vrais gone some time, and he had no iraov/Ledg-e of her whereabouts for some weeks; that he subsequently founn?. her at G3acoma, and instituted criminal proceedings against her for come purpose which the evidence does not make clear. These difficulties seem to have been adjusted, however, am the parties resmned tlieir former relationship up to the time the proof shows that she discovered that Van Every w&,s still living. IJpon the death of Mclaughlin, ITormon P. Hessoltine, the appell^t, who was holding a power of attom«jy from Bertha McLaxighlin authorizing h:ja to represent her in the settlement of the estate, petitioned the super- ior court of King county for letters of administration. Said Ruth A. McLaui^lin also petitioned said court, as the widow of said Eircm C. McLaughlin, for the appointment of one Frank A. Pontius as administrator. 24. Qa. the 15tli day of January, 1P92, said court appointed one John Fair- field special ac',iojn:-.£tra-';or. Oji the 4f-h c'.ay of Iv3'hruar7 follov;:.ng ^ald court fou nd, up^ n ;^ tj ^pal ri' tli.T T'\''Jh^'i' 'jf. thp pr.-^Li'^c, vhat caid Ruth A. lIcLau^^ilijuaasi^the r/i.d'-w ':! d(;o^a^'id, i.r. jji).o j^'^.ai'^o'i , and was en"» ti-tled to :ir>vo l3l;t;r-.-. of oc'rnin\straFionTs'suer to the person -w^icm she had reg.uen1;ed to hc^.vo eiOiDiE.ted in her potitioii, and a decree v.-as enter- ed grant ixY; her petit\cn.__ From thir fj rifting and decree an f.ppcal was takon to this covrt, bhr: said John Fairfield continuing as such admin- istrator ponding the appoai. Several questions are presented lay the appellant, one of ■which is that th?re car-, he no such thing as a conimon 7 aw marriage in this state; th-it under ru,v sfc&.tutory regulations a marriaGe ceremony must he per- formed in one of the vrays pointed out hy the statute in order to render a rcarriaga \aJ5.d. Another one is that the pi-ocf is entirely insuffi- cient to astabli-sh the marriage relation'-.hip b3tv;oen said parties, even thouprh they could heoome hushand and wife by a inere agreement heiween tlieirsiOlves a?- at the common law, according to Sf'mo holdings. Undpr the vieTi? w^ have taken of thG first point raised, \te do not fand it nrcep- sary to pass upon the sufficiency of the evidence, a^, after a care.rul consiceracion of all the authorities we hare hoen ahlo to find upon this subject, we have como to the conclusion that th^ f\rst point made liy the aFtPellnnt is well taken. We fixid this to he th'=> case with some hesitancy, for the greater number of Eidjudicalod cases in this country hold the parties may contract the marr;'age rela'-ionshi^p Yy an agreement "bet^veen themsej.ves. I n most of the states the statut^iry previsions upon th£i- su.h.iect of n prri^'C^ TnnvP'. -hpon -h»^i.=l f[^TP-r.r.nT.-nd ^yere thei-e T;ap nc e:cpress provisio n in the statutej declaring all nar riages vC id otfie?~L h:m those contracted. in soma o p q r." thR rTLjzr._p:^vlde±-h3t- tEe^tatu fce that the parties c ^uldJbecogfiL- h'"-'^'^- •"■•"'' ^^^r^ w ife -hy _a^- Eaitual_ agreement. Kir~Bisliop la s:g_3^m-the-d<>c4rJ.afi--y^gy-«4rQag4y-that_u^ such a marriage is ah s o3 u c elg^pr ohih i ted hy tihe express language rf the s^tute , that~rt"~sSouISrhe ] sue tain(!d , and that evidence of co'hrhitatTon a ^~of~the~paJt'ies holdia^ Jjbems elves out to the-puhiis as ha'-'hand and •m-te. shou ld he safficlent to estahlish ^ the ^elatioa-in_all_casei! . It ^vas contended hy the appellant that the sections of our code •V7hich prescrihe hov,- marriages shall he solerorized, and which also maJre the exception that all marriages shall b© de.e-:ned to hs valid although the ceremony is performed by a person not a^ithoj i^ed by lav to perform it, preclude the contracting of the: relationship in any other manner than as provided; that the legislature having made a provi.^iion specially legalizing marriages in certain ei^cepted cases, must be hald to liave contercrplated all others not entered into according to tlae manner pro- vided by the statute, and not -.vithin v.h3 exceptions, as vord. ^Je find very similar provisions, ho^rever, in oilier Rtates, and u-ndoubtedly it is the case in the most of them where the validity of oorcncn law mar- riages is recojraized, and the argument loses somethin^g of its force in consequence of this. It is clear that in making provision for these except^id cases the legislature was of the opinion ttiat all attempts to establish the re- lationship other than in accordance v/ith the \vays provided by the statute. 25. T70Uld be void, and would be eo held. Variouc cafeguardr aro throv;n around tho criteriiis iiito thic rolationchip, ciaih as t>o requirement of a liCG2ice to bo firct procured before any porcouc can be joined together as huEbaJid a:id wife; and chould one be a G'irl under the ago of oigMcon yoarc or a youth under the age of tvjGuty-oue years, it ic provided that the licence sl-^ll not ircuo except upon the concent of the parents or guardians. It iie provided that marriage is a civil contract vhich nay bo entered into by men of the age of tvventy-cno years, and women of the age of eighteen years, cf;herv;ise capable; and it is provided that none under that age, respectively, shall inarry except tho concent of the parents or guardianc chall first be obtained — these persons who are supposed to be the raost interested in the -volfare of the individuals most directly concei-ncd, and who would carefully consult zvch interests before consenting. If common law marriages are to be recognized, this provision becomes vholly powerless, ar by a £.imple agreement a man, thoi^ forty yearc a senior, scad a girl of t?E age of tv/elve years, can enter into this relationship regaidler.e of the vrfLll of the parents, or even a boy of fourteen yearc could be inveigled into this relationship by a womaii many years his senior. It is true such instances are rare, but that affords no reason why they should be tolerated in any case. T/hile the married state is a mSct commendable one, and ought to be encouraged in all legitimate wa-ys , Iiaving, as it does, its origin in diviiie law, it seems to us if the statutory ref.uisiteE are dispensed v/ith, it TTOuld, to some extent, set a premium irpon illicit intercourse. If a mere contract between the parties, to -./hich there ai^e no witnesses, is to be recognized as valid, it is evident that a contract thus lightly r-iade might as easily be repudiated, or if cohabitation and reputation v;ithout any agreement constitute marriage, tio fomer must precede the latter, for it is the assumption of the relationship of matrimony. If an agreement between the parties is to be recuiied, v/ith the furthsr condition that it be made before come third person as a witness, without s:iy other proof of it or any means provided for preserving such proof, tho death of tho witness removes all the evidence aside from tho Parties themselves-. And vAiat would be easier than for parties to agree privately to become husband and vdfe, and after cohabiting for a time, mutually agree to dissolve the relationship, or to c a^eal the fact that they had ever entered into the contract, aixL repudiate it? It is contrary to public policy and public morals, and revolting to Qie senses of enlightened society that parties could place themselves in such a condition that they might mutually re- pudiate ail arrangement of •Qiic Vrind previously entered into, v.hatever the reason might be, ard. yet this would follow if ca.imon law marriages are to be recognised. By adheriBe: to tie statutoij^ provisions, all ob- jectionable cases of this Irini are eliminated, parties are led to regard the contract as a sacred one, as one not lightly to be entered into, and are forcibly impressed with the idea they are forming a relationship in vihich society has an interest, and to ^7llich the state is a party. Illic- it intercourse would to a groat extent be prevented, a:tL there would be no attempts upon the part of eitlier one to foiTin tho relationship in my clandestine v.txy, or a:xy attempt by o;ie to overreach the otlxjr in suih a v.cy, lCio\/ing that such attempts vrould bo ineffectual. There is a growing belief that the welfare of society demasids further ^ I 26. restrictionc ia this direction, and that this v/ill find voice in future legislation; that an institution of this kind, which is eo closely and thoroughly related to the state should be most carefully guarded, and that iinprovident and improper raarriages should be prevented. All v?is9 and healthful regulations in this direction prohibiting such marriages as far as practicable would tend to the prevontioa of pauperism and crimei and tlie transmission of hereditary diseases and defects, and it m?y not be regarded as too chiraerical to say that in the future laws may be passed looldut: to this end. Certainly it is a legitimate subject for legislation, tor tho stato has an interest in each act, contract and relation of its individual members that in any^AdLse affects the public welfare or tends to the injury of the individual, and theee 'Jill become regulated more and more in various ways as the government of man approaches greater degrees of perfection, and the rights, relations and responsibil- ities of one person with regai-d to another, and to all others, become better understood. Every thoughtful person would desire this should be BO, even though in some oases it ni^it seem to result in individual hard- ship. It is truo the legielature may e::i)ressly provide that all marriages not entered into in thjo v/ays pointed out by the statutes, and not within the e;xeptions provided for, shall be hold invalid, but this affords no reason for not giving effect to the clear intention other',vise expressed in the legislation existii^, because the legislature has not e:port, maintenance and care of their offspring, and the legitimacy of tlie offspring established beyond dispute. Our statute has to some 6:ctent undortal:en to protect the innocent by providing that children born in unla'^flTul v/edlocl: shall "become legitimate in case of the subsequent iutermai-riage of the pairents, and the legislature may go still further in this direction should it be deemed advisable, even to the e::tent of conferring all the rights u;^:>on them that children born of lav'/ful wedlock have. This, although opposed to the old doctrine of preventing the parents by punishing' the issue, would 6©om to be more in accoid vath principles of justice and modern ideas thereof. Boversed and remanded. f-« v- f^ \ Andors, C. J., and Bunbar, Stiles and Hoy t, JJ., concur. 27. KE.LLFf V. KITK^ COLTITY. 5 Wash. 521, 18S3. Chsr-lgs KsJ.lcyp Her.pcrjde.nt , v. County of Kitsap and Appeal ~?arS:'.t;3™?a?,"lur9 cf cue to Perfoct— Marriage — Oul.iiif.iation ^.th I.adia:^ Vtoan. AEP&al from Su.^eri'.or Court, Kitsap County. The opinion of the court was delivered ty Scott» J» — The respondent moves to strilce the statement and to dis- miss the appeal., "becaixse no "bond upon the b^'?<:S.l was g'.ven, and for ot>.&r veasor^a .s'i-.ated. Sie ca.iL-.ty qnd said. "vvVi.'-*.iiEns h^oh gave a notice Of appeailr "t-'iit he failed to g-".ve'a "bonrl. Bene .Is required npcn the part of ^hsi c.->t^njy. Eie n'tices of A^rs^?- '^p?"'^ siVfioiant to give this coia-t ^ur:" sd.ro fc.i ou of the cause for tha corjity, a^^d iis ri.ghts could not be a-i'ecved Dy the failni-a of the respordent W.Uliarss to perfect the appeal up/jL >i3.s part. In ajil respects the case was is^uaarly appealed, and the motions are denied. In the year 1B70, one Mpl^^Ql .??llfiyj3i3d in the county of Kitsap, Territory (no\v state) of Washington, and the defendand, T5ieodcr6 Wrlliams, edJoiynTst'orod h.',s estate. 'Cll:".p^s, after hOAdxng t:.-.e cs^.at6 for ahout ^'l^Tit -jf r-. mon^'hs, and, s6arohii?{j f^r, but f.^nii.lng no he.-rs,, rendered a final acf.oun- oi his trust, which v^s appr-ov^d by the pro'oate court of said county, and in 18^^:. he tumod over to sai'-d county the sum of $1,850, the pr^ceods of Ea5.d est.-'.te remaining after bhe payment of its debts. Che plaintiff seeks tc recover this money fron the defendants upon the groynl of his bp.ing heir to said Michael K^I.toy, deoeased. The county of Kitsap adm.i.tT- the possession of the racnoy, bni; by its pleading puts upon the p3a;-.nti,£f ths burden of eEtabl-sh:.n5 b'-.s rr.g-ht to the same; that is, to show himself to be the child or M^^chael Kelley, deceased, and his law:ful heiro P.\aintf,:f contends that his mother, an Indiaai woman, who was at some t^.me loaovvTi as Julia., or Tnl'a Decartes, was the wife of said IVIichxaol JCelley, and that sMd Eicha'>l Keiley was h^.s father; and that he was bJicn at Port i3f'5h£.rd; i::: srdd county, abcit the mo?^th of March, 183?, v7h-.:«e tho reja-iou of h'j.scand and vdfe existed betveen said Kelley and said Indian woman, oi.a^^^ng that his mcthGr and said Kelley v/ere raarrieu on or about the X5th day of January, 1865, in said county, by duly conpeuling tc be hus'nam and wife, and that, after so consenting, they d.'.d oohabit and li.ve together as such agreed husband and \/if0. There is no claxn that any marr;'a^e orremony was ever per- formed for the part.ies. it is admit :;ed that said Indian womnn died at Port Madison, in sail oourty, on or aVout lis.y 1, 1837. There is no claim that p:-.ai:a* iff \iZfi tlia ,ii.l3S3tiffiatG child of said Kelley, and that Kelley ever acknowledged hxns-j'.f in ^/ritiag, signed in the presence of a competent witness, to be the father of the plaintiff. A trial by jury ^/as had, which resulted in a vexdiet and judgment for the plaintiff. 28. In re McLauG:hl.i.n's 3Gtate, ^-- Mesh. 570 (30 Pac Rep. 651), this court, in considorinf-,' the legislo-tive enactments theie involved, held that marriages as at the coroiTaon lav; were not valid here; ano. the "'~^>o. ^statutes in force when it is claimed the merriage here in question tool: place are sufficiently siinllar to the statutes consiuerGd in the Uc- lauglilin case to trius tliis action x.ithin the holdiu:;; there. See laws 1854, p. 404; Laws XG55, p. 33; Lav/s 1859, p. 24. Ho proof v/ac maa.e as to v/hat ceremonies were resorted to ty the tribe of IixLicims to -vAiich this v;oaan belon^-ed in ins.rrias©s a-iong themselves, and there is no question here of recoa'nizins or repudiating; a laarriage T^aich, accordiag to their customs ; they reco^jaizec". as valid. A good dfial of testimony v;as introduced as to the TOiy Indian women -vere procured by v/hite laen, in v;hich there \/as no substantial conflict. In such instances a payment of money ^"as usually made to her relatives, varying in prices from a very few to several hundi-ed dollcrs in some cases. If she left him without cause V the Indiaras would return the money. If he sent her away, or loft her, they would not return it, unless he could show a catisfc.c- tory reason therefor. As to ^/Imt ^/ore considered sufficient reasons we are not informed by tlie testimony; but It is clearly apparent that ^ito men had no difficulty in obtainins^' Indian 'vomeu to live with them by paying money to their relatives, and tlict the practice was somev.-hat com- mon in the earlier history of the territory. The relation thus insti- tuted could be abemdoned by eitlier at pleasure, and in most cases it was sooner or later abro^p^ted by the act of the parties. In some instances, hov/ever, the i>artios continued to live together, and v/ero subsec,uently formally married to each other. Im testimony in this instance shows tlx.t said Hichael Kelley obtc.ined this -^/oman by paying two or three Col- lars in silver to her sisters; tliat they lived together a short time, and that she left hiia» she be in- at the time pregnant, and tliat the plaintiff ^7as the issue. All of the testimony in relation to these parties agreeing to live to:ecause of proceedings subsequent to the discharge of the jury. It is also asserted thsit Sainuel Sloan should not "be heard to deny the cnrmmity character of the property. It :•.£ true tha.t ho pemitted the property no\7 reaaining to he inventoried -with other property, a part of which 1-ias "boon sold to laeet detts and eirpenses; and hir. present as- sertion, that ho stipposed the ::roperty, ^.;hich had "been in the name of Mary S?.oan and v/hich liad heen conveyed to a daughter, ^as to^be included and administered -.ipon as a part of the estate, in not entirely satxpfac- tory tc the v/riter of this opinion. Yet we feel that the clxiracter of tho property is not an open question. It •.7as squarely presented on the former appeal. We l-u-ve talcen the li>)erty to rs/iev the oriefs and rec- ord?; in that case, aiid it "being a qu'^Jit'on of la--.' mere?.y, we mn'-.t ass-^e that tho court would have so hold and Stnt th?. case 'bacl-z for distr-.tu'^icn, instead of holding that the title to ths property wae in Samuel Sloan subject only to defeasance by scmething- noo a:pr©«iring in the forTPor record. We have said enough to cover the propositions .su'oraittec.. by defendants; that is, (1) WaF there a legal marrie^e bet\ve*>n ^^affl'.^el Sloan and Ife^-y Steves; (2) If there v;as no vulid marriag-e \va& ?Iary iiloaAT. in her life- time vested \-ith any interest, legal or equiti-bie, iia. the property; ana (3) has Samuel Sloan ect^)pped Mmj^elf from cla5iiirg the property to be his separate propei'ty; and vjll proceed to d'.sc^i.ss the cro?s-appeai of Samel Sloan, ^ffho comes here chai.ienf.lng the risht of the court to allow fees to the adiaj.aistrator, his corjasol, and the gniardifm ac. litem. It is contended that, no tv.'ithE tending the proceeding is entitled in probate, it is in fact a suit to quiet title, and -was iJC treated by this court on the former appeal, anC tliat the plead' ngs preijcm; but tvro 3Gsr.es; that is, vfliether the property in tjue^tion was the sole and separate prop- erty of Samuel Sloan, and whether or not i^.ry Steven died po^^.tei^.sed of an equitable interest in any part of the proporty, in the evont thp.t she was not the laTv-ful wife of SaMi&l Sloan; and that tha co-ijrt, IiDVing decided^ the general issue in favor uf plaintiff, ho oorld not grant relief to the administrator and counsel because it was not :urayed for in the aJisv'crs tc the original petition of Saiiuel Sloan, the rule ''leing that, in actions to quiet title, the relief grantee", must conform to the prayer of the bill and cannot e::tend beyond that prayed; citing SE Gyor, 1?;80, and Loeper v. loeper, 51 T?ash. 6Q2, 99 Pco. 10^9- £.11 of which is true, and v/ould be controlling if we v;ere inclired to admit that this is an independent ac- tion. Starting with the pt-euise tLat the t-uperior cou't of Ki.ug county' had. jurisdiction of the nub^loot-iof-ttor, it can make no difference whether the court sits in probatfi or in equity. It had jurisdiction to decide the #iole controversy; even to purging its record of that v;hich it could ,>,^^^ /^f!^^^^^ .^^^'^C*''^^:^^ S2. not finally adjudicate. The cases holding that a court sitting ia prota'^e -S not rCb^el of its general equity pov;ers v.^ore reviewed in In re Sail, 59 T7ash. 539, 110 Pao. 32, 626. ¥e there quoted from the case of Filley V. liii^hy, 30 Uasla. 1, 70 Pac. 107, as follo:ws: "In this state fre have no probate court, properly gpeal^ing, as dis- tinguished from the court that entertains jurisdiction of other matters. The court of general jurisdiction also hecjrs and determines protate mat- ters. Matters perta-lning to pro'bate are referred to what is called 'probate procediu:e,« as distin^TiiBhed froin \Jliit is donarainatod 'civil' or 'criminal procedure.' But v/hen the court, .-jitting in a probate pro- ceeding, discovers In a petition the statement of facts v/hich forms the basis of a controversy, we sea no reason \fhy it may not settle the issues thoreimder an atppearance having been made thereto, and then procood to try it in a proper nlanner, as any other civil cause." But it does not follow that an issue being framed to try an indo- pendent controversy, the ccurt is to be precluded of its right to close the case xmder its probate jurisdiction. It is the same court, operating upon the same subject-matter, -./ith plensj^ jurisdiction to hear and de- termine; and altho\igh it may, f^v its o-.m convenience, divide its worS into departments and send an issue from one department to another, its right to proceed to final judgment or decree is net impaired. Tho prop- erty ^as brou^-ht to the superior court in a probate proceeding as the common property of Samuel Sloan and Mary Sloan, and tho court er.ercisod a proper jurisdiction T^hen it held that there Tsas no property for dis- tribution, and that the e:rp6nses of the proceeding slacild be met by the one TJho had subiaitted his property to the court. Plaintiff cites the following decisions of th3.s court to sustain hi,s contention: State e::; rol. Bogle v. Superior Court, El Uash, Dec. 40, 114 Pac. 905, and Mich£,el- soa V. Seattle, 21 \7ash. Dec, 139, 115 Eao. 167. But vre do not conceive these cases t* bo in point. Ilhey were independent actions- "Zhere v/as no element of estoppel, and \7hile v/e may admit that there is no issue framed by the pleadings, the diluted qnesti^ons ^vere tried wo and the findings of the court are witliin its jui^isdioUon and discretion, independent of the collateral issue as to the title of the property. The administrator ■was appointed %/ith the laiovleO-ge and accuiescence of Samuel Sloan, and the attorneys v/ere employed by Ixim, and the appo-.ntment of a guar^-ian ad litem was a necessary incidoat to the prooi;,te prcceediag. Plaintiff vas a movii^ party. He permistted liis property to rsinain in prcbcte f«r sev- eral years. He allov;od part of it to be sold to moot debts and e:;penses-, and he allov/ed the proceeding to continue until ripe for distribution, and then, because he conceived, as he puts it, *^at "they v/ere not treat- tag hla riglit," he asserts a claim T^ich on its face was so doubtful tmt it has talcen two a^poals to this court t^» set';le in his favor. The lav-' ■will give him his praporty, but v;ill not dery oompousafcion to those v;ho have in good faith done his bidding. As to tho reasenablenoss of the al- lo\7aao6 for fee a ar-d expenses, we find nothing in the record warranting a review &r re'/ersal of the judgment of the lower court. Affirmed. \^ c v^ f[, MCERIS, CRCW, ELLIS, and G<3ES, JJ., concur. 33. BUCKLEy V. BnCZLEf (Ho. 7261. Decided Au-UEt 8, 1908.) (50 TTach. 2f9T Mary Buckley, Respondejit, v. Andrew Buckloy, Appellant. Philomeae Buckley, Plaintiff and Appellant, v. Andrew Buclcleyi Defendant and Appellant. Appeal from a judgment of the superior court for King county, Frater, J., entered Decomljor 19, 1907, upon findings in^avpr of the plaintiff, after a trial on the merits "before the court without a jury, in ccnsoli- date d actions for divorce and for a diyisipn of property. Af finned. Root, J. --This is an appeal from a judgment and decree rendered in two cases that wore consolidated for trial, one "beins ty the respondent against appellant Andrew Bucldey for divorce or annulment of marriage and division of property, the other teiag "by the appellant PMlomene Buckley against app'Ollant Ao5?.re\>r Buckley for a division of property claimed to have "been acquired \vhile he and she were hushand and viife. The matfi rlal facts , as found "by the court and which we "believe to "be sus- tained "by the evidence, were ahout these: On or atout the 15th day of October, 1698, in the city of St.__£a 3il, Minnesota. Mary Buckley and Andrew Bucld-e y entered into aja oral ag reement of marriage, and then and there 'entered "into the marriage state. Thela^? of that state permitted conjfion ^^"t Jlaw marriages. At that time he had a former v/ife living from whom he liad^ ~ never "been divorced, and she had a former hus'band living from whom she had not been divorced. She had reason to, and did, "believe that her for- mer hustand had obtained a divorce from her prior to this time. She did not laow that AIldre^7 Buckley had a v/ife living, or that he had 'ever "beeg. married, "but believed that he was immarried and contpetent to enter into a contract of marriage with her. Oa. the 11th day of September, 1877, at Detroit, Michigan, appellant Philomene Buckley and appellant Andrew Buck- ley intermarried and lived together until about October 29, 1877, men he deserted her, and has never lived with nor supported her since. Ho justification is shovax for this desertion. As a result of this laarriage, a child was bom in 1878. Philomene Bucliey, believing that her husband Andrew Buckley had been drovnied, iixtermarr ied a few years thereafter with one Young. IiiJ,9£Q_i^l9mene Buckley having learned that her former hus- band Andrew BucKLey was alive, brought an action for divorce in the super- ior court of Cook couiity, state of Illinois, the same being a court of general jurisdiction, and she at that time being, and having been for a year or more theretofore, a bona fide resident of said state. Her com- plaint was filed in said court, and summons was served by publication in the manner and form required by the statutes of the state of Illinois. Thereupon the cause was brought on for trial, Andrew Buckley not appear- ing, and the court entered a judgment and decree disolving the bonds of maitrimony existing between Philomene and Andrew Buckley, but declining to make any order, judgment, or decree affecting the property of these part- ies, or either of them, situate in the state of Washington, As a ground for her action Mary Buckley assigned cruelty, personal indignities, and drunkenness, (rheee allegations were supported by the evidence adduced at 34. the trial, and tho trial court reudored a judgment aoad decree annulling her marriage contract ^//ith the defendant,' aaid avn^rding her an undivided one-fourth interest in all of the real estate of 'said Andrew Buckley. The court ^v/ai'ded to i-hilomoiao "uclrley an uiulividod one-fourth interest in aJad to all tlie real property belono,ln£; to Andrew Bucliley. It is tlie contention of Andre;; Buc'.cley that Ilary Bucliey never "be- came his v/ife, and that the court waB ;dthout authority to av.ard her any portion of tho property standing; in his name or which he had acquired. \71:atever may "be said of the right of liar?/ Bucldey to recover in the foru of action instituted here, it cannot "be doubted that she is entitled to some redress or coinpensation in some forra. of action against Andre-,? Buoio- ley. Under the law of this state ^ the courts are called upon to r©g£.rcl eul)stance rather than form, and it is not the polJ.cJ' of our law to tona a suitor out of one door of the court to come in at {.mother in ordev to secure justice. Uhere a v/ora:n in good faith enters into a marriage eon- tract with a man, and they assune and enter into the riiarriago state pir- suant to any ceremony or agrea^aont recognized "by the lav; of the place, which marriage would be legal except for the Incoiapetency of the nsji iJhich he conceals from the woman, a status is created v/hich v/ill justify a court in rendering a decree of annulment of the attempted and assumed marriage contract upon complaint of the innocent party; and v;here in such a case the facts are as they have been found here, ^ere the woman helped to acquire and very itiaterially to save the property, the court has juris- diction as between the parties to dispose of their property as it would do under Bal. Code, Sec. 5723, {2. C. Eec. 4637), in a case of granting a divorce— awarding to the innocent, injured v/oman, such proportion of the property as, xinder all tha circumstances, would be just and equitalile. ••^on either party to a marriage shall be incapable of consenting thereto, for vant of legal age or a sufficient understanding, or when the consent of either shall be obtained by force or fraud, such marriage is voidable, "but only at the suit of the party laboring under the dis- ability, or upon wlaom the force or frauc. is in^osed." Bal. Code, Sec- 4477 (P. C. Sec. 6263). *^aen thore ie any doubt as to the facts rendering a marriage voW, either party may apply for, and on proof obtain, a decree of nullity of marriage." Bnl. Code, Gee. 5717 (P. C. Sec. 4631). •♦Any person \fho has "been a resident of the state for one year may file his or her complaint for a divorce or decree of nullity of marriage, under oath, in the superior court of the county where he or she may le- Bide, and like proceedings shall be had thereon as in civil casoso" 2al. Code. £ec. 5718 (P. 0. Sec. 4632). In the case of Pipor v. Piper, 46 Wash. 671, 91 Pac. 189, this court held th::^t the rule covering tiie publication of summons in divorce cases applied likev;ise to actions for the annvOment of marriage. Ai^wng other things the court said: "Appellant argues th£.t an action for annulment of a marriage is, la this state, of the sane nature as an action for divorce, and that it has 35. alv/ays "been treated "by our legislaturec in the passaga of statutes as in effect the seone. "Sla believe this is true. ... It thus appears that our legislature has invariably treated actions for divorce and for the annulmeat cf marriages as "bolonging to one general subject, and in con- ferring jurisdiction to grant divorces it has also been made to include the annulment of marriaces. ... la view of the not uncommon legisla- tive policy above Indicated, as well as in view of tlie e;g?ress provi- sions of our statutes, vre thinlc it has been the evident intention of cur legislature to establish the saiae jurisdiction and practice for both divorce and annulment suits." In his article on Marriage, 26 Cyo. 918, 919, Mr. Justice Harlan of the United States supreme court says: "Permanent alimony cannot be granted in cases of this kind, for if a decree is made in accordance with the prayer of the petition it xaust adjudge the pretended marriage void ab initio and congeq.uently that the parties never sustained the relation of husbmd and wife. But where the ■woman is of good character and blameless in the affair, oven though the marriage is declared void, she may be entitled to i-ecoive a eubstcntial allowance, not technically as alimony, but by way of compensation for the pecxmiary benefits derived by the man during the supposed marriage relation. . . . So, in passing the senjt-ence of annulment, the court lias power by statute in some states, and apparently at common law, to mal^e on order for restitution to the vdfe of the property which the husband received from her or of which he aoc^uired possession by virtue of the marriage. And in other cases vfliere a party ha-s been tricked or dijiped into a marriage and it is annulled, the court may order the restoration to him of his property fraudulently accuired and converted by the other party. Also where the v;ife entered into the marriage in good faith and is free from blame and it is annulled for the fault of the husband, she may be allowed substantial coixpensation for the benefits which he re- ceived or the loss v/hioh she suffered in consequence of the meirriage." In the case of Werner v, Werner, 59 Kan. 399, 53 Pac. 127, 68 Am. St. 372, 41 L. H. A. 349, the supreme court of Kansas saidJ "It is true, as the plaintiff in error contends, that the marriage between the parties v/as absolutely void from the beginning. Although living together as husband and wife^ tl^y v/ere not in fact married, and hence no allowance could be made as alimony. !nhe rule is that permanent alimony can only be allov/ed where the relation of husband and v/ife has existed; but tliis rule does not preclude an equitable division of the property v;here there is a judicial separation of the parties on account of the invalidity of the marriage contract. Fuller v. Puller, S3 Kaa. 582, 7 Pao. 241. Strictly ^ealcing, this action as it was tried was not a divorce proceeding, but it was rather one to annul a void marriage. Although instituted under tlie statutes to obtain a divorce, the plead- ings were so drawn and the issues so shaped that it was within the power of the court to grant relief independently of the statutes relating to divorce J and it rendered a decree of nullity, rather than a decree of divorce. Ihe plaintiff belov; set forth at length the description and nature of the property which had been aosiuired by the parties, the manner 36. in v.'hich it had teen acquired, and hor interest in the same, and in the Jirayor of hor reply she asKc to bo alia ;ed a just and sruitable division of the sarne in case tho laarriage v/at3 held co be null and void. Tlio court in its decree did not treat the av;ard as alimony, hut rather adjudged ?i3r a share of the property jointly accamnlated hy the parties duriJi^- the time they lived to^-ether as husta-Md and v/ife. Puller v. Fuller, supra, greatly relied on by the plaintiff in error, holds, it is true, that iu an action of this character the defendant is not entitled to recover peri^iauent alimony, but at the stne time it is expressly stated; 'That in all Judicial separations of persons 'Aio liave lived together as husband and wife a fair and oquitable division of their property should be had; and the court in ma.lcin^' such division should inquire into the a'-'ount tliat each orii^inally ovmsd, the omount that each party received while they T/ere living to.i,ether, and the araount of their joint accusnulations.' B-.'sa in cases where the mai^riage is valid, and a divorce is refused for any cause, the court iriay adjudge an equitable division and disposition of the property of the parties. Civil Code, Sec. 543. Bnt independently of tho statute of divoi-ce, ••/e thinlc the court had authority to decree, not only an annuLaent of the inarriage, but also the division of the Tproperty v/hich had boon jointly' accurnulated by the parties. It was an equitablo pro- ceeding and, -.'ithin its equity pov;er, the district court had full juris- diction to i'ive adequate relief to tho parties. The division that was made was eminently oqiii table and just.' See, also, Scrinshire v. Schrimshire, 4 Eag. Ecc. 562; Arfey t. ^ey, 21 Wash. 261, 60 Pac. 724; 2 Aia. ^: Eng. Ency. Law (2d ed.), 104, 117-6; 6 Current lav, 515; T7srnor, s-ipra; Strode v. Strods, 3 ir-Jish. 227, 96 Ajn. Dec. 211; Eliot v Eliot, 77 V/is. 654, 46 N. "H. 306, 10 L. R. A. 558; BarlcLey v Dumke, 99 ITe;-:. 150, 87 S. V/. ir--7; Sclby v, Selby, 27 E. I. 172, 61 Atl. 142; Etapleberc v. Staplobers, 77 Con, 31, 58 Atl. 235; Gore V. Gore, 44 Hisc. .?.ep, 325, 89 H. Y. Sm?p..902; Blanlceumies-cer v. Blanlierjniester, 105 Ho. Aprp. SCO, 80 S. T7.706. It is further conteMed by appellant Andrev/ Buoiiey tliat, inasnuch as Mary Buc'ieys con5)laint herein v/ac one as in an action for divorce, ■while in her reply to appellant's ansv;er she prayed for a decree of an- nulneat of marriage, the latter prayer being granted by the court, there iwas such a variance as should prevent her from having any relief in this action. Ve do not thin!: this contention is raoritorious. 25 Cyc. SOO; TTeruer v. T/crner, 59 Ean. 399, 55 Pac. 127, It is contended by the appellant iliiloaene Buc!tLey that, after the decree of divorce v©,s reiidered in her suit against Ai^drew Buc'tley in Ill- inois, she and Andi-e^v Bucitley becaine tenants in cojxxaon as to all of the property r^iich he had. accumulated and ■'hioh ■'>'as situated in the state of Uashingtou; tlir.t each became the o'iTner of an undivided one-half interest tloereia, ant. tl:iat she is entitled in this action to have the cotirt set aside to her one-lac.lf of all of such property. XIq thinle tliat -/here a court of £ sister state grants a decree of divorce to a wife residing in that state and calces no disposition of the property belonging to the parties and situated in our stcte -./here tlie husband resides, the courts of this state may tlisreafter in a ticnely suit for p?a'tition, or in any othsr apipropriate action, divide the property in this state bet^.veen the pai'ties /k'''^ ^^f^ -£r-**-2^ /> X, X - i,^'>'Xi^'^*^''^''<~^''^f^ y7 ^^ ' ^-^ -V . y j-i^ >-^ \ /^ ,^t:!i^t^**^t<^ ..-ii^T' 5^t^..^ ,:,..^ /;;^><^^ 57. as it would do uiacLor Bal. Code, Eeo. 5723 (P. C. Sec. 4637) in a divorce proceeding. Adams v. ALtott, 21 T/ash. 29, 56 Pac. 931; WebEtor v. Web- ster, 2 Has!.. 417, 26 Pac. 8G4; Fields v. Fields, 2 Vasn. 441, 27 Puc. 267; Cook V. Coolc, 56 ^7is . 195, 14 H. \T. 53, 443, 43 Am. Rop. 706; 1 Eucy. Plead & Prac, 415. In this actiou v/e thiulr e-:B trial court ./as authorized io divide the property of Andrew Buclrley and Philoiieno Buck- ley betv/oen them in tuch a manner as it deemed just and equitable under all the circumstances of the case, and tliat it was not obliged to divide th.e property equally or in any definite proportions other than would be thus equitable axA just. The value of tlie property was not found by the trial court. The total value was probably ri5,000 or $6,000. Boaxing in mind that appellant Buckley accumulated this property, and that he is now si::ty-Bix years old, in feeble health, requiring support, medical attendance, and nnrsins, vs cannot say tZiat the disposition of tiie prop- erty, as made by the trial court, T.vas erroneous, inequitable, or unjust. Finding no error in tlie record aud believing that substantial jus- tice has been done as between all these parties, the judgment and decree is affirmed. Hadley, C. J., and Crow, J., concur. r— - ^i Fullorton, J., concurs in ths result. Budkin, J. (dissenting) — I concur-in-the -judsment of affirmance but not in the application of Bal. Code, Eec. 5723 (P.C. Sec. 4637 L, to the annvilment proceedings of Mary Buckley against Andrew Buckley. Between these parties there was no marriage, and their property should be divided or distributed according to the rules governing the division or distri- bution of the joint aocu^nulations of any other persons between whom no -marriage exists. As applicable to such a proceeding, I approve the rule announced in the authorities cited in the majority opinion; viz., that the court may restore to the woman any property tte man may have acquired by or througji her, may compensate tha -vTOman for any pecuniary benefits derived by the man during tba existence of such relation, or may make a just and equitabls distribution of their joint accumulations. But this is very different from tha power exercised by the court under Sec. 5723. Under that section the- court considers not only the pai'ty tlirough v^foom the property was acquired, but also the merits of the parties and the condition they will bo left in by the divorce. It not only considers the past but provides for the future as "vvbU. It may, and generally does, provide for the future maintenance aaid support of the wife, by general alimony or by an award of property, especially •ftiiere the husband is at fault. None of these considerations enter into a decree of nul- lity. In the or© case the property is simply distributed to those vjho have aided and assisted in its acquisition. In tha other case the coui-t exercises a broader discretion, distributes tlie property according to differait rules, and adjusts the rights, duties, and obligations growing out of the marriage relation. It seems to me that even a superficial reading of this section would convince one that a valid subsisting mar- riage lies at its very foundation. I believe, however, that the division made by the lov/er court was equitable and just under all tte c ire cons tance^ without any regard vfliatever to Sac. 5725, ai:ul thnt its ju^.graent should be ' af f irmed . 38. (Ho. 10S52. Departjrent Ono. Ccto"ber 7, 1312.) ASSLJA SQRTOIiE, Respondent, v. J.aiCS S- SCRTOFLE, Appellant. ('.'0 ^."ash. 410). Appeal from a jiidgmont of the superior court for King county, Byfeacn, J., e:itered Ijcvcin'bGr 13, 1311, upon findings in fo,vor of the plain tiff, after a trial on the neritc tei'ore the court v/j.thcut a jury, in an action for divorce. Affirmed. Crow, J. — The plaintiff an;?, defendant mere narried at Victoria, ^itirh Col u'j'-jj.a. on EecemTjer 3, 1901. By hei criminal coiriplaint plaia- Fiff asl-ed a decree of divorce. Agsui^st def end-ant ' s ohinotxrin; che 'as p^^-mitted tc file an amended complaint, in Trhich she alleged that i" or fi^i'Y yoars she and on© lorenz Eratz were husbana- a nd -v/j,£a ; that on Koy- emter 7, 1901, E>e obtained a decree of divorce from Lcrens F^atz , in "Ki^'superior cou'rt of Kxix^ county, ivhich decree prohiuitKi i^r from^con- tracting marriage with any tlai.rd party vdthin sirs mGn-hs from its date; that she was then infomed and tolieved that her narr".age to a th?.rd party without the state of Washington, valid v.'iicro the ceremony was iJor- fomed, would be valid in this state; that so tiGlieving, she and defend- ant went to Victoria, British Columbia, where they v;ere married on Doc- ember 3, 1901; that they immediately returned to this state; that she had no intention of evading the lav; of fcrxLs state; that defendaaat knew of her decree of divorce from Lorenz Eratr-, and the date of its entry; that at his solicitation and request plaintiff aiid defendant v/ere mar- ried in Victoria; that the marriage then was, and still is, valid under tha laws of British Columbia; that plaintiff then o-.Tncd, and still owns, certain real estate in the city of Seattle; that the defendant has fail- ed to s'Jpport plaintiff; tliat he has been guilty of habitual drunlceuness and e:>ctreme cruelty; that plaintiff and defeixlant lived as hv.sband and •wife in this state from the date of their marriage until October 19, 1909; that vhen. plaintiff commenced this action and asked a divorce, she did not inform her attorneys that she had been married to defendant with- in six months after tha entry of her decree of divorce, and tliat she did not then Inaow her marriage to defendant was void under the lav.'s of this state. Plaintiff, in her amei:ided ccinplaint, a^ked that a decree be entered annulling her marriage to defendant, adjudging flia real estate to be her separate property, ar^d awarding tlie same tc her. Defendant by answer ad- mitted tlie marriage at Victoria, B. C, on December 3, 1901, denied that he then Iciev plaintiff had been divorced for less than six months, denied any m-ongful acts UE»on. his part; alleged that the plaintiff representeS; to him that she had been divorced for more than six montlas; alleged that the marriage ceremony vjas perfoi-med in British Columbia at her instance and request, and further r.lleged that the record title to the real es- tate irentioned in the complaint stood in the jxjne of plaintiff's daughter in trust for plaintiff; that it was agreed between plaintiff and defend- ant that after Iheir marriage the real estate should be conveyed to the plaintiff; tliat defendant should improve it so as to increase the rental value; that it should thereupon become community property; that it was 3S. so conveyed to plaintiff after the marriage; that defendant expended large Eums o£ money, and performed person::.! labor in its improvement, and that it is nov; the joint property of plaintiff and defendant. By the prayer of his answer the defendant aslred a disraissal of the amended coijaplaint. The reply denied the affirmative allegations of the ansv;or. The trial coui-t made findings sustaining the allegations of the amondod complaint, outered a decree annulling the marriage, and awarded the real estate to plaintiff. The defendant has appealed. yithout diEuussing the evidence, which is conflicting, v;e vdll state our conclusion that it sustains the findings of the trial judge, which \idll not be disturbed. Appellant insists that the trial court erred in permiitting the respondent to file an amended coD5)laint, chang- ing the form of her action from one for divorce to one for annulment of the marriage, and that respondent cannot aste an annulment as she is the party whose incapacity invalidated the marriage under the lav/s of this state, t;^ find no merit in these contentions. In Buckley v. Bucldey, 50 TfeBh. 213, 96 Pac. 1079, 1S6 Am, St. 900, v/e said: "It is further contended by appellant Andrew Buckley that, inasmuch as Mary Buckley's complaint heroin was one as in an action for divorce, while in her reply to appellant's answer she prayed for a decree of an- nulment of marriage, the latter prayer being gi-auted by the court, there was such a variance as should prevent her from having any relief in this action. Ife do not think this contention is meritorious. 25 Cyc. 900; T/erner v. T7erner, supra." See, also, Earth's Adm'r v. Barth, 102 Ky. 56, 42 S. \Y. 1116, 80 Am. £t. 335. ITot only was it propeer to permit an amendment to the complaint, but under the evidence it was also proper to enter a decree of annulment on respondent' e application, although her incapacity invalidated the mar- riage under the laws of this state. Hhe evidence shows that respondent did not imovj her marriage to appellant, solemnized in Victoria v.ithin six months after the entry of lier decree of divorce from Kratz, would be void in this state; that apx^ellant did kaow she had been divorced for less than a month; that he did advise and ind-uce her to have the ceremony performed in British Columbia; that they both believed such marriage, be- ing valid in British Columbia, would be valid in this state, and tliat respondeat, although tlie incapacitated party, v;aE less in the vo-oag than appellant. Rem. & Bal. Code, Sec. 983, provides that; "T/hen there is any doubt as to the facts rendering a marriage void, eitlier party may apply for, and on proof obtain, a decree of nullity of Tnarriage." Iliis section is e::plicit and sustains the decree. The fact that under Rem. & Bal. Code, Sec. 991, and the ruling thereon in State v. Penn, 47 V/ash. 561, 92 Pac. 417, 17 L, R. A. (H. £.) 800, the marriage was void in this state, is no reason v^^y a decree annulling the marriage, declaring- it void, and adjudicating tlie status of tba parties should not be entered. :c^< i^-(^ z/^:/- '^'tyl'-^'^^^-fr ^-- ..^^^ ^^i^ A /> ^^^^ ^ -^ r-'f ^-~ . <.<^ y-" - -^ "' t^ yC—i^ i*.::^ 40. "If a marriage is void, ctrictly no proceeding are necessary, since the invalidity of each, c mcvrriage may "be relied upon in any court and in any procpedjr^s "betweftn any parties, \/hether tiio question is directly or ccllaterally in question. Em'^rcon v. Shaw, 55 IT. H. 418. 420; Monuntholly v. Andover, 11 Vt. 226, 34 An. I)ec. 685; Bish- itar. £: Dlv. Egc. 46, But the fact that tho narriago \;as laiov.n to be void did not take away tlie pov.er of the occlooiastioai court in Efegland to declare it invalid. Ar-drev;s v. Ross, L. R. 1 P. D. 15, 16, and cases cited. Al- thou^li there rnay "be no doiibt in the minds of the p^^-ties, 'yet practical- ly it is often of fie very highest importance, "both to individuals and to the community, tlrtt there should be a judicial adjudication in refer- ence to a void marriage, for then tho question of the c.tatu"v of the part- ies and their children is put at rest v.'hile the v/itnesses are alive; and the former are justified in tl3 eyes of tlie community in entering into a secorA marriage.' Bish. Mar. & Div. Sec. 262; Stew. Liar. & Div. Sec. 50, 139, 140, 143; 2 Kent, 76; Pingree v. Goodrich, 41 Vt. 47, 49; Ea-.7con v. Rawson, 156 Mass. 578, 580, 31 H. S. 655; Uisiitman v. Uishtman, 4 Jolmc, Oh. (H. y.) 242, 345; Patterson v. Gaines, 6 Eow. (Uc S. ) 550, 592, 12 L. Ed. 553; Bickford v. Bicicford, 74 H. H. 448, 69 Atl. 579, 581. A decree annulling a void marriage may be entered in an action in \Jhich a divorce has been asked. 26 Cyc. 900; Lynch v. Lynch (R. I.); 83 Atl, 83. Appellant further contends that, in av;arding tiie real estate to respondent, the trial judge made an unjust and inequitable distribution. The marriage bet-.veen appellant and respondent has been nullified for the reason that it was void ab initio and,, as a matter of course, there ■jould be no community property. In re Sloan's Estate, 50 'Uash.. 86, 96 Pac. 684, 17 L. R. A. (H. S.) 960. Jrica- to the invalid marriage, the real estate belonged to resporxlent. Keeping pace v/ith. tlie rapid grov/th of the city of Seattle, it lias enhanced in value. Appellaiit did certain work towards its improvement, but v;as conpensated by respondent for the greater portion of his T7ork and materinls v'hich he furnished. Ehe paid all ta^:es, special assessments and insurance charges. Creditable evi- dence in tl:e record shov.'s that improvements nov/ on the property, includ- ing those made by appellant, add little or nothing to its value; that the principal value is in tlie land itself irrespective of the improve- ments. She alleged agreement relative to the real estate, pleaded in the ansv/er and claimed by respondent, 7ra,E not sustained by the evidence. The evidence does show that appellant has been guilty of liabitual di'unk- enness; that he violently abused and mistrected respondent; that she vas Qompelled to leave him; and that he die", not provide for her as hs should have done. Under the circumstances and facts thus shov;n, vre are unable to conclude that the trial judge abused his discretion in the disposi- tion of the property. On tiie contrary^ v;e cjre satisfied that justice lias been done. 2he judgment is al'firmed. )- e> ^ r\, Parker, Chadwick, and Sose, JJ., concur. 41. \' In the Matter of th.o Estcte of Uary Sloan, Deceased. (ITO. 7169. Decided J\ily 16, 1908.) 50 Tfash. 86, 96, P. 604 65 TJash. 623, 116 P. 272. SAJ.ICJEL SLOAn, Appellant, v. D. Tf. Tfest, as Adiainistrator et al., RespondentG. Appeal from a judgment of the super ioi- court for King county, Pi-ater, J., entered September 28, 1907, upon granting a nonsuit at the close of plaintiff's case, doiiying a petition for a decree declaring the cumratinity property of an estate to te separate proi-jsrty, for a distri- bution tl-^reof, and to c^uiet title. Reversed. '^ Prank A. Steele, ^Jalter B. Beals, and Hastings S: Steadman, for ap- pellant . 17. E. Hunctphrey and Udv.'ard Von Tobel, for respondents. Rudkin, J. — Samuel Sloan and Alice Babcock, sometimes kjiown as Elsie Babkirk, intermarried in Albert county, Hew Bruus'.vick, about the year 1852 and remained husband arcL wife until the marriage vrais dissolved by decree of the superica: court of Eitsap counter on the 14th day of April, 1902, at the suit of the husband. 2he parties to this marriage lived together in Uew Brunswick as husband and wife for some years after the consummation of the marriage and then separated. In the year 1868 the hixsband came to V/ashington Territory and has resided in the territory and state ever since. In 12i& year 1875 !ie returned to How Brunsv/ick, and there married one Uary Steves early in the jrear 187'1-, v/hile his former v/ife was still living and uiidivorced, Imediately after this marriage he returned to TJashington Territory '.-ath Mary Sloan or I/lary Steves, and the parties continued to live to;;iOther here as husband and v/ife from tlaat time until the death of the latter on the 6th day of Feb- ruary, 1899. On the 19th day of April, 1902, D. T7. T7eEt, a son-in-law of IMary Stoves, petitianod the ciiporior coiart of King county for letters of administration on her estate, as the deceased wife of Samuel Sloan, and Samuel Sloan joined in the petition. Tne prayer of ftie petition was granted and tihe administration proceeded until the Slst day of January, 1905, at v*.ich time a final account of the administration v/as rendered and a petition for distribution filed. The petition for distribution prayed that one-lialf the residue of the estate be distributed to Saduel Sloan, as surviving husband, and the otlier half to certain children of Mary Steves by a former husband, and to t?.e representatives of certain deceased cliildren. At this juncture Samuel Sloan filed his petition in tlie estate mat- ter, setting forth his marriage with Alice Babcock long prior to his marriage with llaiy Steves; tiiat his former marriage was not dissolved luatil long after the death of Ilary Steves; tl:iat Mary Steves knew at all times that the petitioner had a lawful wife living; that it v«is agreed between the petitioner and Llary Steves that a fair proportion of all 42. pro-oerty earned or acquired by them iShould bo g^.ven to her as her sep- arat'? evcato; that this agreemeut was carried out, and that liar:; S*:ovgs r?rfi,lved for her ov/n use and benefit one-half of all property acquired by chem in this state; that the petitioner was absent in Alaska v*ian Mary Steves died, and that on his return to this state her son-in-law reproEGntcd to hiui that it would be necessary to take out letters of administration on her estate in order to perfect title to the remaining property in tlia petitioner; that certain false and fraudulent repre- sentations were made; that the property souglit to be distributed is the sole and separate property of the petitioner and. should be distributed to him, etc. The allegations of this petition v;ere put in issnae by answers filed by the administrator and the heirs at law of Ilary Steves, deceased, al'Jd a trial \vas liad. At the close of the petitioner's case the court granted a motion for nonsuit, and from fhe judgment of nonsuit this appeal is prosecuted. The existence of the marriage betvjeen the appellant and Alice Bab- cook is controverted, but tliat marriage is established by cle^ and cogent proof. The fact that the parties were married about the date specified, in the presence of \;itnesses, by a Baptist minister aixthor- ized by the laws of the Province of Hew Brunswick to solemnize marriage, and that they tlereafter lived together as husband and v/ife far some years, was testified to by both of the contracting parties aaid by several disinterested witnesses, and was in no wise contradicted or contx-overted. "The presumption of marriage, from a cohabitation, apparently mat- rimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy, t.here there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence." Hynes v. McDermott, 91 H. Y. 451. Ve are not unmindful of the fact that tlie presumption which ordi- narily attaches to the first marriage is now transferred to the second, axd that stronger proof of the validity of the first marriage is re- quired than if the second did not exist. The presumption v/Mch attaches to the second marriage, hov/ever, only overcomes a presumption of marriage arising from reputation and cohabitation, and is not sufficiently strong to overcorca such proofs of marriage as are fourd. in this record. The proof here is airgple to establish the validity of the first marriage, even in a criminal prosecution for bigamy, much less in a civil action viiere property ri^ts alone are involved. State v. Eean, 10 IT, H. 347, 34 Am. Bee. 162; Fleming v. People, 27 H. Y. 329; People' v. Calder, 30 Uich. 85; Hutchins v. IQmmell, 31 Hich. 126, 18 Am. Rep. 164; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; Damon's Case, 6 He. 148. The respondents contend that there is no proof that banns were pub- lished; that a license \;as obtained; that the officiating clergyman v/as a British subject, or that the marriage v/as not dissolved. The author- ity of the officer or clergyman performing the marriage ceremony, and all the prerequisites of a valid marriage \7ill be presumed until the con- trary is made to appear. Megginson v. Megginson, 21 Ore. 367, 28 Pac. y^^>C€^\^'c*^ ,^,^y^ *' '«*' ■^ '•-■'^ i2-C^6 'a-<#* -«*^./^' T-V;, :r-'p'/ IMol-.. ^-- <:^ ■'yO-.J^t^S^ -■^'^^'S'^ , -2=&9 '^^-*:!fe-2::^~ -^i^ .^ ^^ 4,-«»-6t3 >'^ -i-^^^ *«4-^, -t-^-^^ 2. I 43. see, 14 L. R. A. 540, and note. Both of the contracting parties testi- fied tliat the marriage between them was not djsyolvcd until long after the death of Mary Sv.ovgs, and this proof overcomes any presumption thc-t the court miglit otherwise indulge. It is f-irther contended that the appellant is estopped to deny the validity of his marriage to Ilary Steves, or the fact that the property in controversy is the community property of himself and l.Iary Steves. Doub*;leGS parties are sometimes estopped to deny their marriage as to third x^ersons who have "been misled to their prejudice, but, as between husbaod and wife, and parent a-jd child, there is no such status knovm to tho law of domestic relations as marriage by estoppel. Nor is the appel- lac^ estopped by reason of anything contained in the administration pro- ceedings. Pilley V. Murphy, 30 Uash. 1, 70 Pac. 107; Hatch v= Ferguson, 57 Fed, 966. If there was no lawful marriage botw-cen tho appellant axid Mary Steves, as a matter of course there is and can be no coranunity prop- erty. Hatch V. Ferguson, supra; Zelloy v. Kitsap County, 5 ""Jash. 521, 32 Pac. 554; Stans v. Baitey, 9 v^ash. 115, 37 Pac. 516; Houth v. Houth, 57 Tex. 569; Chapman v. Chapman, 11 Tex. Civ. App. 392, 32 S. ^.'. 564; 21 Cyc. 1636; 6 Am. & Eng. Ency. Law (2d ed. ), 297. Ve therefore hold that the proofs in the record amply show that the appellant and Llary Steves \7ere never lavrfully married, and that the prop- erty involved in this action is not community property. If the respond- ents have any interest in the property as children or grandchildren of Mary Steves, deceased, tho biirden is upon them to establish that fact, as it does not arise out of any marriage relation. Ve cannot anticipate the questions that may arise in the further progress of the trial, and all such questions must be left open for future consideration. We do hold, hov;ever, that if it should appear that there was no lav;ful marriage be- tween the appellant and the deceased, that the deceased was at all times fully aware of their meretricious relations, and that in view of such relations their property \'ra.E ".cept separate and apart; the respondents have no right or interest in the property now in controversy. For the error in granting the nonsuit the judgment is reversed, and the cause is remaialed for further proceedings not inconsistent with this opinion. Dunbar, Crow, and Mount, JJ., concur. \ . Hadley, C. J., and Fulle:rton, J., took no part. J 48. In tho Liatter of fhe Estate of R. Brenchley. (96 Uash. E23. 1917). Y/IlHiM Ho BEEUCHlIiy ot al.. Appellants, v. ELIZA.BETH BHENCHLiJy, Ac^uJinistratii::, Rocpoudcut. Appeal from aii ovder of tho supeiior couit for Liucolu county, Sessions-, J., entered April 11,, 1916, denying a petition for fhe distri- bution of the property of an estate, after a hearing before the court. Af lirmoc . llount, J. — In til is action the appellants seek to recover all th© property left by their deceased father.. On a trial of the case below, the court awarded one-half of the property to tiae appellaiits_a;;d^ one- half to the respondent. The facts are not in dispute. On Hoveaiber 16, 1868, Richard Brenchley, nov; deceased, secured, in this state, a divorce from his then wife. He had two sons by that marr. riage. These two sons are the appellants in this case. On December 3, 1888, Eidiard Brenchley was married in regular form to the respondsiit. At the time of the marriage, respondent laiew that Itr. Breixhley was di- vorced, but she v;as not informed of the date of the decree, a:id never "" knov; there was any question of the legality of the marriage until this action was begun. She lived v/ith Mr. Brenchley in Lincoln county, in this state, from the time of the marriage, in 1888, until his death, wMch occurred in July, 1914. The property in dispute vra,s acquired jointly by respondent and her husband, Eichai'd Brenchley, between the date of the marriager and the date of his death. At the time of his death, the property ponsisted of real property of the value of §5,500, and personal property of the value of about $900. It aill stood in the name of !Ir. Brenchley. The appellants contributed in nowise to the ac- quisition of tiE proper^^^y^ Ihey_did not live vdth their father^ but lived in another state. Under these facts, the trial court \;as of the opinion that the prop- erty, bei:jg acquired by the joint efforts of Itr. and Ilrs. Brenchley, even thougli the marriage was void by reason of the fact that it -v/as contracted within six months after tlie decree of divorce from Mr. Brenchley 's first wife was rendered, still respondent was entitled to one-half of the p-rop- erty 60 acquired. It is arg"ued by the appellants, first, that fc.e marriage was Toid because it was contracted v.ithin si:: months after tlie decree of divorce between llr. Brenchley and his first vafe. This position may be conceded, and we shall notice it no further. It is ue::t argued by the c^pellants that, because the marriage was void, the property acquired by ZIr. Brenchley was his separate property, in v,hich Llrs. Brenchley had no interest. This argument is based largely, 46. if not entirely, upon decisionc of this szA other courts to the effect that, v/liere tliere is no coutract of mari-iagG, oi- vherc tho contract is a inorotriciouE one, the property accniroc':. dui-ing tho relation belongs to the one acruiring it. 'Ihe factr in this case are conclusive that the contract of marriage was not meretricious, but was entered into, and kept, in good faith by both parties. The evidence conclusively shows tliat the respondent, when sho narried l!r. Brcnchley, Imew that he load been divorced. She did not taiov/ the time of his divorce, and sho did not taiov; that tte lav/s of thic s-tate x'^rohibitod marriage v/ithin six months after a decree of divorce. She canie to this state a few months before the marriage. Tliere is no evidence that Ilr. Brenchley actually laie\7 of the statute prohibiting marriage within sim months after a decree of di- vorce. But, even if ha loaev/, or nay be presumed to have loaovm, that fact, the result -.yould be the same, for they lived together in the utmost good faith, each contributing to the accumulation of tlio propert;^' now in dis- pute. Tne record shov/s that tlie respondent kept boarders, kept a lodging house, was a njrso and mid\/ife, and contributed her earning-s to the pay- ment of tlae obligations \Jhich purcliasod the property. Under these facts, it is clear that she is at Qaast entitled to one-half of tlie property, v/hich the covart avcxded her, notvathstanding the fact that the marriage was void- lu tho case of BuclcLey v. Buc:j.ey, 50 Uash. 213, 96 Pac. 1079, 1E6 Ara. St. 900, this, court said: '•Ohere a woman in good faith enters into a marriage contract v/ith a man, aiid they assume and enter into the marriage state pursuant to any ceremony or agreement reco^iiaed by the lav; of the place » \iiich marriage v/ould bo legal oiccept for the incompetency of tlio man, vhich he conceals from tho woman, a status is created which will justify a court in render- ing a decree of annulment of the atteraped and asLumed marriage contract, upon complaint of tlie innocent Party; and where in such a case tl:ie facts are as they have been found here, vchore the woman helped to acquire and very materially to save Cio property, the court has jurisdiction as be- tween the parties, to dispose of their property as it would do under Bal. Code, Sec. 572o (I. Oc Sec. 4637), in a case of granting a divorce — awarding to tlie innocent, injured woman such proportion of the property as. under all tho circumstances, vculd be just and equitable." In that same case, Judge Hud'.cin concurred in tlie result, but did not agree to tho ground upon x^aiich tlie decision was placed. He said, at page 224: "I approve the rule aimouncGd in the authorities cited in the major- ity opinion; viz., that tliO court may restore to the v/oman any property the taan may have acquired by or through her, may compensate the v/omaji for any pecuniary benefits derived by the man during the e::isteuce of such relation, or uay malK a just and equitable distribution of their joint accumulations ." So, whether the respondent a:id llr. Brenchley were legally married, or not, they themselves supposed they were legally married. Ihey lived together as man aij:]. "./ife for a period of twenty-six years. During that time, each laboring to a common interest, they acquired tlie property in dispute. If IJr. Brenciiley were no\.' alivo, and v-ore seeking to avoid the « .^ -^Zo ^'^^■^i'C'C^^ iZ,-!-*-*;*''***'*-*-*-*^ 47. marriase iDecausG it v/as illcg?! at tlie time it v;a£ entered into, no cocrt \;ould say thai iio might take advaatage of his oxni vn-ong and have a decree discolviug the raari-i>-\~o iDOcauso it \jl.i illegal, and, at the same tirae, take all the property accuiTitilatod "by the joint efforts of the two. An equitable division, at least, v-onld be made, aaa respondent would be given oue-lialf the proiierty, which is all the court in this instance awarded her. The appellants have no better rights thsoi their fr.tlier would have were ho no\-/ .;.live and seeking the sarac remedy. __SeciJla&tgoL. Coatc, 160 Cal. 671, 116 Pejc . Ml, o6 L.IL.4;,,X^I'S « ) 844, and cases there cited;~aIso Lav/son v. Lav. son, 50 Teg. Ci v. Ap p. 43, 69 L. '.'. 246. In the case last cited, tlio plaintiff had lived vdth her husband in good faith, baliovii\'i that there was a legal marriage. 'Ihe property accumulated during thit ti.ae '..'as treated as partnership property, and v/as divided as such. In that case, it \."as said: •'In Llorgan v. Lorgx., 1 Tenas 'Jivil ^^peals, 515, Justice Head, in his discussion of tlie principles unc.er \/hich the putative wiro acting in good faith miglat have her just riglits secured to Iier, entered into a thorough review of the authorities and held th£=.t the tendency of o-ur courts, as evidenced by the decisions involving kindred questions, justified the conclusion that she should be treated at. a partner as to all i)roperty shovn to have been acquired by their joint efforts.' That is the just rule, aiic is the one applied by tlae lower couit. The judgment appealed fro.a is, therefore, affirmed. Ellis, C. J., Parker, Full.2rton, and Holcomb, JJ., concur. ^t.^^t^-^^-i^-y' _.ef^^--<^^^^^\y^L^i..,.,.^<:^ '^t^c? c^a^^^ ^1.^ e^-^^^-^jgi^-C^^ ^ ^^^-o^^c^^ '' ^^^- 1- f\Ji^ 48, Llaria Z. iovvei'S, Respondent, v. 7iufield I. Powofs et al., Appellaiios. (iJo. 16425. Lopartrnout T>vo, S^.terabGr 30, 1921.) (17 Dec. 17S). xlppeal fiom a jud^acat of Cie suporior court foi Asotiu coxinty, Hiller, J., oute.oc". ItaGouilDor 28, 1S20, upon findings in favor of tlae^ plaintifXj i-i a n actiau to a:mul a marria^o and for a'djxlsioa of property, trieS^to ths coint. Affiiined. Main, J. — die purpose of tliis action v/as to annul a void marriage and have a portioIiTof tlie propoity -c-ich tlio parties had acquired during tie time thcit . they .vere living together as liusLarid aiid \-ife decreed to Gig p laintiff. Hoe trial resulted in ^f iudi:.£,s of fact, conclusions of lav.' ai^ii a~ jud^iaent a:i-iullin;3 tlxo i:;arriage and decreeing certain property to the plaintiff. From this judgi.ient , the defsndc.nt appeals. Tlie controversy hei'e is over the property. Ihere is no controvarcy, or at least tliere ic '.lO room for controversy, ovor the annulment of the void inarriase. The facts as found by the trial court ^nd which tlie evid- ence sustains may 'oe sumnarized as follows: In the spring of 1900, in the state of l.innosot.a, -.he respondent cjid appellant entered into an asree:7ieut to live together as huslo^id aiid -./Ho., v;hich ■'•■'ould constitute a la\rtul ..uiri^,^je m ider the la\jE of that, slate-if-'botia parties .•.;ere co;apetent to narryj end continued to live together as husband and wife until the ;nonth of Liar eh, 1919. Dvning all tAc tiue the aiPpollant hold the respondent out as hi:^ ;ife, ij-cioduced hex as such, and fhe ie£_-ond- enfbelieved heiielf to be hie dfe. Tlis appellant l-.c.c a ■ df e living iioai who,.i he hac. not been c^ivoiced, bat informed the respondent that a divorce had been had. At the tine of the attempted rnairidee, the reSi^ondent beli^v^d that the appellant ^''as conpetent- to eutex into that relation, xho Parties lived toi'ethei as husbaiid and -'ife for a fe-.' jionths in the state of I.irii.esota, then moved to the state of Monta^ia, where they re- sided until the year 1901, -.-hen the^^ noved to the ctate of Idalio, vhsre they continued to res ids until tl:ey rernovGd to Asotin county, this state, in the month of July» 1917, During the ciie thay vvere residing in the state of Idalio tl^e appellx:t filed rpon a ho^nestead of one hundred and si::ty acre:;, made fins! proof tho_eon and recei-ad a patent theiefor. The respondent liled a timber ai'.d stone claiui upon appro^cL.iately Ojis hu:^r_-ad f.cv2. foity ac:. et or g0"3:ni--.ent la::d, majde final proof thereon sZid received a patent tha::exor i-\ hei o-.-n nane. In t'n e 3''car 1917, '30th the hoiaestead aial the timber clai.n "ere sold a:id there '.'as received therefor w..e suii of v4,600. ierconal pi op 01 ty to the a-aouiit of ;"'1,500 \;a6 also sold. As a. part consideration i'or tlie Idaho land, re^.l estate in Asotin county ■ hich is no- in cont:.ovei£y vas taken. 49. him, and that tho respondent v-as not his ''ife. He also informed the respondent tliat the deed to the Asotin property vas in his narae a::d that she had no interest therein. At this time he made a lease of the Asotin property to the respondent which she accepted without knowledge of her rights. After this the appellant toolc all the money remaining from the salo of their propovties and returned to live with the wife to whom ho had "been legallj'' married. 'There a.re a number of questions argued in the briefs, but it seems to us the decision of one of them is detominative of the action. The parties lived together as husband and \;ife, the respondent believing, in good faith, tliat thoy v.-ero such, and during this time the Idaho property was accuired. The timber claim belon:,er. to the respondent and the home- stead to the appellant. Both the real and perronal property which the parties; disposed of at the time they ccjne to this state had been acquired by their joint efforts while they •■eie living together as hucband and wife though not legally jnarried. Under the facts, tl-je court had the po'ver in the action to a:mul the void mairiage and to a^.vard to the respondent such portion ol the property as she v-'as equitably and justly entitled to. Bucldey v. Buckley, 50 /ash. 213, 96, Pac. 1079, 126 AiA. Lt. 900; In re Brenchley»s Estate, 96 '.ash. 2^'o, 164 Pac. 91S, L. R. A. 1917E 968; Knoll v. I^noll, 104 Wash. 110, 176 I'ac. 22. 2hs court did not err in av/arding to the respondent the Asotin f)roperty. The judgment 'will be affirmed. \' v-V. Parker, C. J., Mitchell, Mackintosh, and Tolman, J. J., Concur. .^^^>^ ^^^ ^J^. ^^..^^ > > ^^t-*.. ^ /, .;flff-<'^^ 50. UORHAU v. nOHJ,;AII. (L. a. 469.} (121 Cal. 620) {Lupreme Court of California. Aug. 9, 1898.) Cornmir.siouers' decision. Depai^taeat 2. Appeal from superior coiirt, Los /jigGles county; II. T« Allen, Judgo, Action by Homer ITonnan against Janett© Thomson ITorman. From a Judgmont in favor of defendcvat, plaintiff appeals. Affirmed. Chipman, C. .ActiDA_to have-a_cerj;aia.rn^riase_t).e.t:weea_plaintiff and defendsjQt declared valid and binding upon the parties. A second sSencCed~con5)laint' alleged: That on August 2, 1897, defendant -.vaE a minor Of the age of 15 years and 10 months, and that her father, one A.-CHiomsoa, jy/asher natural and only guardian. Plaintiff -vas of the ageof 21 years and 10 months, and "both plaintiff and defendant -.vera citizens and rosidents of Los Angeles county, Cal. On said day plain- tiff aiid dofeixLant, at Long Beach,, on the coast of California, boarded "ascertain fishing ard pleasure schooner;. of 17 tons burden, called the •'J- "Jilley," duly licensed under tlie laws of the United States, of ■sfliichXilo Pierson v;s.£ captain, and \/aE enrolled as master thereof, and had full charge of said vessel. Said vessel proceeded to a point on the high seas about nine miles fro::i the nearest point from tlae bound- ary of the state and of tiie United States. Hie parties then and there^ agreed, in the presence of said Pierson, to become husband and v;ife^ and the said Piercon performed the ceremony of marriage; and among other things, they promised in his presence to tak3 each other for hus- band and wife, and he pronounced tliera husband and v/ife. neither party had the consent of the father or _mot!ier or guardian of dcf eixlant to said marriage. Oi\ th$ same day, and imtiedi ately ai'tor said ceiemony. iho parties retua-ned to the county of Los Angeles ; and have ever since resided there, _ a;xL they '"Caen "and. ^tliare iminediately began to live and cohabit tog-Gtlier as such husbaixl and vife, and continued so to do until the 10th day of August, 1897. Said marriage has never been dissolved, defendant denies the validity of said marriage, sad refuses to join in a declaration tiareof . .Defendant, by l^r gtiarc.ian ad litem, admits the allegatious of tie complaint; and alleges that, in liavix^ tie ceremony performed as alleged, plaintiff and dcfendsuit did so -vith Cae intent and for the purpose of evading the. statutes of the state prescribing tjhe ma;Tner in wliioh marriages shall be contracted and solemnized- She prays dat tl-B said pretended marriage be declared illegal and void, a^id that plaintiff be precluded a:-il estopped from ever setting xip or assertiag or claimiiig- to "be the husband of defendant. The court fou^d all Qic jllogatio:^ of the complaint aixL answer to be trueV and, as " coTiClusion of la^', found that plaintiff was not entitled to the relief cl^-medj but^tTaat~the said preteiDj.ed marriage was illegal and void, and judgpient \as entered accordingly. Sie appeal is from tiie judgment. Hie action is brought urder section 76, Civ. Code. It must be conceded 51. that tliG quertion iireseuted by this appeal is ono of much importance, v/hethoi' viewod in its rolatiou to society, or to the pai^tiQ;S only. Appellant coutQMds (1) tliat ■ih.Q marriase is valid tecause perfoi-ni- ed upon the hi,3;h soac; and (2) tliat it would liavo been valid if por- formod v/ithin dis etate, bGcausa th&ro is no law c::piCSiEly dGClaring it to bG void. Eespondont procentc the case upon tvo propositions, claiming (1) tliat no valid raarriaje can bo contracted in this state, eiccept in complianco ^/ith tho proscribed fcc-mG of the laws of this state; and (2) that citizous and domiciled residents camiot s,'0 upon the high soac for the avowed purpose of ovjjdin^s' tho law of this state, sjiCu con- tract a valid iTiarriago. Sections 4082. 4290, 722, Hev= Lt- U. S., arc citsd by appellant as reco^iiiziiiS laarriages at sec and lieforo foreign consuls, a:i.d that section 722 declares the coramon law as to rnarr j age to be in force on tlie hi^h seas on board Ai^norican vGscals. T/e have carGfully examined tlae statutes referred to, and do not find that thoy fjive the <:li~:htest sup- port to appellant's claim. 'Hie. law of the sea, as it may relate to the marriage of citizens of the United Statos domiciled in California, can- not be referred to the coi.Tmon law of liaglai^-; any more than it can to tho law of France or Spain, or any other foreign, country. Tie ca:a find no law of congress, a;ai none has bejn pointed out by appellant, in vhich tho general government lias undei-tal:en or assumed to legislate generally upon tho subject of marriage on tlie sea. Ilor, indeed- can -.ve find in tCio grant of po-vors to the general govGrnnjoi^t by the several states, as expressed in tho national constitution, any provision by -.vhich congress is empowored to doclare what shell constitute a valid marriage between citizens of the several states upon tha soa, eith(ji' within or without tlae convention::.! thi-oe-milo limit of the shoro of a:." state; -CuiC. clearly does no such poweiu rest in congress to regulate marriages on land, e:c- copt in th3 listrict of Columbia t;id tlie territories of tie United £t?.tGS, or whore it possesses tho power of eiiclusiva juxisdiction. T.'c must look olsGwhcre than to tho acts of eongrGSs for -Eau law garerniii^g tho case in ha::d. Section 63 of tlio Civil Code provides as follo'>;s: "All marriages v-lthout this state, wliich vould bo valid by thvi laws of the country" in which the sane v/ere contracted, ai'e valid in tliis state." Ihe parties i-^ tlie present case '.-ore residents of, a::d domiciled in, this: state, aac. "i.3 it upon tlB high seas to be married., with the avo\/ed purpose of 3vac-i:"-g our laws relating to marriage. It seems to be '.^ell settled that tlus mo- tive in tlio minds of the parties mil not diajige the operation of the rule. Chief Jvistice Gray, in Com v- Lano, IIG It^ss. 458, said: "A liiarriage which is prohibited here trj statute, because contrary to the policy of our laws, is yet valid if cGiobrated elsewhere according to the la\.' of the place, evci if tin parties are citizens and residents of tliis commonwealth; aixl liave gone abroad f ca- the purpose of evading o"ar laws, unless the legislature li£.s clearly enacted that such marriages o\".t of the state shall have no validity >jere." This has been repeatedly af- firmed by well-considered dGcisions. 'Sx) authorities are fox-d fully reviewed in that case, as they also will be found in si'.pport of the gen- eral rule in Llillilten v, Pratt, 125 liass. 574, by the same learned jurist. Seo, alsO; as to marriages in evasion of the lav.? of thi domicile of tlie parties, Bish. Liar, c; Div. Sec 880 ot seq. If the marriage in ruestion J 52. can find support by tlie laws of any country having jurisdiction of the parties at tlie place v/iiere the marria{Te ceremony v;as performed, -.ve should feel constrained 'oj^ our code rule and well-considei-cd decisions to declare it valid here, even though the parties vjere here domiciled at the time, and went to the place where they attempted to te married for the purpose of evading our laws, which they "believed vor'bade the tanns. But the parties did not 30 to aio-y other state or couiitry to "bo married, The'j Trvent upon the hi£;h seas, \.'here no 'written law, of v;hich we have any knowledge, existod ty v;hich marriage could "be solemnized. The rule, therefore, that the la\7 of the place inust govern, does not operate, be- cause tlT&re was no law of tlae place, unless v:e may hold that the lav; of the domicile applies. The question presented is res Integra, so far as ■^.•9 have been able to discover,; and no case in lingland or the United State?. or elsewhere has been found by counsel (and tl:eir briefs disclose mudi re~ conrch and industry) holdin'7 tliat the code rule siipra applies to such a marriage as this. In the case of Holmes v. HolmeE, 1 Abb. (U. S.) 525, Ped, Cas. Ho 6,638, the question "was v/hother a marriage had been contract- ed under the laws of California or Oregon. It seems that the parties, who v/ere doaiciled in Oregon, met in San Francisco, and there took passage on the steamer foi* Portland. It -was at the trial sucgested that th3 marriage miglit have taicen place on board this vessel v/hen on the high seas. Thei-e was no evidence that the parties aver met else^vhere, except in Cali- fornia and Oregon. In the opinion by Deady, J., it ^^as said, after shov:- ing that theie was no valid marriage under tha lav;s of either of these states: "Nor do I think that citizens of this state (Oregon), as the complainant and deceased -oi-e, can purposol3r go beyond its jurisdiction, and not within the jurisdiction of another state, -as at sea, -and there contract marriage contrary to its lav^s. Such an attempt to be joined in marriage is a fraudulent evasion of the laws to v;liich the citizen of the state is subjedt and o\;es obedience, and ought not to be held valid by them." It is said by appellant that this expression of opinion is but dictum, inasmuch as the question did not necessarily arise. This may be true, but it commends itself to o;ir judgment as wise and sound upon reason, and principle. V/e find no case holding that parties domiciled in a state may, for the avov/od pvirpose of evading its laws, go where no law exists, and there consuj-nmate marriag'e in violation of the la/^ of their domicile, and inraediately return and claim a valid marriage. In all the cases •.'here the statutes have been thus circumvented, it ^ras accomplished by a marriage valid in the place vhere celebrated. The Gretna Green marriages of Scotland between citizens of England are notable examples, and tl::e.y v.'ere upheld by tlxo ecclesiastical courts. But these marriages were solemnized in accordance •..ith the laws of Scotland, and therefore had legal sanction; and so, also, marriages in this country of citizens of one state going into anotlior to avoid some disqualification prescribed in the law of their domicile. It has been properiBy held that as marriage is a natural rirht, of Tvliich no government will .allow its subjects, ^/herever abiding, to be de- prived, if tl'-.e psTties happen to bs sojourning in a foreign country, and tinder tl-& local lav there is no \'ay by which they can enter into valid marriage, they may marry in their ovm fonas, and it v.-ili be recognized at home as good, Bish, liar. & Div. Sec. 690 et seq. But this author says: "in reason,— lrds in italics were added to the section as it formerly stood, ard vould seen to imply tliat, v/hile there may be non-compliance with the law by parties otter than those see'iing marriage; there cannot be by the latter. Section 76, Id., now, as heretofore, ma'ss provision for supplying the evidence of mar- rio,ge -.iiere no record of the solemnization is known to e:ciEt, and a form of -vvitten declaration is prescribed. JLj ie'.: sec t ion (79-o-) was added to the Civil Code in 1897 , which, provides thp.t "the provisions of this ^".mpter, so far as they relate to procuring licenses and the solemnizing of marriage, are not applicable to members of any particular religious, denomination he-v lag, as sruch, any peculiar mode of entering the marriage relation; but such mai-riages shall be declared as provided in section seventy-si;: of the Civil Code of tlus state, and shall be aOniowledged and recorded as provided in section seventy-seven of said Civil Code." Section 69, Id., provides that 'all persons about to be joined in mar- iiage must first obtain a license thex-efor from the county cler'.c of the county in v;hich the mai^riagc is to be celebrated, shovang: (Then follow ceitain facts vJiich must appear, such as names, identity, and ages of the parties, etc.)" T/lien a marriage may not be invalidated, although th^re has been noncompliance -.Tith the provisions of article 2, Sec. 68-79I-, "by other than the parties to the marriage," need not now be determined. In this case there was no license; tliere v/as no solemniza- tion by any person authorized by la%7 to perform thj3 ceremony, there vas 55. no mari-iage, under section 19^. To recognize such a nurriage, \^ think, would grooEly violate tlij cpii it and letter oi our statute ^ and be a 'olot upon the civilization "v.-e proi'ess. To give the law any just inter- pretation,, v/G ffliist hold tliat, subject to the exception mentioned in section 79i-, section 55 recu-iies, not only the concent oi parties capable of making a contract of maiviage , but that Vr^t consent mu?it be follcwod "by a soleiuni nation authorized by the Code; and tiiis solemnization can only bo perfornad by the persons named in section 70o Tfe do not thinlc it necessary to decide '-Aietter it is mandatory to obtain a license; nor \;hetl-i2r the minority of the defendant, and \;ant of consent of her par- ents or guardian, would invalidate the irarriage. Our conclusion rests upon the want of any authorized solemnization, and \/ould bo the same if the parties were both oi' full ti,»?e. Tic recommend that tlie judgment be affirmed. ^e concur: BELCHER, C; HAYHSS , G. ^ ^ ,^ D -e- i- PER CURIAM. For the reasons jiven in tlie foregoing opinion the judgment is affirmed. I ^^ ^ , /'^ f y.^^'U*-— ^«s^^ ..^ ^\^:A^ //w^^.^^^*^ 56. LA-VEOR et al. v. lATiSOn. (Court of Civil Appeals of Texas. June 2, 1902.) (SO Tg::, Civ, Api^. 43) Appeal from district court, Ft- Bead county; Sponcer C. Rucsoll, Special Judge. Suit ty Caroline Lavrson against Harry La wso n and Vir^^inia YZallcor lav/soii ana iier Tour minor c:iilc\ien. ~From a decree^ for plaintiff, tlie minor defendants appeal. AfiiimecL, Gill, J. This suit was instituted on the 27th day of AuG,ust, 1900, "by^tjae plaintiff ,J2arolino_ la-wsgn, _ ::^ains± the dafendcnt Harry La\vson fOT^lvovce end. partition of coimunity properiy. Vir.p.nia rfclter La\v- s_on and hor four minor cliildren were made parties defendant, as claim- ants_ of tlB property in controversy. lu respect to the property, plSin- tiff pleaded in flic alternative tha't, if the court should hold she v^as not the lawful wife of Harry Lawson, then an undivided half interest therein should nevertheless "be adjudo"ed to her, because th2 property was acquired by the joint labors of I-Brself and the defendant Harry lawEon v/iiiie livin-; to^-eflier as hxisband and wife in the honest belief that they had been legally married. Defendants Harry Lawaon and Vir- ginia ^."alker Lawson aasvrared jointly by exceptions, ^.ereral denial, and pleaded the statute of litoitations of two and foui: years. B, K. Peare- Eon, appointed by the court as j^Tiardian ad litem for the minor defend- ants, adopted the ansv/er oi Hariy and Virginia, and filed also a gen- eral denial. Upon this state of tlie pleadings a trial was had before the court without a jury, and tlE court adjudged that the plaintiff had never been legally married to Harry Lawson, and the prayer for divorce was refused. But the court found, as hereinafter more fully shovrn, that the property had been acquired by the joint labors of Caroline and Harry while living together in the honest belief that they were husband and v/ife, and that as the evidence furnished no guide by which to determine the proportions in which each, respectively, contributed to its acquisi- tion, plaintiff should be adjudged the owner of an undivided half in- terest therein, and have her decree of partition. Only the minor de- fendants, through their gnaardian ad litem, have appealed. The conclusions of fact prepared and filed by the trial judg-e find sufficient support in the evidence, and contain such a clear and con- cise history of the case that '.ve are content to adopt them, and here set them out in iUll: _^'Prior to ttie emancipation, the woman Caroline, \^o is the Caroline La v.s on, plaintiff in thic case, and one Alf Uoodc were r^<^T5 the slaves of one Smith. ^That in the manner usual among sieves, and — wi^th the consent of their master, the said CarolTne and Alf lived "to^ get^er^ac^hTls band and -wife, and were such as near as slaves could b"e. "^n^at after emancipation they continued to live together in such rela- tion for several months, until about Christmas, 1865. That then, or j;hortly thereafter, Alf quit Caroline, and afterwards, some tin© in JL867, he married one Rachel , in due form of l^v. Thereupon, and in the s ane 'ysaf ',"Carol ine" and Harry Lavi!L.on, _ii£ defendant, made and ^tere d into an agreement to be man and wife,--and thereafter lived 57. tosother as such, ami wore laao\vn and resarded ae such in the noightor- hood in v^iich tliay livod and held thamtelves out to tte v.orld as such until about 1889 or 1890, when Eaxry forced Caroline to leave the house \^ere they lived. Ho lot her occupy a house on the same premises until about 1899, but did not further live with her, or in any vay treat her as his wife. All the prcfioerty in controversy v;as acquired by the joint efforts of Caroline and Harry, in Gae same maimer as if tiey had been actually husband and vrife; but in wlir.t proportion their respective labors contiubuted to such accuiiiulation, I cun unable to say. Alf Uoods dieo. in 1897 or 1898. From all tl-je facts and circumstancos in the case, 1 fiixl that, in snterin^- into the contract of mairiasQ vdth La%v5on, Cai'ol- ine did so in the utmost ^^oa". faith, not luaowiia;^' or believxDG; that she v/as tlTc wife of I/oods, or that her living \dth him after emancipation would, in law, act as a ratification of l:ar slave maa-ria-e with him, aad that from 1867 to 1890 she v;as tlie do facto wife of Lawson. From the date Of feis marriage vath Rachel until his death, Woods lived -.ath her in tlie same general nei^rhborhood as did Caroline and La\/son, and there is nothing to show or indicate but that Caa'Oline throujaout this time was aware of the fact that TJoods v/as still alive. I fird that in abouf 1899, aad several years after drivius- Caroline off, and a year or two after the death of^foods, Laws on married, in d-oe form, Virginia 'Talter, by ^*om he had already had three illejitimate children, all of v/hom, together with a child born since their wedlock, are the defendants in tliis cause, ard. that, about a weelc or ten days before the institution of this suit, Lav.Eon conveyed to his then wife and the said four minor children the 309 acres of land and the 15 or 16 head of cattle and horses which had been acquii-ed dui.-inj his relationship with Caroline, and throu^ their joint efforts, and \vhich are the effects in contro- versy herein; that tlae said conveyance was without consideration, and was made by La-'.vson to keep any oiie vdio might have claims upon him from seizing said property.'' Appellant contends that, if it be conceded tliat the fact conclu- sions find sufficient si^port in tie evidence, the judgment, neverthe- less, is wron^: First. Because, even if plaintiff believed she was the lawful wife of Harry Lawson, she knew all the facts, and, as her belief rested in a mistake of law, she cannot be heard to predicate good faith tl:sreon, and recover according to the measure of the ri^'hts of a lawful v/ife. Second, If the first contention is unsound, and she may be accorded the consideration to which (poC faith v,ould entitle her, the burden would nevertheless rest upon her to sliov/ by clear and un- equivocal proof t:-£ amount of her earnings which vrere invested in the property, thus establishing a resulting trust in her favor, and the findings of the comt affirmatively chow th.-^.t no guide can be found in the evidence by v/hich the amount can be ascertained. In the earlier decisions of this state th2 de facto wife was, xnoder certain circumstances, accorded the property rights of a wife, notwith- standing her kno\'iaedge of the invalidity of the relation. This rule was applied by reason of the peculiar warding of the early laws governing land donations from the state on the faith of occupancy by families, and for other reasoias gi-ov/ing out of tie Spanish laws of marriage. Babb v. Carroll, 21 Tex, 765; Lewis v. Ames, 44 Te:c. 345; Yates v. Houston, 3 50. Tex, 433. Ihe reason for the rule doec not apply to cases such as this, and nov/ the courts i-ef\i£o to a'vard anythiuj to a pretended wife, v/no, ty reason of her tocvledje of the illicit relation, occupies the position of an adulteress and a 'breaker of the la'vs. In such ca^es the courts will leave tlie parties as they find them, on tlie same principle that they refuse to oafcrce any other c cnti'act which hy reason of its ohjects, or the nature of the consideration upon which it rests, is vio'at.rve of law or a^ain-^t public policy. If the plaintiff is in such a position, she can neither ho accorded the rijits of a wife; nor will tie courts declare a, resultiu^; trtist in her favor, or allow the interest of a part- ner, however clear the proof may he, if to do no they must hase the judcpneat upon the unla\/ful contract. In tlie case at "bar, inasmuch as plaintiff was never the lawful wife of Harry Laws on, fhe could, not, in any event, bo entitled to the full property rxghts of a vafe, such as homestead ri^-hts in a homestead tie separate property of the husbcjad, or a one- third life estate in his separate realty. But if, in ^-ood faith, she has entered into tl:ie relation, tl-.e courts v;ill not refuse her the just fruits of ^Q labor of her hands, and permit the husband, who is oqua3.1y giailty, if either is, to appropriate the pr.rtnerchip earnings to his own use. That this distinction has been recognized is clear from the opinion in Ghapmaa v. Chapman (Tex. Civ. App. ) 41 S. "J. 555, cited by appellant, v^here tlae court refused to award to the putative wife the full rights of a wife in property which was a donation by the state to a husband, and to fha acquisition of v/hich she contributed nothing, but did give to her a partnership interest in personal property acquired by their joint efforts during the existence of the relation. It v;ould seem that such rjiod. faith, whether resting in mistake of fact or mistake of law, is enough to authorize the courts to treat the relation as a part- nership, upon proof that something was actually contributed by each to the acquisition of tie propei'ty claimed. Uhat featiare, then, do we find in thjs case which oujit to induce the courts to treat plaintiff as a criminal, a breaker of tlie laws, a willing party to a contract involving a shameless and debauching relation between the sexes? The record shov;s that Caroline and Alf Vioods were negro slaves; that they lived together as husband and wife during tlB last years of slavery vjitli the consent and approval of their master. This marriage was of no avail unless rati- fied after emancipation. It has been held that a continuance of the re- lation after emancipation is sufficient evidence of ratification, and constitutes a common-law marriage. The court found that the two did thus live together after emancipation, thus furnidilng tbi requisite evidence of ratification, and that this fact rcaidered her attempted marriage with Harry Lawsou in 1867 a nullity. Alf TJoods, her slave husband, evidently regarded the slave marriage as without binding farce; for in 1667 he married another in due form of law, arc*, continued to live with her as his wife until his death in 1697, — residing in tha same neighborhood as the parties to this suit. So lived Cai-oline and Harry, joining the same church, attending it togethar as husband and wife, recognized as such by their neighbors, and evincing ever^;- evidence of their firm "belief in the ■ legality of their relation. They v/ere of middla age at the date of their emancipation, and were clothed with freedom and throva upon their own responsibility, doubtless with but vagiie notions of the lav/s in general, aiid a dense ignorance of the laws of marriage. Indeed, it may be truly said that at that time our coiurts had announced no clear views upon the subject of slave marriages. It was a problem yet to be worked out, and. 52. for years thoroaftor many of the questions t^^rowing out of t2ie relation remained unsettled. See Cu-Tiby v. Henderson, 6 Tex. Civ. App. 521, 25 S. Yf. 673. lliis bein:; true, tlie riG;htE of the putctive r;ife as to property thus acquired have appealed strongly to the courts; and many cases mijht be cited, not involving; the exact question, which contain dicta clQarly ino-icatin^ the tendency of the courts toward the now es- tahlished doctrine. To deny her anjr interest lias appeared so manifestly wrong that the courts have not heen slow to discover and apply princi- ples of law under v/hich she mi^'ht Tae consistently protected. 2he almost -perfect analog hetv/eon the marital relation in Texas and an ordinary partnership fumislied an easy solution of the difficulty, so that now, "When it is once ascertained tliat tha relation is not tainted \;ith con- scious guilt, the courts ccja proceed with small difficulty, ond adjust the property rights according to legal principles which are nev; only in the sense that ttey have found a new application. In Morgan v. I'organ, 1 Tea:. Civ. App. 315, 21 S. T?. 154, Justice Head, in his discussion of the principles tmder which the putative v;ife, acting in good failh, might have her just rights secured to her, entered into a thorough re- view of the authorities, and held that the tendency of our courts, as evideaced by the decisions involving kindred questions, justified the conclusion that she should be treated as a partner as to all property shov^n to have been acquired by their joint efforts. In inquiring into the natui-e of the pcrtnersliip, he loolced to the contract by •vhich the parties midertook to form the relation oi husband and v.ife, aad pursued a line of reasoniag -.hich strongl3r commends itself to our judgment. Tlie contract vhich the parties intended to make v^ould, if they he/, the legal riglit to Lialra it, have formed the marital pcrtaei-shi.^ -.hich \vOuld have entitled each to a half interest in all property acquired by their joint efforts, without reference to the proportion contributed by each. Such is the meaning of the contract they intended to rrake. How, then, can it be justly held tl:a,t the property thus acquired should belong to one any more than to the other? The parties having placed themselves in an attitude to have the contract looked to in measuring their rights, there appears to us no reason -hy the nature of the agroeracnt should not be made tlie tost of the nature of the partnership. In this vievj of the case, the plaintiff • -Quid not be held to the strict proof required in establishing a resulting trust in property, the title to vhidli had been taken in another's nao^e. In tliis case the requirement is satisfied by full proof of the nature of the contract mat?-e, aad that the property \as acquired by their joint efforts dui-ing the continuance of the partner- sMp relation. The rights of tlie parties being fi::ed by the contract of partnership, it v.ould devolve upon neither to trace the funds into the property, and sho'. the exact araonnt invested. It is enough to sho\.', as in this case, that tlie parties v.-ere each ■.ithout means at the inception of the relation, snd tlaat gradually, as a result of their joint efforts, the property sought to be partitioned liad been acquired, ■.hat has been said disposes of both objections set out above, and the opinion in Morgan v. Ilorgan, supra, renders it unnecessary to further review the authorities. The case of Harris v. Kobbs (Tex. Civ. App.) 54 S . ".". 1005, gre- • out of illicit relations bet\ een a white man and a negro v-oman, and is not in point upon either proposition. Chapman V. Chapman, supra, '..hile containing e::pressions v.^ich indicate that 60. the i-ishts here couteaded for could not "bo supported "by good faith rest- ing in a mista!:o of lav:, after all v;ent no fta-ther than to hold that under the facts of that case t"rJ3 putative wife ovned no interest in the real estate, to tlB acqul;iition of xjlilch sic Imd contributed uothiEg. The fact tliat the luitative -.vife was therein treated as an equal part'oor in porsoaal property acq^iired by tlieir joint efforts gives the case a certain val.ue in support of th3 propositions vre Iiave announced. RouLh v. Routh, 57 Tex. 600, is reviev/ed aad distinguished in Ilorsan's Case, supra, ( The o"bjections discussed are untenable. By tlcB seventh assi^joment, appellant assails, as unsupported "by the evidence, the finding of tbD court thut the property was acquired by the joint efforts of plaintiff aixL Harry Lav;son. As we loave seen, the evi- dence is anple to she-; that the property was acquired v/hile the parties were living together as husband and wife. TbB record does disclose, how- ever, a serious conflict as to \/hether Harry paid Carolire wage-^-, as he did other laborers; but there is ample evidence that te collected her v/agos when she \,orked for others, and \.e tliinic, on the whole, the judg- ment shouM not be disturbed upon tliis issue. Ihe court did not err in holding that Harry Lawson's conveyance to his vri.fe Virginia and her cMldren was without consideration. It v/as not ' an antenuptial settlement, but a gift, and the motive was to put the property out of the roach of possible claimants against him. !rhe qvjsstion of limitation is a serious one. Harry Lawson ceased to treat Carolino as his \n.-£o in 1888, and thereafter lived in adultery with his present v.lfe ani others. He did not, however, cease to provide for Caroline; but gave her a house on the larsi in controverJ^y, in which she continued to live, subsisting out of the cocimon fund. Tf she still regarded him as her husband, his acts anounted, from her standpoint, to no more than cruelty and disloyalty on the part of the husband; and she testifies she took no legal steps fa- the protection of hor rights be- cause sbe hoped he v/ouia return to his allegian.ce to her. \Ie should also bear in mind that he did not repudiate hor claim to the property, but continued to permit her to enjoy a joint possession with him. Cn Cctober 21, 1895, Harry Lawson co?j.veyed to J. R. Penn the land in cont??ov?rsy for a recited consideration of 03,500. On June 11, 1898, the land wai; re- conveyed by Penn to Lawson; tiie consideration recited beirig the same. 3!he evidence does not sho-;; that possession -v/as surrendered to Fenn. Appellant insists that the deed to Fenn was a repudiation of tli© rights of Caroline, but, in our jiaign^ent, this by no means follows as an in- evitable corclusion. If she believed him lier husband, te was acting with- in his rights as such. If he was not, tire contract of partnership, prop- erly construed, gave him the right to convey and receive the considera- tion fa- tlt>ir joint benefit. Of the O^^SCO promised him by Ferji, §200 only was paid; end it was agreed that, when tie O^OO -as paid br.cl:, there should bo a reconveyance. The conveyance back in 1898 was a coijp?.iance vath this agreement. Viewed in this light, v;e do not think those con- veyances set the statute in motion as against Caroline. It is contended, also, that her ri^ht to the personalty is barred. The testimony does not disclose any distinct repudiation of her rights on a J^ c:3f-»-t>f ^ .^,.e*fc-**»^,,.^^»^-«-«*^L.<^/!^**-^^ '^..^ .^^.^ ..^ .^^.i::;^^^**-^/*^^^'^;^*--^:^^ 61. the part of Harry, ard. iiis possession until sucli repudiation \ras not nec^ essarily adverse. U^on his irarricso \dth Vircinia, cnC hie conveyance to her ariJ. her c'.iildren, the suit v/as promptly hroijght , ani v.e think, under all the circiimstances, in ample time to preserve her rights against the har of limitation. Appellee has cross-assigned errors, tut they affect itainly the ques- tion of her ri{jht to divorce, cuid, as Harry Lavjson is not a party to this appeal, they do not require our notice. Because v/o have fourd no error in the juc.grrent it is in all things affirmed. Affirmed. P~o \— \. -

' /> BARKLSY V. DUUKE et al. (99 Te::. 150) L-^ (Supreme Court oi" Jexa-s. June 15, 1905.) liarriage — Imped ia-jsut:;- Prior ii:iEtin,:i- Llarriase — Ilffect au to Innoceat Party — Propert37 Hislits. Error to Court of Civil Appeals of Second SupreiEe Judicial District. Action. iDy 11. A. Burnlce :.jjd aiother against Lou II. Bax'lcLey. From a judgment of the Court of Civil Appealc afiirmiiii' a judj-ieut for plaintiff e defendant "brinc^'S error. Reversed cud rendered. GkluEi,, C.J. r nis suit \ias brouc ^Iit "by defgndaat-in ^ .srrQiLt,,.!^^* II. A. I)u inl£Q.,_lQiAec:_ba'--he-r-lmsl?^.ad,-ti3liiecover- of _ tie^ ^-laintif f in.- erxDr a certain parcel oi land situated in tlie city of_J"t. ■..'orth. She re- covered a judgment, -./liich v/as ailiinied by the Court of Civil Appeals. There is practically no ditpute as to tlie facts of the case. .e ■^.^ill state cuch of thera as ./e deera ,jiaterir,l to a detemiiiation of the controversy. I n January, 1896, lirs. Duinte, then Miss Hardecty, and only 15 y.aars of aje, • "as, -Jitl. the consent of hBv father, regularly married_ to one J. r/7 './oo'dy who had" "been previously married,_ond -.Jhose \;ife at the Yirno vas livin^^and undivorce d. Miss H ardecty did not then la:o-.' that lie_ _wac a Married rjan, aad -./as therefore innocent of any -.vron-^c in entering— into the ira-rriase^Telation v;ith him. On ilarch 51, 1696, u'ood and the def endant in error, as hus'oand anO- wife, e::ecuted to plaintiff in error_ adeed^purportinj to cuuvoy to hin tlie property, in controversy y -^vhich v?as duly si^-neu and aclmov/led^ed as required hy our statutes for the conveyance of tlja property of married women. __ The consideration v.'as in part paid at the time of tjie transaction, and tlie deferred payments were thereafter discharged. No part of the consideration or its proceeds cane to tlie hands oi' LIrs Dunils. Tlie plaint if x' in error at the tine of the^ ixaasaction /believed that slie -/as the lawful "WlTe'of ". ood. H either had ^he defend::nt in error u^: to this time discovered the tl'aud v/hi^JThac!' "been pr?.cticed upon her "by hor s'i.pp<5--'^d hiisiaraLr=~Ir!-Kovemb«r— of-t-he-sasne year t]:e dpfcudant ixi error, no\/ I.Irs. DujuIe, -brought _ suit a^ainEt T7ood, ^g, nd obta ined a decr ee annulling- tl ie maaxia-^e . She subseruently^raairl't^d her pr esent husband. i^erhaps, under the strict rules of ccnmon lav/, we should be con- strained to rule tliat the raarria^^e of defendant in error with ".Vood was absolutely void to all intents and puri^oses, and therefore to hold tl'£ convoy£ince from "ood and t.e putative wife a.lE0 void. But we are of the opinion that tie common-law rule does not apply to tliis case. C!he title of the act of January 20, 1840, entitled "An act to adopt the comrion law of En3;laad, to repeal certain Hexicaii laws, and to re^T-'Jate the marital i-i^hts of parties," indicates that the ri^-hts of married persons "were to be defined by statute, ;3i not to be ;joverned hy the rules of the common 63, law. The provisions of tixe act with refore^xo to married persons are so incousicteut with tiic rviles of the conmoii lav/ as to show an i:itei±iou to maiiitaiii in reference to marital ri^iitc a radically different system. The fact that these provisions vrere incorporated in the act which adopt- ( ed the common law is of itself significant of the purposo of the Lesis- latijrQ not to apply the rules of tic common law as to the property ri£;hts of husbaiad aiid wife. In this connection it is notable also that the statutory rules v/hich v/ore adopted are talien in the main from the Spanish lav;, v/lich then prevailed in Ihe republic. So strilciiis is this fact as to justify Cliief Justice Hemphill in saying, in Bxirr v. V/ilson, 18 Tex. 370. "Our laws on marital ri^ts are in substance hut a contin- uation of tlTO lules of Spaiaich jurisprudence on the same subject-matter"; and a^-ain, in Bradshaw v, Hayfield, 18 Tex. 29: "But the common law is not, a:id never has been, of force in this state on tho subject of mari- tal rights." The rule of tlB Spanish law witli reference to such mar- ria^E as that v/hich took place between Wood aifi Iliss Hardesty is thus eirpressed by the same emi:ient judge in Lee v. Smith, 18 Tex. 142: "In Spanish law, sich marriage is designated as putative, and th3 consort vho enters into such matrimony ignorant that her parti:ier has a vdfe or husband living is in lav/ not only innocent of crime, but has all the rights, incidents, a;:d. privileges pertaining to lawful marriage, and these are continued as long as there ic ignoraiue of tho former, or of impediment to the second marriage. This putative vas converted into a real iiaarriage after tho removal of the impediment by the divorce obtain- ed at the instance of the first v/ife" — and is well established by prior aiid cubseq^uent decisions of this court, at least in so far as it recog- nizes tte right of the imiocc:* vdfe to one-half of the property ac- quired by either of tte supposed spouses during the existence of the putative marriage. Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121; Carroll v. Carroll, 20 Tex. 731; Lee v. Smith, 18 Tex. 142. The rule, however, as applied to persons vAio have married in this state or liave immigrated to the state since the passage of the act of January 20, 1840, has never, so far as wo are av/are, been aiinounced in any opinion of this court. In Houth V. Routh, 57 Tex. 589, in which the opinion v/as by the Commission of Appeals, tlE question, as we understand it, v/as eacpressly left open, thou^i, iii an individual opinion, Judge Bonner announces his conclusion to be that Bie i:niocent putative v/ife v/as entitled to one-half of the property acquired during the continuance of tTre supposed marriage. In Ilorgaii v. Ilorjan, 1 lex. Civ. App. 315, 21 E. ':. 154, tho Court of Civil Appeals of the Second District, in an able opinion by Judge Head, azi- nounce the same doctrine, but that case never came to this cotnrt. So in La\/Eon v. Lav/son, 30 Tex. Civ. App. 43, 60 S. H. 246, tho Court of Civil Appeals of the Fii-st District follov/ the rule annou:iced in Mor- gan V. Ilorgan. The opinion there delivered was by Judge (Jill, and ably sustains the dtxjtrino. In that case a writ of error v/as applied for, and vifas refused by tMs court. Therefore v/e think it should be tal ^ i5=-c? 65. / J UIDDLSTOn et al. v. jaiHSOI?. p\, (110 £. XL 789) (Court o£ Civil Appeals of Te::as. Llay 7, 1908) Appeal from Discrict Co^r.t, Ilari-isoii Co'Lint-/; R. :. Levy, Jucse. Trespass to tiv title "by I. A. Jo lmstoii against Irene Iliddleto.--. s;vi others. Fro^i a judgment far pi a intiffT^Se fondants appeal^ ^Iffiiraed- "./ILKCn, G J. Bie su it was "brought "b y a ppellee Jolpston a^-ain£_t Irene Middleton and Joe~lj'ields to try the titl e to 40 acres of laiid, a "piST^rTheTLrLT^JoodE ^survey /situated in Kcd-'ison county. 'Sie peti- tion v/as in the statutory form. Fields ans\7er^ . di§.oI_aiming_ titl_e. Irene liiddleton' s ancv/er was a plea of not guilty. Sie trial v/as TDefore the court, v/ithout a jury, and resulted in a judgment in favor of John- ston. Ei8 conclusions of the trial court vsre not reduced to \vriting and iBade a part of tlie record on tliis appeal. It v/as agreed that Kirk Cory aid Ms v/ife v/ere the common source of title. By a deed dated October 11, 189S, and recorded on the same day, for a consideration of $540 therein recited to have been paid to them, tliey conveyed the land to ICaleigla lliddleton, v/ho by his deed dated February 11, 1905, for a consideration of $293 therein recited to have been paid to him, conveyed same to appellee. Sia evicence es- tablished that Ilalei^li lliddleton and Ophelia Ililler, negroes, r^rere mar- ried in 1872, and thct legally tie relation of husband and wife con- tinued to exist between them until the death of Ealeigh in 1906. ThQ claim of title asserted by appellant Irene Lliddleton rested upon her contention (1) that the purchase price of the land v/as paid ior by her ani that Raleigh held the title in trust for her-, and (2) that, if tiis was not true, the title vac acquired by Raleigh at a time \lien sie in good faith believed she was his wife an3. v.as paid for v/ith mon^" earned by tiiem v/hile she so believed, as the result of tlieir joint efforts as husband and wife. Eiese caitentions were based upon evidence that ste liad iTiarried Raleigh in 1883 believing he had obtained a divorce from Ophelia, and upon evidence that, while they were living tcgetler as man and v/ife, fcejr had pui: chased the land, payii^g for it v/ith money earned (e::cegt a small portion thereof) by her, and., after purchasing it, had majde it their home. Th.o evidence tended to establish tliat Irene and Raleigh v/e:e mai-risd in 1882 ca: 1883, and that dizring a number of years thereaf terv/ai*ds they lived together as man and v/ife, and v;ere so living together at tiie tiv.-B the land in controversy v/as conveyed to Raleighr The evidence was conflicting as to v/hethe- IreiE at the time sl:e mar- ried Raleigli in good faith believed he ".lad been divorced from Ophelia, and it also v/as conflicti.:g as to xAxethe-i she iii good f o-ith 'bel ieved she v/as Rcaeigh'c lai/ful -.afe at the time tlie land v/as purchased and conveyed to him. Me do not thinh tlio contention made, that, as the putative wife of Raleigh, Irene had acquired homestead, rights in the land, c?n be sus- 66. tained. Without roLpect to xh^'chor she in good faith married him, be- lieving he had been divorced from Qphclia or not, it must be said that her marriage to hiin v;ac void, and that at the tiire the title to the land wac acquired sh3 v/ac living v;ith hin as hie wife ia violation of law. Ae was raid in Lane v. Philips, 69 Te:c, 241, 6 £. TT- 610, 5 Am. £t. Rep. 41: "It never was intended tliat persons so associated and liv- ing together in plain violation of lav/ should be deened a fanily, ^■Alich it is the purpose of the homestead exemption to protect. To constitute a family, vatliin Eie meauiig of the lav/ givirg the homestead o::emption, the irersoiE \/ho dwell together must not in the fact of so doing be vio- lators of the law of the land," A homestead is not an estate in land, but a mere e::emption or right personal to the parties in whose favor it exists. 'EhomaE\. Fulford, 117 U- C 667, 23 S , E-. 635t Sllinger v. Thomas, 64 Ifen. 180, 67 Pac. 529. Its e::istoncc depends upon the exis- tence of the concUtiouE defined by the Constitution and laws. Ihere must be a family, otherv/ice there can be no homestead within the meaning of the Constitution? aixL the fa:uily must be one v^iich e::istSi not in violation of, but by authority of, the law. Tlierefore it must be held that the conveyance made by Raleigh ol' the land to appellee was not void, because Irene did not as his wife join him in its execution. If she had rights in the land entitled to protection as against Raleigh's deed, some othEr basis for them than the law defining the wife's rights as to the homestead must be found. In BarUey v. Hva-nke, 87 £. v:, 1147, the Supreme Court declared it to be the settled doctrire in this state that the putative wife so long as she acts innocently lias, as to the property acquired by her and her supposed husband during the time she so acts, the rights of a lawful wife. The rule seems to have for its support the principles controlling in determining the rights of copartners; their relationship and that of husband and wife, under the law in force in this state, being regarded as analogous. It was applied in Morgan v. Horgan, 1 Tex. Civ. App. 315, 21 S, ".:. 154, and Lav/son v. Lawson, 50 Tex. Civ. App. 45, 69 S , Vi", 246, vftiere the reasons for it v;ere clearly stated. Before it can be held to apply, it must appear that the person invoicing its application for her protection during the time the property was being acquired in good faith believed ciie was the lawful v/ife. Tlie judgment in f aver of appellee involves a finding by the court below that Irene did not in good faith believe she had been lav/fully mai-ried to Raleigh, and did not in good faith believe she v;as lavtfully his wife at the time and before the title to the property in controversy was ac- quired. Eiere v/as evidence that Irene lived in llarshall in 1878, and taiew that Raleigii and Ophelia were then husband and wife; that in 1878 Raleigh deserted his v/ife, and, v.ltl-x Irene, left Marshall, going, it seems, to Sherman, vhere tlie3'" claimed to have been married in 1882 or 1865; tl-£.t Irene returned to Ilarshall prior to 1885 anf. ..larried one Doc Campbell, vath v.hom slio lived as his vafe until 1866, when, Raleigh having returned to Ilarshall, she abandoned Campbell and began again to live \d.th Ralcigli as his wife.; and that, after the land v/as conveyed to Raleigh in 1895, she made trips from Harshall to Terrell arA to Dallas, airi while at those places lived in af-ulteiy vith other men. Cti the other hand, there was evidence tliat in 1878 Ralefeh instituted a suit in the district court of Harrison county against his v/ife fa- a divorce; that in 1882 or 1863 he stated to Irene that he had hoea divorced, and e:iliibited to "jier a paper vhich lie said v/as evidence of the fact; that ^7. 6he could neither reaxl nor write, aM thoroiapon agreod to and &^^ marry hifflf that sh3 returned to Marshall, and thqre declared to CjpJielia that 6he asd Raleigh had been married; that from ia86 until later than 1893 she and Raleigh lived together as aiad claimed to be man and wife; that •while they were so livii^ Ophelia married another man, '41^^ vihom as his wife she continued aftervvards to live; that Iron» palA -Out of her ovnx earnings the purchase price of the land in controverey, and v;ith Raleigh Gjod their children moved to, improved, and lived on same as their home; that in 1901 Raleigh hrou^t suit in the district court of Harricoa couatj'' against her for a divorce, alleging in his petition that he and she had bean lawfully married in 1882, and that Ihey had lived together as man and wife "until about tvAj years ago." In this state of the evi- dence a majority of the court is of tiie opinion tliat tlie findiiag of the trial court cannot be said to be without support, or as against such a prepoaderaiXie of Ihe evidence as would justify us in setting his finding aside. As supported by the evidence, therefore, vre find in acccrdaace ■with tie finding of the court below that Irene did not marry Raleigh at the time in good faith believiug' she lavgfully could do So, and that slB did not vjhile she lived with him in good faith believe she vtas his lav>. ful Tslfe. Hiis finding necessarily would residt in an affirmsiaoo of the judgment of the court bal»w. But we thialc there is also another ground upon which it must be affirmed. ISne judgment rendered involves a finding by the trial court tJiat Jobufitoa acquired the legal title to the land as a purchaser thereof in good faith for a valuable considera- tion paid and without notice of the equities, if any, in favor of Iren*. ©lis finding, we thiajt, must be held to be supported by the record. Johnston testified that he had heard that Raleigh had a wife, but did - not kaow that Irene claimed to be his v/ife or that she had ever lived with hlra as siacfe. He paid Raleigji 0293 for tlie land. Of the sura so paid Ol29 v/ais. monay and the remaiaing 516* v/as paid by crediting an ac- count di» to Mm by Raleig^i. "/hile there vjas evidence tendiug to shov/ it to be worth a great deal more; there was also evidence tending to show that at the- tims Johnston purchased it the land was worth no more than frOB. $200 to fj.^0. Iher© was als o evideiice that, wlsn appellee first endeavored to induoe RaXei^ to ej;ecute the deed, the latter re- fused to do soj aesigBing as -a. reason for his refusal tiiat he had a wife in the Indian Territory vSm ->70uld male trouble -iBn she found out he had done SO; that a year later, -Jlien. a^ppellee renewed his effort to induce him to e:cecute the deei, he again refused, assigning the same reason; Qiat appellee then said to him, 'Cigu it, and I will run the rick"; and tJiat Raleigh tlien eicecuted and delivered the deed. Qa behalf of Irene, counsel conteaa. tl;at Uiis was sufficient to put appellee upon inquiry, and that lie v;ould be c5iargeable with notice of sich facts as he vrould have ascertained by such inquiry. Jt may be conceded that this is true, but it does not follow that ^pellpe, therefore, should be held to have had notice of the equities in favor of Irene. 1!hQ matter about vhich he diould be held to liave been put upon inquiry was Raleigh's assertion that he was a married man. Johnston, perhaps, should be held to such icaov/- ledge of tins truth about tiiis as would have been ascertained by inquiry; that is, that Raleigh was a married man, and that Cgihelia was his \7if6. If Ophelia, instead dt Jrece , was making tl-s contention here made for Irene, it would be held that Johnston toolc the title diarged v/ith notice of Ophelia's rights as Raleigh's lawful wife; but information conveyed to SB. appellee that 'Raleigh had a v/jf e did not put the ibimer apon inqnirj- to ascertain v/hc the r oi- uot the lo.ttor '.'ad be on liviug with Irene as his v;ifo aud that v;hile t:-jey v/ere so living she had acquired equities in th5 land. SanlDom v. Schuler, 86 Tex. 116, 23 £. ■..". 641; V/ettered's Adin'r v. Boon, 17 'i'e::. 14G; F.ailway Co. v. C-ill, 66 Tex. 284, 24 S. U. 502; 21 A. A Ency. Law (2d Bd.) p. 537. The rule is tiat one viio seeks to ingraft upon the legal titlo a secret equity must prove that the pur- chacor of the l3gal titlo had notice of svch equity. Loan Co. v. Tay- lor, 86 Tex. 50, 29 S. '.'. 1057. V/e thinlc the trial co-.irt di3- not err in holdi:]g thet Irene had not dischai-ged this tnarden. By her fourth ass agnraeji of erroi- appelladb conplains that fiie judgment v/as erroneous, because, as sis contends, the evidence shDv?ed that thi conveyance laade hy Raleigh -.vas interded "by the parties tliereto to operate as a mortgage, and not as a deed. This contention is "based Ui?on tr.Q fact that at tlis time Raleigh executed the deed appellee exe- cuted and delivered to hin an instr-urent reciting that the former had settled his account in full hy conveying to the lattor the land in con- troversy, and obligating appellee to reconvey the land to hin if Raleigh, before tte let day of November follovang the date of the deed, should pay to him the sum of 0293 and inter est thereon at tie rate of 10 per cent, per pjonum. The. instniment and the deed to Johnston ftirnish the only evidence in the record as to the intent of tlx parties. It cannot be said from their recitals alone that they shov/ tlic^t fiie intent v:as that the conveyance should only operate as a mortgage. Goodtai" <2: Co. v. Bloom (Tex. Civ. App.) 96 S. ^'. 657; Harvey v. Edens, 69 Tex. 420, 6 S. \T. 306. Tnc judgment is affirmed, IE.VY, J., not sitting. \~ ?v. o ^- \ ^ t-o -<^-^— ».n— J 69. FT. ^:0R2E u H. G.. RY. GO. v. ROBERIEOn et al. j-i, (Court of Civil Appeals of Terras. April 17, 1909. Reh'^r-rine: Beuied May 15, 1909.) (103 Tox. 504). Dunkiiii, J., disEenting. Appeal from District Court, Tarrant County; I!ife S. Smth, Juige. ActioaJb;y_Hs. ;?.?ie II. Eobertson , as sur viviiigjvVidov; of Jolm P. Rot- er tson , aud as ne:::t friea(5 ._for ^anie Roljertson. a surviving child of John P. Robertson,, a, -g ain st the~Ft. ..'ortii~^Jj:io Grande Railvreiy Company. Judgment for ila?.utiffs,^nu defendant appeals. Affimedi SPESR, J. liiggie M. Robertson instituted this suit in behalf of herself, as sur'/iving vddo-'- of John P. Robertson, deceased, and as ne:ct friend for Annie Bobert-r;on, a sicrviriiig child of tiie said John P. Rob- ertson, to recca'er darnap.'cr for injijries received by the-said John ?,. Ecibertson thi' oiaC-'h tlic •aojlii'enca of Gig Ft. '..orth di Rio Grande Rail'.vay Company, \7hinh. injur iec did not result i n h is death. There v.as a verB-ict aoi a jTj^gn EHt in favor of the pia:.ntif f s f o r the sun of $2,500 each, from \*Lich the defendant has appealed, complaining only of that portion of~the judgment in favor 'of ~Ma^ Ie~M . Roberts on . " There is practicall;'- no controversy in the facts of this case, and the issue presented is purely one of lav/. llagG'ie H. Robertson, while quite a young girl, v;as inarried to the deceased, John P. Robertson, ob- serving all the EOleranitisE of law, and the two continued to live to- gether as husband and v.lfe until the date of his death, more than 10 years tlareafter. At the time of the attempted marriage, John P. Rob- ertson had a living wife from viaon he had never been divorced, but of the existence of this nai~r iage appellee was ignorant. At the time of her crai^riage, and at all tii-iCC until the truth was disclosed on tlie trial of this case, she had no reason to believe that her marriage vjas not in all respects lawful, but, on the contrary, firmly believed that tlie same v/as regular. Tliore is e\^idence to indj.cate that the deceased also entered into the marriage v/ith appellee in good faith, but as to this we e:,g)ress no opinion, since it is vmimportant in the view ^x talte 0£ the case. Jolin I . Robertson during his life instituted suit ag-ainst appellant to recover for the injuries sustained by him, but died before the cause proceeded to judgment. Th& issie of law presented is very clearly stated in appellant's propositions, as foilovi^: ''First, Ilaggie ¥l. Robertson, not being the lawful v.ifo of John I. 7.6bertson, deceased, had. no interest in an action by him far injuries done to his person, and such action, being b-ought by him in his lifetime, did not sur\'ive at his death to plaintiff, L'aggie M. Robertson, but only siiivived to his heirs and legal representatives. Second. Plaintiff, M^^'gie M. Robertson, v/as the putative and not toE lawful v.lfe of John P . Robertson, deceased, and as such had no interest in a caase of action which abated at his cleath e::cept as ts his heirs 70. and legal reprecentatives, but only had an interest in such property as they "by their joint effotts may have acquired during the xonlawful co- habitation, and the action brou^t by deceased in April, 1907, having been abandoned, plaintiff, Uaggie M. Robertson, had no such interest in said cause of action as v/ould authorize her to maintain this suit." . It vdll Ibus be seen that two questions of lav; are involved: First, \-aiether or not I-teggie M. Robertson, as the putative vafe of John P. Rob- ertson, deceased, had an interest in her o;m right in the cause of action against aprellant for personal injuries not resulting in the death of John P. Robertson; and, secord, if not, then is the said Maggie E. Rob- ertson an heir or legal representative, lAithin tlie meaning of our statute, surviving such causes of action? It \;oulc). be unprofitable to review the many authorities and to rehearse the arguments leading up to the conclu- sion so clearly announced in Barkley v. Dumke, 99 Te::. 150, 67 £ . "57- 1147, vhereia ilr. Chief Justice Gaines uses the follomrig language: "Therefore w© Clink it sliould be taken as the settled doctrine in this state that, in case of a marriage of the character of tliat in controversy, the putative wife, so long as sle acts innocently, has, as to the proper- ty acquired during that time, the rights of a lawful wife." See, also, Allen V. Allen (Tex. Civ. App. ) 105 S. '.7. 53; Speer on the Law of Iilarried \7omen. Sec. 178. In the Supreme Court case from v/hich the above quota- tion is tal^n it is very clearly pointed out that the rule of the cormon law MJith respect to such niarriages does not obtain in tLis state, and the earlier cases of liorgan v. Ilorgan, 1 Te:;. Civ. App. 315, 21 S , U. 154, ard Lawson v. Lav/son, 30 Tex. Civ. App. 43, 69 S \I. 246, -.iierein the Courts of Civil Appeals had recognized tl-e property rights of the putative wife, Vv'ere e^^pressly approved. Appellee, tlien, leaving married John P. Robertson in good faith, is undoubtedly entitled to the rights of a lavrfXil wife in the prciperty acquired by tliem, or either of them, during their marriage. It is equally well settled th^t a chose in action accruing to either spouse during tie marriage by reason of an injniy to the person is commimity property. Ezell v. Dodson, 60 Te:c. 331; T C. Ey. Co. V. Burnett, 61 Te:c. 638; Speer on the Lav/ of Harried Women, Sec. 193. So it necessarily follov;s, v;e think, that appellee was an equal owoer with her husband in the cause of action against appellant, and was only precluded from suing for the same prior to his Heath by reason of the rule of law in this state that such- causes of action may be main- tained only by the husband. Upon his death t?-e impediment was removed, and she, like any other litigant, might properly assert her legal ri^its, irrespective, we think, of any statute surviving tie cause of action as tp the heirs and legal representatives of the deceased hurb?iid. In Oder \v'Qrds, the chose in action, being proL^erty, -was- acquired by John P. and iiaggie 1.1. Robertson during tlie time they were living togetlier as husband and wife, and, as such, belonged jointly to t>.em, and after his death slie , as such ovaaer, was authorized to maintain a suit for its re- covery, precisely as C^.e smrvivii:g wife of a perfectly regular marriage might sue to recover the coEsnunity property. V.fe furthermore thinlc this conclusion should be wholly uninfluenced by any consideration of the question vtieGier or not appellee actually contributed anything tov;ard U\ii acquisition of this cause of action. If the marriage bet'.'een appel- lee ard John P. Robertson had been regular, undoubtedly then Kie law would not inquire -a&iether the wife's efforts had entered into the acqui- :. v.^ , .. : [■■;-: ::■. tiy:-;t:. :■■:. J":- "♦'•■■ . :';vv;.!-V'. ■^-■•£'j;..v It. i-i: ..•; ~ •j .l./:iWjiX; ^? v.U :i.it«X. I..:'ri.;;;fu.. . .*«;■■ ,. ::7C'.r-.v ^!:i:- 'CI..-''-: -T \;c ' ;'.'.i'/f.ww.,.: ■ fo M ''<:•;> .;.-ii •'i.:ii> ii'ifl.i t. • '.wJ*' f.Ci. ■' -'i A vC'T- t> ;•..,. ...:,.' ■; ';■■■: ^n ,.r;oa'T- )•/-"; .:. -:-.L .;. :} ^-i:' ^': ' i\ hL^.-: ■.■■':'" ^x' ziv: 'h -'or ■••'£". :s.:^>--: /■ ,r . ^■3S'r:''-i^iH ,'i ,x;i.-l : ,..5-i ; -; .-Xd'-.i iun-i;;: >. ': •- -•• -■■■■■■ ''V/.?. ^iaJ:^•xv'■^;•i rc;\-.„ -.••' c; ;'tJ Vii. .A/^ -.-v ; : :. ■• ..; .c:Oi':|(Ji^ -^ •■.■■•"■. :.;; . ■ ..,■•■..; ..i ■ : .. vi'':i;:..i^ v.: i::oi3 : f-^.^,:;: <•..•:/.;., , . . -..i-.; ■.«:.:^,:^ xm^ .;. ' ^i^ur-iu.!?' :'..v .'iv..Oi; ^c^ ;:; . :' *: . .-^ - .■j/ ''i;> ,v^->ii'A .:— ••:;.:. ■■:..:■■ :.'. -:.).. ir ■ ; , •;VI , ^« .? .Jjois^v./ :. :/!-' J'-.o'xo.^ '/i. ;;:>■- V.;-. ^i ;^/ jivi'iiSl :i.} iiO*" , n . oii :;,o%, ■ ;.,..( ;!.xsk;,> 'at; :; "^;) •}C;v;-j;'i''j ".i.^^ -.^mI .■o,Xr>:;..^ .I,...vci:-.v ;:io;5^'.i ; ... -;:i.; 5»fi\; i vi,ic?i^;. • J/:. :.;;,;;.; -^rt';:; , .-, •: ..• ... , , ,. ^ :.:v 'i:\ ^-^ i'.^'^ ■ J ■ ,:-/:r.-.rv.- .:;. m,,, , ... ■.,- -...i ,■; ":' l-::::^ • ■ ;■ ' v^r;:-; .■•■:• . •■■ . ,' :.■■ '■' ';:;^ii• ^- ■•■• TVjJ ,.1, wi; 'C.:",?-;-. ^•i'^•:l:.;.:::^C•"■■,- c» '. C- . ' J. . : ; : : •;. ^ r;:, ..' . . .. 'ti" iXf' ''■"■■■ '■ c,V •.! ■.: .;. -i .;'i.'.' '>.' '■'.-'! 71. V citioa or not. If ths logic of the decisions already rofen^ed to is sound, and we thin'.c it is, the la\/ Y;ill not inquire iu the present case './hether the acquisition was by the joint efforts of the husbani?. and wife, or atten"Q?t to adjust their respective rights in proportion to the amount each contributed thereto. Hie law will not concern itself v/ith such an inquii'v, but vdll leave the parties to sliare iu the property in the same proportion as thcrugh the marriage contract was -./hat the vdfe had every reason to believe it to bo, i. e., a valid marriage. To accord to r appellee a rig-ht to share in the acquisitions of herself and Jo]in P. Eobertson only in the proportion in which her earnings or efforts entered into the acquisition would be to accord her the rights of a stranger, and not of a vafe at all. Such a conclusion would be at variance with the whole theory upon t/nich the decision of Barldey v. Durake, and the line Of cases therein reviev/ed, is based. \7e would further hold, if it v/ere necessary to a disposition of the case tl;at the cause of action survived to appellee under article 5353a, Sayles* Ann. Civ. St. 1697. That article p:iOvides: ^'Causes of action Ux^- on whld-. suit has been or may hereafter be brought by the injured for personal injuries other than those resulting in do a tii, whether such in- juries be in the health or to the reputation or to tho person of the in- jured party, sh-all not abate b:/ reason of his death, nor by reason of tiie deatl- of e^e i erson against whOi.i such cause of action shall have accrued; but in the cate of tlie death of either or both, such cause of action shall survive to and iu favor of the heirs and legal representatives of sucili injured x-»arty, and against the person, receiver, or corporation liable for such injuries rnd his legal rei-i-esentatives; and so surviving, such Cause may be thereafter prosecuted in like manner and with like legal effect as v.-ould a cause of action for injuries to personal property.' V/e tliinl: the evident purpose of the Legislature was to abolish the common law rule that a cause of action for personal injuries not resulting in death should abate upon the death of either party, and that a liberal interpretation of thie remedial statute would include the appellee v/ithin the scope of t'.a terms "heirs and legal repreE3ntativeE." fflio injuries out of 'fihiol-i tiais suit arose v/ere inflicted Ilarch 26, 1906. Tlie deceased instituted suit on April 4, 1907, and died in August of that yecr. Thct suit was abandoned after his des.th, and this suit instituted in September, 1907. On June 11, 1908, appellee, learning on tliat day for tie first time of th£ existence of the othar living v/ife, filed her trial aiTientf-icnt asserting' har lislits as a putative wife. Under these circurasta:ices, the appellant's plea or two years' limitation ■'./as properly overruled. V/o find no error in the judgLient, and it is affirmed. ,. DIUKLIK, J. (dissenting). Although iJrs. Ilaggie Robertson acted, in perfect good faith in har attempted marriage to J. P. Robertson, yet, as it was conclnsivel" shown ttxr.t he was never divorced fro:.i I.Irs. Annie Budd, and Qisioforo was legdlly incapable of coutracting a secoix'. vclid marriage, it follows chat Lh-s. llaggie E.obert£on was never the lavtful vlfe of J. i. . llobortson. For the s^ma reason lirs. .Uinie Budd never chajiged her legal status, ac tl^ lawful vife of J. P. "lobertson, by her attempted 72. niarria.'je with John Budd; and the fact that she has not seen fit to "be- come a party to this suit ojid ask for damages for ttie injuries in con- troversy sustained by J. P. IJobertcon does not affect the question as to whether or not i.Irs. Liaggio P.oliertEon is entitled to recover. If rlrs. Maggie Robertson was not the lav;ful v.ife of J. P. Robertson, then in no sense was she his heir, vdthin the moaning of Sayles' Ann. Civ. St. 1697, art. 3353a, providing that causes of action for ijersonal injuries other than those resulting in doath shall, ti^on the death of the person in- jured, survive to and in favor of his heirs and legal representatives-. She did not sue as the exocutrijc or admiuistratri:; of his estate for the benefit of his heirs and creditors, but sought to recover, and did re- cover, 4''2,500 in her own personal right, v/ith no evidence to su^^port that claim except the fact ttiat she in good, faith mari-ied and lived v/ith J. P. Robertson as a wife, and that the cause of action accrned to J. P. fiobertson during the orcistenco of tliat relation. Unquestionablj^ lirs. Annie Budd, as the surviving lawful vife of J. P. Robertson, had an in- terest in the cause of action asserted in this suit. Under the laws of this state, J. P. Robertson did not at his deatl". leave t'vo surviving wives. Under the comiiion la^v the cause of action asserted abated v;it!-. the death of J. P. Robertson, but b;^ article 3553a, Sayles' Ann. Civ. St. 1897, it is made to survive to his heirs and legal representatives. Tlae tasis for 2ier contention that she is a legal representative of J. P. Rob- ertson is her claim tlmt she acquired and CTmed a half interest in tho cause of action before his death. I deem it unnecessary to consider whether or not such sn interest v/ould constitute her a legal represent- ative of J. P. Robertson after his death, as I do not believe she ever acquired such an interest. Her contention is that, as she was in good faith his putative wife, the cause of action v;as conj.iunity property br - tv/een than, and each o^vned an undivided one-lialf interest therein. Sayles' Ann. Civ. St. 1897, art. 296C, re2?. Haggle Kobertson. Ho evidence v/as introduced to show that J, P. Robertson ever entered into a contract -./ith :h-E. ::aggia Eobertson specifically conveying to her an in- terest in the cause of action, and to say that sho had such an interest \TOuld be to say that such an interest accrued to her as an incident to Jier nax-riage contract. 75. In tl-B case of Chapman v. Chapman, 11 Te::. Oiv. App. 392, 32 S- 1, 564, Justice V/illiams.. now of our EuiJrer.ie CoTxrt, said: "Hio ri:^it given "by our statutes to the survivor of a mai'riago to adminiater the estate of tlae decoasecl spouse and tlis proxoorty v^iich "belonged to them in common (P.ev. £it. arts. 2165, E167, 2181) is given to him or her vtio is recog- nized "by the lav/ as the lav;ful hus'band or vafe of the deceased, and, as appellant war never lawfully married to Eioraas Chapman, she had not tlae riglit to adraxnicter in preference to any one else. For the same reason, tlaere was no community estate, such as is contenrplatcd by tlie statute, between herself and the deceased. Eie community estate is created by law as an incident of marriage, and does not arise from contract bet\.-een the parties. It is created "by law only as between those viio occupy towards each other the relation of husband and wife.'' Statutes governing the subject-matter of a contract are as much a part of the contract as tliough expressed tlierein, and in this sense are incidents to the contract. 11 Cent. 3>ig. Sec. 750, and authorities tliero cited. Obviously, this aiinounceraent lias reference to contracts only viiich are legally binding. The statutes defining property rights of hus'band and wife baca'ae a part of tlae rarriage contract between J. P Robertson and his lawful wife, Ilrs. Annie Budd. but did not bocorje a part of the marriage contract between J. P. Robertson and lirs. Llaggie Robertson, as J. 2. Robertson was not legally capable of entering into the lapt-named contract, and. ttie same, therefore, had no binding effect in lav/ upon either of the parties. To establish an arbitrary rule that in all cases a putative wife is entitled to a half interest in sueli a cause of action as this, accruing to her do facto husband, vZaon she contributes nothing to its acquisition, and thus reduce t.io interests of the lav/ful '.Tifc and children tlierein to one-half, regardless of how short may be t'.ie duration of tliat relation, regardless of the pecxmiary value of such a claim, and regardless of equities, even, in favor of the la^\ful wife, in vv£\om tlic statute has vested a one-half interest in the cause of action, would, in ray opinion, extend protection to the putatix-o wife further than is v/arranted by our decisions, and further than th£ principles of ec^uity \-X)uld require. It vADUld be difficult, if not impospiblo, to deterninc how much the efforts of each partner to a putative marriage contract had contributed to the purcIoasG cf property acquired by the joint labors o; both, and it is well settled tiiat, in the absence of proof of an agreement to a con- trary effect, parties to a partnership mil be held to be equal partners. Likewise, parties contributing to the purcliasc of property for their joint use and benefit, but not as partners strictly speaking, are pre- sumed to ovn tlE sar-o in equal interests; in the absence of proof tliat one contributed more tlian anotlicr, or that by contract "betv/een tliem it was agreed that tlx interest of one sl-jeuld be greater than that of an- other. Upon this theory the docisions above cited and discussed, hold- ing that property acquired by the joint labors of Cio parties to a puta- tive marriage is ovmod by tliem in equal interests, can be sustained with- out attacJiir^^ to such a marriage contract the incidents attached by our statixtoE to a lav/fui marriage contract. If some of the statutory inci- dents of a la\/ful marriage contract ai*c to be held incidents of a putative 76 mari'iase co;:trcct alco, I cau percaive no valid rej.sou why all of those iucicleats sliOuld. not no attcrc"^., aiid thus jilve tae putative "vife tlio right to plead coverture agaiuct hav covitrccte other tliau for nececsaries and for the benefit of her separate ectate, and inheritable interest in the separate estate of the husband, homestead rights, and all other riglits Siveu by statute to a lav/ful wife. If some of these rights are to attach to the putative marria,33 contract as incid.ents thereto, and others denied, where shall the boundary line be dravrn betweeii such as do axaC such as do not so attach? The fact tl-^it li's. I'at'^gie /fobertson nursed J. t. riObeitson in his illness resultin;2 from the injuries io.v -.hich tliis suit was prosecuted woiild no more entitle her to an interest in the cause of action than. \TOuld the sexvices ronderod by Ms physician in treatraont foi the ssmIQ injuries vest in hiin the ri^ht to agcovgi- for t:o iiifliction of those injuries. For the reasons above noted, I believe that the judgment in favoi- of Ijrs. :'a,s,;i'ie Robertson should be reversed, and, as to her, jud^^Tient should be here rendered in favor of appellaiit. ^„.,£>«S**-^-^%<-1^**--^^=^ I y^'-i^o 3 ^ en — I •^ L^ ^ ^.^I^^^/'r^ ^^\ ^^^^ -^^' .i ^ ^-^^^ -^ ^ c.^^ ^.i^Ci-^^ Og7^.-Z^\ufy\^ «X- ^.^C-^t^ i 77. JEPJ'Ami V. TmiOlS et al. '•" (ITo. 10,715.) (44: La. Ann. G20) April 16, 1892, (Supremo Court of Louisiana. ) Appeal fron civil district court, parish of Orleans; Uiomas T7. Ellis, Judg'3, Action "by: Jog epliino Jerrnann a gainst Ilary Tenjieas a:ad others for ^be revindic at.lia. n of_ _tjg__undivided ha.rf 'of ce-^t-^ii real estate and l3f the re venues thereof. Fra-n a judgment for d-; :t;.a., plaintiff en- tered app"ec:r7 r.evers'ed and new ju.dgacnt entered . Bermudez, G. J. '?nic case was once before this court on an appeal from a judgment sustainins, in part, an exception of no cause of action, and overruling it otherwise. 39 La. Ann. 1021, 3 South. Rep. E2S. Th.Q judgnsnt vras co]icidored oogcui'G, and co:ictrued. \/ith the interpretation thus put, the case went haclr for further proceedings. After trial the plaintiff v/as cast, aid thereupon appiealed. iTIie action has no"w for its object the revindication of the undivided half of certain real ectate, and of the revenues thereof, since judicial denaud. The petition is in the name of Josephine Jerraann, born Attinger, residing in the village of I!ooE, Cantoajrpfist, upper Alsace, Germany. It alleges that she msmax- ried on the 19th of Ilarch, 1651, in the siHage of Heispach, in said Upper Alsace, to Francis Jerraann, who was_jmoTOi_^ubsec[uen^^ leanE_bji^h3_uS^^f~Suld not have proved tlie revenues received from judic- ial demand to the closing of tlie trial. At best, it would have shovrai some receipts, and the case vrould have had to progress on the remanding for the rest. It is better not to try cases piecemeal, and to dispose of them only after all the evidence of \7hich tlioy are susceptible has been introduced and considered. Eie claim of the plaintiff to one half of the property is not disputed by tlio defendant, who utters not a word against it. Even then it could not be successfully controverted. Sie real estate was acquired by Jei-mann.. alias dcrraaine, during the exist- once of his mairiage -.vith Josephine Attinger, vAiicn w£.s not dissolved until his death; in 1675. It \;as acquired, therefore, during the com- munity regime, aid at Uie dissolution of tha coinmunity, by the death of the husband, title to half vested in Josephine Attinger, regardless of tJie second marriage, vðer contracted in good faitii or not. The ques- tion as to Y.hat became of the other half does not arise, by reason of 81, the admission of good faith mode Isy tJ3 iJlaintiff in favor of the de- fendants, and of th© silence of the child of the first marriagQ, and of the absence of any issue and contention about it. Did it arise, and were it res nova, it might present sorce difficulty, particularly if the French cyctem was consulted; but, under the rule of stare decisis, it is finally settled, and has bee cine a rule of property, which should not be lightly disturbed. A perusal of tte opinions of L!r. Justice Rost in the Cases of Patten and of Inkstein, 1 La. Ann. and 7 La. Ann., will amply repay reading, ^e q-ble and indefatigable justice, with his usual sagacity and erudition, giiided by the Spanish law's \*iich have a bearing, and which he quotes in the first case, and va.th which, though at the time repealed, our law was assimilated, in tihe second case, shows that tlX! second half passes to fhe wife, because the husband, by his miscon- duct, forfeits all his rights thereto in favor of the deceived wife, and transmits nothing' by his death to his issue, vjho are thus excluded from all inheritance, except that of his separate prc^gerty. Patton v. Phil- adelphia, 1 La. Ann. 98; Inlcstoin v. Hubbell, 7 La. Ann. 252; Abston v. Abston, 15 La. Ann. 137; Jermann v. Tenneas, 39 La. Ann, 1021, 3 South. Rep. 229; Clendenning v. Clendenning, 3 Ilart. (la.) 438. \7hile revers- ing tte judgment appealed from, and recognizing the ri^ts of the plain- tiff to one undivided half of the property involved, with a reserve of her right to claim the revenues from judicial demand, we think that it would not subserve the ends of justiae to nonsuit her as to the rents, but that it is preferable to remand tie case, to enable her to prove the came. It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and adjudged that there be judg- ment in favor of the plaintiff, Josephine Attinger, recognizing her as the ovsner of the undivided half of the property described in the petition, and entitled to half of th3 net revenues thereof from judicial demand till settlement; ai:d it is further ordered and adjudged that, for the pur- pose of enabling her to recover said half of said revenues, the case be remanded for further proceedings according to la's?; the defendant to pay costs in both courts. (U^<^-<^ ^ jc<2^^^:^ „.C3^^^ilt^<,^C^/ ^L-/^^ .'tpO^.-^^^^-^^-^^? i ^ 'p es. SYLVAiroS n. E.DLER, IMTi E„ S;M)Lnil,, UU^LIMI T, :/0:aiHIIIMOII AHD ffiORa: D. BLAXE, Appellants v. U. R. niESZ AHD ADA B. WIESZ, Kespoudents. (5 Tfesh. 102.) AppecJ. from Sviperior Court, ICitsap Goimty. The opinion of the court vras delivered "by Stiles, J. — Sylvester H. Sadler and Ilary E. Sadler were married in the State of Pennsylvania in 1863, and lived together as husband and wife for about eight years, at tloe end of vAiich time Sadler, v,ho \;as a sea- faring man, left his wife and family and came to the Pacific Coast. About 1873 he took up his residence in Kitsap county, and lias resided there ever since. His wife and family remained in the east, unlciov;n to any of his associates ai:d acquaintances in the v/est. Sadler represented himself to his friends and neighbors and to purchasers of the real es- tate involved in this action, as well as purchasers of other land v/hich he acquired, as a widower v^iose wife had died a number of years ago, and his statements vere generally believed and frequently acted upon. In 1883-4, he acquired the lands wMch are the subject of tliis action in part by purchase deeds from private individuals, and in part by preemp- tion patent from the IBiited States- Subsequently he sold and conveyed this land to the respondent, U. E. ITiesz, or his grantors, by numerous deeds, in the body of some of which he stated that he \;as an unmarried man, and in others, by representations to the officers who took his ac- knowledgements, he caused them to recite in their acloiowledgments that he was unmarried. Niesz paid a large consideration for these lands, a considerable portion of which went directly to Sadler, and his convey- aices Virere taken without any notice or siispicion that Sadler had a wife living, or that his statements as to his condition \:eTe not true. In 1869, some time after the last tract vi^s acquired by ITiesz, I'ary E. Sad- ler appeared in the state, saw Hiesz, told him tliat she was Sadler's v/ife, and asserted her right to an interest in tlie land, but offered to relinquish all her claim if she v.^re paid the sum of five thousand dol- lars. This v/as the first notice that Kiesz had of her existence, with the exception that about August, 1889, he heard a rumor that there 'vas a woman who claimed to be IJrs. Sadler > Upon her coming to Y/ashington, I js* Sadler took^up her re s idence_wijai_he_r fiusband 'and ' 1 1 ved^ wTthr Him for about three months, but after that time and ftira year previous to the trial of the cause tlie y' had I i'ved apart, he in Seattle and she in XitEap county. iJponTniesz ' s" rof usal'to recognize her claim or to pay her any money for its relinquisliment , this suit was brouglit by the_Siidr lers and V/orthing ton a::d Blake, who were their grantees under deeds made sinc e_ IIrs. Sadler^ arrival in the ctate, and therefore subsequent to ^ the conveyances to IJiesz. Considering these facts, vAiich were admitted over the strenuous ob- jection of the respondents, tl^e complaint in the case was peculiar. Ihe plaintiffs are named simply as Eylvanus ITo Sadler, liiry Eo Sadler, Y/il- liam TJorthinstou and George D. Blake, and its only allogationc are that the plaintiffs are seized in fee simple as tenants in common of the property (doecribing it); that they are entitled to the possession of said land; and that defendants are in poEsession and unlav;fully vathiiold the same from them, these allegations being barely sufficient to support a naked action of ejectment based upon a purely legal title. No alle- gation whatever was made of the marital relation existing bet-.-een Sac^der and his v/ife at the time he acquired this land, the pleader assuming that tli2 various deeds made by Sadler vare absolutely void, and that under the allegations of the complaint proof of tb3 irarriage relation between the Eadlers could be made to show the legal title In '.'vs. Sadler as well as her husband. The appellants urge numerous objections to the findings of the court on the ground that tliey v.ere not justified by the evidence, and it may be conceded that some of the minor and unimportant facts vere not sustained by any evidence, bat /e find tliat all of the material ones were sustained by some evidence, arA, althou^ Cie testimony on these points may have bean v/eal: or contradictory, v^e are required by tte stat- ute to treat them as a special verdict of the jury, wMch is not to be disturbed fcr suih reasons. The main question of the case is, vhether the judgment is suf tainable upon any conclusion of law deducible from the facts found, and we ehall confine the discussion to that point. Eie court belov; found that Sadler v/as estopped by his representations and warranties; tliat ilrs . Sadler was estopped by her remaining away from the territoi^r. v/liereby knowledge of her relation to her husband by people v/ho \vere likely to deal vA.th him was suppressed, and by her silence when she might have let it be Icaown in the community vliere Sadler resided that he vias a married man; and that Blake and T/orthington received their pretended deeds after the estoppel, and with laiowledge of the rights of iiiesz. The several members of this coiort are unanimous that the judgment rendered by tlie coirrt below should be affirmed; but a constitutional majority are unable to agree upon any one ground which should be as- signed to sustain it. Ve, -therefore, order the affirmance and proceed to give our several reasons for the action taken. Appellants maintain that there is no estoppel against an attack upon a void instrument even by the man who e>:ecuted it, and that, tisre- fore, the court erred in its conclusion. They lay it down that the legal title to community real property is in both, husband anj?. v,lfe, or that mere correctl;' speakiiiig it is in the coramunitjv, which is composed of the husband and wife, and tliat until the coramun.itr acted there --as no deed but merely a void paper. The supreme court of the territoiy, in Kolyoke v. Jaclffion, 3 Y/ash. T 235 (3 Pac. Rep, 841), certainly gave countenance to this proposition, in its a-:ialysis of the act of 1879. Whether that decision was influenced to anj^ e::tent by the decisions in other states or not I am unable to say, as none are cited; but it ic true that at least one case, Zimpelman v. Kobb, 53 Tex. 274, is found to fully support the substa:ice of ths theory that £ie title to community real estate is equal in husband ard v/ifa, for the court ttere said: 8£. "Under liio la\/ as na.v settled l>y tie former decisioiis of tliis court, tte titles of tlie ltuE"baiid a;id -.vife to the conraunity property are eq-ual, tlB oaly differGUce beiag, that during the continuance of the marriage relation, tte hurba-od, as the head of tl:e fa:nily, has t:^ man- agement, control aiid disposition of the property for their joint bene- fit." But ZiiiQ?elma:i v. Hobb is not no-v sustained by the suproEB com-t of Texas. Mv;ards v. Bra.n, 68 Te::. 329 (4 5.T7. P.ep. 380), held that the legal title of the la:i:d conveyed to either husband or v/ife \vas in that one to whom the conveyance rail, although beneficially the property belonged to bo Si; ai:d tliat the beneficial interest of the otl:ier spouse T.'as an equitable interest only. Zinipelmaii v. Robb is disposed of -./ith tlie reijiark that if it had. not appeared tloat tae purchasers from tha husband had Imov/ledge that ho \ras a married man, aixL ^vere therefore bound to talB notice of a conveyance from his v.lfe, a different case v»uld have been presented, and a different luliiig called for. Other Texas cases to the same ic^iort have follovved Edvards v. Brovm, all of vliich are noted in the latest case from there, wliich is Patty v. "iddle- ton, 82 T©::. 586 (17 S.W. Rep. 910). This case enters more formally into a discuscion of the question of title to community property than any of its predecessors, and the conclusion is arrived at again that Edwards v. Brovn Has correct, oven to tiie e::tent of holding that after the death of the v.lfe the husband could convey a good title to innocent purchasers vdthout loiowledge of his having load a wife, as against his children. To the csme effect is ^ootors v. Feeny, 12 La. An. 449, where the wife, under a statute giviiig the husband absolute povrer of disposi- tion of community real estate, sold la:id the title to vAiich was conveyed to her, I find in Holyok© v. Jacteon, supra, Andrev/s v. Andrev-B, 3 Uash. T. 286 (14 Pac. Rep. 68), and Koover v. Chambers, 3 TJash. T. 26 (13 Pac. Rep. 547), the element of knowledge on the part of the person contract- ing with the husband present in each case, which was sufficient to sus- tain the cLecisions macLe, under our statute prohibiting the husband alone to convey. But wlsn I regard our act of 1881 ixrely as a statute, vAth- out attempting to malce philosophical distinctions, the theory of a joint or conmunity ownership of tlie title is not supported, noviaere in tliis act, or in any law ever passed in the territoiy on the subject, is there any attempt to define or constitute a "cocsmnity'' or to declare of vfcom or viiat it shall consist, or what its rights or liabilities are; with the single exception of its use with fii3\;oid "debts' the woid community is every\,iaere emploj'-ed mei-oly as a:i adjective to qualify' "property," just as the v;ord "separate" is er^ployed to qualify other pi^operty. Previous to 1679 tlTe \/ord "common ' \/as used v5iere now v/e have the word of four syllables. How this act (Code of 1881, Sec. 2409) says tliat property^ •fecquired" after marriage by either husband or v.lfe cr both, is commuiuty property. Eiere is no reco.^nition in tins lan-guage of a 'connunity" vliich can "acquire;" not even v,hen both husband a:id vafe "acquire." In Iflwards v. Bro-.;u, supra, it \ra.s said on this point: "In passing that act, the legislature did not have iuic\er consider- ation the fonn of tlie conveyance; and upon tliat subject no provision is 6ft. there made. If it had provided thai all property convc3;ed to either hushaiid or wife dvrir-s riiarriage should "beloug to the commoii estate, this would have placed tlie legal title in "both. But no STXh laiiguase is used. Such, in fact, is not the meaning or effect of the section." In some of the states there are statutory, a:xl in others constitu- tional, provisions forhidding the husharji to sell the homestead vath- out tlTg joinder of the v;ife, but sTxh provisions liave never "been con- sidered to uaiK a partnership, a corporation or an "entity" of the hus- bsnd and vafe, or to vest the title otherv/ise than in the one to vhom it v/as conveyed. Our o\vrn legislature in 1891 put an inferential construction upon this question of legal title, "by the act of larch Sth, as follows: "Section 1. VZhenever any person,, married or single, having in his or her name the legal title of record to any real estate, shall sell or dispose of the same to any actual bona fide purchaser, a deed of such real estate from the person holding such legal record title to such actual bona fide purchaser shall be sufficient to convey to, and TDst in, such purchaser, Gic full legal and cquitablo title to such real es- tate frco si'A clear of any and all claims of aijy an.d all pcrsonc vhat- EOGvcr, not appearing of record in the auditor's office of tho county in Yhich such real estate is situated. "£cc. 2. A husband or ^;dLfe having an interest in real estate, by virtue of the narriago relation, the legal title of rccojxL to which .real estate is or s]iall bo hold "by the othcsr, may protect such inter- est," etc. Ihic was no declaration that th3 legal title chould be taljcn to bo in the person to v.hom tho conveyance ran, but a recognition of the fact that legal title existed in the grantee named in the coyvenance, and that every interest existing or claimed by any other person, whether husband, wife, cestui que trust, or v/hat not, was an equitable interest, as all courts liave held it to be under all foims of statute i^jr or common lav/. Our system of conveyancing and recording \70uld f ua-nish aii addi- tional strong train of argument in favor of holding tlic deed of tho holder of the record title to real estate to an iimoccnt purchaser with- out notice good as agairrt all claimants, for the purpose of that system is to render safe aiad certain ever;^' investment made in la:id iJi this state by one who pays dU3 heed to tho public records, and has no actual notice of antecedent conveyances or equitable claims. P.itchio v. Grif- fiths, 1 V-ash. 453 {25 Pac. Hop. 341). Ihis statute, as I tate it, -■;aE enacted for the purpose of enabling the wife to protect herself against recld.ers, improvident or fradulent sales by the husband. It prohibits all sales made by him alone, but no penalty is attached, aJid no declaration is made that his sole deed shall be invalid or void. He is simply prohibited, and doubtless, as between him aiai her an-d every person taking his deed, while fairly chargeable ^ with notice of hie married conc'.itionE, she would "bo entitled to relief. But iG it to 'be adjudged that it v;ac the intention of thic law that u-i- der all circumctaxeG a purchaLer in soocL faith from the hucTsand, or the wife cither, if the l0j,-al title should be iu her, ic tho warrantor of Me o\7n title, and muf:t loco everything on the hazard that his grantor ic not a married peroou? It it to "bo custaiuod, in cc^uity, as a cover for frauds: a:x: cwindlcrc T,;ho muct, ir. the nature of tliiasc, be either men or women capable of being Lisarried? Ca:i tliic hucbaud, mth the lie that ho ic unmarried on his lips, a^ tlie money of Z'Aozz in hie poclaet, turn aroui:d a:id rue to recover the la:ixl vhich he cold? Can the woman who hac cu2h a hue band maintain the-t every concidcration ic cub ordinate to her rightc, arjd in such a suit, not only protect hercelf, but talco away from a purohacor T^ao had boon purpoccly throv/n off hie guard ac to her e::ictencc, the property v;luch under all other circumctancec would be decreed to be liic? Surely not, ualosc there be corae imperative reason thorofor. Several of the decisions of tliic court are cited by appellants , but thoy arc not in point. LitteLl c'; Smytha I'-fg* -Co. v, I'.illcr, 3 ^iach. 480 (28 Pac. Rep. 1085), hold that a husband'c interoct in community proper- ty could not bo sold to satisfy a mechanic 'c lien, the holder of -.vluch Iniovdng of tte ezictcncc of Ih-r. "ill or, wac hardly vi-^- in:iocont purchaser. Ryan v. Per^usson, 3 Vfach. 356 (26 Pac. Rep. 910), held that tYe entire estate in comrauiiity realty riMst be cold to pay debtc , on tlie decease of husband or wife, and that it v/ac so into::d.ed -.vhere the adminit trator'c deed mentioned only th: interest of t]ie deceased, ti Brotton v. Lanscrt, 1 Hash. 73 (23 Pac. Rep. 688), Lai:gert was a judgaent creditor, not a purchaser either iiu^ocently or otJaerwisc, no sale had been made , a;id the vdfo wac lie rr elf tlie plaintiff. Holdii:!g, tlierofore, as tlTis examination of the statutes aiid the bet- tor authorities impel us, that the interest of lire. Ladler was an ec^uit- able and not a legal interest; that Sadler's deed vrac not void, but void- able only; and that tl:e doctrine of estoppel was free to operate against, and justly applicable to all of the appellants, I can only vote to affirm the jucigraent of the court below. Hie lav.' ic caroful of the innocent purchaser, aid neither the letter nor the spirit of the act in question calls tipon us to overturn the or- dinary rules of coinmon honesty which a regard for him has built up, in order to declare void a conveynnce wluch the statute does not so denouiice. It ic the duty of tlie undiv arced husbaad and vafe to live together; the lav/ contomplatec that they vdll do so; and the businccG community, all of whom may bo sought ac purchasers of real property, have a right to expect that they will not place thancelves so widely apart as that common reputation vail report them unmarried. On the other hand, I tliink it must be condeded that a large measure of responsibility is throvrn by our statutes upon the purchaser in the way of maki:ig inquiry as to the con- dition of his grantor, wliich a mere e::ajiiination of the public records would not caticfy; but a reasonable effort in the direction of inqairy under all the circumstances must be taken as sitfficient, else no title can be safe. The respondent in this case fully satisfied the rcquirctxmt of the law in this respect, and I, thorcfore, coincide v/ith the superior 8?» coxirt on this grouad also. Andors, C. J. concur c. Scott, J.— I concxa- in the recult, beoaucG I think -Qic -.Tifc ic gs- topped under tho peculiar circumstaixec of ttiic case from maicing any clain to the laiirL in c^uesti on an againct a:i innocent purchaser- ard the other appellants, hy their direct actD a:-ji 3aiov;ledge ,, are Taoxm-d "by the deeds executed "by Sadler to the rccpondo:4s. I also doubt whether the ctatute relating to the dicpocal of coinrnunity la:n?-C by the huirbsnd chould bo held to apply v;here the wife did not become a resident of thi c ctate prior to the convenaiice. Hoyt,, J. (concurring). — In concizrrii:ig in the affirmance of the judgment in this case, I doc ire to add only a few i/ards to what has been said by Judge Stiles in Mr opinion. I a^ee with much that has been ftiereiu stated, but I am uiiable to agree with that part of cuch opinion in wliich it ceanc to be held that the spouse in -vjhose name connunity property is standii:g can dicpoc:e of the came without Ihe other e2)OUSO joining in the conveyance, even although the two spouses are living to- gether as husband aiici. v/ife. To thus hold ceemc to me to be in direct conflict v;ith the statute upon the subject. Stash statute, after pro- vidi.jg \;hat property shall be community property, providcc tliat the same chall not bo c arveycd czrcepting bjr the joint deed of the two spouses. Such statute -.^as, in my opinion, passed maiiily in the interest of wives and for their protection. It was the intention of tlxi legislature by cnch enactment to pre- vent a husbaiid from dicposii:ig of tho real ectate of the ccmmunity in fraud of the ri^tc of the wife. If, however, we hold thereunder, as stated in the opinion abare referred to, it seems to me that it will open the door viiich the legislature thus intended to close. If it is held tltat the husband v/hile liviiig v;ith his wife ca:i alone convey such property standing in his name to any one pmrchasiug the same in good faith, without laiow]edgc of the e::isterjce of the wife, tliere will be nothing to prevent a fraudulent arrangement as between the husbaiid and a purchaser by v;luch it mil be made to appear tlmt such purchaser acted in good faith, v;hen in fact he liad full knowledgG of all tlx circum- stazces. A designing and unscrupulous husband \-rould thus be enabled to nullify the intention of Sie legislature. If, however, it is held tlaat wlien property is acquired by tite hus- band, not by gift, devise or bequest, it at once becomes the property of the coramunitj/ simply by reason of the fact that he has a wife, regardless of laie question as to v/hethcr or not he aid his wife are livi;-ig together, then the door is open to such frauds on the i:a,rt of a designing husband and v/ifo that public policy demands that some other constrixtion of file statute should be found, if possible. Once construe the statute in this vay, ai.d it becomes poscrble for a husband azd wife by their fraudulent acts to allow the husband to i: o represent himself before the community in which he resides that it mil be generally believed therein that he is a single man. And, as a conseqiaouce of c re h belief, be enabled to convey all property standii^g i:i his nsme as such single man., and then by y>^ ^^z^^.€>-^js^ J^^^'>''''t.-^^ y //c}'- ^ y ^i-^^-t-'-i^-^^^^^V c:L. "br insane the v/ifo upon the groimji ant?, shov/ing that dtring all this time tliey vrorc in fact hucT3a:--d. and -.vife, avoid every troiacfer of real estate made "by him. In thie '.7ay they could, "by the invcctmcnt of a single thoucand dollarc, in the courcc of a few ycarc have procured the title to cuch a lar^G nurnlicr of pieces of real estate to have Taoen conveyed to the husband tliat wlion -ch: conveyances from him came to be cot aside, the community w-ould with the invcstiiKint of s-uch single thousand dollarc find til cancel vet- in Cie pocsoscion of property worth probably hundreds of thousands . I caimot believe that the legiclature intended to provide machinery for cuch fradulexit transactions. I tliini that in regard to the holding of property ac^uirod in the \;ay specified by the ctatute, the legisla- ture intended to create a community as betvADen the husband a:id wife for the purpose of holding such property; tliat in the conveyance of such property to oitliur ^.'pouse a bare legal title therein is vested in such spouse, but that tlae entii'c beneficial interest is vested in ftiG com- munity, and a;i absolute prohibition placed upon tix spouse i:: vhose name the title chances to staid, \7nich prevents a:iy title vhatever being JiasEcd by that spouse alone so long as tlx; community exists . This malccs it necessary to investigate the nature of tlii s beii^g wJiich we call a comraunity under the legislation in relation tlsereto, Ac bet'.veen tlie tv.o spouses such community c::ists v;henever they occupy the relation of lei"al hucbazid and ^/ife, re^rdless of the fact as to whether or not Ihey are living together. But sixh relation alone doos not constitute the husband and mfe a coiTsnunity as between thorn and third persons \fho have no IniowlcdgG of the existence of such relation, or of any facts vhich should have put tlien upon inquiry as to \/hat wore thj relations of tlie spouijec or either of them. There must, in rs;; opin- ion, be snch an assertion of Ms or her rights by each of the spouses as are ordinarily and reasonably to be e::^ected from the fact of the existence of such relation, or else tho comiiiu:iity does not exist so far ac tho public having no laiowlcdge of the legal relation of husband and vafe are concerned. If either of tho spouses sees fit to allow the other spouse to act and represent him or herself as a single x^crson, Uiidor sich circumstancoc and for siich a time as v/ould induce persons of reasonable prude'nce, -..Ith whom such spouce associated, to believe that lio or sl-E was in fact a single person, then I think that so long as this state of facts onirtc there is no suJh community existing bctrroen the spouses as was contemplated by the legislation upon the subject of the conveyance of community property. It ic tris tlut such a construction of flie statute will enable a:i u:iccrupulous ]msba:id, by abandoning a vdfe and concealing his where- abouts, to acouire a:xl dispose of property , in fraud of her rights, vriLth- out any fault on hor part. But if either a ncnbor of the community or a third person, -v/ithout fault on the part of eitter. Must suffer by reason of the acts of such comimmity, or of either member thereof, I think that good conscience and well ertabli^Ziod rules require that it should be tl-^ member of tl-c camiiiunity. To a certain extent each member of thjj c cmmunit 7 Lius t be held to be an age id; of ths commuiiity, a'.id of the other member, and it could not liave been the intention of tic legis- \..'^^ ~> , •y^' / -y^-^'^f^ , .-■' C^ '~ 89, lature to liavo abcolutoly protcctod tlie i-jnocent member of cuch cornnun- ity against tiiD acts of t>j3 other, and yot left innocent third perconc without any protection v;hatovcr. Hie public have a right to demand tliat there chould "be comethiiiG,' more than tho lej-al relation of hue hand and vafe hcf a-c it is hounc". to recognize a community hetv^ien the per- sons occupying; such relation. Tlae legal relation of hujihand and wife may ercict and be Icept a profound secret, un:aio\vu to the nearest rela- tives or most intimate asEOciatoc of both the cpourec. Such marriage relation v^uld create a cor.Tmunit3'- as "betvyeen the spouses, so far as tlieir relation to each other v/ac concerned. But so lon^' as it was con- cealed from tie public, it vould I-jave tl^o right to deal mth each tpouce as a single person in relation to the property standing in their respect- ive names. In my opinion, ro far as tlx public is corj^erned, such a relation cannot be held to orcist v;itliout tlie caicui-ronce of two facts: First, Tne marriage relation bot-.veen the members of the coranunity; and, second, some assertion of tae rijitc incident to such mai'riage relation. Until there iiac been some avov;al of tl:e relation bet\/een them, the community does not exist at all so far as tine public is concerned, and whenever either member of thj community ceases to assert his or her rights under tlE marriage relation for such a time and under such circumstances ac to induce the public generally to believe that the other spouse is in fact a single person, then, as betvrocn the spouse so neglecting the as- sertion of his or her rights and the public, the community does not exist. The facts- in t3ie case at bar shov; clearly tliat there has been srch an omission to assert airy rights by virtue of the marriage upon the part of the i-.-ifo as vrould lead the most prudent person dealing with tho husband to believe his assertion that he vas in fact a single man. It follovffi that as to those dealiiig v/ith the husbaixL as a single person neithsr Cie communitr-, nor cither member thereof, can assert its exist- ence to tho detriment of tliose thus dealiiig v/ith tlic husband. Dunbar, J. — I concur in the result for tho first reason assigned above by Judge Scott. The testimony plainly proves to he that there was no actual coiT(munit;r existing, such as is contemplated by the law, and that I Irs. Sadler b-y her o\m acts aided Sadl e r in perpetr ating a fraud iiipoiTiTiesz , 'and that th¥ shov/irg the^ r made aft er the sale of living Together was only a part of the scheme to d of ram ,_and^ s he should, ^lerefoVeV b"e"'est"^^ed"~frbm' setting "up her claim against an i:i;ioce:it pur^i. as erl^but~"l" cannot concur 'iTiT^the opinion of Judges Stiles and Anders . ■:^^<-<»<2^«Xw-Gre by tliD name of Conrad r.iller, his name being Cliarlec; Conrad riiller. Six children vrero born to them, all of v/loora v.xji-e living at the tine of the trial. From Harris-' burg, ::iller aiid hie family moved to Pittsburg in Ja::U3,ry, 1873. In the spring of 1874, Elizabeth ililler tool: tlieir childre:: and returned to Harrisburg, Ililler continuing to reridc at Pittc;burg i:UT.til some time durir^ 1877, whin :Te removed to Califoitiia, and remained there ui-.til 1879, v/hon he moved to Oregon, a::d from there to V/ashington Territory, a;:id ha has resided hero siixio the spring of 1880, The facts concerning the separation of tlie defendants Cliarlec anjf. Elisabeth Ililler, or r;hat facts led up to it, do rx)t fully appear in tlio testimony. ::iller says he was advised by a physician to allow his vife to rctiirn to Harrisbiirg, because sloe -.Tas homocicl:^ and that ho did so xjpon that account^. He _ testifiod th i . t thay laspt nyi t'p ir rolatAOns as husbai:d and •.vifo ^until 1670, although he had removed from Pen:isylva:iia in 1877. \7hen aslced v/lv tlx relations ceased at tliat time, lie taid hG had been iiifoi-mcd tliat she v/ac dead, e^id he dii not Iniow differently until llay, 1890, wlien he learned that it vcc her mother ^-/Itd died. It seems tliat no corres- pondence was kept up betv;ecn the pai'tias, a:id Cierc is every indication that they rega^-ded thcii- sepai^ation as a permanent one. I n Ootdber, 1685, Ili llcr was i-narricd i n giis territory to one I'ar:,- Smith, "n ^'-id hag owr^ ch ii K l ]>y tmp ui i n-in g" ' H" I'^ri i r fyi^-^-^fiiT^'i tly jiivo^ed from this vjoma;^, iu tlic district court holdi::g ter.ns in a:id for Pierce count::, and in Pebnary. 1686. he remarried her. She dix. priorTo~Eie coiameixjement ox tiiic action. "IJhen Ililler left Peini2ylva:aia for tho Stat>j of California he toot twenty- -scv^n thousand dollars in raoiiey with him. Ho lost thirteen thousand dollars in California, aid. met with some losses thereafter. 91. /aid it appears by hie ovci tectiraouy that none of thic tvfentry -seven thou- sand dollars was invested in this land, l^it that he purchased the cane with money he earned after coming to Uachinston Territory. The circumstances connected with ttiis case are somevhat remarkahle . They are highly inconsistent with tlie claims of dofondants at this time, that they never intended to ahandon each other, "but considered themselves husband and wife. Elizabeth always, 3M ho, until lie learned of her death as he supposed, in 1679. Tl-iere is nothing to show that Ililler ever had any \rord from his wife or family after he loft Pennsylvania, until some years after ho liad sold the la:idr in question, at wMch time lie says he requested some person to malsE inc^iries in the vicinity v/ierc they had previously resided. Upon such incjiiries being made, he learned that she was still living. It does not appear that any attempt was made by eithe r 0f_ th'^ parti nr tn Wp any , tr np.lr nf np^ry^ nthey ., or tO IQIOW anything of^ each other's subsequent life or ei^isterco, and in spite cf every attempt now to mal->-I concur for the reasons given in Sadler v. Uiesz. Dunbar, J.».-Havi:]g wantonly abrogated the marriago relation, I think the wife should be estopped from claiming against those who v;er9 led by her ov:n acts to deal with her hustand as a single man. I7^ there- fore, concxr Tn^tiD recul^i ~~ * a^ 1 53. HERBERT i.-DAI!S AHD MHIZL F/v.mPITlT.T), Appellants, V. ALITvED' L. BLI^CK, Recpondont. (6 T7ash. 528). Appeal from Sxjporior Court, Jefferson 'County. (Che opinion of tlie court was cLelivered "by Dtcibar, C J. — 1!:iis is an Sjotion to quiet title to the land in controversy. !nhe_ testimony shov-'s tte common source of title to Tdo the "Seed from" Christopher and j:in;^ie A. Semen to Geor-jo Scraon, dated Decem- ter 26, 1637. On thp„4th day of February, 1888, _Eaid,-Gaorse_Semo;i, representing himself to bo a cin:ilo man, which rapresontation v;as also jnade ia the deed, oriccutcd and delivered to Ihoinas J= Corrigan a war- rantj' deed of said property. It is stipulated, hovvcvor, that at t3£ timo_ ""of the execution of the deed to Cprrii;an th e said George Senon v/ac in reality a married raan,_liTri;ig JZith^his wife. The stipulation in that respect is as follo-wr: "That on or abcut Eepteinbcr 15, 1886, said George Eeraon aiid Ella Semon vrore united in raarr jagc, and from and after said date have been hxisbaiid and wife, and at all tiraes have, resided together as such, and now are so existing- together." On Febriary 6, 1888, Conlgan conveyed the la:-d in controversy by T/arranty deed to appellants, a:id 0!i 'larch 10, 1890, George Semon and Ella Somen, his -.vife, conveyed the caiue laixl by general '.varranty deed to the respondent. E.Q£;pondont ansvrored denying appellant' c title, and alleged affirmatively that the deed from Semon to Corrigan aad the deed from Corriga:i to appellants constituted a cloud upon his title, and prayed that ho be adjudged the owner. 0:i the hearing of the cause the court adjudged fro deed fx'om Ssnion to Corrigan to be a nullity,', and that the deed from Corrigan to appellants conveyed no interest in the land Bousht to be conveyed, and adjudged tip,t the respondeit BlacS: v7as seized of the title aaid possession of the premises described. The appellant's contention in this case, it seems to us, is based upon a misconception of what tiiis court decided in Sa dl;r v. Niesz, 5 j-- ^ithx;rof CiG spouses as \«uld ordiiiarily " a::d reas oiiabl:,'- lie ercgectod from the fact qg _tti g existeii^G of su:h. relaTioz u lu this case it appears from tlic stipulation t!tet the ordi::iar3'' as- sertion was .Bado, Zx'. parties v/cro rec-ideiits of this state, and thoy vverc living tojatlxjr continuously as husbarxL ^:^d v/ife, and tlx slightest inquiry on the i^B.rt of Corrida:.! v/ould 1E.VS elicited this fact and furnish- ed him vath i::f otTiTstion of the conraunity relatioiis of the parties, iirs. Sornon certainly did all that the law at that time required of her to ^ve notice of her relations with the coianunity, viz., sJe lived v/ith her husband as his vn.fc; and if, under svch circumstances, there bein^' no assertion that she know of tlx attempted transfer by her husband and no claim of any act or omission by her 0:1 v^iiich a plea of estoppel could be founded, the community real estate can be transferred without her consent, the statute in relation to the sale of corai-nunity real estate rai^ht as well be pronoiuiced a nullity. Without particularly reviewing thi case of Sadler v . Hiesz ,_ a^glanoe at the opinio ns filisd ira^t ha t~ case wTll "conclusive ly '^KovT'tiiat it is no t a parallel case with the one at bar in a:iy particular. 2he judgment is affiirmed. Y^o y-^ \^. Scott aCid Hoyt, JJ,, concur. Anders and Stiles, JJ., concur in the result. O (Z. L ^ cZyC'Ct::^ ^^.^^--^ / J -x..'me:it of the principal and^ interest due on the "borid, ai.d that on the 27th day of April, 18S7, tl^ "reEponderS~'Be^^au~a~Euit in the superior court of SpoT-:ai-j2 county jto for e- g r6se~ iEhe mort^,'gegje7malFin^^'i»"arfios defendants , amons others, one P, II. Daiiiel and one Lelia A. Dyer; tliat such proceedings v.'ere had in such foroclosire cuit as to r ecu It in a foreclosure of the mortcjage aiid the sale of the mortsaged premises to tlc^ plaintiff, v/Mch sale v;as after- ward in all respects duly confirmed "by the court. The conaalaint then continues as follov/s-. "6. 55iat under said fofeclosure and sale and the said certificate of sale from the said slieriff , e::ecuted in pursuance of said judsment, the plaintiff entered into possession of said mcrt^asod premises, and the receipts of the rents aifv profits thereof, a-id has ciiice continued, and still is in possession thereof. JEiat_she_ then "believed she had ac- quired u:ider said foreclosure, a perfect title to the sard'mort^a::;ed premisecj free from all liens and incumhraiices and rights of redemption other than the statutes of the state of ".7 ash i:ig ton would -ive said de- fcndaiits; hut tliat she has sirjce "been informed aril "believes t]mt the de- fendants ,_::eriE"s3riC.'Da:iiel~aixl''E:"J. Dyer,^lmve, or claim to have,- an interest in and to the raid premises .h;--Vi3rtiie_ of thj said Ilelossa-IC. Da:iiol claimins to te thj "ife of the said P.ZI. Da:iiel, and E- J- Byer "claimiiij to ■b§~tliS"h\is"band of~EIT¥:Eard" Lelia A- Dyer, v;hich rights, ifj ^3^,', are inferior and sulDsequent to ilae l ien, o f the mortgage under v/hich said foreclostu-e rale -.var mad.e, the said P. II. Daniel and Lelia A. Dyer "being grantees of the said premises from the said Spoors, subsequent to the execution of the mortgage aforesaid to the Lombard tivestment Coia- paiiy . •'7. This plaintiff vrais alreac^.y the owner of 1he said mortgage under viiich said sale -.vas had, a:id she is advised that by the said sale she has acquired the rights \/hich the A:iglo-A^rica;T. Land "oi'tga^ve a;id Agency Company, Hem-y Hardy, p, ::. Dcciiel, Lelia A. Dyer, a:.xl i^owers Bi-y Goods I 06. Concany, vJho were defendants in said action, had to redeem fro.n the mortgage held or claimed by the plaintiff, other than the statutory rights given defendants to redeem the premises from the forecloBure sale, "8. That the amount which was due and owing to tho plaintiff in said action on the said r.iortgage, at the time of tho entry of said de- cree of foroclosure and sale, G::clUEive of tho costs and e^cpense of said action and of said sale was the zvsn. of 05,966.66, and interest thereon from the 11th day of tfanuary, 1698, no part of vhich has "been paid, ex- cept as it was paid "by tlie proceeds of said sale, under v^hich this plaintiff claims. "9. That the rents and profits received by this plaintiff from said premises have not been so great in amount as the annual interest on paid mortgage, under which said foreclosure vvras had, and have not amounted to r.cre than the su,n of ;"':175; that the plaintiff claims that the araountE paid by her for ta:ce5, repairs, and so-forth, should be allowed to her, a:id added to the said mortgage and interest thereon; and that there is now due a:id owing to her thereon, the sum of v6,350. "10. That tlie plaintiff has applied to said defendants, Ilelissa K. Daniel and E. J. Ityev, a:id requested them to pay the plaintiff the said sura so due on the said mortgage held by the plaintiff, or to come to a:i accounting with her thereon, a:ad, after the proper charges and credits, to pay to said plaintiff what should appear to be due her on said mort- gage, or, in default thereof, to release their rights and et^uity of re- demption in said mortgaged premises; but that tiae said defeuda:ats have hitherto refused, and stiil refuse so to do, or to comply with any part of plaintiff *E request. ••11. The plaintiff further says that the said premises are not near the equal in value to tiie a.:iount due this plaintiff under said mort- gage, tlie said premises not exceeding in value the sum of 04,500. ■.therefore the plaintiff dema:ids judgment that an account may be taken Qf what is due and owing to the plaintiff for principal and in- terest on said mortgage, and that an acGou::t may also be taken of the tents and profits of the said mortgaged premises which have been re- ceived by the plaintiff, and also of the expenditures of the plaintiff for repairs, taxes, and so-forth; that the said defendants pay to this plaintiff what may be due her on talJi:2g the said accou:it with the costs of tliis action, within a time to be appointed by the court for that purpose, or, in default thereof, that the said defendants and all persons claiming under them, be absolutely barred and foreclosed of and from all right, title, and equity of redemption in and to the said mortgaged premises, and each a;id every part thereof; a/jd that the plai:itiff liave such other and fiurther relief as in the premises may be just a:xl equitable." The appella:--tE appeared separately, and demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. On their demurrers being overruled, they answered separately. The answers were, in substaiice, the same, nnd admitted the 27. execution of the mort^'age, the proceedings taVcen to foreclose tiie same, and. tlaat P. '.'.. Daniel aiid Lelia A. Dyer were ~ranteec of the Spoors. They denied there v/as anythii:i^- due or ov/in:\; on tjie .-.lort^.'aje, the allegat- ion of want of Iniov.-ledse on the part of respondent of their interest in the property, and all of the alle3'ations containted in paragraphs 9 and 11 of the complaint. They then pleaded afiiiTiiatively the foreclosure proceedings had by respondent, averring tliat the raortca.i-e indebtedness was saticfied thereby, and that such satisfaction v/as entered by respond- ent on the records of the court. Further ansv'erin^, thejr allegec. t'.,t Ilelissa K. Daniel \7as the 'vife of I. Ih Daniel, and that E. J. Irje-^ ':^ the husband of Lelia A. Dyer: that all that part of the ,nort'S'9oed property conveyed Irj the Spoors to P. ". Daniel became and no'' is the coiTUiiuni ty property of himself and Jlte; that all that part of the property conveyed by the Spoors to Lelia A. Dyer becaine abd now is the conmunity property oi herself and husband; — all of v/hich was v/ell '.oaovrn to the respondent and her attorney at the time the foreclosure proceed- ings were had. The court sustained a general demurrer to the nev/ niatter contained in the ansv/ers, and thereafter a trial v/as had on the issues made by the denials to the allegations of the complaint. The evidence introduced at the trial v/as vei-y meagre. Two witness- es testified as t o the marketable and rental value of ttie mortgaged premises, and the attorney for respondent as to the reason v/hy the appellants were not made parties to the original foreclosure suit. His testimony v/e quote in full: "Q. I:r. Domer, v/ere you the attorney for plaintiff in the original foreclosure proceedings on the mortgage referred to in this action? A. Yes, I was. 1^. You ma^/ state to the court v/hy Ilelissa I. Dcmiel and E. J. Djrer were not made parties to that action. A. The plaintiff furnished rae an abstract of the title to the property, and their names did not occur as ever having any interest in the property. The names of P. .".. Daniel and Lelia A. Dyer appearing as subsequent grantees of the mortgagors, and reljang upon the abstract, I did not make these parties to that action. Q. Did you loiov; at tlie time that P. 11. Daniel "i/as a married man, or that Lelia A. Dyer v.-as a married v/oman? • A. ITo, I did not. Q. \7hen did you learn tliat they v;ere married? A. About tLie time of the sale under the first foreclosuie. Q. Uae there any notice of recoi-d froa Ilelissa K- D-.:-.iel oi -^. J. Hy^r claiming any coinmuuit;; interest in this property'-? A. ITo, there was not. 98. Q. I2r. Domer, you were fa.niliar, v;oi-e you act, vatii tlie statute of this stats r3ruirin.:v ".vives v/lio claimed a coraiiiunity interest in real ©state, to i-lace on record a declaration to that effect? A. Yes, sir. 1 Cross E-ia-ninction Q,. Ij:. Domer, did the alDStract of said proi^erty v*iich you examined, sho'.v that '".T. P. i:. Daniel was a single mcai? A. ITo, it did not, Q. Did you malce any effort or in(-uir3'' at all other than exaiaining said abstract to ascertain if P. II. Daniel was a married man, or that Lelia A. ]>jer was a married v;oman? A. Ho, I did not, e:;cept to see that no notice of claims of a coHiTiimity interest in the ivroperty described on the coirfplaint had been filed vdth the count;^ auditor of Spolsine county. Q, You ejipocted and relied upon said abstract to show whether or not such a corxiunity clai;n had been filed, did you not? A. Yes, sir; I did," One v/itness was sv/orn on tlae part of the appellants, v/ho testified as followa: "I have :aao-.,n defendants Melissa Z. Daniel and her husband, P. II. Daniel, for about nine years. They purchased the property described in the complaint herein in 1620, for about fourteen thousand dollars. They occupied tjie same as a family residence during the years 1890, 1831 and 1892. Since 1692 I have acted as agent and attorney for them, and knov; that t'i'ie'f are nov;, and during the ten years last past, have resided to- gether as husband and wife. 21-iat tlie house on said property cost about nine thousand dollars and that it is now reasonably worth soven thousand dollars, judging from sales recently made in Ciis city; that the records in the auditor's office in Spokane county sho\7 various transfers of property made by P. II. Da:iiel a:-.d Ilelissa K. Daniel, his ^-dfo: that up to and sometime before the coi'xiencsment of tlie first suit of foreclosure, I was renting the house on tiiis property for forty dollars per month, net; timt rents are higher nov/ than they v/ere then; that, after the said suit v;as entered, there \7as change of tenants, and, o'^.lng to the pending suit, I '*/as unable to rent tlie house for more than thirty dollars par mouth, net, v,'hic.i obtained until tenant vacated because of being disturbed by the agents of plaintiff herein, in Ilarch. 2iiat defendant S. J. Dyer and the said Lelia A. Dji-er are husband and v.lfe, and for ten years last past have resided together s such in the city aix". county of Spokane, './ashington; tlaat said property is, and for long prior to said attempted foreclosure v/as, the co:n..rLmit3r property of P, II. Daniel and Ilelissa Ki Daniel, to- v/it: lots 1 and 2, blocl: 59 of Second addition to P.ailroad addition, and the v;est half of lot 3, bloc'.: 59, Second addition to P.ailroad addition. is aad was comrn'niuity property of E. J, Iiyer n.ad lelia A. Dyer. A, ^-^ % That P. LIo Daniel ciicl Helisca Z. Daniel are not resic.ents of Spo^^an(^ nor of tiie utate of T,'aElii:a^-ton, "out now reside and have for a uiimlier of ^ip^^ years prior to the former foreclosure suit, at Los Anseles, California." The court theieupou *xiajde fiixLiii^s of fact and conclusions of lav;, holding' that hy tZ:e orisinc.l foreclosure suit and the sale thereunder the respondent acquired all the rights the defendants in that action had in the premises described in the mortga^'O, e^:cept the statutory right to redeem from Zib foreclosure saler that the omission of the appellants from the original f oreclosuLc cuit was an ''ei^cuEahle rnistate and neglect'' on the part of ths respondent's attorne3r, and that the respondent was entitled to a decree reruirin^ tZie appellcnts to redeem the premises from the lien of the moit:5ase vdthin one yeai' "by paying the plaintiff the sum of $6,450 and the costs of this proceeding; and "that; in case of their failure so to do, that they, aiid each of them, and all persons claiming under them or either of then, shall be forever barred and fore- closed of all rights title, or interest in said pi-cmises or anjr part thereof," and entered a decree in accordance therevdth. Under the statutes of fiiis state a mortgage of real property does not convey to the martgagee the title to the mortgaged premises, either bef.CET-e or after condition broten. L mortgage is a lien simply, a mere security for the payment of money, and is tatisfied and extinguished by the payment of the money for wULch it is given as security at any time before the sale of the mortgaged premises tuader a judgment or decree of foreclosure c After condition broken, the statutes confer on the mort- gagee the right to have the amount due him by reason of the broken con- dition determined by a judgment or decree of a court, fiie mortgage fore- closed, and the mortgaged property sold at public auction, arKl the pro- ceeds of the sale applied in RatJs-fsct.ion of the ainomt found due. As the legal title does not pass by" the axecution of a mortgage, there can be no sujh thing as an equity cf redemption in a mortgagor, or a sub- sec^uent grantee of a Biortgagor, 5s'tiic.t phrasR is'-t-nd-'erstooc'. and defined by the courts in those jurisdictions where a mortgage is held to convey the legal title to the mortgaged premises. Here the rii^ to redeem is a statutory right, arising by virtue of the statute at the time of the sale, and errpiring at tli3 end of t2ie statutory period. Ho suit or other proceeding is necossai'y to cut it off. Tiie power which created it f i::ed its limitation, and beyond that it cai:::iot extend. Ksrdy v. Kerriott, 11 '.ash. 460 {.9 lac. S58); Hajrs v. ::erchaiits' national Bani:, K- "ash. 192 (44Pac. Iv7). As VVS.6 said by I i-. Justice Turner in Parker v. Dacres, 2 'iash. T. 459 (7 Pac. SS"^): ='The proceeding to foreclose stch a mortage is entirely different from that to foreclose the equity: of redeinption, which, to meet the hardships of tiae comnon law conception of a mortgage, was a creation of the courts of equity. Under our theory of a mortgage, there is no such thing as an equity of redemption in the mortgagor. The legal title has never passed from him. The equity is in tlie mortgagee, and consists in Ms right to have the mortgaged property sold to secure the pajnaent of the mortgage debt." 100. This bein^ so, a suit in strict foreclosure, v;here the mortr^zr^ee is proceeding- against the O'.s.ier of the foe, whether suoh ovaier "be t'.ae mortgagor or a suli^sequent pui-chaser of the mortgagor, is tmathorized and unvv'ai'ranted either by the statute, or the nature of a mortgage under the statute. V/hile a strict ioreclosui'e may Tdg the natm-al remedy where a mortgage is regai-ded as a conditional sale of the land mortgaged, it has no place under a si^stem like ox.s, -i.here the title remains in the mortgagor, and the mortgagee has'onljr a lien. Stevens v. Ferry, 48 Fed. 7. Now, the interests of tlie ap2ellan.ts in tlie lands in question -.v-ere those of ovmars oi ihe fee. T.-.e dsed oi' the Spoors to i. ", Daniel conveyed the legal title to that part of the land desciibed therei-i to hin and his v.'ife, mailing it their caniauiiity property. £o, liliewise, the dsed to Lelia A. Djev made the i:ropert:' described in it the coixuu.ity property of herself and husband. Kie ap.ellants, then, having an interest in the property as o\merE, could not be foreclosed of such interests by a pro- ceeding in strict foreclosure, and the decree entered by t". e trial court is erroneous if it is to be construed as passing tiie title the appellants had in the mortgaged propert3'- to the respondent. The principal reliance of the respondent, however, ic upon the con- tention that the title of the appellants passed by tlie original foreclosure proceedings and sale tliereunder, leaving in the..i, if anything- more than their statutory right to redeem, the right only to tlreir day in court to contest the liability of the property to be cold for the satisfaction of the mortgage debt; and, she argues, the present suit was proper as giving them their daj'' in court and the opportunity to mate such contest. In other words, the contention is that both of the spouses are not necessary pai-ties to a suit brought to foieclose a mortgage covering their community real property. V,hlle the precise question here suggested seems not to have been determined by this court, the principle involved has receivet. frequent consideration. Littell c; Smythe ."jfg. Co. v. Inller, .,ash. -160 (28 i-ac. 10:^5), was a suit brought to foreclose a mechanic's lien upon coraiaunity real property. The coutiact for tlie improvement out of -.vhich the lien arose was made by tie husband, and he was made the sole defend- ant in the proceeding brought to foreclose tlie lien. It was objected that the suit could not be maintained because of the non-joindsr of the wife. This objection, although overruled by the trial court, v.as sus- tained here, and the judgment reversed on this ground alone. Ecott, J., who delivered the opinion of the court, said: "Hotwithstanding tlta fact, however, that t1r& husband individually can incur t?ie debt, in :11 suits to foreclose liens upon conraunity real esti-te the wife is a necessary party defendant. She has at least as much right to contest the f_.ctE ma>:ing the same a clio-rge against tlie community as the husband has. There can be no sale of tlie husband's or v/ife's in- terest in the com.Tonity property separately during the e;:istenG3 of the community. Sec. 1353 of the Code, authorizing the interest of a pai"ty o\ning less t::»f.n a fee simple to be sold, does not apply to such a case.'* So, also, in Sagmeister v. Foss, -'I- V/ash. '20 (oOPac, 60, 744j, it was held that tlie wife '/as a necessary party to a suit brought to fore- close a mechanic's lien upon community real estate. In Eesttle v. Ba"ter, 20 'ash. 719, 20 L. E. A. 66), it '/as held that the vd.fe v.-as a necessary party plaintiff \/ith the husband in an actiou to recover dsmaGes for the v/i-oucfui taking of coiTimuuity real property; and in tlie late cc.se of Lovvnsdale v. Gray's Harbor Soora Co., 21 'ash. 542 (58 Pac. 56'), it v/as hold that ia can action to recover the possession and tlic rents and profits of co.-nrnunity real property, tlio ''/ife was a necessary jKO-ty plaintiff \7ith the husband. Chief Justice (Gordon, in aiinoLvacin;; the opiuiou of the court, after re- viev/iug' the case of -arlce v. Seattle, 8 '.'ash. 76, used the follov/ing languages "V/e are satisfied v/ith the reasoning and conclusion arrived at in that case, and think that it controls the question in the present case, notv;ithstanding that in the present case the recovery was limited tto the possession of the property and to the value of the rents and profits. It seems to uc that, if the husband can raaintr-in tl^e action for rents and profits of commijnity real property, he can do so only upon the theory that he has pov/er in the first instance to malso a lawful lease of it. A lease is an incumbi'aace, and, under tec. 4491, Bal. Code, the husband, while having tl'i© management and control of the co^n-uiiity real property, is e::pressly prohibited fron conveying or incumbering it, unless the -..dfe joins vath him. Me think that every objection \£iicn can be urged ag--inst the maintenance of an. action by the husband alone to recover damages for the appropriation of c0;-munity xeal property applies ta an action brought by him ior the recovery of rents and prorits of couiuunity real P- ops. by, and applies vath even greater force to an action biouglat to recover its possesEion. As is well said iu the Parke Case, if he can maintain the action ho c^ compro.v.ise it. The effect of that compromise miglit be to effectually dispossess the community of tlie lanfl:, or, at least, to seriously incumber it. It violates the spirit, and we thin".-: the letter, of Sec. 4431, supra, and is not to be tolerated." It v/ould seem to be hard to disting-uish tlie princij..le of these cases from tlrnt of a case brought to foreclose a .r.ortgage lien. But tlie re- spondent conteua.E that the latter falls -.Ithin the principle of another line of decisions announced by tliis court, represented by the cases of Calhocui V. Leary, 6 ^'ash. 17 (02 Pac. 1070); Curry v. Catlin, 9 •/ash. 495 (i7 Pac, 678); Bryant v. Etetsoa c; Post '/lU Co., lb •/ash. 6:2 (4:. Pac. 9bl), and their 'j-ndred cases, i'^ ■ "lich v;e hold that under a judgment rendered upon a co;.ii.i--ui tj: debt against the husband alone the coimunity real property eJ the husband and v/ife may be sold, and tl-^t the entire tnteijct of the cana-aunity will pass to the purchaser at such sale. It will be noticed that the" court does not, in any of t>.G cases cited, hold that the husbcnd is \;ithout power as tlie managing and controlling agent of the commuiiity real p-opa. cy to c:. a.te a debt for v;hich the community property may be'sold. The distinction is, that in the one line of cases it is held that the wile raust be made a party and given an opportunity to defend, before the coi-.i-vinity property can be sold to satisfy the debt; v;hile in the other, it is hold that the property may be sold v.-ithout her being joined in aay of the jxoceedings prior to the sale, but that the sale is opon to c®ni;9et by her. In my opinion, it would have been the ^.J^ . *r? --'i'ft-^»-t ^^*2::i-^^^<;:>^^^^'^2-cp-_i]^ p^_ Tipjy_-.,'fl-rs married 3t Chicago, Illinois, in Decs.Joar , 1888. AlDOut I'.ay 15, 190i, Joseph P. Daiygesei tgc~hl's -/ife an d fe.mil3!- and cr.me tu Seattle. He d ie, not ma-3 Ms \vher3a'bouts liTdwIi" t'D"-is_^^ife, out in Au.2,UEt, 1904- , hv^~^^TW^^^io^^r^^ ^m3to~"b-s-T; oTia.gg~for~Si3'IIorthernTacifio ?-ai l /:y Corapany'as a triXisSB^ • FronTTliat t ime on he corge sp onded vfitli his children^ and v/i'Ote a fe'.r letters to his wife, evidently in ancv/er to letters received fro.n her ^/itli leference to the childien, and the home in Ghica^i'o '/nioh \"'as under mortgage ooid about to be sold- The defen daa-t IJ alv at all ti mes seejnE_to JaajLe desired that his children h e s^gntjto Seattle. He fin ally obtained transportation for them . biiL p laintif f returned n_because she" d"i"d~no€" w ant the childre n to travel alone . He never s ent- pfalTi^Ffrf '^iTy^TjgSgYju. although the testimony Eho-.vs that he was in funds, having paid '.-eSO for a team of horses. His v;ages were about si^c dollais a day. Irs. Dajj came to Seattle in April or llay, 1905, and stayed about one month, when she returned to Chicago. In August , 1907, she cam e to Seattl e,, wjth her Child ren, atid h,aa s i--ifie--ga^ Apri thnrp' . Several employees in the rorthern lacific yard testified tliat the:" :^^^- others employed ^;ith I^aly :aie\/ him to te a married man. On February- 20, 1906, defendant Dal y purchased fr og t he Hill T ract JjnprovenienT Compa ny a lot in flie^ity of Sea ttle;__^^nov-... ember 16, 1906, he convejr'ed^Siis' prqperty_, "describing Jilraself "as a ci:^le^--^j^ aad unmafrie gTmauT On jthj_J^7th_day_of„iTovsiaber,_ 19 grantee sole. and con veyed the property to the defendants Rizzutto, who are no..- in possession of~Gi5~prgpgrty3 — rJrs.—Daiy—wste-in-S^artrtle— stout one year '/lisn, "at the~Euggestion of others that lier husband had bought praperty,, she caused inquiry to be made which developed the facts as v/e have related ttem. Jjrs^_DaIy_brought fli is _ac t ion to recover possession of the property, asserting j^t_tO:_.tLe_Qflmriiunity'_PEQpe^ Her 'husband refusing to join as sTplaintiff, v;as made a defendant. Upon a trial a nonsuit was granted, and plaintiff has appealed. ' \;e shall refer to defendants Rizzutto as respondent E. Appellant relies upon the cases of Dane v- Daniel, 2o '?ash. Z79^ 5" Pac. 258, and Adams v. Blaclr, 5 Y/ash. 528, Cv> Pac. 1074, vdiile respond- entr. rely i^ on Sadler v. ITiesz, 5 '/ash. 182, ::i Pac. SDO, lOCO, and Sec. 8771,, Rem. Cc Bal. Code, In Dane v. Daniel, it '..'as held tiiat failure to assert a claim to community properly' held in Gie name of a husband did not estop the v/ife from claiming an interest therein, excep-t as against Birch bona, fide purchasers as purchased v/ithout ioiovdedge of -ftio e::iEtence of the marriage relation, or who could not bjr the exercise of reasonable diligenco h^vo obtained cuch knowledge- In Sadler v. Uiesz, the v;ife vas denied ?52 interest in the property' claimed to be corjuunity property. Tlie parties had boon married in 186r5. Tliey lived together for eight years, i.iaen the husband came to th£ Pacific Coast; talcing up his residence in 104. Kitsap county, uadler's family reina-ined in the 2act, and the fact that he was mairied was uiil:iio\m to I'-is associates and acquaintances. He rep- resented himself to lie a widov;er. In 1885 he acquired the lands \/hich became the subject of the suit. In 1889 Ilrs. Sadler appeared and asserted her claim to the land. Lhile the result of tlaat case is certain, the ground u^:ion v.hich the decision should properly be iTiade to rest has been the subject of debate and controversy by the bar, and the occasion of much doubt on the part of the courts. The question has been put to this court ill subsequent cases, but it being possible to decide the particular case on 6ther grounds, it has not been ansv/ered. It is sufficient to say that, up to this time, no absolute rule has been laid dov-'n by tliis court, but each case has been met by refeience to its ova facts. The facts in this case, in our judgment, are v^holly insufficient to put respondents or their grantors u^.on notice. Eie record title stood in the namo of Joseph l'. Daly. The coixiunity had never occujjied the proper- ty, nor had there been any conveyances or instru-aents of record wi-Ach would indicate any ov^iership other tlian that of Daly, and he hsd, by the most colenin assurance, reprotented and acloiov/l edged himself to be 2 single man. It is not shown that Respondents or their grantors "mew that Daly was employed as a switclii7ia:i i.i the Nortlieru Pacific yards, a:id eve:, thouji the testimony showed this fact, it v.-ould not be enough to put them upon notice, for it in no way suggested to a stranger anything with reference to his domestic status, or gave the sliglitest clue for inquiry upon the subject-matter of the transfer. In this class of cases, aiid particularly so since the enactment of our statute, the terra "notice" must be taVcei: in its full legal sense. It need not be actual, nor amount to full Iciow- ledge, but it should be such "information, fro.n whatever source derived, which would excite apprehension in an ordinary nind and prom:tt 2. _>er50n of average prudence to make ir.cuiry." Bryant v. Booze, 55 Ga. 4^8; Phillips v. Reitz, 16 Kan, 396. It follows, then, that it is not enough to say that diligent inquiry would have led to a discovery, but it must be shown that the purchaser had, or should have had, laaov;ledge of some fact or circumstance which would raise a duty to inquire. Implied notice arisea froui Iciov/ledge ^nd not from ignorance, unlecc the la- charges notice by registry or other toVcen. IkjCallum v. Corn Iroducts Co., Vol App. Div. 617, 116 N. Y. £upp. 118. "There muct ap^-ear to be, in tlie nature of the case, such a connect- ion between the facts discovered and the further facts to be discovered, that the former may be said to furnish a clue — a rGaco;:£ble and ::atural clue— to the latter." Birdsall v. Eussell, 29 IT, Y. 220, 250. See, also, Joh:icon v. Erlandson, 14 H. D. 518, 105 IT. '..'. 722. In IlcFarland'c Adra'r v. Louisville C^ U. R. Co., 150 Ky. 172, 115 S. V/. 82, it was urged, as in this case, tliat the defendant well imew tie ; facts or "that the said lcio^"ledge was easily accesEible to him." The court said; "■Kia fact that a person could learn of a thing is not equivalent to knowledge, especially v.here the facts alleged do not shov/ that there was anything to ^.ut him upon notice." 105. In ::icliigaia it has Tdgqu hold — Ilillar erty he is about to x^urchase, he must be cl:ar3-ed with notice of such facts as inquiry v/ould have dis- covered. But "by the v;ay of eiii£>hasii.in:]; the fact that there must be a leaven of knowladge or information, Qae court i^roceeds to say: "Chic court lias never gone to tlie e::teut that, solely upon failure to inquire of tie iiiortsati,'or as to prior incuabranceE or prior conveyances, one is to be chr.rced \ath notice of such incumbrances or conveyances; and \/e are a\/are of no case in any court that holds to this doctrine. Ihe e:ctont to which the cases liave oOne is that, -./here the fact of a prior conveyance or incvimbrance is brougjit to the knotdedge of the subsequent purchaser or incumbrancer, h© must be held to tate subject to such prior conveyance or iucurabrance, or, ^hen such circuiastances are shown to e::iEt as would put an ordinarily prudent business inan upon incuiry as to such prior conveyance or incurabrance, then he is charged vat?: notice of such facts as upon inquiry he could Iiave ascertained; but where circumstances alone are relied upon, with no proof of actual Vuio\:led3e, they must be of such cliaracter that failure to ioake the inquiry aiTiounts to bad faith." In that case, as in this, it v/as not shown that there was tl^e least intimation or hint from any source that a Ciird party had any interest in the x^roperty. T.i:. 001. See, also, Atkinson v. C-ieavec, 70 ;;iss. 42, 11 South, 6£C, and CasoG citot. ; IC' jiicy. JiviCoaco, SOI. In llill.^r C. Co, V. Olney, supra, it \/as lie: "'■Je are of the opinion that tliero is no tiling shovAi ia this case that ■v/oulc'. have put an orCixiax ily piudeut husineeE man on inquiry, and that there was no quoction of fact to ^o to the jury for a findin.r; upon this part of tlie case." . I- o V- ^-^Jr^ For the reasons assigned, the judgment is aflirraeuT" " Rudlcin, G. J., PL-llorton, ."'.orris, cjid Gosg, JJ., concur. X .^.-<:^-*-i*nH-^, i(y?. WILLIAL: UASSE, Respondent v. Jf, U. RISlEy et al., Appellsoits. (82 V/ash. 178, 1914). Appe^ from a judgroetit of the superior court for 01?-Uo .yL*'^4C^^-^^^^ V '■-^ W^^ Vv-s, ^ V— I,, 7 *-^t\.^ ^^^^■^^ ^^a^C'i^o^^ J ^. ^..^^ jz^ ^.zr ^^. /^ .^^^ ^ ^ y^^fi^^Cc^^^^^'e? ^-i^^,^^ ^^;^?>fe^*'Ji«i-^^V^*-''^' C31APIER II CITATIONS. What is the nature of the conraunity? Holyoke v. Jackson Brotton v. langert Oregon Improvement Co. v. Sagmeiatsr Re Eyres Estate Powell V. Pugh Swenson v. Stolz (a) How is the corcnunity formed? Hatch V. Ferguson Engatrom v. Peterson (1919) Slasor f. Slasoi' (1920) Beyerle v- Bartsch (1920) Ee Wil"bm'«a Estr>te Kromer v. Friday Knoll V. Knoll Coats -9. Ccatwq ("b ) I 3 more than the mere fact of marriage necessary? S « «_ b^.^'q^ Schwabacher Bros. v. Van Reypen Sengfelder v. Hill Canadian & ijn. Mort. & Trust Co. v. Bloomer 3 Wash. Ter. 235 1 Wash. 73. 4 Wash. 710. 7 Wash. 291. 13 Wash. 581. 36 Wash. 318. 57 Fed. 966. 107 Wash. 523. Ill Wash. 90. Ill Wash. 287. 14 Wash. 242. 10 l%sh. 621. 104 Wash. 110. 118 Pac. 441. 6 Wash. 154. 21 Wash. ,371. 14 wash. 491. HEBECCA KI13LE:, Rospondoat, v. DAVID E. ^ KlIBLE AHD rilHEEVA KHIBLE, Appellants. (17 Wash. 75) .1897. Appeal from Superior Court, Skagit Ccrmty.— Hon. Hom-y T^jBrldo, Judge , Affirmed . IHiG opinion of tlie court ^-as delivered "by Duntar, J. — Tha_ qxEStio n lying at the thrcehold of die caco is a jurisdictional one, viz., c an a vdfc , \-ho, without cause has tcou abaa- . doned by Ino^r husband, v/ho poesceece tlio means tlTcontribute to her' sx^- '^'~'*-- ^po rt, mgii ntai'n aa act~Ion"~f6r maintonanco uncoupled mth, or independent of, an acTgion f or'dl'ggfcb . On this proposition the authorities are con- cedcdly~(r!infTlCtlng;^' In cOfte states the courts refuse to entertain jurisdiction of eich a caso, on tiie ground that alimony was at the com- mon law only an incident to a divorce prococdiiig and that aa independent right thereto v.aE not acknov/1 edged, and that tie right, if it exists at all, ie a creature of statute, and the statute which provides, as dsjes our statute, for a decree for alimony as ancillarj'' only to the divorce proceeding must "be construed as e:^cludirig thi idea of an independent maintenance, on the theory oajprcsscd in the maxim that the Expression of one excludes the others. Such view is held "by the courts of Arkansas, Louisiana, IlassachUEotts, ilichigan, ::issouri. Hew Hampshire, How York, Pennsylvania aad V/isconsin. Other courts have taken the view that the courts of equity, c:corciEing th;ir plenary powers, v/ould grant alimony as an independent remedy,'' in a caso viiaro divorce v/as not sought. Deci- sions to this effect have "boon made in Alabama, Georgia, Iov;a, Kansas, Kentucky, Maryland, Ilississippi, Hew Jersey, OhiO; South Caroline, Texas, Virginia, California and T/est Virginia. lu still otiier stater , the ri gat has been maintained, but by statutes providing for aa independent action, and ia sixh cases tlu adjudications arc, of course, v/ithout value in determining the weight of authority on tiac gonaral proposition involved . I!r. Bishop, ia his excellent v;ork on ".arrisgo. Divorce and Separation (vol. 1, See. 1595), indulges ia -eio following caustic criticism of the courts which havo assumed jurisdiction of the independent action: "In spite of the fact tliat the law consists of reason, and that reason is constantly detecting aid pointing oat judicial blunders, by means whereof cases wrongly decided and false doctrines are overruled, it is no novel thing for a bench of jud-ges to accept sone thoughtless Utterance of a predccessov as though it were reason, anc'- decide cases upon it, -.Tithout a particle of examination to see %iioth,-!r it i£ just or false. Indeed, through this sort of abnegation of thi office of think- ing, our law has been made to linger aid it now remains in the shadows of the dark ages, instead of walking onward with fiac other scic-iXes to- ward eio li,^it of a better future.' In spite of this criticism, hov^vcr, wo axe incliaod to thiai that 110. tho "bottor rocDoning it: cxlvcncod "by tlu courtc criticicod, ami, a.c thic it; a question of conflict of aithoiity, -./o fool jui^tificd in deciding in accordance './itla tho i^xinciplcD of equity and reason ai. they appeal to us. It miglat Tao that a bliix'. adherence to the letter of the old En^lich decicionc v/ould prevent fcj c:cc-.-ciEo of jurisdiction, although the Eng- lii^h dccicionti thcmtclvcc are conflic tinjj, and different vie-.vc are ox- prccGOd "by eninont Englich jurittc. on thit quotation. In Englaid, there •./as a divicion of recponeibility and jurisdiction in divorce and alimony cases, ".hich is noj, under our tyctem of jui-i imprudence, consolidat..d and oxerciscd in a Ljmplo manner ty the courts of equity. For instance, in England the spiritpial or ccclesiat:tical coui tc had jurisdiction to grant cUvorces, but :fhDi-Q such divorces had heen decreed by the ecclesiastical coui'ts, either a mensr. et thoro or a vinculo matrimonii, the courts of chancery eicercised the jurisdiction of granting alimony; and the history of litigation on t:us subject cannot be read v/ithout forcing tlx conclu- sion that the cjurts v/cre constantly Eeo1d.Hg pretexts to grant separate maintenance. For instance, if an agreement for maintenance had been en- tered into, tho courts -jould compel tlx;- performance of the agroomeat on tho part of the husband, whore he refused to carx-y out his contract. The old \a:it of supplicavit v.as resorted to. Tliif proceeding \ias prosecuted by th; -./ife -.Those ti'jatm:.nt by lier husband made it dargerous for h;r to live v/ith hiin. Upon this fact appearing, fla.,- court v/ould a-.vard her a ri^t to live soparato and compel tho husbaix. to furnish her v/ith a sep- arate maintenance. If it -.vere necessary to fird authority at the common lav; for assuming jurisdiction in a case of tliis Icind, it can be fcund in the execution of tiiis w.^tt, for v/hatever tech-nical term mij^t be appliod to the •'.A-it, the effect v;aB to grant a separate maintenance to a v.afo •.■Sxo could not live v;ith h-r husband. It is true that, in tliis instance, she could not live \7ith her husband because his conduct endangered the safety of her person. The particular reason, however, that necessitated the sep- arate domicile is not infgortant. The practical caid controlling fact '.:a£ that she could not liv.:- -.vith him. Tliis fact is just as controlling, v/hou she is prevented from living -.'ith him by the husband's abandonment of her and his refusal to live -.-'ith licr. Die practical effect on tho v;ifo is exactly the same; her necessitica are the same; and it seems to us that no reasonable distinction can be c'jrav.'n in the application of tlie remedy. Another expediency v/liich v/as adopted by the courts '.Tas to concede to the abandoned v/ifo tho right to use fiie credit of her husband. Sho v>aE relegated to this indirect, unsatisfactory and, in many instances, inadequate remedy. She v/as allo-./ed to piorchase necessaries of traders, "Jio in turn could maintr.in an action against tlE husband for their value. So that the cuestion of separate maintenance v/as after all litigated, burdened anT. complicated v/itli Hie ri,'5ats of ttiird parties, involving questions of collusion and other vexatious questions '.fiiich must necessar- ily arise in a case of this land, to say nothing of the improbability of the v/ife's being able to purchase on t!:e credit oi' a husband -.ho had aban- doned her. Etc ort'dnaiy merchant -.touI-". hesitate to dispose of hie goods \'ith the chance of mal-iing his collGCtions, if made at all, through the agency of a delated and expensive litigation. It '/-ould seem to be much more in consonance -,ath a Etraightfor^/•ard policy to settle the question of maintenance by dii-ect cnit botv.^en the i:artiet interested, and v;here all the righto involved could be sottlod in one action, than to adopt a 111. circuitous aau iiuf-ii-ect Diethocl of rcacliia^" tLe same i^csult, anC a metliod v/hicli •/ouldTjo liatlc, at least, to involve a multiplicity of vexatious suits. It is coucodec'. that the husbaiic". ic morally aaf. le;j-ally otligatec. to rjaintaia liis -.dfe. If this ic a duty '.jJiich is imposed upon fiie hus- "baad by lav/, it ■becoi.ies tlie ri^it of Qie -.Tife to receive the benof its flowing iVom tlie perf o-raaioce of the doty, aiotf. slie suffers a vvrong \hen that duty ic not pevfonnod. And, if it is true that equity provides a remedy for all .vi-ongE, a- coui't of equity ought not to male the announce- ment tliat it -./ould coqpel an abandoned wife, .iio is v7ithout fault, to seek a divorce from licr hits band before she can enforce the perf oimance of a duty -vMch the la; imposes upon her husband, anc". obtain a right viiich the law guarantees to her, viz.: the right to live. Hor do -./e tliinlc ■fiie best interests of society -.rould be subserved by such a construction.. It -/ould encourage applications for divorce anc'. necessai ily increase them. Again, it -jould be a lever in 13ie hands of husbands vdio abandon their -.Tives without cause — -,£10 desire to bo released from the bonds of matrimony, but are unable to procure a decree — to compel tlieir -.ives to seek a divorce, a^e benefits of vAiich -.-•ould accrue to them. In addition to this there is a question of conscience involved, llany v/omeii \;ill be fouac, vAio are conscientiously opposed to divorces. The members of religious societies v5iich anbrace gi-eat numbers of otir citizens are opposed on religious and conscientiotis principles to di- vorces. And v/l-^en -./e enter the domain of fha affections, strange as It may seem, -.ve find liiat affection frequently survives neglect, brutal treatment and abaaf.onraent . In such a case, aie wife dcEc not desire a divorce from he. husbantl. Eiat is the one thing she shrinks from. She believes tlxit tie alienation of the affections of her husband is tempor- ary and hopes in time to v.ln him back to a resujirption of the marriage relations. But in the meantime she must live. \Thatever may Imve been tiie difficulties in the -.vay of the English courts in respect to this kind of em action, by reason of ths legal ex- istence of the •■/ife being merged in the husbanT., those difficulties do not exist in this state, T/here the "./ife is by la.; especially emancipated from th3 control of her hxisbanf-j -./liere slie ic allov/ed to cue and be sued, and -./here lier legal er.ictence is as distinct and potent as Giat of her husband, and especially -.Jhsre her interests in community property are ecjUeil to his. nor do -re think there is any force in the contention that the stat- ute has e:scluded the idea of a suit for separate maintenance, because it has provided for temporary anc'. permanent alimony in connection with di- vorce proceedings, die statute -hich s i-nply seete to control alimony in a divorce proceeding's does not, in cm* judgioeiit, intply that maintenance cannot be deci-eed in any otliex- case. As to the merits of tlie catse, the oiurt, among others, mates the fol- lowing findings, to-\/it: __ "1, ihat on the 25th day of Decem ber, 1847. in Scotland county, in ' the_ s tat'e _ Qf I'issouri, Sio plain.tiff r.ebecca jajgbl^a^^thg defendant TJiTiu E. Kimble iatermaxried, and ever since have been and na.r are husbarcl. and -CT ife; that i'ro.ii said 25oh day of Dcoera'bor, 1847, uij to about bte laonth. 01' Jtme, leSL-, tllgjl llvQd coutin-gQusly- t-qgatlinr, ^^ept ac follows_, as sich huS-^aiic'. aiad ;.vife in the s tat.eg__a£-:-:if. s ourl _a;ic- lo-wa; that \*iile_ so livi u;^ tqc-ethex as hucliaud and -.rife there -.-Gre born to them seven children; tha t c-.l^out tie yeai:, 1861 t:T3 defendant D. E. Kiablo , -jithout _ just pause aix'. /itho ut -Kg e consenj; a-.i,"' ^gr. inr.^-. the rri n nf this plaiit- tiff , . . . . deserted a nd a'ba:idoned tlii^ :j)lai2itil'i aoid their caid laraily and .^oine __d_fcI]R CF-A-n:-)'.-'.^f. 'Mnnvvr^^imTiT^f^ jri_j^]Tfwv^^ Of Illinois; tliat ' suliseq^uent the reto this plaiiitif f pm-sued^sa id B- S^J CJiablo aad"~glscav^- ed said 1), ,3, l aiaDle u.i£. Illnux/iv .lamble "Tiv ing tofyotlBr'TnTopen "adulter^ at 01' neai- ths_-t£t,ia o f ' c^iv aac^^^a5^^^ia£5I^4;ate a^ jhat tliereupon said D- I! . Kim'ble, upon Cie entreat:: of thh g iJlaintif f returned to the slrate of I!ic - couri and tlBi-eai'ter lived ./ith this "olaiatiff as her husband, and fathei' o f hie child ren,, irj to niK. unt il %Q_Trg.n.r isfiL;^.. -,;hen said D, E, Kimble, this plaintiff siad thei.-' said feiaily removed to the state of Io\;a; tliat abcat tie raont!i ai Jvuie , 186", in the state oi la.va, the defend ant D - E. Kiinhlo- agninr.h ton will ,o-. x'. y/i thout the con sent of the plaintiff anJi \.'ithout ju!:;t cause, deserted and ab a^idoned his said vme and ranuly, leav- ing_t honi destiti:te aid de pQndent-Qn_tJ.ae charity_of j3tg7gj^tlg£]ag:5r~sa3^ desertion './as corxiittsd lie joine d defendant lanerva Ilimble -ho at all tim es lierein nicntioned ./ell loxe-.r tlaat the^defe nT-ant D, Z Ihiiible and~lilie p laint il^f^-ere and ai-e husband and \7if9 l ' "2. 'jiiat ever since said desertion and na; tlB defendant lias -wholly failed; neglected aiid leraced to contrihute an^rtluug to the support of said -dfo and fciJiily, but said fanily at all times thereafter \'ere edu- cated, supported and i-iaintained by the S0I3 labor and effort 01 said plaintiff. "5. giat &ie plaintiff is a -'.re ah and infirm \7oman of s eventy years m_age , and xoi Zie past fifteen yeai-s lias been pliysically inCOSQetent fo~provide i a- her o\rii sifport, but has been livii:!^' on tlE chai-ity of Children and friinds, .... a nd said David E . K imbl e still neg lects and refuses to contiibute an;/-thin,? iTliatever to hjer sTp^ort. ■ "4. 21aat by reason of liei povertj^ said plaintiff .has at all times herein mentioned been depiived o± any and all r.ieans of transportation to this state fa the pu-'pose of enforcing Iier rfehts herein, and never at any time herein mentioned lias zIiq been enabled to procure means to pay her e:rpGnr.es in coming; to said state of Uashini'ton," E b coui-t, in substrnce, f ur.thcr- . lind5 tliat David Ximbl e j._ in^_cpmpany ith inHcr-va,-I4.-.]blc^laaBia- from -the- state g. IllinoiE^an£L_E.ei.tl£d_injBie. count- y of s:g-G' jj. r in tl:!e state of !i;^j}hin,ztiaji^:Jiere_ they lxivei_been singe andliQ-.v are, l iyln,-; to:.-eth 3r , claimin ':-t3_be husband and \7ife- Finds iH *> T tliat f:yrc;firgTd 2 ;i3 l: T.^vi f '' ""i iii b l ^ h n -r - J^<'r • y'i>'^^'' ^•:t. o^1-b^3^-s_t-,i r.n-nt--nvn-r,y a:id that he lias deec.ed the san^to I^inerva K imble , and tliat he did tlie same fyr-thgilTOsgg^3Sfrch&iiii.^- tlie^ plai-itif-f , -aasU-tliat Ilinerva Zimble, at-jthe_ tiri^' of the transfer 01 p-"-''" ■'P--'' ftr.tiita-. laia- . ; thrt . tT ii R -defeadan t I )?vid.. Kimble had no ri gh t to convey the saiae._ _3ie eighteenth finding of fact is as follows: •Miat about tha year 1876 tliis_ pl aiatlf f ■'^■R infnmRd that defendant B- B- KLnble, her"^ a.ld lUTSb SS. _a^:ir^ie defendant Ilinerva Kimble, \7si-e 115 tojp.t.'iov-i^-fel^e-g^tate- af -raekiagtoa^_ia^.ci. imtll tho lit]' day of ::a y, 1695.^ ;plaia tifi' has not t al:en steps to assert lici cl:iims as '.If':, or :j ._Ei^ -^^ K ^51e~Ia the st'ate~of~Tras liin:;ton, 1aut_^jha-Coa£t,.-f 1.nds_tl;at-at no tiiae Jiox-ein meatiojiecl uiatil tlie~trip:-l of t:i i r. c-fF^- >'?'« l/lr'L-i.nMJ:'''' "b e enj^ossos c- ec". Ox' th e means V';liei-e\;ltli to i>rocux'e t raasipor t-.tion to tliis sto.ta xor Hie i:>ur ^ose of asse- ' tiug liar sa ic"'. cl^in or"T or''aay otliei' ptirpose '/liatevei . Thz^^r~l.\e ''..'as c.ux"iix; r.ll of sziC tine unable to c.o so Toy leason of her l^oveity, living dv.rin^ all of said times doi^^endent on tiie cliarity of f i ier-/.:: lOr her su;,j:,^ort.'' Tho court, as conclusions ol la'-/, finds that the plaintiff and D. E. Kimble have ^oeen since the 25th day of Deceinber, 1847, and nov/ are, husband and wife; that the lands accuired are tloe property" of tits cor.T.vanity consictins of defondcnt D. L. I'Hable and cl:^ plai'itiff: that all deeds, conveyances and instruments purporting to co:-C'-cy ^jiy of said lands to the defendant ."iinorva Kiaole "^t/ ss-id D. E. XiuiDi:- r,"_e -/itho-it consideration, fraudulent 2nC. void, and should "be so declared, that the Said defendant D. E. ICinble had no ri^ht ot authority to convey tlie same; that the plaintiff is entitled to iiiaintenonce and support from her said husband and that OlSO per year, as Ions' as she lives, shouJd be decieed to her as such reasonable £u..i foi hor suppoit and maintenance; th:t in order to i.iaintain this action it /as necessary for her to euploy counsel; the couit finds ^150 as a reasonable attorney's fee to be allo/ed her for the purposes hereinaf ores aid. Sie judgment follo-./s in accordance v/ith the findings. 2he fincidnss of fact are i-.:ll- justified by the testiaony and, "/o thin!:, sustain the conclusions rec.ched by the court. Tna separate ansY/eis of t::e t'/o defendants, David Kimble and hinerva ICimble, raise substantially the s^jrne isGues. Chere is no principle of estog^el vdiich can be applied to this case. So fai- as the question of maintenance is concerned, the action is be.sed on fee responsibility of the husband grov/ing out of the raarriajje relation, b'e think tLie mai-riage betv/een the plaivitiff aud defendant David lamble -.-aE sufficiently proven, and t!ie r.iaj:ria:;e relation, onca established, continues until it is dissolved either •bj'' death or deciee of a coinpetant judicial tribu^n^l. ihe "'ife being faultless at the time of the abaxidon-nent , any indiscietions '..hich she may have been guilty of af ter-./a:;dE -..111 not relieve the husb~nd of thif responsibility, and he certainly cannot seize upon tl-.e fact that she has not asted hin for maintencnce for ^, c^uarter of a centrjrj'-, during ■ohich time she hat^ unaided by him, svipportec. herself rnd children, as a pretent for avoiding his responsibilities in the future. Sie court might veil have stop.ed -/ith the proof of mairiage and abandonment, without considering any circujnstaiices '..'hicli intervened bet re en the time of the abandon-aent „nd the bringing' of this action. ITor do /e thinlc on tlie other proposition, viz; the right to have the deeds set aside, that, under the circomstances of this case, there is any room lor ohe ai-^-lication of the doctrine of estoppel, laches Oi. stale demands; nor lis s the statute of limitations run, even had it been prop erljr j/leaded. llarriago has been proven a-ud, never having been annulled, the property accunulated -?as oomaunity i roper cy, and the co:Xiunity '.'as the plaintiff anc'. defendand David Inmble, David could not belong to two coniiiunities, one composed oi himself aix^ Kebecca anc". tlie other composed 114 » of himself ajxl Ilinerva. Our community prSperty laws are not co promis- cuous as this- Of course, any relations v/liicli he entered into -.ith liinerva are absolutely illegal. I'inerva cannot invoke the doctrine of estoppel, fca' tlie evidence shows tliat she -jas a\;are of the marriage re- lations e::isting "between David and Rebecca, no t-.vlth standing her assertion that she had boen infoiraed "b^- counsel tliat no cvah relations existed. The deeds from David to Ilinerva, being deeds to community real estate, were illegal under the statute (Gen, Itat., £ec= 1400), being conveyances of the husband not joined in by the v/ife. Ihe testimony shows, in addi- tion thereto, that the conveyances were fraudulent, being made for the purpose of transferring tl:3 ccninunity property from the true v;ife to the pretended one , and defendant I'.inerva. being a party to the fraud, and tiie coiJrt finding in acccrdance -Ith the testimon;,r tliat the v/ife prosecuted her action to set aside these deeds as soon as slie could after she had. Imo'./ledge of tte conveyaiices, ; 'e thinir the court properly overruled the defendants' denurrers on all tlie points urged. If defendant liinerva Kimble has anjr claims against the community for advances made to it, such claims can be determined in a proper case, but they are not proper sub- jects of investigation in this case. Hie allo\7ance of s/lSO per year, under tlie circumstances of this case, vvB thinl: an e::ceedingly nodest one, and the attorney's fee is reasonable. Tlie judgment \all in all things be affirmed. Anders and Reavis, JJ., concur. 'F'«»" \"\. Gordon, J. — I do not thinir an action for maintenance -all lie and thei-efore dissent. '^c^^^^^^ ; ^'^'--^^'i^^ -— _-^^^.^;;^t^ f <^^ It' 115. ELIA C. nO'HiSY, Appellant, v. Jdlll U. nomrf, r.espondoait . ( \\-\ vu'a^-. W . 3- 5 S ) (17 Dec. loS, 1921) .-Vtrt>-. Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered Ccto^er 11, 1920, in favor of fiae defendant upon his cross-complaint, in an actio n for d ivorce, tried to tlie court. Reversed. Tolmau, J. — Hie appellant, as plaintiff, Tarousht this action see k- ing a decree fa- separate maintenarce, and respondent, in addition to^ defending against^that^cl-axm,— by-cr-osTS^TJrapiaint sought an absolute di- vorce. Prom a decree granting to the respondett a divorce upon his cross-complaint, this appeal is prosecuted. Appellant had "been previously married and divorced from her first husband, and hy the decree in that case shs had "been given the custody of four minor daughters, and alimony of 075 per month. Upon tlie oldest daughter "becoming of age, tliis alimony had "been reduced to $60 per raontii, and upon her marriage to respondent, the alimony v/as fur tier reduced to $45 per month. ThQ parties hereto had "been acquainted -vith each otlier for a num'ber of j^ears prior to tl:eir marriage on I '.arch 25, 1918, and re- spondent v/as familiar \vith all tlae conditions. Shortly after the mar- riage, tie nev family removed from Seattle to Eiclnnond Beach to "be near respondent's place of emplo-rment, vhere the3'' purcloased a small cere tract with the intention of "building a home thereon. The home v.-as never built, but soias Ol,100 -.ras paid upon tl-.e pui-chase price of Hie acre tract, and $600 or $700 spent in i.-nprovGicent and prepai'atiou for building, and at the time of the trial belov.- there v.'a.s ov/ing on the purchase price of the land something over §1,400, a portion of vhich -ras overdue. At the time of the riarriage, appellant hac'. nothing but a modest sup- ply of household furniture, aix": the alimony before referred to, -./hile respondent had about OSjOOO iJi money c::^:. securities, and has since been steadily employed at good -wage, ?JiC. is noi'.v earning $150 per month. ~o serious trouble develaped until ITovem"ber, 1919, lien differences arose, chiefly because respondeat claimed, zaC. no doubt honestly believed, the family was spending too much money. As a result they ceased to coliabit, and thereafter occupied separate rooms until Januaar;-- 1920, -,dien respond- ent left the home and tiie family, talcing -vith him all tlie ready money and leaving nothing for Qie support of the family save a cov/, -viiich he liad theretofore presented to the v/ife, and so.-e pigs and poultry-; notifying the merchants -./ith whom taiey hac. heretofore dealt that Is -.,T3uld not be responsible for debts contracted by the wife. For some cizi months there- after the famil3^ e::iEted upon tlie alinon*- from the v;ife's forr^er husband, the proceeds of the livestock., upon credit, and a ver3'- small contribution made ty respondent tQ-;ards her support, tirrough the intercession of others. Olien, lier means being e:^lIlausted, and a very considerable grocery bill having been incurred, tJhich is still unpaid, she brought this action, asking for (65 per month as separate maintenance, suit money, attorney's fees, aud other relief. 116. The si2t of tho rccpondent':? croes-conrplaiat, and of the evidence offered in supx^ort of thete allegations, is that the v/ife was v/ithout affection for tie husband, married him as a means of obtaining cupport for herself and her diildren; tliat she spent too much money, though no particular instsnces of e::travar;ance are shown, and thjit they v.Bre in- corapatilale in temperament. The cliief argument advanced in support of the decree entered "belov; seems to be that the recpondent liad j55,000 v/hen he married, had earned nearly as much more since the marriage, and had left at the time of the trial only some $600. Hence tlB conclusion is drawn that the -.vife \/as concerned only \d.th the obtaining of all he l-^ad and could earn. But v,hen it is remembered that over §1,700 '..•as paid on the purchase of the land and tlie preparations for building, the force of this argument is considerably'' lessened, and --.iien the higli coc-t of living during tl'e time since tlxj maaxiage is also considered, to say notliing of the ill-health of the v/ife and one of her daughters and the e:rpense at- tendant thereon, these figures fall far short of convicting the wife of undue extravagance, or of a design to fleece the husband of his accixrau- lati ons . It may be tihat, -..hen a man marries a v^oraan v.ith four dependent daugh- ters, he does not become bound to do for the daughters all that he might cheerf^Jlly do for his o\m, -yet he does assume a raoial and a legal respon- Eibilit^' to assist the wife and mother to a reasonable extent in provid- ing for her minor and dependent children prox^erly, a;ad in accordance ^/ith his means. "7e find nothing in tlie record }:iere to convince us that re- spondent was called upon to do more. "Hie allegatioi^ of e^e cross-complaint, and ftB evidence viev/ed from the standpoint most favorable to him, fail utterly to show that the re- spondent has any ground -hich can be recognised as siil'ficient to entitle him to a cUvorce. If in these days evoiv fanily \vhich spends too rnuch money is to be broken up; if coldness, or even carcasm, or both, follov/- ing upon differences of opinion upon financicl matters is to be recog- nized by t]:ie courts, then, indeed, the homes of America are in dnnger. The decree should have been denied under the authority- of Ellis v Ellis, 77 ^'ash. 24-7, 137 *^ac. 4513, :i.nd Cie cases there cited, end tie parties should 1-uj.vc been admonished thc.t it is tie duty of both husband and -.Tife to bear and forbear fa- tl-eir o-.m best good, aad for flio good of the state and of society generally. RespondoQt having, ."ithout sufficient cause, left fha appellrJit v.ltaiout adequate means of support; she is entitled to separate mainten- ance. Loeper v. Loepor, 81 '.ash. 454, 142 Pac. 1158. A careful consideration convinces us that at this time appellant will require, and respondent is able to pay to her, fifty dollars per month. v;e also find that, in viev/ of the husband's present financial ability, on allowance of $150 as attorney's fees should properly be made. TtB judgirant v/ill be reversed, and the cause remanded with direc- tions to enter a decree requiring tl'e respondent to assume responsibility for the groceiy bill contracted since his desertion of his -Ife, and in addiifeion that he pajr to her ')50 monthly as separate maintenance, and $150 as attorne"'£ fees, v/ith leave to either party to apply for any modifi- 117- cation waxranted "by a, chs-use of conditions, Reversed and remanded. H cs PI Parker, C. J., Ilitchell, Fullerton, and !:ain, JJ. , concur, ^<. ^^^y^yz-t^'-L^ 118. iHILlP A. lilTUC-; Res...oadeat, v. DORA i;. KRUG, APl^ellaat. 61 "/asla 461, 1914. Ai>:)eal fro..; a judg-moat of tiie su^^erior coxu-t for Epofc^ae couaty, iiunelve, J., eatered "^i-il 18, 1910, upoa findiags ia favor of tlie :jlaia4<". tiff, iu a a action for a divorce, after a trial to the court. Peve^-sed. -^;..IN, J.— 21ae '_.vu-jOhQ of tla,^5 r.ccioa v/as to secure a decree disEOlv- ias the bonds of ra^trimoaj^ aad ^uaulliag a poEt-au:jjtial property agi'ee- meat aad settlemeut ''oet-./eea the i>artiGS. She cause Wi;.£ tried to tie court without a juiy. JudGiaeut vas entered grcatiag a decree of divorce to the plaintiff aad annulling iSie pi-operty agreement. The defendant has appealed. "She Pa rties to the action -je-.-fl ii.T.-viPf: i^i • 'hi t-v-n r- ^ount^ '/ashi ngtoa, oa the 9th day of July, 1907 . ^nereaftor, -dth the e;:ception of tvra "or^ thjree years residence in Stevens county, th ey residec*. co ntiau ously i a Spolcane co ijinty. On the 2d day of _ij cy, 1912, a sepa ra tion and pr operty ag reeraaat \/as entered into, signed 'bv_fce_^rti_e f , "^"id d uly aclcao-./ledged, Ifiis agreement recited that tlie parties thereto had separated aiid diESOlv- e d the max-ricge ral ations'iip and comuin ity in ter osts7~3ad. 3gTong" OtI - i e r - fniiy^s, provic.ec that alJL tlie^property './hich than stood ia tLi"e~CTang~af the wife should he and become her sole and separate property, aad that al l t ne property -;hich at t] ai?.t tirne^stao^J-LuQie aaae "-f tinf> hushfirid should irkQ\/iRfl hf^^ij^- gn1[Q r-n?! f;sp:---:;i^±A-pjrnp A-.M-.^r. The findings of tha trial court, so far as here germane, are as f o11o-i;e : ■'(L^) Ih? t thxis defen dant hL,s trei-.ted this plrinti ff in a cruel aad i 'lHiurnaii i^an n er •cji'^. has hearoed u.joa her personal iadic: ; nxin:e£'read:eTtTig~he'l ' life b-ardensome,' in that diiring and since tlie laontli of June, 1911, aad up to and inciuc.ing th_e ,aonth of bept ember, 1912 , she has Oj^euly, no torious- ^;^j_ c^ontinuou^ly and improperly con&oited end Icept coapan;/ with oae Herb er t g". Tiisi-i g^ /ithout the consent oi' •:Jl>:intiff and for a -^'re at portion or sjic. ti^ae "..ithout his l^O'vledge , ^nd that sucZi irapro_. ai con- ducT~i70nb;ii;Lu."'. oi" rrec^uant visits :.i-:;de by &e said Rising to defeadcnt at plaintiff c^id defendant's home, dcsriag plaintiff's absence therefrom, aad of said defendant meeting said Tasiug at various times a^>'ay fro.,: her home, for the purpose of improperly associating end consorting with him; that the~iald Tnjfund^zJt c.aceived plaintiff ia that sae stated to hlm^v/hea going^a .J ay tliat sne ^ ^va s_jri sitin:^"a~ rady fri&atl wliem- she de&i^3a.ted^_aa__an "•^Qldmaid,' ';ho did not \.iEh or care ior the society of mea, and that the saiSTplain'titf did not le;rn or I^q-j that plaintiff '.'■o.s deceiviag him ia this regard until on oi about tho firct of June, 1912, and that such con- duct resulted in _l:.i:itill aad defendc^it separating shoitly after the first of Hay, 1912, aad thereupon defendant reraoved from her hame ia the residenca dittiict in the cit'y of !ipo!:ane, '.''ashiagton, aiid tool: aa apart- meat ia a do'..a-to ai apai-tment house, -./he-a she would not attract public 119. notice iu veccivin:;; tlie attontionc of t'.ie zc.iC. Rising, end tho.t alter removiu^' to c-aicL location slae c.id roceive tlie attentions of tlae said P.ising, am?- did thereafter openly, notorioucly, continuously and imi5roi:)er" ly consort -atli hira, ond e£:j>ccially so ui^^on the 15th day of June, 1512, at the houi of 9:50 i-" . ::. •'(5) That at Cie time said contract -.-as entered into and the_ _ property div ided "air'aTor esaigj^'Lalri plaiiir.irr \vn.s tOtfiHy ignorant of — d efendaaF's improper acs"ocT atTo n with tlio sai d TTRrvfivt F. Fa sin.'?. as here- inbefore found, a:id did not~l-:no\; that tl^e defencL?nt -./as associatins, keep- ing company aiid consort ir^- -.Ith him, and furtlier thrt the said plcintiff did not learn of such association of the said defendant and tlie said Rising until on or aliout the first day of June, 1912,; that by reaso:: of plaintiff's lad: of laao'.;led.ge concerning the said defendant's associe.tion with the said Rising as aforesaid, and bf her not giving hira fulllin- formation of the S£:me, the said defendant practiced fr::ud and deceit on this plaintiff in the procuring of said contract to such aa e;:tent that the same is not valid and hinding upon the plaintiff herein, and should be set aside, annulled and held for naught." In the decree the court made a property all0"v;once to the vafe, hut this was in a less a.nount than that vhich she v/as to have under the contract. The sole question here for deter/nination is v.hether the trial court erred in vacating and setting aside the post-nuptial property agreement. The facts found, -/hich are above set out, are sustained by the evidence. Hie inquiry then must be directed to the question whether the facts found justified the couit in vacating anc\ annulling the va-itten contract signed by the parties. Bothe parties seem to be content ">/ith the decree so far as it dissolves tlie bonds of matrimony. Tlie question is, v/hether the failui-e of the wife to disclose to her husband, *at the time the property agree- ment was e::ecuted, her previous association with Pdsing constituted fraud Vt^iich inhered in the property settlement contract. Both the appellant and the respondent agree that if the contract is to be annulled it must be on the ground of fraud. It is a faiiiiliar rule tliat, in order to estab- lish fraud, it is necessary tlia t the evidence be clear and convincing. Hie conduct of the ^afe subsequent to t:i2 ejiecution of the agreement can- not be considered as affecting the validity of the contract, encept in so far as sucii conduct would serve to e::plain or interpret her previous acts. 2!lie only fraud claimed, or found by the trial court to e:;ist, consisted in the failure of the v/ife at tlie time of the e::ecution of the contract to raahe l-aao\.ii to her husbrnd tlia.t the had previousl;; been associating v/ith Rising. The contract recites t!i:t tlie parties thereto "liave separated and dissolved their marriage relationship and community interest." It is also provided that Cio "party of tlie first part (the appellant) hersby \7aives and releases any and all claims or demands for alimony, suit money and attorney*' fees which she may have ag inst the Paxty of the second Part in any action of divorce which she may prosecute." ihe parties, by . __^ ,£_ J 120. their contract, settled their property rij-htc, recitecl that they had separated, aix'- discolveu their marriage relationrhi^., ciid reco/jniied that a divorce action might lie instituted. The hustand, at this time, it is true, did not loio-.r of the vife's previous association v/ith Rising, hut, aside from this dareliction, ti^ere must have been in his mind sufficient grounds to justify the contract Vi^iich he executed, ^,/hile the evidence shows thi'.t the husbcnd v/as not fully apprised as to the shortcomings of the v.'ife, it yet does not appear tliat tlie derelictions of tbs -./ife, • -hich \/ere unknov^n to him, are sufficient to justify tlie setting aside the con- tract on tlie groimd of fraud. Had the contract been e.;ecuted upon the asstuBption, or upon the reasonable srounds tor belief, th£-t the marriage relation \/ould be continued after its execution as before then, an en- tirely different question \rauld be presented. It may also be tliat one party to the marriage relation might so far disregard its obligc.tions that a contract entered into -.vithout ";niov/ledge of such faithlessness would constitute fraud, even tliouja Giere were sufficient Imox.'n grounds which justified the separation and settlement; but if there be sr^ch a rule, the facts of tl:Lic case do not come within it. Giving the evidence of the facts v/hic-h occurredprior to tl-je e:cecution of the agreement their severest interpretation against tl:e appellant, they -./ould yet fall short of showing positive immoral conduct. "Zhat thQ appellant associated \/ith a man not her husband^ and that this was not laaown to tr.e respondent at the time the contract '.'as executed is plain; but the contract being ex- ecuted ^;ith viev; to a separation, vhich occurred, and ultimately a divorce, it would seem that the conduct of tlie \/ife v/as not a fault suxfi- cient to constitute fraud \7hich inliered in the contr^ct. -Ihe authorities cited in each of the briefs have been examined with care, aixL in none of them ic the exact question here presented considered. die judgment vlll be reversed, and the cause remanded v.-ith direction to the superior coiirt to enter judgment in accordance with the view here- in expressed. Crow, C. J., i:iliE, aoid Gose, JJ., concur. JCfriUPE Ho liGRRIS, Ap:j)ellant, v. i.::.YiT.-J?Il n^2::JlQK, "Respondent. (42 ■;aGla. 480,1906) Appeal from a. judgmeut of tlie cupi-ior coiu^t for Lincoln county, './arren, J., entered iTove;:i"be.- 17, 1905, iu favor of t'^ edef endant , upon vdthdrav/ing the cause froa tlieconsideration of the jury, after a trial on the merits, in an action for alienating the affections of a •■/i fe^. Revel sed. Dun"bar, J. — Ihis is an ^tifi.iJjrQii6p-t--bjr =^3@-^^->ellant .sgai4st__the^ respondent, fjDr__dama{fq£_J^_alien£tin£,- the affections of his wife. At "" tiie close of plaintiff's testir.iony, defeiidaiat^s^rabtToh for a nonsuiL -v/as denied, and at the close of tale case tlae defendant challenged the legal sufficiency of the testimony, and also moveec the co;irt for en instructed verdict. Iho court v«ras of the opinion that the proper procedure v/ould "be to discharge t5ie jury and. enter judgment, which it proceeded to do, entering judgment in favor of t3ie defendant. In spea^cing of the case of Claris v. Greet Northern R. Co., 57 '/ash.. 537, 79 Pac. 1108, the coiu't, intimates that it -/as its duty to dischai'ge the jm-y in this case, cuid decide tlie case on the \/eight of t'ne testimony, making the follovanf? statement. "I vdsh you v/ould read that Glar'tc case all tlirough. I do not iaiov as I e:;actly understand it yet myself. If it means v;]iat it says, as I understand it, the jury ' ould "be simply an ornament." The court then proceeding, said: "In tliis case Gie 4uty devolves upon the court under the law laid doi.m, to ta-ce the case fro.n the jury and render a verdict in accordance with .the court's opinion, and in viev; of the fact that the court in Giis case has listened to the testimony, and is satisfied that a verdict in this case must "iDe in favor of defendant, that fce plaintiff lias failed entirely to nia"k:e out a case, and t:^at the facts in this case, as applied to the law, would corcpel a verdict of that Irind, and in viev.' of the fact tii5.t you, gentleman, not iind^erstancang the law, prol)a'bly might "bring in a vercfdct some other way, whicl: I woi'O.d "be compelled to set aside, I think the proper th-ing to do would be to discliarge tl^ jury and render a verd.ict myself. L;o you are o::cused from anj" ftirther duty in this case, and judgment will go for the defend.ant in this case." But it is contentled that tliere v;a5 not sufficient evidence in this case, "ith this conclusion of learned counsel ^/e cannot agtee. It seemed to "be the viev/ of t'r.e trial court that the conduct of the defendant and tlie plaintiff's v;ife, at cny time after the separation of plaintiff and his ,afe, was not pertinent nor material, on the tlieory, as indicated "by the court, that tiiero could "be no alienction of affection v.here none ex- isted. But it does not necessariiy follov.' tlia t affection does not sur-.'ive a separation. Eo ar;bitrary standejrd of action can be erected "by which conjug-al riTiectioi caii "be tested or measured. It diffois in intensity and coiistrncy vith the different temperaments end char:.cters of the indi- viduals. It ma-r he so sv.perficial tlu-.t sli^^it provocation would be 122. sufficient to destroy it, or it may te so deeply rooted that it './ill sur- vive oeslect, disgrace, brutal treatment, and desertion. It Eomotimec even outlives lesaL separation, as is proven "by max^^ authenticated in- stances of men and women remarrying after divorce has "been obtained. Hue "bands ai3d v/ives, in tlic heat of passion engendered Vj \vrongs, real or imaginary, may, and frequently do, separate from each other, and yet -.Then time gives opportunity for reflection and self-examination, it is fre- quently discovered by both parties that the actual cause of dissension was really trifling, that affection was not annihilated, but simply for the time being forced into the bac:n June i, 1892, and that the community thus formed continued until dissolved by a decree of divorce ga tered Ila v 51. T917., in an action commenced by the \7ife on I.Iarch ZBT' 1917; that, during their married life, considerable property was accu mu- lated, of A/hTCh t-.liA hnr Vianrl Tiarl t-.>f^ Ant it-p pn<:!Rfi nrr^Tmr.t tViR pajty of the fir st part herein by re ason o f the fact that sh e_ is nov; unav.-are of th a existence of au^ property, money, bonds^, accoimts or Mils roceiyable, choses in action or any other property of any kind or description what- soever of which the coiiiraunity may nov/ be possessed- that slue hereby fur- ther v;aiveE aay and all rights oi' claims that she may or mi^ht have a^sainst the first party herein by reason of any false representations or concealments of any Irind made by the party of the first part to her re- garding any of tl^e community assets, ard said party of the seconc". part furtlEr waives any rights or claims she may or might have against said party of the first part by reason of any false representations or con- oealtteatB of aoy profits that said party of the first part might have made in the Duwamielx-Reiiiton roadifray contract or any other contract; and said second party hereby acc^ts the property herein described as here- tofore given her or given her by the terras of this agreement in full settlement of her share of Vib entire property interests of the commun- ity whether the same has been disclosed to her or not." And also: "Seventh: The party of the first part agrees on his part to pay all bills, claims or judgments which may have been incurred by him or \-aiich may in the future be incurred by him in the conduct of his btsiness, in- cludiig all existing or future obligations of the marital communitj^, ex- cept the taxes and assessments referred to in subdivision (b ) of the sec- ond paragraph of this agreement, and e::cepting bills perscnally contract- ed by second party after October 18th, 1916, and to indemnify and save the party of the second part harmless on account of the same." The complaint then alleges that, at tlae time of the maJcing of tlae last agreement, the husband, v;ith intent to deceive tlie wife,frBadulently and falsely represented that he had truthfully disclosed all of the items composing tte community estate and the value thereof, aixL that the prop- erty so convej^ed and delivered to the wife constituted one-half of all the conmunity personal property.; tliat the attorney vho represented the husband had been his cotmsel for some years and v/as familiar with his af- fairs, and that he, too, assured the wife tliat, so far as he loiew or had. been advised, the items disclosed constituted all of the community per- sonal propertjr- that she made inquiry at the bank vhere the husband did business, aaid of thi city officers having chjarge of the payment of the amounts due the husband under his various contracts, he being a contract- or principally engaged in doing v/crk for the city of Seattle, and made such further search and inquiry as v/as practicable, and learned nothing to cast doubt upon the husband's representations, and nothing to the con- trary could have been learaed by any inquiry she might have tlien made; that the husband v.:as not called upon to paj- an^^ indebtedness v^ich exist- ed at the time of eater ii^ into the contract of llarch 28, 1917, nor wa£ 126. any such indebtednocs ttoreaftor incurred in the condr.ct of his business, and no such claircs v.cre evar pi-essated ^.r^z-inzt his estate, aud that the time far presencation of ony cunh claims has ercpired. It is tiien al- leged that tlie iv.^sbaud thereaftor died iutestate, and that respondent, after qualifying as e::ecaori::, opened certain aafe-depocit boxes kept "by the ^lU'-. hand iu h:is liiTetiine, and there found and prodrced cash, local improveraeut heads aix\ o'her securities of the value of .^325,000, vhich tlie husband had ccn?Q3:ied at and prior to the malaus of the property settle.aenfc. and -.hich -m-ca a pa;:t of the ca:ninunity estate, the eiastence of which \;as v.-holly un:a).c\.'n to the wife, v;ho thereafter presented a duly verified claim to the oxecutri:: for \diat she conceived to he her interest therein, and hor claim vns disallo-wed. Ehen -then brought this action, demanding judgn^ent for ''.l^,ZoO, riiich, with the araoujats she has already received, vould, as she claims equ.-.l /■i^ 127. aTasolvc hirnsclf from the coiicequcncoc. It is conceiva'ble -that tho mfe migiit have believed tliat tie lar-suage referred to v/ac inserted to cover any possible items vAiich n-ay Imve been fOr;:^ottcn cr ovcrloolced in good faith, or even the implements and appliances used by the husband in car- rying on his business, viiich were novhere mentioned in either contract, but it v«-ould choclc the conscience to hold tliat the husband may, by the use of such language, talE away all remedy for his deliberate, fraudulent sequestration or a substsntial portion of tte c ccTOimity estate, i-Siich the law entrusts to his sole control and management and of v;hich it requires a true, open and fair accounting vhen the community is to be dissolved. Ho e::actly parallel case is called to our attention but it is generally held that a stipulation in a contract tiiat false or fraudulent representa- tions by \.hich one pai-ty has induced the other to enter into it shall not affect its validit;^- is itself invalid and cannot operate by estoppel or otherv/ise. Berrendo Irrigated Farms Co. v. Jacobs, 25 H, II. 290, 166 Pac . 485; Hofflin v. Moss, 67 Fed. 440= Even though tMs language should be held sufficient to put the wife on inquiry, we have already seen that the complaint alleges that discovery could not have been made by any inquir-y within the v/ife's po\/er to malce, and the nattfe of the concealment alleged Warrants smch a conclusion. Ilor can -ve follov/ counsel for respondent in his argument tliat it ap- pears on the f acQ of th,^ c cmplaint that appellant know she had bocsn do- fi-auded by the. first agreement and tiiat by the socorcL she settled her claim for damages and", released the. fraud. Of course, one v/ho has boon defrauded and kno\7S it, may con^promise and settle his right of action far the fraud, but if any such condition obtains Ixre it must bo raised by ansvjor, as v.c can find nothing in the complaint vhich vail justify us in assuming such to bo the fact. It is further contended that a party cnmot rescind a contract vath- out offering to put the other Party in statu cjuo. Haat is undoubtedly the law, but, as wc viev/ it, this is rather an action to recover damages suffered by reason of the fraud than one for rescission. In any event, appellant in her complaint offers to account for all of the conmunity personal property received by hor, and should she finally prevail the court can, by its judgment, do equity between the parties. Iloor v. Lloor, 24 Tex. Civ. App. 150, 57 S. Y/. 992. Seing satisfied that tlie supple- mental aM amended complaint states a cause of action, the judgment ap- pealed from will be reversed, vriLth directions to overrule tha demurrer. Judgment reversed. . — ■ __, , x- o> v~ V \ - Holcomb, C. J., Bridges, Mount, and Fullerfon, JJ., concur. 128. BATLA et al. v. BATIA et al. (Court of Civil Appeals of Texas. Hay 17, 1899). (31 S. 7. 6&A) Appeal from dis trie t court, ColoracLo cotmt:>'; H. Teiclimuoller, Judge. Action "by John. Batla 3nC>. others against Hiomas Batla and others. Judgment f©r defendants, and plaintiffs appeal. Reversed. James, 0- J. Ihis is a suit for partition "by plaintiffs against the ir father, Thonas Batla, Si-.T'ciaiminf thsTt^tlio irjnd i:\ ruestttin was oommu arty property of their "father and tieir " dec eased mo Qier . Rosina ' gatlaT BeforB^trial , the f atiier diedT^and his eecoixL wife, as his exe- cutrix and soiliffl devlseo, thon 'bGcaiciG thctl ^f eMa nt . Jiidament ..'.-s f^ d gf eai dant . 'i<«.v~^v~%-e_c\ o-^ ^«..'^ ^^ci^^'-^^.^^- The conclusions of the judge constitute the statement of facts, and are here given: "(1) Pacts. Eiomas Batla and Rosina Batla were husliaad. and v/ifG, liaving interraariieci. in Europe hoforo emigrating to TG::as, 1852. They were hushand aad \;ife on the 28th day of June, 1896, tiie date of the death of Rosina Batla. (2) Plaintiffs are the children and heirs, as alleged in the ir petition. (5) Subsecoiently, either the latter part of 1885 or early in the year 1887, Eiomas axi. Rosina Batla agrrced to separate, and, as incident to and in contemplation of tliis agreement to separate, they jointly conveyed on the 22d day of Fehrnar:,-, 1887, to one Mary Satyzok three several tracts of land situated partly in Austin anc". partly in Colorado countj' for the aggregate sum of seven thousand dol- lars. Ihese several tracts of land constituted the camniunity estate of Bioiiias and Rosina Batla. Mary Saliyzek, the purchaser, made and deliver- ed her several fourteen promissory notes, each for Cie sun of five hund- red dollars, fa- tl::e purchase money {seven thousand dollars), and one- half of said notes \;ere made payable to and delivered to 2horaas Batla^ axiA one-half oi tl'-ea v.ere made payable to and delivered to Rosina Batla. (4) Simultaneously \/ith the aforesaid sale and division of the proceeds, the parties separated, and remained actually separated until some time in December, 1895. But tLe^r v/ere never divorced. (5) Eiomas Batla in- vested the proceeds or notes he received in the afbresaid partition, or a part thereof, in the purchase of the landc described in tlie petition of plaintiffs, an!?w claimed by tliem as coramunitir property- of Thomas and Rosina Batla. (6) 2h2 evidence fails to sliov; \hat use or c-isposition Rosina Batla made of the notes delivered to and controlled by her. (7) Rosina Batla returned to her husband at his request about a year before she died, and remained at her husband's homo until she died, the 2Sd day of June, 1896. (8) Sons of Rosina Batla, introduced as v.ltnesses, inti- mate that the father '.Tas embarrassed and had pajoneats to maKe, and -.vas actuated to indice their mother torettirn to him by the desire of having her assistance to pay his debts; but it does not appear vhethor she still had mcfjjis, -wiietlier sh-c rendered him any assistance, or to -if^at extent. 122, but it \/as clio\,aa tliat siie gave one of tl:c five liuadroc. dollar notes to one of her cons. ISitnozsot. 'tmo\: of no puvchasos (xr invcctracutc die iaade; but tiE fact \;as £ho\.ii tliat Rosina Batla had no property at the tim& of her death. (9) On Febiuary lb, 1888, the said Biomas Batla bou^t the laud in controversy fron one B F Stafford; tlic deed reciting that he paid Gie said Stafford the sum of tv.'o thousand dollajrs in cash, and e::e- cuted to Mm his four notes, each far five hundred dollars, due. resi'cot-fe- ivoly, DccyEber of 1888, 1889, 1890, and 1891, secured by vendor's lien, which v/as released Deo eiab or bl, 1894. (10) Ghere vas no \a*itten agree- ment, but only a verbal agreement, bet\;een Uicmas and Rosina Batla in regard to their separation. (11) Defendant E-^oraas Batla died soon after the institution of this suit, aiid, having maxried a second time, his surviving widow, e::ecutri:c of the will of the deceased, became party de- fendant • •' It appeai-E from thic statement Giat tl:ie sepc.ration of Thomas and Rosina Batla v,'as actual, and» intended as permanent -.viien made. In such situation c division of t-iieir conmunity, made for tlie purpose of separct- ing their interests, a.-^. giving to each one half o£ the property, if fairly consumniated (as appears here), is effectual, aid the property thus obtained by each becomes his" cr her separate property. Rains v. Mieeler, 76 le::. £90, IC S, W. 524, TIu© notes \.hich composed the ctBn- munity estate were personal pi-operty, and the division bet\-een the par- ties v/as consumiTiated viien their land was sold and one-half of the notes talcen to the husband and one-half to the \.'ife. The fact that years later and about a year before tlie \/ife died thay crjne together again did not change into coranunit^,^ property that \/hich liad become the separate property? of each. Kiey did nothing to indicate their intention, or tliat had the effect, of nullifying the division of property. Bie land in Question •v/as bought h-j the husband \r* *^ Pk- -j - r 130, of tie jiifi-ge dicclocGc that r£ d oec not find uuequivocaXly that Cie en- tire iJXii'Chano monoy for the laud was paid by the notes allotted to hira, or thG prooeedc t.::iereof . It Gils had "been found, '..-e ■..•ould adhere to the dicposition of the case already made. E'^e finding* is: "Ziomas Sat- la invocted tlis proceeds or notes he received in the aforesaid partition, or a part thei-eof, iu the purchase of the lan(?.s. ' Tlie purchase price of the land \/as §4,000, and the notes ho had ./ere for $5,500, and one year's interest, not sufficient of itself to pay the v^iole price. Iliere beins no state.n2sn.t of facts, and. haviUtS oaly the finc'-in^s of tls jud^je, .;c are forced to say that the facts, as found, do not remove entirel;^ the presumption of coLiaunity property-, so tliat r,B can affiim the judgment. TLiQ findings sho'/ a doubt in th3 raiix'. of the judge as to the e::teat tMe separate notes or proceeds Ciereof \,'ent to pay for the propert-y - At the same time I:e malsc it appear tiiat, to some e::tent, - protably to a large extent, - pa3niient ^.as so made. Upon tliis coix.ition of evidence, v;-e can neither affirm the judginent nor i-ender one. Claiborne v. Taiiner, 18 Tex. 79. Tlie motion is granted, and the judginent reversed; ajcg . cause remanded . ^. ^^. ^^^^C^^ O' I • "" I- 131. CHARLES L- V.'IHaiffiD., Api-ellant, v, LUELIA V/IIIGAED), Respondeat. (56 XraEh. c89, 105 P 854 ) . 1G09. Appeal fron a orxlgncnt of the superia- court for l.'alla v.'alla county. Brents, J., entored July 15, 1909, upon findings in favor of tlie defendan t., after a trial on the merits tefore the court v/ithoiTt a- 5'^K't i^ a^ action to quiet title. Reversed. ChadwiclC; J. — Tte parties to this action v.-ere married in the year 1892, aid c-uch relation continued until Ilarch 21, 1906. Hiis suit is " brous:ht to recover a half interest in a certain tract of land, allege d to be the prop ert'" of the Parties and a cti'uired diBring coverture. Tlie evidence shows that, prior to 1898, t ne motiier ctt' retipouduiiL was in the occupation of a certain five-ac re tr ggt_of_J. aad nea r thg^clty of ^lla T7a lla, belonging to the T/oodsvillo Guaranty & Savings BanS:,"a Hew Hampshire corporation, and Giat she load had cone corresponderce v.lCa the ban Ic ..ith reference to the purchase of the property. In that ye ar sha .^ l7irrln-nP ir! pn?^r.r^nf^im-i of ti;g land and such rights as she may have had therein, and -DO T-iTiitted the V /in g,irds to -rnnvp mi-tD_ tiie property / . In_J.901 negoti atio ns -.-ere opened bj' appe lla nt , tlirough an attorney, for the purchase~of th9~rand; a price \7as agreed upon, a nd c. d eed exe-_ cuted ~^d: se nt f o'the i3a Ker^Eoger_ jrational _ BntiV fnr dplivp.ry. The deed v^s in fo m a quitclaim, and for that.rLe-a.aon,vas raj-^acied by the a^^^pal:^ T^nt.. UcLJ-'nTXi^ further v-'as'ci.one toward co nsuignating__tlae transaction by \\:bT~< either party, alliiou^i. the Wingards continued to occupy; the land and ""^ ^^ "Had purt~s OKC^'considsrabl s improvGEcents thereon. la^ 1905 respondent left app ellant and^ after a due season, bega n an action for divarc^ in Pierce cotm t^-, Washington. In her complai nt cho cTcscribed certain property^ v aaich gie asserted to be cprnmunity propert;; . She in clxxl cd ths property nov; in controversy. The suit for divorce vas transferred, upon motion of tiae uefeudant, appellant here, to T7alla ¥alla county, vhere it went to trial upon appellant's auswer and cross-coia&laint. respondent there- after defaulting. In tlia t case tlie court uz£.e a decree awarding the coomunit^- property, but no mention is made of the tract now sought to be charged. 11:6 decree of divorce \,fc.s entered March 21, 1906., and on June 15, 1906, the V/oodsville bank began suit in ejectment against ap- pellant vho had. remained, in possession of the property Pending- this suit, negotiations were resumed bet-.Bon appellant and tie attorneys for the bank, v/hich resulted in tlie payment of the sum then agreed upon as the purchase price, and a dismissal of the suit under a stipulation that the "."oodsville ban:-: had no interest and was not then the O'-rner of the land. iSia trial coui~t fourd tliat the property \;as coimuni ty prop- erty, and decreed a partition. Appellant contends that "Qie first negotiations for the a>and having 'eg~v^:Th;3ajggnmun ity cliaracter ; that tho decree in the divorce suit was res judicata, and that his purchase was an independent transaction, made in his o\m. behalf end mth his o\7n funds vliich he had borro\/ed for tloat 132. purpoce. On the other liand, re£r^3oucieiit contends, and the court so held, that 'becciuce the. property- v/as more valuable than tlie price paid, ecaC. tecause the purchase price as finally agreed upon titis tliG rcmc as that first agreed upon, with interest, and considering the residence and izn- provements mode by tlie part is c vjhen liviiag there as husband and wife, tlie laid was in equity subject to partition as connunitjr property. Re- liance is also put upon allogatious in Gie answer subscribed by appel- lant in the ejectment suit, in vliich appellaxit sets up his interest as accruing at the time of his first negotiations, and also upon the stipu- lation in '.(-hich the banic agreed tliat at the time it liad no interest. '2he case is cuTjinitted on the facts v/ithout ceference to any author- ities to aid us in oui solution of tie i^iroblem, aril in the time \-g have had to devote to tliis case our own research lias been equally unavailing. However, considering the equities of the case, v/e are forced to disagi-ee with the learned trial judge. Hespoudent cannot recover, for, under the admitted facts in the case, tlaere \/as no time from the date of the orig- inal occupancy until thS divorce v;as granted, or until tlie ejectment suit was settled, that appellant or respondent, either as a comn^mity or acting as individuals, could have maintained an action to compel a con- vesjance. Tlieir ri^ts rested upon no ec^uities vhatever. 2hey v.-ere tres- passers -..hile there as husb^vnd and .afe, and thereafter c:ppellant con- tinued in simple trespass of t>i> rights of the banlc. Bieiir occupancy \.a,s never hostile. "Eie banlc \^as at no time bound in equity to convey' to them; cr either of them, thjo land, en. any part thereof - V./hen the decree of divorce vra,E signed, it could not operate upon this land, for the reason that neither the husband nor the v;ife had any interest in it either in law or equity ^ nor did the court attempt to award it, although its attention was called thereto by the original complaint in the action, VJhile there is a dearth of autlioritj,- to cover this case, it seems to be Eoucvhat analogous to the case of Kail v. Hall, 41 Wash. 186, 65 Pac. 1C8, 111 Am. St, 1016. In that case a husband and v/ife had settled upon vacant government land. Ths land had not been surveyed and ^.'as not open for filing. Zhey load lived on the land for several years viien th3 v/ifo brought an action f cr divorce, Tiliich was gr-antGd. About a year thereafter tiie husband filed upon the land anc"-, vn.thin anotiier year, he proved up and obtained a patent, taking his residence upon the land prior to tlie tinie it was thro^rn open, so tliat his title depeuc-ed upon sons of the time tliat his divorced -wife resided .dth him. Upon the death of the husband, the first wife brouglat an action asserting a communit-- intorest in the land. It -./as held that the only interest tliat the dece- dent (tic husband) had in the property, at the time cf the divorce, vas a rigiit of occupancy coupled \.itli a preference vjght to enter the laud anfw acquire title thereto after the same vas thro\Tn open far settlement; tliat his ricJit to the land depenled upon continued residence and future compliance ..Ith the requirements of the homestead la^7S, and tliat, there- fore, the v.-ife had no equity in the laud -..hatever. So in this case, the parties had a mere occupancy without the right of occupancy. Title to the land depended upon a contract and pa^Tnent, vhich v.as not made or consurnraatod until after the divorce proceeding, and then only as a result of the ejectraent suit. If the divorced wife \;ould not recover in that case, assiu-edly there can be no recovery in I 155. this. Zici-o being no cgait-- in favor of lecpondout, clx cannot avail liGrcolf of any ar'j-.iisLionr- in the sms-./Gi- in tlx; ejectment cuit. ITor is she "benGfited "by tha terms of the Btii:^lation. Ilao one \^aE an alle-s-tioa vrttE no foundation in fr.ct; tCio other v;as made aftor settlement and in aid of the deed. For these reasons tliorefore Cie judgtent of the lo'/er court is re- versed, ..ith ins tiuc ti ons to dismiss this case for tiie -.-.■ant of oqiiity. Rudlcin, G. J., C-ose, Pullerton, and Ilorris, JJ., conctir. V'o -v^ V= IIA. (2 TJash. 417, 1691.) Appeal fi'OTi SUx^erior Gourt, King County. Lui t for £avorcG /ov Davie. K . ahstffy r.>v-.- v.i;;t Sarjl'. A. V/ebcter. Defendaat sn.s"v "erecTaiad also filec. a cross-com^;laiat \:ii)on wliich a iecrefi of divorce ./as rendered. 2he court made, a^Tioas otl.ei's, the follo'./im,^ fiaif-in;^- of facts: "4. Chat tlie folio- /iu^ property, to r/it: All of lot tv/o aiid a strip tlu'oe feet ^/ide off of the north sic.o of lot thrae iu blocl-: sevea, in Boren and I>eiiny'E addition to Seattle, is pert sad parcel of t 'o lotc originally purchased on or about the 24:th day of July, 1669, at a tirae when tlie plaintiff and defendant were living together endeavoring to mate a hone, aad providing for the ftiture; that neither, at Ciat tine, had any money e::copting Goat -vhioh v/as earned by the plaintiff in his daily vocation, excepting' a small amount that the defcndrnt, Sarah A. V.'ebstar, received froii her half-brother; that -/hatever sums said defcncJ-^nt re- ceived from her brotI:3r, or otisi.ase .j&ruired, were used and e::pendad for tha benefit of "both in tJis household affairs.; th-at ;;he purchase inonej' for said t-..'o lots v;as aade by the plaintiff, aiid ^.loney of his o-.-n ecjrn- ing; that • hatever improvements Ir-ve been ereci-ed upon said lots, with the exception of Vre. buildintj laio".Jn as the V/ebstor building, v;ere ercctad from mo)i3j oarnad by plaintiff; that tl-js r.'obster bloch has been erected froi^ moneys received fro;a a ./mortgage upon said realty; that at the time of maling the final payment on said lots the deed \;as taken in the n:j;ve of tl"j3 defendant, Larah A. V/ebster, but tliat fiic property -.ras not deeded to her nor intended, nor v;a: it understood at fho ti.ne nor since, as a gift; that tlie property just referred to is of tlic value of §25,000, which enhanced value is by roasai of tr.e incroaco in value of real estate, and not from an-; pj.rticular act of cither one of those parties, excepting as fai' rs tiie building ci-ected therco:-'. adds to that value, the money for tlio erection of ••lu.ch v/as received from a mortgage thereon; that since their raarriago they laave also acquired snd are no ; the O'.raers of lots five and six iu block four, in Robinson's addition to tiie city of Seattle.'' Upon whdch finding of fact Gio court made the follov.lng conclusion of law, to "wit: "xhat said real property should be divided equally, share and share alil^c, subject to the debts, vSiich should be paid in the same v/ay.-' IJha defendant and crOEs-coiuplainant, Sarrh A. 'Vcbst;.r, excepted to tlio findings of fact, and conclusions of lav;, and frora the judgment there- on appeals to this coui't. '2x10 opinion of the court vra,E delivered by Dxinbar, J. — !Ihe main question to be decided in t'~is casor i.;rclves 1Z5. tht) conctructiou of Loc 2007 of taie Cede of 'TashinstOii, vhich is as follo-.;s: •■'Sgc. 2007. In c.'raiitiiig a divorce, tl^Ji court sliall also mako such disposition of tiie property of tho parties as shall appear just auc). ecuitahle, liaving icgard to the respective merits of Gia parties, and to tho condition in \/hicii thoy -./ill Tdc left "by such civorco, end to tiie party tlii^ou^li "./hon the pro^jerty -./as aaquired, and to tho "burdens im- ^ot,cd u_.on it for tho iDouefit of the children, and diall make provision for the guardianship, custody and supjjort and education of tlx minor childicn of such iBa.rriage." 2hi£ statute Ja.s passed in 1663, prior to the p'ssege of the conrounity property la..', and has ever since "boon the la./ of the territory, anci. of the state. It is contended Vj appellant that tiiis must be con- strued to moan that tlie court shall r.ialrc such divicion of the joint property of tlie parties 3,s shall a^ppoar just : nd ecuitalile, and. tte t the separate property of either spouse is not to. "bo considered in malting such disposition. ',;e ere unalile to see ho-.v this construction can be sustained by any rule tor tlie interpretation of statutes. Zie language of the St.? tut e soeiris to bo plain and unaiiibiguous, and tloe -..'ords must be given their ordinai-y meaning. The statute docs not say t:io.t the court shall make such dispocition -'of tl^ir joint x^^'oparty.-'etc, but shall make such disposition ■'of the property of tho parties," niiic language is comprehensive.; it is an equitable division of tho property ri^ts of the parties th^.t the court is authorised to malie. One statute defines '.rhat separate property is, another -./hat corjiaunity property is, and vAio sliall liave control of separate property, ard vho of ro-^1 property, boCi sepa,rate and co.-.i,.;uni ty; ""iut these statutes relate to property rights dui'ing coverture. Hiic statute, hov/ever, provides tho.t when covertinr^e is to be br-oVren, sa.C the marriage relations dissolved, that the parties shall bring into court all their propert^^, and a complete shcdng must be made. Each party must lay dovAi before the ch-rncellor all that he or she lias, and, after an e::aminatio:i into the \;hole case, lie i-.x-kes sn equitabla division. This viev; is sti'ongtliene-d, aid it searis to me es- tablished beyond contrcrversy by the si"ceeeding provision of the section. •'h"vi2ig regaid to the respeativc merits of th>e parties, ?nd to the concltiOM in -,l\\C\ thej' ■..111 be left "..y cucli civorce, r.:i5- to the party tlii-ougli -..hoa the property \/as adqixired." If t::e coui t lia.s no jui'isdictiou over tl-is repaa-ate property, snC. cjaiaot tals it into rx^count in making tine division, that portion of the st::tut3 'tAcli says it shall h^ve regard to the pr.rty thi-ougli v;ho»n thepropertj* v/as acquired, is meaiin-gless. The lav' does not reqi-ire an equal divicion of trjsproperty, but a "just 2nd eq':iitabl3"divii. ion, -nd as nc general rule for a just =:nc" equitable division c^n l^e laid do .'i, but eac'n case rnuct be adjusted according to its ovai merits cxL the particular circumstciices sur:oundi:ig it, the court investigates all the circumEt;.nceE~(l ) cc to -ho is w blaiue, or, if neither party is bl:melei.E, the degree of bl-:me to be att^ched to the respective pc..rties.i (2) -..iio is tlie .aore proper party for tl-.e custody'- of the miinor children, if any; ('-<) if there is a dispositian of the property to be made, the .'.lanner in \Jhich it mzs acquired, -./hether derived principally from the husband or the ••;ifo, 01 by t.eir joint ei^ertionc; the coixlition ox uha parties as to fge JixC. health, ..nd a gre-t many con- loo. cidex-o-tions \/hich v/ill aecossavily euter into the dlccretion of the coui-t in rnaldng Cio divirion. Tiio sa]j£,i'a.te property of tlie husband or the wife is eiinjly a circumstance tor the court to talce into consider- ation in making the divi;;ion» Wiis subject is no-./ regulated very largely by statute, and there is great sinilarity in the statutes, all of the:.a investing' tlie court '..'ith lar^e discretioncj.-^'- :^io:;erc . In lov/a, uiidsr a statute substintially like ours, v/hich provides th: t, ■'■.^len a divorce is decreed, the court may asSize such order in respect to the children s:^ property of the partias, and the maintenance of tlie -./ife, as shall be rij^it and proper.'' it is held that, \;hen a divorce is in favor of the vdfe, a part of tie hus- band's lands may bo set off to her to be held by her in fee simi^le. Jolly V. Jolly, 1 lov/a, 9. In Ilentucliy cud Alabama, Cie courts have re- fused to divide the separate property of either spouse; but, in the statutes of each of those cta-tes v;hich ^ive the court subL.tantially tie same discretion that ours does, thera is a special provision or saving clause, to tlie effect that "nothing herein contained shell be construed to authorize the court to compel either party to divest himself or her- self of the title to re:JL estete." -JSiis very pro-.ision is, at least, a legislative recognition that without it the court vnuld have po/er to divest the title; and even these courts, in the e::ercise of their dis- cretion, a\/ard the use of tlie L-eparate estate of one s_-'Ouse to the ot".;er for life. In Alabama the wording of the statute is, "The court pronounce- ing a decree shall order and dec: ee a division of the estate of the parties in such v/aj; as to it shall seem just and right, having due regard to tie rights of each party, and their children, if any;" v/ith the pro- vision quoted above. And the supreme court, in construing this statute in Lovett v. Lovatt, 11 ^la. 755, says that the estate of the parties ■ was the estate held by eitlier husbrnd or '.dfe, or by them jointly. V/e sure cleax-ly of the oi-inion that Lee. 2007. of the code confers upon the court the po';er, in its discretion, to !7iake a division of the separate property of the \afe or husb nd. with this viev^' of the la"/ of the case, and seeing no abuse of discretion by the court in its findings or conclusions, •.'e are of tlie opinion tli^ t the judgment should be affirm- ed. The point raised by tlie appellant, in regaid to the refusal of Cie court to discharge the receiver after tlie apieal in this case Iiad been taken, v/e think is not properly before us, and v;a liave therefore not considered it. Judgtient of the lower court afiirmed. , _ AixLers, C, J., aad Scott, YxO'^jt, end ttiles, JJ., Concur 1S7. ELLA. A. CULLIVAH, Rospondsut, v. DATTIHL CULLIVAH, Appollcnt. (49 Wash. 506, 95 P. 1095). 1908. Appiicction filod in tke supreme court April 18, 1908, for an order directing the allo\/aiiGe of suit monoy, attorney's fees, and alimony, pend- ing an appeal fiom a jud^r.-iont of the superior couit i'oi- Si^a^it county,. Joiner, J., entered Mai-ch IB, 1908, si-anting to the plaintiff a divorce. Gi'anted . Root, J. — Ihis is an ajpplication Tdy tl ie respondoat . in a divo rce case o n appeal to this Gourt, t o r tiio allovTanc c of suit money , attorney 's fees, a-nrt alimony pendente lite i n this court. The pov;er of this coiirt to maJcG such allov/ance" to the \n.io upon appeal in such procoediUG lias "been jjasscd upon in the case o± Holconib vJiolcomTj, just decided ante p. • From respondent's application it appears ti-iaf appellant lias under his c nntT-onrprnpm-h^_pv flo Talun n-:- rt \fnr^r -^^^'>A_n;)(77-TnTT7rh 3rf-1rt-"bgiirT. o r "TlavtSg been, conmunity property, and oi which $7,000 is in actual cash in tfie" l35inc7~sub je c t "to his ch ech: or order . It i^u raior^aHpcars^ that~TRe~f3- spo Sd5nt~Eas~"^ie care and custody of tlieir minor child, afflict ed~wrth tube rculosis 'oi the lun '^'S ^ by -■■nAr.nn of -.TJ^iTvir -'^i-ip -if; a-t p re^ entlander ^the physician's care in the state of CalifoiTj^iaj^jJiero it is necossaj^ hcr~wrt}i~2rgr~iai oxaer sister or^thxsrespondi;^t,__and^or whoso cxpej^es rr~i i; mc<55¥Sy~that a con siderable amount of money shall be available j-cgul^l y; that the respondeat has no property in her possoEsion oi^imdor her_ control, and no jQoans^of supp^ortins_Mrscif or minor- child:;, thart^tho lo\TCr coxirt avarded respondent a decree of divorce and a substantial por- tion of the property, vhich said decree has, hov-over, been superseded by a stay bond interxjosod by appellant when this appeal v.'as undertaken; that it is necessary for her to l-iave money to meet the ordinary ejrpenses in- curred in preparing or having prepared her case for consideration in this court, and to hire the legal services necessary therefor. It states tliat it is necessary for !:er to bo av/ardod for herself the sura of $200, for he:' children the sum of ()150 per month, for suit money st-lOO, and as attoi-ney's fees $2,500. T/liere the viifc prevails in the trial court and there is belonging to tlie parties a substantial amount of community propertjr which is in the possession aox. under the control of tlie hucbant?., aix. tlic disposition thereof made by the trial court is supeisedod by the husbjuid's staj^ bond on appeal, and', the wife lias no means of s upport for herself and min or children and for legal services and chargx;£ incidental to properly prcpax- ing^and' pre sent iag her case upon appeal ,__w c; thinlz a sufficient shov/in? i s M hVn. made for an allowance for those purposes b y t^ii^ r.mrr-t. As to the amount of attorney's fees to bo allowed herein, wo are not called upon at this time to say \h.a.t the value of the services of r.:Epondent's attorneys in representing her interest in this court miglit bo, or to say v.hat propor- tion, if any, of their fcos sliould be paid by the. appellant or from tho comrnunity property, it is for us to allov/ at this time merely vhat we thinl: is necessary to enable her to secure suitable legal services for tho preparation and presentation of her case, leaving the question as to the value of such services and tlie manner of the ij- being paid in full to the final determination of the case. 138. It appears tliat certain alloY i.snc.ec for alimon y and suit money amounting- to J^ifiO O v.-ore rr.ndc in th:; trial cour ^__It is tliG order, _of_ this coig-t that the appe'.Iaut te, aiad he is ]i e ro"by, d irGcte(L_to pa^ to th o rcr.pondont, for hor ubq. the t;uT. cf r:100 Per month, and for the use and boucfit of the i:iin.cr chll.l the zvrs. of t)loO per month, a3.1 payabl e to rccpondent on tl: c I'lx-Lt business 6.ay of every month,, sa id allowance conip'uvjca tram -ii-.e elate of the filling of tlx supersedeas "oond until tho filing of tlx opinion of this court upon tho determination of tl-^ case upon the merits. It is further ordered tl:iat ap;^ella nt,, within ten days from th o filinp' n,f tl n.s opinion, pay to respondent or her attorneys/tje sum of '.>75 as t-vit ircv'.oy, and tlao furfcer sum of '.^l-^O as attorney's j;3os. 'fie orders herein nmlQ shall "bo in full force and effect from and after the filing of ihxc opinion. Hadley, C. J., Dual-ar., and Crov;, TJ., concur. Mount, Rudhin, and Puller ton, JJ. , dissent. <=y'/'-^-^, » (iVtfB-'fc.-'^-Ay 139. lETTIZ HOwELL, Appellant, v. L. A. DUiriTIlTS, P-OEpondont . (lOSTTash. 591, 107 P. 365). 1920.' Appeal from a jr.d^'^-.-.ent of tlao cupcrior court for Lincoln county, Sessions, J., eatoi-ed Cctolaer 18, 1918, dismissing an astioa to sot as idog^JPro-pGrt y SnttlQ.nont ^:;-:d X-0 modify p flpr.rno n-r r'. ^■\rnT r.p ^ ^J cAHK. to Bie ~courti Rovers od. Tolman, J. — Prior to April, 19K-, t^ie respondeat and a ppellant \7 ere husTjanc". and \;iio, residing together as suc.Ii in the tovm of Hairring- ton, './hich had been their liome for several years. At practically t]ib Earae time, tl-c respondent, through his attorney at Davenport, aiid the appellant, through her attorney at Spokane, each began a sui jt_ for di- vorce from the otlie r, a nd shortly after t ha— sej^ viOQ of ^the- rePTtPCtiv e complaints, tlie parties composed their difference s and resumed the^ir marital relations. ITothing v/as done towards dismissing either Euit7~ ancTW gx parties a ppoarad to have considered that both^ctions \vere then aband oneoT^ ^^^]yeg~later . on A'0ril~T5~'T^15r ~troulile 'aj min arose "Bo^^ ttreeiT tg part ie s ,~ancr~it \vas agreed betvjeen them that ^ they shoulti. - go - to^ DavenporE~~aid the husband shouIdTs^ ciargnardl^grce'upon the complaint v/hich he had prGpra*ed and served a ye^ before^ and then, or on the vSjr t oTJavenport, tae husband siaggested thatT T i^- vit;\/ of hxc j.iabilitios and obi igatloaSj__he_ c ould pay her but OgJ_000, and that only in install- ments, \^lch \7ould be her fair share of tio comi:>unity property, and the remainder of tlB pr'qporty should become his separate estate; explaining in some detail, accoixling' to appellant's testimony, that he '.vas heavily in debt; that tlie c::poascs of his business absorbed the profits, and that, after deducting tlis indebtedncr.s, the comir!ti.nity estate v/as not \70rth to exceed 05, 000. Typn - viffi n: n?"^o ssed a \/ish to have her attorney present, and to h ave the benef it of his advice, but thc^ hiVsband assured hev'^ETTal: VlcmTc] -hTTT-. nRr^T arr r^-jsn nf^n. ,n:nfl,_tlTa h^tiy^^r^opoRfid §5,000 sett^e- ment__\jas a ll t3iat the coiirt would gi-ve her in any event. The husband denies that ho told his v/ife tliat the value of t:-j2 coraiminity property was only C>6,000, but does not deny that the wi.fe -v/as entirely without business experience; had no loiowlodgo of his business, its value and earnings; that he had enjoined x;pon her the strictest economy, because he claimed he v/as overburdened with indcbtsdnr?ss; liad refused her re- cfaostG for money for the same reason, and testified that he never, at any time, told her the value of tbsir joint property, and seems tacitly to admit tliat the v/ife relied upon him to be fair in the matter. The j«.fe^ as she nov/ claims, believing that tlie net value of the community "property v/as O^jOOOj '"^Jad relying upon the husband's stateix>nt va Ci re- spect tlioreto, consented to the decree av.-ardiag tlie husbaM the divorce and the custody~or~t!trec of their five childronr"and a\/arding her the __cus to^^~oiM;he tv/o remaining children, \7ith a provision for ^25 per montS~to~bo~paia r by tha^huSbS al L uw ax' ds Ll iuir brcgrpor t ^ anT a pr qpor ^ "leTtl'Sment of $5, 000, payable 05 in cash and the balance in annual ins t^aHments , vaTn interest. 140. It ie admitted that the Imsband 'g attorney under too': to act for both in arraiisin^ the property cottlomcnt and procuring the entry of tlic docrcG, and there is notliin^' in tlic record to indicate tliat the at- torney acted in any other tlian a fair and irrpartial manner respecting the cettleacut. neither is there anything to indicate that the attorney laio\/ anything more of the value of the community propertjr or the earning capacity of the business carried on by the husband tlmn did the vdfe. And, acting for both upon a stibject upon -liich they were apparently agreed, there appears to liave been no reason for hin to las.'k.o such an investigation as mi^Jit h.ave been thouglit proper by one acting solely in t!ie interest of the •.?ifG. After tlio eatr^;- oi^_the decr ee, Cie \/ife -aent to Calif ornia- and in the fall of 1916 first learned facts Ciat~l n£i^at- cd tli at she Imd b oon deceived in the property settlement, and thereafter brought fa is act lj3iL,_ attac];i ng^"Qnl y Lhal ^j Q i t ion of the dccreTj 'rSilch^ prov _idcsf or the property settrea mt". ?roa an advorse^judgment beloy/, she~^pDals . Considering the nature of tha case, tlie evidence is singularly lack- ii^' in conflict upon most of the vital points. As alrcafiy atated, tho respondent acijaits tliat appellant, -diile his -.dfo, loie'./ nothing about tiie details of the business; does not deny tliat hj3 commonly refused her in- fo una tion Aiicn six inquired, and one reading the record can hardly os- capip th-^ conclusion, whether tlu husband's testimony is accjptod, or tho testimony of tlii wife, that the \7ifo relied absolutely upon th- husband in this matter of tlii property scttlcitcnt. 2ais being so, in dividing tl:iat \iaiich belonged equally to both, but v^ich tho la'./ placed exclusive- ly in the possession and control of tho husband, common justice, common fairness, and the lav;, ell alike, rocuirc the husband to disclose fully the nature and value of the property to be divided and to make a fair division, or else put the mfo on notice that tiiey v;erc dealing at arm's length aiid advise h^r to seek counsel and receive jissistanco from some other source. Hormilo v. Denison, 9 Y/ash. Dec. 181, 166 Pac. — 2he husband, leaving dissuaded the v;ife from seeking the advice of her o-.m attca'ney, must assume the same loyalty to her interest as her attorney v.'ould have shovni, aji'- v;l-i2thcr hie fraud be active or passive is iimnater- ial. Oliat the amount paid to fiia iTifc Mas grossly inadec[uato is practi- cally admitted. Hie husband himself testified in his ov/n behalf as to tho value of this comiiiunity property at tho time of the scttloroent, as follov/s; "Q. Aro you able to give at this tine what your property, v;!iat you considered your property was A.orth at t!iat ti;.r over and above your debts, over your liabilities? A. Tlliy, I should L-.iagine it was -./orth fio..; .^12,000 to ^14,000. 1 wouldn't say \'hotliar it was wcrtli that lauch or less. It could not liave "been v.prth over that." T.Tiile his bookkeeper, to viiom ho referred all questions of figures, and who, as he stated, Icnew all about his financial affJiirs, testified tliat the net assets of th.3 firm in which, the husband was a partner and half ovmer, for the year 1914, being the -joax inmedir.tely preceding the entry of tlae decroo, wore of the value of $45.0o6.80, anc. tiie net profits of thj firm for that yoar v/ei-e (>15,495.95. In 1215, the year tlie decree / Yff A-e - ^c- ,..^C/^ ^iiii^^itU^^^ ■^<^*^^ CL^ 141. was entorcd, tli; firm made: a not profit of §45,145.68, and in 1916 tho uct profit \;as '.;63,017.79. Admittias that these arc book prof its only, and tliat thoy might novor be realized in full, still, at tho beginning of the year 1917., rcepondont bought out hie partner's interest in the firm and, accordiag to his o\7n testimony, paid him v;55,000 thorofor. The bookkoopor, \vho appears to liavo had a thoroxigh loiov/lodgc of conditions, also places a value upon rospoudent's interest in the firm, at tho time the decree -..'as entered, of 025,000, \;hich valuation respondent in no \;ay disputes. Taking the bookkeeper's figures as to the value of thr.t part of the community property invested in the; partnership, an3. adding to it $2,000, \/hich respondeat himself fljcod as the value of the community property not invested in tho partnership, wo have a coiimunity estate val- ued at ('.27,000, the v^ole of ;.-hich tlie husband sccIs to retain, after paying the \;ifo, \/ho, co far as appears, lias done her full sliare in help- ing to acquire it, but a small fraction thereof. Eespondeat testified to community indebtedness outside tlie partnership of $10,149. TSiile this appears only by his testimony, zx£- there are some facts sho'.ai \iiich cast doubt upon soce of tlie items included, yet v/e are disposed, under the record, to allov/ this offset, tiis reducing tiie net value of tl-B commun- it y property^ at the time of the entry of the decree, to~vl6,65l, t he wife's half of which \;as :':ft ,A9P;,.i=;n. -npriiirit ing fiie sum of vj5,000 alread y paid her, she should bo allowed the differen ce of $5,425 .50. Appellant asl:s us, if \!0 find Cie vife lias been defrauded, to treat the community estate z.t undi\-ided, order an accounting, and give the v/ife the benefit of the earnings subsequent to tlie entry of fiie decree. This we caxmot do, for the community \/as then dissolved; it v/as the purpose to then divide tlie community property, and IhG \/ife is entitled to receive v;hat she would liave received if no fraud had been practiced upon her, plus only legal interest during the tine it lias been \dtlilield from her. JudgiDsnt reversed. ^=^ \^\ Holcomb, Go J., Mount. Bridges, and Pullerton, JJ., concur /--^^.^ 142. DUllPHl' V . DUBPIIY (S » ? . 5 , 702 . ) (SiiTprerce Court of Calif oi-uia. Oct. 5, 1911.) (161 Cal. 87) Departireat 1. Appeal from Superior Court, City ciid County of Sau Praucicco; Jarces I! Eeav.'ell, Judge. ^ction by James C Dunphy ^_Jb; ^Jeimie C Dvjxghy., lais guardian ad litem, agaiustTiydie TT Fun phy. From au order directing plain tiff to pay mone yt"Q"dei ond3.nt to ea ablfl„ hor tn prnpgci . it(? a Tm o t ioa fnr nR-v trial _ ajod an appeal. He" appeals. Af firmed . Angellotti, J. _Eiis_i_s an appe al from an order directing plaintiff to Pay defendant v'2,0Q0, to enatile Iier to prosecute her motion for n ev: trial and appeal, in an action "brought against her to annu l tl^e marriage soleianized tet yg en herself a^V pTr>int:i-F-r nn .Tn-n g ^Z, 190 9. 2he complaint in that action alleg ed that on said day the plaintiff and defendant vTe re'lharriedr ^a^r this allegation •'.. 'as adonitted by the ans- " v/ir aH~f oui^ by the trial court to be true. It further alleged, as the grourd of the annulment sought, that at the tine of such marriage the plaintiff was, and ever since hafi been, "of unso^Jind mind, • and that the plaintiff lias never freely cohabited with the defendant as her husband, Tliese allegations v.-ere denied by tl:e answer. Tlie trial court found that the plaintiff \7as "of uacound mind" at the time of the /carriage and un- til after July 21, 1902, and that the plaintiff has never since said mar- riage freely cohabited -.dth the defendant as her husband, and gave judg- ment annulling the rarriage. Defendant duly inaugurated her proceedings on motion for a ne\7 trial and for a review of the action of the trial coui't by this court. It was not disputed that Ehe is prosecuting svcli proceedings in good faith aixL with reasonable grounds therefor, that she is -without the means of payiug tlie costs thereof, a:id tlaat the amount allovred by the trial court is reasonably nececsar;' to enable her to pay such expense. An appeal from the judgment of the superior court v/as talffia on July 20, 1909, and such appeal is still pending. Hie sole con- tention of appellant is that tlie court hsd no jurisdiction to male the order, and that tl-x? evidence was insufficient to justify the same, "in Giat there is no evidence to show, and the evidence fails to show, that defendant and cross -complainant is or ever v.r.E tI-J3 v/iie of plaintiff and cross-defendant . ' Appellant's point is that, to justify an order requiring the payment of money to enable the defendant to prosecute her motion for a nev trial and appeal, the marital relation must be admitted, or sho\rn by a pre- ponderance of evidence. In support of Giis claim Hite v, Hite, 124 Cal. Cie9, 57 Pac. 227, 45 L.E A, 795, 71 Am St- Rep. 82, is relied upon. 2Iiat case -w-as an action for divorce by the \;oman on the ground of adult- ery, and by the defendant's ausv.-er the allegation of the complaint that tlie parties v;ere married v/as squaroly denied. In this state of the pleadings, upon an appeal from an order allov.'ing the plaintiff alimony, counsel fees, and e::pense of suit, it was held tliat to justify alimony 145. marriage luus t "bo adjnlttGc., or proven to t]ic Eatitfaction oi* tl'£ jud^e to -.hom tho application iz made. Kiat clecicion lias never "beeu a/errulocl or cuestioued. But tlio aiicwer to appollant' r, claiiii aif. the di ctinguisli- in^ feature 'bet\;oen J-Jvls c.nr>c and Hite v. Hite, supra, is tlist here the narriace ic allegod "by the plaintiff, and stands af'mltted liy tl£ pload- in^s. AdjDltting fiio fact of narria.;^©, plaintiff sou^Iit to lia-ve the mar- riage annull.-^d on the ground t]iat he \;aE of nar.onnt' }ti5::v": at tZao time of tho iTiAi-r ia-se . Civ, Code, Sec. 82, sulid, u. (Ij It \/as held by this court, in the recent case of In re Gregor- son'G Ustate, 116 Pac. 60, tlr^.t the effect of our ctatutcs is tl-^t such a marriage ic not void sTd initio, and. is free from attack, e::cept in proceedings tor cimulracnt, "brou^it "by tl:e party injured, or on "behalf of the party Qf unsouLx'. nind, C.virlug tis lives of "both parties (sections 82 and 85, Civ Code), a:x. that consequently tlx validity of the marriage cannot "be questioned after the death of tlB "./ife, in proceedings for the appointment of an adj-ainistrator of her estate. It -..as recognized that. in the aTDsence of any statute providing other-.aso, the great -..^iglit of authority is to the contrary''; hut it ■.;as Eho-.,ii by an exloaustive consid- eration of GUI- statutes that tlie Legislatui-e has made such a marriage valid ani free from attaclc, ooxept in the aiuiulment proceeding already referred to. In tZia a-bsGnce of a decree of annulnsnt. it is valid, not only against the v/orld, "but also as "betJcen the parties. Coats v Goats, 118 Pac. 4-41. A merely voidable marriage -laust be treated as valid for all civil purposes until annulled by jtidicial decree." £tate v. Lo-.tbII, 78 Minn. 166, 80 H. \7. 877, 46 l.R.A 440, 79 Am- Et P.ep. 558; ^'.'illits V. ./illits, 76 ITeb. §28, 107 H 17, 579, 5 L. ?.. A (IT. S-) 767. It i7ould appear to necessarilj- folio-; that, so far as the ennulmcnt proceedings are concerned, it uuct continue to be accepted as a valid mai-riage until the decree of annulment tl^ijrein has become final. Uie paver to alio"/ alimonj!- in cases of annulroent oi' marriage ■v.^s fully recognized b;'- Chief Justice Beatty in his concnrring opinion in Kite V. Hite E^Ipra, \;here, after saj^ing that it is only a -./ife \/ho can claim alimony, axf. vfiaon the fact of marriag-e is in issue and unproved ti:ere is no one in that position, said: ''If a husband sues for divorce, alleging a marv large, of c airso there can be no question of tic right ta aliraonjir, if l:ie is able to pay azai the v/ife is in need. If he sues to annul a marriage upon tne ground that it v.as void, ab initio, by reason of fraud, precontract, insanit3^, ot cetera, then the granting of alimony pendente lite -..TDuld be proper, because a fomal marriage is alleg-ed. and •.111 remain a la"'ful ciad establisliod marriage, in the absence of affirma- tive proof by him of the existence of sor.s fact or facts ..hich vail in- validate it. In such a case, I corrode tlie proprict;^ and justice of al- lo-ving the '..dfo (for, tmtil the fraud or otZier invalidating circ-urastances are establislied, she is tl:e v/ife) money to mal;e her defense.-' It v.as definitely decided' by this court, in the later case of Allen V, Superior Court, 155 Cal. 5C4, 65 Pac. 977, that tlE superior court may rer^uire tte husband prosecuting an action against the v;ife for annul- ment of tlie marriage on tl-i3 g-ro'und of fi-aud to pay the v/ife such mone3i' as is 2Ct''.ially necessary to enable her to male her defense. Eie c curt said: "As to suit money the right of tl:^ v/ife cannot be denied. lentil her al- leged fraud is establislxid, she remains the lav.l^l v/ife of tZie petitioner. 144. axid. has the same right to defend the action to annul the marriage that he has to prorecute it, cuS., until she is provided with the means actual-- ly necessary to mal-ce her defense, she ouglit not to "be forced into a trial- This conclusion is sustained by all the opinions, concurring and dis- senting, in the case of Hito v. Hite, 124 Cal. o89 (57 Pac. 227, 45 L, R. A. 795, 71 Am. St. Hep. 82 )i' This is in accord v/ith the great weiglit of authority. In come of the decisions, the conclusion of the court re- quiring the husband to mals such payments is based on statutes held to confer the power; but, vhere it is held that tl"j3 only statute on the sub- ject is one limited to proceedings for divorce for some cause occurring after the marriage, it is further generally held, to use tie language of the Hew York Court of Appeals, in Kiggins v. Sl:s.rpe, 154 H Y. 4, 8, 58 n. E. 9, 10, as follovTt;: "Eie general jurisdiction conferred by the stat- ute to entertain such actions carries v/ith it, by implication, every in- cidental pov.er necessary for its proper e:cercise. Vihen a statute gives the court jurisdiction over a class of actions, it is not necessary that all the pov;ers of the court, or all the details of the procedure and practice, should be specially enumerated. For Sie purpose of administer- ing justice in such cases, the court may * * * exercise such incidental poY.-ers as are usual or necessary in such cases. 11^3 pajer to allow ali- mony ani counsel fees to the v/ife, in order to enable har to live pending tlae action, and to present her defense, if she has one, just be regarded as incidental and necessai-y in all natriraonial actions, V/ithout cuch po-.ver, the rights of the woman in many cases could not be adequately pro- tected. It seems to us, therefcare, that actions to annul a marriage are governed, v/ith resjject tn alimony aad counsel fees, by the same principles as all other actions for divorce. VZIien the court v/as vested \/ith juris- diction in such cases, the incidental power to guard aa^- protect the ri^ats of the wife, -.hich had al".7ays been regarded as a part of the jur- isdiction, necessarily follov--ed and attached upon the plainest principles of reason and justice." See, also. Hunt v. Hunt, 25 Old.. 490, 100 Pac 541, 22 L. R- A- (H. S.) 1202, V/iHits v. V/illits, 76 Keb. 228. 107 H. T7, S79, 5 L.R.A; (U.S.) 767; Yroom v. Fiarch, 29 N. J. Eq. 15; V/ebb v. Broolce, 144 Mich 574, 108 IT. Vi. 558; "Arey v. Ai'ey, 22 ^iash 261, 60 Pac. 724; Eliot v. Eliot, 77 T.'is. 654, 46 H V/. 806, 10 L.R.A. 568; Lchroter v. Schroter, 57 Iliso. Rep. 199, 107 13. Y. Supp , 1065. 2 Am. £ Eng. Ency. of Law, p. 104, and note 5. Ihe later Hev/ York case of Jones v. Brinsmade, 185 N. Y. 258, 76 H. E. 22, 5 L.R.A (H.S. ) 192, 111 Am. St. Rep. 746, in no way affects the rule declared in the earlier cases. (2) Learned counsel do not seriously question the power of the trial court to allow the wife suit money in such cases up to such time as the husband establishes to the satisfaction of suih court that the marriage should be annulled, but earnestly contends that a decree of the lower cota-t, annulliiTg the marriage, bars any sllov/ance from the time the trial court maJtes its decree, notv/ithstandiug that the juc^.gmcnt lias not becons final and the -.vife is in good faith and v/ith due diligence prosecuting an appeal therefrom. Tlie power to malce the allov/anco to the tine of judg- ment being established, v;e can see no reasonable ground for holding that it does not e::ist to the time the judgment becor.es final. It is settled that in ordinary divorce actions the po\/er exists as loig as the action is peudhig, v/hach is from the tiii:e of tlie c orrmenc ement of the action "until its final determination on appeal, or until the time far appeal has passed, unless the judgment is sooner satisfied." Section 1049, Code Civ, If , yCc^ --i^i^'-^-^'''^^ -" / .cS'<^C*^'7f't^ i-<<;^^-^ ) ^ — - ^ £l,-med by the other. An interest in such property, dependent solely upon marriage, cannot e::ist after en. adjudication that tliere has been no m?r- riage. If, as is suggested by th^ appellant, the annuLnent is to be treat- ed as analogous to a rescission, it should, properly enough be accompanied by a restoration to the parties of \,hat they respectively lia.d before m^r- riage, rnd \/liat tley v.ould liave liad in the absence of a marriage. Here, however, the question is a difierent one. Zhe controxreisy is, not over the propertj;- o.rned by the defeud-rrit prior to marriage, or acquir- ed by him alone thereafter, but has to do -.it:! the acquisitions of t'.ie tv;o parties after marriage, and before camulment. If botli Iiave coiit:.ibut- ed to such acquisitions, each has an interest hicii c^nd not e::ist at tl'.i tL^e of the mariiage, iTne status cuo could not be restoie". upon- .aimuL.ient , "dthout maln.ng some provision for thj3 eruitabls division ol this property. In the absence of fraud or other ground affecting the i i^:kt to claim re- lief, there can be no good leason f Oi Soyi:rg that ei filer pai'ty should, by reason of the anniilmant, be vested v,i.th title to all of tlTC property ac- quired during the 3::istence of the supposed marriage. 149. "A void marrio-se ordinarily confers no rights upon either of the parties in resi^^ect to the property of the other, tvch as -.aduIcI "be con- ferred if the marriage were valid. As to property accunulated during tie existence of the relation, ho\;Bver, quite a different question is presented." IToto to Deeds v. Strode, 96 Am. St. Rep. 272. Ihus, in Fuller V. Puller. ZZ Kan. 582, 7 Pao. 241, the court said that, "in all judioiaJ. separations of persons who have lived together as husbaiid and wife, a fair and aquita'Dla divisions of thj^ir property should he had." It is true that this expression vcs not nocossaxy to the decision, hut the principle declared v/as after.vai-ds applied "by the sane court in Uern- er V. Uerner, 59 Kan, o99, 55 Pac. 127, 41 L. R A. £49, 68 An- St. P.ep. 572. In that case the trial court, in rjinullin^ a marriage on the grouncL that the v/ife had a foiner hushand living, had a-./arded to her ono-half of the property acciii-.iulated through the joint efforts of the parties while they were living tojethcr as huchand oxiC wife. The judgment vra.s affirmed on appeal. A similar ruling was made in BuclcLey v. Buclro[)?erty in question vra.s apparent- ly acquired after marriage, and is referred- to in the opinion of the court as co!:ziunity property. Tlie appeal vas by tloe wife, and she did not, so far as is chovm, question tiie propriety of nal-cing a division, in some v/ay, of cuch property. But in the concurring o:oinion of Justice Harrison, in which Justice Paterson concurred, this language is used: "It may "bo con- ceded that the parties to this action entered into the contract of iiiar- riage under such circumstances that it was valid to all intents and. pur- poses until annulled by decree of the coui't; but the fact tlrnt the de- fendant had at that date a fonrer v/ife liviag, from viaom he had. not been divorced, gave to the plaintiff the ri-^t to jiave tbe i.-arriage annulled upon the discovery of such fact. Civ. Code Sec. 82, subd. 2. Upon its dissolution, there would arise tlie sane equitable grounds for an equal division of the property that liad been acquired by the parties during the existence of the relation of husband and v/ife as \;ould exist upon dissolution of any valid contract of marriage for a cause other than adultery or extrev.io cruelty " We thinl: the ecntonc-e last quoted, although not binding as a declara- tion of a majority of the justices, lays do\^n the just rule to be applied in cases of this character. Even though it may be true that, strictly . speaking, there is no ■'corxiunity property'' vhere there lias not been a valid marriage (Cliapi.:an v- Giiapman, 11 Tex- Civ. App. 592, 52 S. U. 564; see 68 Am. St, Rep. p. 576, note), th£ courts may well, in dividing ea.ins 150, rnado "by the joint efforts of a aan aiid a -TOman liviiig tosether under a voidable i.iarric^so -.vhich is sutsequer-tly annulled, apoply, "by aiialo^jr, the rules v/hicli \/ould or-.-ain \.'ith re:;aid to coixiunity property'-, v;here a valid marriaga is tG-r-,.iaated by dcatli of the husband or by divorce. The aiJportioiinent of s\:o:a property bet\raen the parties is not provided by any £tati;.te. It nuct 'ilneroforo be nado on equitable principles. In the absence of special ciL'Cui-.iEtanceB, such as ni^it arise througli intervcnii:i£;" ciwiES of third persons, -..'e can conceive of no noro ec^uit- able basis cf ayportioninent than an equal division. Until the rnakin^ of the cnnulnent decree,, the i.iarriago \v£-e valid, and the property'- in cuestion v/c-E inpressed \dth the coa-.ranity ch2J."actcr. Upon aimulnent, sv.ch property, even though it be no longer corxiunity property, should bo divided as conmunity property v/'ould liavG been upon a dissolution of the narriage by divorce or the death of the husband. If those viev/s be sound, it is entirely iKmaterial tMt the bul'.: of the proper t-y v/ac acquired bet-.voen Qie years 1900 and 1906, and that the plaintiff's servicer in its accumulation v;ere "of no monetary value." She is not suintJ to recover for services rendered under a contract for labor, nor to establish, tla vs.lue of her interest in a bvisinoss partner- ship. V.'hat clie did, she did as a vife, aad her share of the joint ac- cw.iulati ons must be measur-ed by vfloat a v/ife would receive out of corxiun- ity X'roperty on the termination of the marriage. "IHie lav; -all not in- quire * * * ^ihetZ^-or tlis acquisition was by tl3 joint efloi ts of the hus- band and v;ife, or atte^Tpt to adjust their respective rijlits in proportion to the pjnount each conrributed thereto, Eie 1'j.vr \rill not concern itself vdth sTTCh an inqiiiry, but vdll leave tis parties to share in the proper tj' in the same propor'^ion as thxiugh the marriage contract \rcz A/hat tlie \fife had every reason to believe it to "be, i. e., a valid marriage.'' F, V, tz K. G-" R- ^0 v, nobertpon, supra. If then, tlE facts \.ould have justi- fied an allotment to ti:. o "./ife of one-half of tlx-. property acquired by the parties, there can be no complaint oi t>£ allov/ance of ','10,000, which Yvas much less then one-lx^lf. (2) On the question of plaintiff's yood faith, the appellant urges that she could not have been in ignorance of the fact of her physical incapacity f cjr 18 yeais. But any inquiry in this respect is foreclosed by the coia-t's finding; '.hich ir not open to attaclc on this appeal. (5) Finally, it is arg*ucd that tiic plaintiff's property ri:ghts, if she had any, might have been adjudicated in tli- annulment suit, and that she is estopped by tlie judgrBnt in thr^t suit from litigating the claim here presented. A judgment is conclusive only upon tls issues presented by tl:ie pleadings (Freeman; J\idgments, See. 249)., 'srosl. actually adjudicated. Baiilc of Visalia v. Smith., l-i-6 Gal. D98, 81 Pac. od-E. Saus it has been held in this court tliat, if in an action for divorce tl£ question of the disposition of comi-.iunity property is not presented by tlie pleadings or determined by the decree, the pai'ties ai*e not precluf-ed from subsequently asserting theii.- ri.-J-its ^ath respect to such property. De Godey v. De G-odQy,'S9 Gal, 157; Biggi v Biggi, 98 Cal. 56,'o2Pac. COS, 25 Aiu. St, P.ep. K-1; llirschner v. Lietrich, 110 Cal. 502, 42 P?jC. 1064. For lite reasons, the juc.g!aont annulling the i,iarriage ctnnot estop plaintiff from nov/ litigating her property claims. Ztg covrt belo\/ found that the ques- tion of property lijits -/t-s not presented by the pleacMngs in tire annul- J ^-^-'S-^^^'' --i^yyf''^^ . Mb~r, f_ / ^.^1>^!^CA^ __ f .^ • ^.w^.;.^^^ /^^ x'^ir'' •^ ^4,-t-<--^t''^^-<'7 /y 151, nent sruit, oxxC tliat no disposition of property v;2.s i.Tac-G or attonptod to be iiade 117 the Jud^ine-it in tiiat suit. Tliis findias is conducive on tlie proEcnt appG.u . (4) In this oomijction, thjo a'.^pellant relies on avcrnonto of his ans\/er chovii^- that, ir<. :..-iz\.'ct xv^ tho cor.iplciut in the ror;.ior action, tl-j3 plaintiff ( def oada^rt in tiiat action) •./aived alinony. If it were conceded that this v/ould afr^ect t;?.e subject of the present action, tho alleged v;aiver canno': bo cnD.j-,T.do::od. E.ci-e is no findt^- -..-ith respect to it. !IIho judgi-.r,nt oe.-.nij n-.r:?ported "by the findings majde, it i.mst be presu-iod, in the absftHCO of a contrary sha.;ini' in tic record, that there ^.■as no evidence which ^.'c■uld have sustained a finding in defendant 'c favor on this isi^.ie. Klcir.eJ.Esa-v. Henry; 84- Cal, lOd-, 25 Pac . 1098; Vxm'SXOM v . Gohranr3cn, 83 Cal. 45'J, 26 Pac. 504; r.cberts v. Hall, 147 Cal. 454, 62 Pac. 66. Tlie jud^T.ient is affirr.cd. y^-,,,,^ V^\ 17e concur: Angollctti, J.; Cliav; J.; Lorigan, J.; Kensliav/, J.; Ilelvin, J. On Petition foa.- Reheaiang. PER CURIAil. (5) The petition foi rehear in,^' is denied. To prevent Biis under staiiding, there should, hov;ever, be soris nodification of the opinion filed. ' ,7o do no'.; 3io ld tl:iat a v/ov.-.an occupyii.\':; the position o f tha plaintiff here is,, under any and all conditions,_and as a aatter o f strict lep:al ri.jat. GrtJt,iGC to one-T!aI?~o?' the 'pr oper ty r.n.ruirp.cl during --11"-^^ p_ tl:a e:cistGnce of the b-jpposed r.arriar-r'6 . T Lie airiOunt to be allotted to h er ^ J.S to be dotcrnined by the e::ercise of £ie so'jnd discretion of the tri al coui-t^ Under the clrounf. tances here shov;n, it cannot be said that the court belov; abused its dj.soretion in av/ardin^ vlO,000 to the plaintiff. 15S. liS/IS S. HU^On, BespondGiit , v. LOPIilA J. lljaPE2E, Appallant . (59 XTash. 105, 109 P-C05). X910. Appeal fror.i a judsr.-.clit of tlae superior court far Ki'Jg cotmty. Can- field, J., entered Juno 24, 1S09, tipon findings in favor of tha jplaintifi in an act ioa to guiet title, a fter &_trial on the ,jaer-it^» — A.ffijiacd< IJorris, J. — ^Action to quiet title, decree for plaintiff, and de- fendant appeals. Respondent allesed o\mership of lot 12, lilock D7., Heirs of Sarah A» Bell's sccong r addiLlon t o Sea I Liu, l ?y~vtrtn :e~of ng-snio~cron= _veyances._ancrpr ^sQ. toTiave his title quieted as again st appellanr. The aas'wir ad mit ted the conveyances pleaded lay respondent, denied liisa.vaer- jship. aM. set forth an ov~nersha3p in appellaat~or'~aana2Ldivic[e d one-halT interest. TtB. only record "before us consists oi the pleadings, findings of fact, conclusions of lav;, and decree, and hence tl:e only question to "be considered on the appeal is v/hether tie findings support tlie decree. "Ihe findings recite that, on January 15, 1669; the appellant -./as tlie vife of Jacob Scoland, an(?. that on said day tlio lot in suit '..'as conveyed to Jacot Scolaad; that on May 20, 1821, apfpellant com-.enced an action a~ainEt her then husbcaid, Jacob Scoland, praying f cr a divorce; Uict the husband ap- peai-ed in such action and on Septer.Tber 5 a decree v/as entered av/arding a decree to ai:)pellaa.t; that in tho corrplaint in the di/orce action appel- lant alleged the corxiunity property of the parties to be a lot on the northwest corner of Lenora and Tenth streets (-^/hich is tlB location of tl:e property in suit), and a property :iio\ai as 1415 Eighth street; that in addition to tho personal property described in the cor.iplaint, the court in the divorce action loruil tl"iat the Ziusbanc". lard an" interest in a tovboat, aif. allotted to the ^7ife tlio property- 'oiovrn as 141S Eighth street as her separate property f cr her support and tho education of the child- ren of the parties, aad fourd a lot described as lot 6 block 49, second addition of tho Heirs of SaxaJi k. Bell, "./as ths separate property of the wife; that the wife was also allotted the household furniture, and nade other allo'.vances ; that said decree v;as appealed fron and v.'as on appeal sustained by t:ii£ court; that said decfee v/as appealed fron and vjas on appeal sustained by this covit; that tliere is no mention nade in the de- cree granted the v/ife of lot 12, bloclr 37, second ac.dition of t3ie Heirs of Sarah A. Bell, nor is there any uentiou ;jade of the personal propert3'- referied to in the findings; that on October 15, 1891. Jaclib Scoland axid his vife Sophia executed a mortgage on lot 12. -\/hich v/as sribseciUeatly satisfied; that on January 19, 1692, the same parties e::ecuted a second mortgage to tSae same mortg-agee, upon lot 12, \.'hich \;as also thereafter satisfied; that on October 15, 1892, Jacob Scoland alone e:cecuted a mort- gage to tho saias Anna 0. Ilillcr, on lot 12, v>3aioh -./as thereafter duly satisfied, and that on October 18. 1695, Jacob Scoland, describing him- self as an urunarried nan, conveyed lot 12 to Anna 0. Ililler. Sie court finds further, tliat there iL no estoppel established, nor is a plea of the statute of Ihiutations sustained, nor is tlaere evidence sho\-lng oustc" nor demand on the part of respom^.ent , for any money e::pended by liim on ■> - ■:>•: H : * ■. . ■ .7. ). ■■■■i ^ : :. . ... J. •J .v^.uo.-. :.^f; ,• .:^'...;u::i' ' .-.'J.' M--.r 153. account of lot IZ. Thon follows a couclusiou of Irw, :in ^.■hich the cour"-- sets forth its 1)01101 thct in fiie divorce pctiou tie trir.l court consid- ered that the property a-Jardod to the -./ife \td.s "u equitable distribution to her from the coiTiirrunity property, and that the property not givou to the -wife -JS-s intended to remain the separate property of tire husband. Ihe court then furtli&r concluieB, tliat HiQ respondent ic entitled to a decree quieting his title against any claiin or interest of appellant, aiid orders a decree accordingly. Hie appellant nov.' contends that these findings do not support the conclusions nor the decree based thereon, for flie reason that nowhere in the findincc is there any statement of fact juEtiTyini; tic court in con- cluding that respondent -./as tlie o^.•ner of lot 12, It is apparent from a mere inspection, of the findings as "./c liave recited them that they are e::- tremely meager and incomplete. The court belov/ eviden.tly had the entire record in "fiie divorce proceedings before him, aiid in the present case, instead of setting forth tlE findings of fact, conclusions of law, and decree in the divorce case, as liis finding of fact, and hasiag thereon his decree, the court gives by './ay of findings of fact in this case a summary of his interpretation of \ha.t ic establisl-Bd and -./hat is not es- tablished by the record in the divorce action. The findings being mani- festly defective and incomplete, it does not follow that tlie decree must be reversed. Ratlisr does it folio-.?, as we liave uniformly held, that in the absence of the evidence upon .hich t::ie court belo'..' based it findings, v/e will presume the evidence was sufficient to support the decree. Ihe only way to overcome this presumption is to bring do' evidence as ■Well as the findirgs before us. Snos v. \7ilco:r, G Viash. 44, 28 Pac. 564; State e:i rel. Orr v. Favrcett, 17 T/ash. 188, 49 lac. £46; Gay v. Haver- male, SO Wash. 622, 71 Pac. 190; Gould v. Austin, 52 Wash. 457, 100 Pac. 1029. This disposes of the stages ted error, T7q have, ho^/ever, felt at liberty to e::amine the record in fiie di- vorce case of Ecola:^! v. Scoland, 4 Ti'ash. 118, 29 Tac 9G0, in view of tie opinion tlereiu eccpressed that -'the division of tlEir property was not unfair," for the purpose of ascertaining what float division '..-as, and thus satisfy our minds as to ttie equity of the decree of flie court belo-v/ and, in view of t]:e fact tlm.t in the findings before us tlE court below, having before it tlx; same record as induced tlus court on the Scoland appeal to say 13ig division of tlB property -.-tis fair, has not attempted to malce any find.ing of tlie disposition of tliB property other than to le- fer to tliat ■.;hioh v/as a\.-arded to tlie appellant. By tie pleadings in the Scoland case tie. follov/ing property -..'as sibinitted to the jurisdiction of tlie court: House and lot described as 141S Highth street, valued at (^5,000; the north-,>BSt corner of Lenora and Tenth street, -..hich i:. tie lot 12 in question in tide action, valued at 02,000, upom /hich tiere was a mortgage of §1, 680; lot- 6, bloclc 49, 2d Add- Eeirs of Sarah i.. Bell, at 11th and Olive, valued at ^2,000; anf. the follo\/ing personal praperty: A one-third interest on the tug Rainioi , valued at ^o,500, and stock in the Seattle Drydock £: Shipbuildizg Company of tlie par value of $1,800, All tie above property -..-as conceded to be coimnuniti- property, escept lot 6, which the -..^ife claimed the husbsiid had given to her as her separate property about tvo years prior. The prayer of tlia -..-ife's complaint was, "Zliat Sic coxn-t -.all award to her out of the coonunity property' her fair and equitable portion tI:ereof.' Hie findings of fact -u-ere in favor of '-,<#i«>t^<^f-V ^^ y'. ^^ - >a-<.-^;?» V ^^^^<-«-^' /< « «f ■ » * ^ ^^£> .^^^i^^ J^ - -^!k-^>/^ ^€P ^yi^t^ <; ^ -*- " ->.^-.^^— _ 154. tlie \7ife, lioldiag lot 6 as her cepavate propert7 zyiC siven to her as ev!"/.. "by I^er liusbaud. "Zxi other property/- -/as found to "be the coianunit:- pi-op- eity of the pajrtiss, axi. tlio values fixed as aljOve ^iven. Saa com t thj:-" iOU.Q its decree, liased on its conclusions of lav/ ./hach folio-Ted the ford- ing, and in tHie deciee tlie court 3: anted the ^/ife's prater; aad set ape-i^'t to her \ih3.t it a:\jud3ed to "be lier ecuitaTale portion of the property, viz., lot 6, "block 49, the house and lot described as 141L 8th sti-oc :.ll tho hoiisehold furnitui-e, and $250 attorney's fee. aSius it -'ill be tecu tliitc tlio values arra-rdad to the v^ife s^ounted to $7,230. not includin-; the furn- iture upon ".hich no valuation /as placed- TbQ valu3 of tie rcinc-inin^; property, less tl33 niortsa&e on lot 12, ^'as §6,520. It is clear from ell tlieso cii-cujaEtanc2E tliat the purpose tjic intent of flie deciee '"as to picl: out end set apart to tlie '>/ife her e^uitcblc share of ths property, leav- ing tiE remainder not thus incluf.ed, all of v/Mch vas personal pi op or ty G::cept lot 12 (the title to '/hich -.-as in the husband's name), as the hus- band's share •^ the piop-ity. uijais was avitLoia,l/l„ T7hat 1»..i& cou_ . ..ad in mind v/hon ii, usee, this lan^oia^e in its opinion-, "the division of the property was not unfair.'* It, therefore, appeal's to us that the conclusion reeLched by c'si •ui !: below './as an ecui table one. Soma stress is laid by appellant on tlie fact tiat, after tlie divorce, she joined in the first t'O mortjages, and it is argued that this is evidence of the fact tliat she ras then re- garded as having an interest in lot 12. Sie '^^.irorce \'aE granted Septem- ber 5, 1891, and an ajfpeal taJr3n to this coc; :, 'Jl:£.t appeal v/as not de- cided \mtil April 7, 1892. In the intsriii the inortsages dated October 15, 1891, ant'. Januai^ 19, 1892, Iz^ been given. It is clear that, until the decision of the appeal, the parties could not kno-' vhat their prop- erty rights v/ould be, and hence the mortja^-ae inisijit -(/ell have insisted tliat both join in tlie execution of the uiorts-a^'es. It vill be noted that, when tlTs third mortgE-ge \ras :^ven to the saine uort:;a3,'eei i'^i Ostober, 1892. after the decision of the divorce appeal, the husband alone ei^iecuted it, as he did the deed in October, 189Z:; thus evidencing tl'B fact tl^at, after the decision here, the husband at least claimed lot 12 as his o\m. oto our mind this is a strong cr_cur.Etoii.ce in favor of the respondent,, and not a supporting element in the contention of appellant. These consider- ations lead us to an affirmance of the judgi.Tsnt , and it is so ordered. Rudkin, C» J., Gose, and Cliach/ick, JJ., concur, v^o ^^- P \ . 155. TABLER V. i-EySEIlL et al. (Civ. 266) (4 Cal. A. 671, 1907) Court of Appeal, Hiird' District, California. Bee. 51, 1906. Oa Eehearingi Jan.. 50, 1907. Chipman, P. J. Acti on to quiet title to Q eFta-ip ipnd in Fresno oouaty. The cause was tried by the court vathout a jury end defendant v/ili Peverill had judgment that he is the ovmbr in fee of the lanfi. suhjact^to the administratTon of Qie estate of Christopher PeveriJJ...,_jigceaEed.^ J:'laintif?" appeals from the judgitient, and fro./; the order denying his motion for a new trial. Prior to the filing of the conplaint (which was A'oguGt 25, 1905), defendant Ilarths. J., vddow of said deceased, on April 28, 1905, conveyed all her interest in the land to defendant V/ill Peverill, as did also defendants Hary H. and George A., children of deceased, on April 29, 1S03. The default of llartha J. was duly entered, and Llary M. anf! George A. disclaimed having aiiy interest in the property. Defendant '.7ill Peverill alone anE\/erec. to uie complaint. The complaint is in the foi-m usual in actions to quiet title, o^ie ans\7er and cross-complaint of d3fenda:it V/ill Peverill denies plaintiff's title and alleges title in himself subject to ad-i^inistration of the estate of Peverill, deceased. In his cross-complaint asking that his title he quieted as against plaintiff, defendant alleges that on April 16, 1892, one Charles H. Hohinson '/as the arner in fee of tlie property, and that on that day ho and his v/ife, Leouoi-a L., conveyed the sajne to Christopher Peverill, .ho thereupon beca,.:!e and re.uained t]TB' o ner there- of until I.Iay 20, 1900, on vhich day he died intestate, leaving said prop- erty to his heirs at lav;, the said defenc'-anti.. Plaintiffs aiis-./er to the croEs-coraplaiut deniss tlie alleged title of CSiristopher Peverill ond sets up title in plaintiff, claiming that said Robinson agreed to sell said property to Christopher Peverill, on Jtrch 15, 1688; that on Kovoia- bar 20, 1890, said ieverill conveyed his intorett to one Coulthard; who, on llarch 51, 1692, conveyed said property to Clara £. Peverill, through v.hon by mesne conveyances the property ..'as conveyed to plcintiff ; tliat from liarcli 51, 1092, said Clara Peverill and her grantees, and succssTors in interest a:j.d plaintiff herein', "havo b^v^n openly, notoriously, contin- uously, uninterruptedly, peaceaMy snd adversely to defendant V/ill Peverill, and to his grontorE aa?. predecessor-s in interest and to -11 the \/orld, in the possession of and seized of said preniscs under a claim of right aiid title Cere in ?::£-. thereto, and as zlie ovaier in fee." Sections 51G and 519 of tlie Code of Civil Procedure are pleaded in bar of the cross-complaint. 'Ihe otcvtute of lii.dtations, however, is not urged in the brief of plaintiff end vlli not be furtlier noticed. '^Q court found, aiid the fiixi.ings are not challenged, tlia t Robinso n conveyed the pro.^orty as sll ege^-^'^'' naffl-.ir.o-nt • th.'^. t Christ opher, j:3y_erj. 11 died intestate Hay 50, 1900. leavm^.- as heirs at la;: the persons above 156. named as such; that Llartlia, Mary Minei^a and George teverill conveyed to dTSTendgirt r- as allgggdr; — ?lTrtm-Tf3r^as¥ip:eS:"a'G error Qie Tnsuf flciency of tlie evidence to justify the findings followin;^- '^^at defendant V/ill JPevcrill is the o-./ner of the land subject to administration of said estate; that plaintiff has not, nor have his grantors, "been openly, notoriously, etc., in adverse possession of said pre.aiG3t, and that plain- tiif is not the ov/ner thereof. It was stipulated tliat Charles H. Robin- son is the corni-.ion source of title of plaintiff and defendant. An abstract of title v/as asreod upon as including all recoids re- lating to the title e::cept a dc-ed fro/.: J, P- Go'^.tlery to plaintiff. This abstract sliov/s the follov;ing: (1) Lond for deed fron Robinson to Christ- opher Peverill, dated Llarch 15, 1888= (2) Cuitclaim deed fra.i Christ- ophe:- Peverill to G. Coulthard, dated ITovaaber 20, 1890. (C) Quitclairri deed from Coulthard, to Glaia G. Peverill (divorced v/ife of Christopher and nother of Mary Minerva auc. Geoi-ge), dated Lfercli 51, 1632. (4) Robin- son and v;ife to Christopher Peverill, by grant, bargain, and sale 6.eetf e^ted. Aprin 16, 18S2. (5) Grent, bargain, and sale deed from Clara S. Peverill to California Savings £; Loan Society, dated May IS, 1899. (6) Qrsnt, bargain, and sale deed of California Savings £: Loan Society to J, Po Cov-dery, dated May 14, 190S. (7) Cov.t'.ery, by graiit, bargain, aiid sale deed to plaintiff,, exited June 15; 190£. Hiere vras introduced by plaintiff, as bearing upon the issues, tlae judgment roll filed in the cleric's office of San Benito county, in the action entitled "Clara S. Peverill v. Christopher Peverill," for divorce. Tlie juo^gment shov;ed that the verified cooplaint vas filed February 7, 16S6, in San Benito coiuity, in -..hich plaintifi averred tliat she had for -four months last past been a resident of said covnty, tliat doionda:it hac. deserted her "from the 2d day of February, 1895; th^.t the isiue of uie said narriage are; Llary M. Pev- erill, aged 16 years: /illiarn G. Peverill, aged 15, years; George A. Pev- erill, aged 14 years;-' tliat a decree '.vas gianted plaintiff in the action as prayed for on the ground of desertion; v/nich the decree adjudged tooic place February' 2, 1895, end the custody of the children given her; the decree ivas granted liarch 25, 1896. ITo reference was r.iade to say property in the complaint. In his ans'./er £::i<:\ cross-coi:Vlaint the defendant in the divorce action set fort".-- certain personal property, and also the land in Question claiming that all of the property was cora.iunity property. The ansv'er to the cross-co-iplaint denied that "the real estate set forth and described in defendant *£ cross-complaint is nov the co.'.raunity property of said plaintiff and deiends'nt, but alleges tlie fact to be that the said real estate and the viiole thereof is, and for rreny months past has been, the separate property of said plaintiff herein, aid that said defendant has no interest,*o\/n3:ship or title thereto." The dscree adjudged "tliat ^tlis plaintifr be and she is hereby a-^./a-ded the corxiunity property of said parties consisting of household anc. ld.fcche:i fur-niture ^nd farming tools aiid implerasnts," being all the personal property ;nentioned in the crosc- co -plaint exept one hoxse, o-ne mule, ane set double harness, one cart and soac :,.oulti-y. Of t:j.s la/cter and tlie real estate, no disposition \i:.i aate in the decree. It does not appear viien Cliristopher married Ifertha, after his dovorco, b-at it does ap.-ear tliat she is his s-n-viving ■ado--. It ai.>peers that the Savings L Loc:i Society loaned '-500 to 157. Christopher on llci,' 10, 18S2, aiic'. he aac. '.lis tl-eu -/ife, Clara, e::ccutec. their mortja^^e of Gie preaiset. to cecure pa^raent of the loan. This nort- ga.ZO rested upon the property up to 1899, aad, as sl-'.o\ni above, Clara Pevorill, o:i Llay 15, 1899, cc^iveyec. the property to the Savings C Loaii Society, auc'. "by an agreeiiEnt c.ated Ilay SI, 1099, tloe loan society entered into a contract to sell her the la:id for tlae sU;:j of OOOO, to be paid in installments — the last one falling due Ilay 10, 1905 — she to pay all ta;:es on the land, "and to cultivate ^nd care for said preoiiess, first party (the society) agreeing", on payment a::d pei-for;nance of tie other covena:its'' to give second "party a deed." It appeared t:.ia.t Clara Peverill paid throe annual iust;..ll!inent£, 1900, 1901, 1902, of ';50 eacl., and, as we ha,ve seen, in Ilay, 1903, deeded ii.e propei-ty to the Lavin^E £^ Loaii Society probabljr because she could maize no nors pay/nents. ITae record title clearly ruiis fro;n Eobinson to Chi'iGtopher Peverill, and ./as held by him as co.Tinuni ty property at tiiO time the decree of divorce "/as entered, having been axj- c;_uired daring his raairisg'e -ith Clar:.. Civ. Code, Sec. 164. Kie record does not disclose tlie terms of Ilobinson's bond for a deed. One oi the is^^ues in the divorce case ".;as as to how Peverill held the property, he cla.i.Tiing it "as co.iv.unity, and she claiming it as her separate property, precunably by virtue of the ouitclal'ii deed of Chi'ist- opher to Coulthsxd and the latte: 's cuitclain dsed to her. But P.obinson conveyed to Christo^Aox subsequently and Cliiistopher's aftsr-acc^uired title vested valid title in hiiTi, thus rendering his previous C;uitclair;. to Coulthard ineffectual. 1 Devlin on Deeds, Sec. 27; IIcDonald v. ikfjnonds, 44 Cal. 528, and caset there cited. Eie decree of divorce failed to dis- pose of the real estate in cuestio:: then ovned by Christopher. Being conr.utiitj' property, he a:id his divorced •'ifo Clai"a, as to this lend, be- caiTie tenants in co:xion. DeGodey v, LeGodey, S9 Cal» 157; Biggi v. Biggi, 96 Cal. S5, 52 Pac. 605, 55 1.% St. ?.eiJ. 141. P.espoudent contends that Gie question of plaintiff's right to a one-lialf interest in the property as the successor of Clara ieveiill ^7as not raised by the plea^.ings; that because plaintiff clal.iod tln-oughout tlifi urial tZ'^t Clara v/as the ov.ner of tlie entire property, "plaintiff -.all not no-^v be permitted to change his theory of tli3 case by tl.e claim 'diat tl-s property ■ "as C0i::;nunity prop- erty.'' Che pleadings put the title m issue. Plaintiil h^d the right to claLn the entire title : ;id sho--' .hatever intsre&t he had in til:e property. Respondent \/aE not iiisled to his injury by any position talcen by appellant for it is partly t:-j:;.-ough the e-.-idence sub,.iittsd by respondent at the trial that the true situation of the title .as disclosed, C:ers was considerable evidwi.co i. -troduGcd to cho\' adverse title i:i Clara. 'Te tliinl:, ]ioi/ever, the.t it ^/as ■, holly insufficient. Cle^-rly t2ruary. Ccrrol-! t.^ that j.t v:aT ro.;v'Y.v?d \iy ■^iiifj a-it of o\iioryIii.p xv. :".caG- ii-ig the pro .per ■■.-3-, v/iir.ch \:o aro f.;r :':'roc; '^iO'Jdi.Tio »,s suf ■f'ic.-'.oii-i;, o.£/;p"r..?t hor tenants in corjno;:., the a i-al-.itP. i^ivi not rt of tlif^ c^urt, ho\7ov6r. th-.t Pla in- tixf >'ad no i-i^;c--»i.'.i; ra t":io pr':pei-;;-v ?.ad thai: defendant v/c.s the gvap r t'leroof , suhject only to adjaluxst-ratioa, arc not support odJby_the_evi- dence . ~ " ^ " "~" Sie judgment aiui order are reversed, and the cause remanded for a nev; trial. — ^. Vq concur: IIcLaughlin, J.; Buolcles, J. on Peti tion for PcOhoarlo g^. Chipman, P. J. — It is now claimnd, as v/e understand the petition, that hy the decree of divorce introdiice'l by pr'ainLif f , tlao property rights of tho parties to the divorce actions v«^re fully asid finally determin3d. It appeared from the complaint tlr.t plaintiff, I'as, Peverill, said noth- ing ahout any property. In his znvvjf^r and cl-os^-conplt^int defend ar^t Pev- erill referred to certaj.n personal prcpor-.y, acd also to tho recxL proper- ty nov; in controversy; all of \ihich ho averred v/an the comnunity property of tlTC parties. m her ansv;er to the crocs-complaint, plaintiff does not mention tine personal x^roporty, hut denies that the real property is conxiunity property, and avers that it is her separa^ie property. The decree, as pointed out in the opinion, purpcrtod to dispose only of certain specified articles of cor.munity and personal prvportVo It seems clear to us that the decree left tii3 real ectate undlspoLel of. In the preser.t action, %Te are not scehing to set aside or disirarb that decree, but only to give it effect so far as vre may do so. If it be tiae, as we thank it is, that the real property re;nained undispoood of "by that decree, the pafi-ties re- mained tenants in connoi!. of tri3 rea'J proper' l;y a" v/as pointed out. Loolc- ing, then, to, the conveyances, v/e fird that ChristopVier Peverill conveyed Tjy quitclaim to Coulthaxd Hovemhcr 2(-, 1390, Bat an Peverill then had no title, he conveyed nothing. On xlpri: 16, 1892, Eobinson, the source of title, conveyed by grant, bargai:a arc', sale to Peverill, who died v/ith- out conveying to any on;-), and his interest -frested at his death in his heirs at lav;. Iho opinion shows ho.7 re oame about that !iis former wife, Clara, had an interest in the property as tenant in common, and that her grantee succeeded to that interest;. Y/e are unable to discover any error in the decision heretogore ren- dered and the petition for a rehearing is therefore denied. V;e concur: KAH?, J.; BUPJETT, J. 160. DOIIOnKI AlffiROSE, Appellant, v. AUGL"STA. AI'IBROSr: IlOOIffi ot al.. Respondents. (46 Wash. 465, 90 p. 568). 1907. Appeal from a judgment of tlie superior court for Snohoraich coimty. Black, J., entered Dec einber 7, 1906, upon suaU-l ning; a demurr er to tlie c ompl ai nt, dismis siiig on action to decree c-ji interest in real property and i'or~C3acel lo t ion of a dee d^ lever sed . Rudkiu, J.— The complaint in this action alleges that the plaintiff Domoniki Ambrose and the defendant Au,susta Ai^aTDrosc Moore V/-ere husbrJid and v/ife on and prior to the 15th day of Ocfco"bor, 1904, and v.-ere the ov;n- ers arc', entitled to the possession of the premises no-;? in controversy; that on the aTsove date said defesndant induced the plaintiff to e:cecute a deed of said premises to the defendant liar;,' Ambrose; that it was then and there agreed tliat said deed should not "be delivered to the grantee thei-e- in named, but sliould be placed in escro\7 in tlie :50Esession of one Cormn L, Marsh, v/ith instructions not to deliver tine sama to the s^antee or to any person other than the plsintif f herein, t:^at on the SSth day of Ilarch, 1905, the defendant Augusta AiTibross Iloore obtained a decree of divorce from the plaintiff, but fiic property' now in controversy \/aE not mentioned in t>i3 divorce proceedings, and the plaintiff made no apjearaixe in that action; tliat on the 9th day of February, 1905, said Corwin L. Ilarch, with- out the ICQOwledge or consent oi the plaintiff and against his eixpress in- structions, delivered said deed to !Iary Ambrose tie grantee tharein named, a2d the saae has been filed for record, that tie plaintiff never author- ized or consented to the delivei-y of said deed, never ratified such de- livery aad received no consideration therefor; that the plaintiff has de- manded a reconveyance of the property which demand has been refused; that the defendant Augusta Ambrose Moore has refused to become a co-plaintiff in Ihe action aiicL is made a party defendant; that Qie defendant Seorge Moore is tie husband of the defendant Augusta /uiibrose Iloore, and that the remaining defendants have or claim some interest in the property'' 3ie prayer of the complaint is that the plaintiff be decreed to be tie a\Tner of an undivided one-half interest in the propertj,'; that ty& deed to the defendant :iar;!>' Ambrcse be cancelled and held fear naught; that the plain- tiff be let into possession of the premises, aixl for such other ard fur- ther relief as to the court seem just and equitable in the premises. The defendants e^enurred to the complaint for the reason that it did not state facts sufficient to constitute a. cause of action. The demurrer was sustained, and the plaintiff refusing to plead further, a judsmeiit of of dismissal v/as entered, from uhioL tlie present appeal is prosecuted, The complaint avers o^vaership in tie appellant and the respondent Augusta Ambrose Iloore, t::air ri^it of possession, an adverse holding by the remaining respondents, under a deed \/hioh is void for want of deliv- ery, and a refusal of tiB coovmer to join in the action. £uch a com- plaint clearly states a cause of action, unless the allegation that tiie appellant and the respondeat .^ugusta Ambrose lioore were divorced, \nth- out any adjudication Oi.- disposition of theic property rii^ts, defeats a recover^'-. 161 . - "In ijrantit^g adisrorco", the court shall also malce svch disposition of the property of the partioe as sholl appear jtist and equitable, having regard to the respective merits of the parties, and to the condition in vhich they .vill be loft by sich divorce, and to the party through \*om the property v/as acq'aired, and to the burdcins imposed iipon it far the benefit of the children. . . . ." Bal. Code, Sec. 5723 (E. Q. Sec. 4637). But this can only be done •'here the property is brought before the divorce court by complaint, answer, or cross complaint. If th& property riglits of tlB parties are not thus brought before the court in some appropriate manner, such ra^ts are not ard. cannot be affected by the decree. Phil- bricfe V. Andrews, 8 Wash. 7, 35 Pao. 558. V/here no disposition of the property r jghts of the parties is made by the divorce court, the separate property of the husband prior to the divorce becomes his individual prop- erty after divorce, the separate property of the v/ife becomes her indiv- ic.ual property, and from the necessities of the case, their joint or com- munity propertj' must becoioa common property. After the divorce there is no community property, The divorce does not vest or divest title, the title does not remain in abeyance, and it must vest in the former ov/ners of the property as tenants in common. De Godej,?- v. Godey, 39 Cal- 157; Biggi V. Biggi, 98 Cal. 55, 52 Pac. 805, 55 Am. St. 141. In the latter case the court said; "The coaweyance of fiie land to the husband an.d wife made it presun©- tively community property , aad tl:eir subsequent divorce v/ithout any dis- position of that property in the decree left Ihem tenants in cornmon. " So far as the equitable rights of the parties are concerned, it can malE no difference v;het^-er the property was originally conveyed to the husband, to the wife, or in both husband and wife. Tlie- respondents con- tend, however, that the appellant has only such interest in the property as the dirorce court might have awarded to him, considering the merits of the parties, etc. If \Te \.ere to concede this, perhaps he has still a valid subsisting interest in Ihe property vhich would entitle him to main- tain this action under Bal. Code, Sec, 5500 (P. C Sec. 1142). But the respondents' contention cannot be upheld. If it were, neither the husband or v/ife would have any fi;:ed or tangible interest in either separate or community property after a divorce, in. which property ri^ts were not ad- judicated, for all property, \*ether separate or community, may be dis- posed of by the divor-ce court. In our opinion when a person pi^osecutes a suit for divorce and fails to bring the property riitits of the parties before the coui-t for adjudication, he or she waives any right in or to tSie property of tie other spouse; and viaen a defendant submits to a- di- vorce under lilo circumstances the same rule will ^ply. Ihe povrer to dispose of the property of the husband and -Tife is a mere incident of the power to grant the di/orce, and ordinarily tliat power cannot be e::ercised by aiwther court at arothar time or in an independent action. Public policy and the policj^ of the law vdll be best subserved by confining the inquirj' into tlie merits of ttie divorced parties to the divorce court. '. Ihere may be exceptions to this rule, in case of fraiai, or -±iere the prop- erty is v/ithout. thei jurir diction of the court, but the general rule is as ^e have stated, snS. tlois case forms no ecicegtion to that rule. T/hile t!ie complaint does not allege in direct terms that toe property ;7as the com- 162. munity property of tie appellant aixl tlie responde:± hie farmer wife-, all portiQE acGurae in Gig ir briefs tliat sxch vaas t^-S fact. If so, it follows from v/hat \.'e tove said tliat the coj:q?laint sliows that flie appellsnt ic the o\nxix of an undivided one-half interect in tlie property, and othervdse Gtates a cause of action. Habie v. V/liittaimr, 10 V/a£h. 656, 59 Pac. 172. ThQ jud^^ent of the court "belo'-/ ic tlierefore reversed, v/ith direc- tions to overrule the demurrer and f oi further proceedings not inconsis- tent with this opinion. ^, Hadley, C. J., Fullerton, Crov;, Bunbar, Root/and Ilount, JJ., concur. 165. FLCr.nnC2 E:jlVJf , as Executrl:: etc., A^-i-'ellant, v. ' , w.iim; i'OCOCZ, as AcLmaistratri:: etc. EespondGnt. (92 Uasli 625, 1Q15) Appeal from a judsment of tlie si^Jierior coui-t for ■.^p.itrnaii county, I'lcCroEkey, J"., enteret'. December 24, 1915, upoa sustainin;.; a d emurrer to . the complaiiita disracsiag an action to recover sxx interest iutlie prop- erty of aa estate. Reversed, ■ Parker, J,— The plaintiff seeks recovery froir. tlie estate of her de- ceased faQier, B. E. Harvey, the sx!m-of-y2,500, v)hioh she claims as tiie "share of her deceased rnotacr's interest~i.h Gie conrauaity property of her father and mother left in his possession vmdispoaed of by the decree of divorce ".hich'"disL0lvedThelr^marrie.3e. The defendant's demurrer to the cosjplaint lieing; by the superior coui't £.us£aihed, and-the plaintiff elect- ing _t/ill of Elizabeth K. Harvey, and Sarali Pocock is the ac-.-ininistratri:: of the said 3. F. Harvey's estate and neither estate has yet been closed. "Prior^to the da^.th oi said B^ ?. Harvey aiid ZLizabeth Harvey, to '-■lt3— '33rtaie-6 ^'i~dIy~o f i-'ebrTiai'yj 1915. they \.3re divoiced from each o^.e.- by decr^e_of^ tha_a;i^xe_Stttitledj;ourt.i_t^ decree certain com- liTOnit:/ property belonging to tiie partios '.as brought into court by the^ pleadings and.~dr7xd3c.7~ giere v/as certain other property-, ho\rever-, be- longing to^the couiflunitj', in the poscessioji and coi-trol of said B. P. Harvey -/liich ./as 'aot bi ought into coixrt in tlie said cavorcs proceedings nov divided by wie co'.^t. Z^ said property -.as the txm of *3,000 in cash and a $2,000 morti^'age. 2ie property -..-aE sequestered "by said B. F. Harvey and purposely ■■Ithlaeld fron the court so tliat it -.-ould not "be di-- videdj and said B, F. Karvey converted said aoney and property to his O'.-n use and had ttie LOle vse sni?. benefit thereof. 2he said proi:erty af- ter said divorce become the coranon propert3'- of said B. F. HELrvey and Elizabeth I!. Harve-y a;ad said. Elisabeth U. Harvey v/as therefore tlie ri fit- ful ovmer of one-lialf tliereof , to v/it: the imm of v2,o00. ■'Bae tima -ithin .hich creditors -./ero to present their claims against the estate of 5 F, Esivej', deceased, e::pired on July ZZ, 1915. Prior to that tine the plai'.itit'x caxiced to bo presented to the said EaraJi Pocockj as ac'aninistratri:: of the said estate a claia duly verified according to 164/ the lav/ clcirains the 5w.i of 'i>l,500 as a lawful charge against said estate by reason of the facts heroiiiboforo alleged. At tiiat ti::^o plaintiff had no toov/lodge or infor.natioa v/it'ii regard to eny sum soquettered as above alleged e::cept the su..i of Jo,QOQ and did not diBCOver tie fact tff the e:;- istevice of the ;>2,000 additional until on or about Augutt 5, 1S15. Said claim was rejected in i.vriting by said Carali Pococlc and v/ac filed in the said probate proceedings on August 21, 1915. Three raonths liave not yet elapsed since said rejection of clain.-' 'Ihe theory upon v/iiich the lesjrned trial coui-t seems to have sustr.ined the demurrer, and upon "^Jliich tlie argument of counsel for lespondent pro- ceeds, it. that the decree in tJio divorce action "'oecame a final adjudication of the community property rightr. of Ilrs. Harvey, estopping her fro.n there- after claiming any of tliG perscnal coa.iunit;/ property Eenaining in the posses £-ion of her husband, even thougl^ ouch property •..•as not brou^^it into tlie divorce action or specifically disposed of by the decree of divorce. It is to be noted tliat the complaint does not allege that tliere ./as any alleg:.tion in the complaint in tie divorce action or adjudication in the decree in that action that tiiere v/as no other comiunity property than that disposed of specifically by the decree, but the allegation is tl:iat this alleged cOimaunity property "\;aE not broug'lrt into court in said divorce pro- ceedings nor divided by the court." Tiiit, -'6 tliinlc, negatives 1iie idea that there \/as any aff iriviative adjudicaoion, or say occassion therefor, that there m&s no other cOiHnurnity property tlian that speciiicall:? brov.^;-t into the divorce action and disposed of by the decree therein. It h;.s be- come tto settled la\.' of this state th^t, under such a tt-te oi facts, the coia-nuuity property undispioced of by the decree of divoi'ce remains undisturb ed so fer as the respective interests of tlie mei-nbers of the co-pxiiniity there- in is concernec^., and that either of t:-:oiii .iiay thereafter enforce their rights in each property Ity another action, Luch property becoraet comnon property instead of c Oi^inuni ty property after tl;ie dissolution of the com- nunity by the decree of divoioe. Aj-.ibrose v, lioore, 46 \;a£h. ^-SL', 90 rex. 588, 11 L. n. ;.. (IT.S.) lOG; Graves v. Graves, 45 V'ash. 66^, 94 iac. 4:81: Jauaes v. James, 51 "'ash. 60, 97 ?ac. 1115; Barldey v. JLraerican £av. Bajih S: iYust Co., 61 'Vash. 415, 112 Pac. 495; KicV:c v. Eichc, 69 '7ae.. 627, 125 Pac. 945; Schneider v. Biberge:: , 76 ''as:!. 504, 156 Pac 701. Counsel for respondent, while conceding this to be the general rule, ingeniously argue that personal proiierty remaining in ihe possession of one of the spouses at the time of the divorce decree, the pleadings and the decree both being silent at t o the disposition of such property, should constitute an e::caption to Qiis genercl rule. Tlie argtcneut seeijs to be that, because this alleged ccinunity property in the possession of Ilr. Harvey could have been broug^it into the divorce proceedings and specifical", disposed of by the decree, appellant, as the successor in interest of lire. Harvey, is tl^reby ei-topped from now c^uestioning fee right of his adminis- txatri:: to sucii property. '7e have at least one decision of this court whiCii plainly malces the general rule above noticed applicable to personal property remaining in the poscescion of on© of tlie spouses rnd tindisposed of by tiie decree of divorce. Sudi vas, in substance, the holding in Barl:ley v. American Sav. Banh u Trust Co., supra, where tlie husb.nd, after divorce, \.^aE permitted to recover one-half of a s^jra of money uie -fcole of which v;a5 coaiauni t3'' property and in the possession of the wife at the time 165. Of tlE rendering or <5\a decree ol" divorce flio&olving their marriage, and was not brought into tho divorce action "by the pleadinss or disposed of by t?iu decree of divorce. V.TiHe that action was against tl^ banlc, it stoci in the shoes of the wife, with knowledgn of the fact that tho money was coionunity property before tho divorce and corjnon property of the for- mer members of Vx^q c-orrumniity tlicreafter. Counsel for respondent call our attention to, and rely upon, observations madb by this coiirt in Ferry v. Feriy, 9 T/ash. 2o9, 57 Pac. 451, and Mng v. Miller, 10 Wash. 274, 58 Pac. 1020. There may be sorre rejaarlcs in those decisions lending Eomo sup- port to the theory of coxmsel for respondent, but we tlilnk, in the liiSht of the facts involved in those cases, the remarks there made by the court are not controllins here, especially in tho light of oar later decisions above noticed. V/o a.Te of the op5.nion that the complaint in thie action states a s°^ cause of action in so fax as appellant's right to reccrver the $1,500, the one-half of tho 03,000 in money, remaining in LIr. Harvey's hands and undisposed of by the decree of divorce, is ccmcerned. It is contended in respondent's behalf that the allegations of tha complaint fail to chor/ Giat aRrella^it'E claim for tiie 01,500 was presented to respondent at .administratrix by any one entitled to present the same, this upon tho ^hoory that appellant -«ra.£. not individually entitled to present or ma^re such claim because the estate of her mother was still in the course of administration, and because it is not plain from t^e alle^a- tiOBs of the cCEiplaint that she prosented tls eame as e:cecutri:i of her motiier'B estate. The allegation of the complaint touching this matter is that ''the plaintiff caused to bo presented to the said Sarah Pocock, as adminis tratrirt of th3 said estate, a claim duly verified, accoruia^ to the law, claiming- the sum of $1»500 as a la\7ful charge against said es- tate." T7r think tSiis amounts to an allegation that sjipellant presented the claim, both individually and as executrix, mis plainly was a legal presentation, thou^ liar presentation of the claim individually may have been unnecessary. It ic contended in appellant's behalf t3iat she has pleaded facts suf- ficient to excuse lier from the neooscity of presenting a claim for the one-half of tho proceeds of the mortgage, the argument being that she was excused from so doing in bringing this action because of her want of toow- ledge of her rights to such sum until after the e:3?iration of the year for presentation of claims of creditors. There seems to be two valid reasons why the failure of appellant to present her claim to the execu- trix of hor father's estate defeats her ri Jit to recover the one-half of the proceeds of the viE;000 mortgage in this action. Section 1472 of Rem* f: Bal. Code, relating to tiie presentation of claims to the estates af de- ceased persons , reads: "If a claim b© not prosented v/ithiu ona year after the first publi- cation of the notice, it shall be barred." We fici no provision in the statute authotiting us to ignore this plain "maiKiat^ , or extend the time for filing claims because of the want OdE' Imowledge on the part of tho claimant as to his or her rights. ISniB Is, in effect, a rtatut© of limitation without any exception therein, _and in such cases tlic rule seems to be thoroughly established that "'mere ignorance of tlis facts vhich constitute the cause of action will not 166. postrpone J;]TD operation of the rtatuto of limitatiooas .»» 25 Cj;c. 1212; "Cornell vrSdsa'i, 78 Y'ash. 562, 159 ?ac. 602, 51 L. R- A. (IT- S.) 270. JUliis is n ot a cause, of- action for relicx upon t>ij r^iow^: of fra ud , in vhicli case tIic-3 m ighfc pofj£i"!:ly "be other c aatrcllinj conEic'.erations , tui it is a/]pin rolo cauoc of action fa- tlB recoverj'' of money, the proceodc o?Tho"nort^aie~^SIch., accordiiv; to tiie alle:;aj;ic5is-j0f- t]ie~ conrplaint,^ accruocl TDOioro the deatli of I.ir. rlaiveyo Another valid roacon whj'' apxjollant ca;anot recover in thic action one-half of the ■,/2,003 piocceds of the mort^-aso ic because no claim ?tas ■been presented to th9 adrainictrr-tri:: of Ixi father's estate at any time prior to tho beginning of this action. Section K-79, ^em. & Bal _ . Code, reads: '_'no holder of any cl;g.in-a.irJ.as-t-an-acJ:ato^chall jnaintain an action the reon, unless the clain cliall 1u;,vg been first presented to th© eiocutor or adrninis trator . " 'B'lis section hac "been given full force and effect in our decision in JicFarlnnd v. Pairlanb. 18 '7ash. 601, 53 Pac. •259, and V/ard v. Ilas'aha, 71 Tfe!;h. 679, 129 PaOc 595. In our opinion in tlae latter case, it is said: "The presentation is a fact essential to the cause of action as much as tlae ins trij-neiit sued on." Contention is trade in respondent's "belialf that tlie allegations of the complaint do not s::o\i; capacity on the part of appellant to sue in this action. The arjjiiment EocvriS to "be that she has no capacity to sue as an individual 'oecuusa tlie estate of her mother is still in the course of administration, siic". thx-t tlie allegations of the cpitrplaint do not show that e1:s is tlio duly qualified and actios administratrix of her mother's estate. 2he alle:;ation of tho complaint touching her TDein:;; adninis tratris is "that she is the sole legatee and e::ecutri:: of the last v;ill of Illisa- teth I.I- liarvey " Hiis, it must "be conceded, is a somewhat general alle- gation; out in vieT of the liti-^ral rales of pleading prevailing in this state, we are constrained to hold that it i:i:iountE to a sufficient allega- tion of her 'oeiug the legally c^ualified and acting executrix of her moth- er';; estate. V/liether or not she is entitled to sue individually is, therefore, of no consscuence in this action. Eer joining as plaintiff in her individual capacity could in no event lessen her right to sue as executrix v,hilo the ertate remains in the course of ackiinistration. \7e conclude, therefore, that 6ie complaint states a gocd. cruse of action in so far as appellant's claim to the Cl,500., the one-half of the 03,000" of cash remaining of tlie ccTrraxmity property in the possession of her father at the tir.a ott the divorce, is concerned; but that it fails to state a good cause of action in so far as lier claim for the $1,000, the ono-half of tl^e proceeds of tho mortgage lemaining in his possession and undisposed of by the decree of divorce, is concerned. 2he judgment is reversed, and the cause remanded to the superior court for further proceedings not inconsistent v;ith the vic\/s herein e:cpresEed . t— 'i3^ Ilorris, C. J., I Iain, Holoorrib, and Bausmaja,^"JjT, concur. 167. PHILIP S, BAFJOinZ, Appellant, v. AlEniCAIT SAYIITGS BAUK & BlIBT COIIPAIH', Hespoiodont. (61 Vash. 4L15, 112 p. 495) 1911. Appeal "by :;jlaintilf from a judsneut of the superior covet for Ziu^ county, KonalcL, J-., entered Fe'iamsry 5, ISIO. upoia fiudiua's J-n favor of theplaintiff, after ajtiial ou. the merits ■faemcstlis court \dthout ^^ jury, ill an action for conversion. Affii^ined,. Gose, J. — Eiis action v;as Tsrou^lit "by tizz plaintiff, to recor-.-er daitt=_ a^es for the amount of a draft v/l.icli lie alleges tl:e defendant converteiL- 'Eiero was a jud^oGnt for the plaintiff foi one-half of Cae craount of the draft, -ivith interect arsd costs, a:^"'. he lias appealed, The c ourt f ound that th9 appella nt and his ^.v± fe,_,S, Ac Sarld.e :';. v/ei-e divorced^aT"th.e~cuit of th e \afe; on the 18th day of July, 1908; that in 1903, a draTt3WrOl2L.^ISiasTdrai;m-in-favo^^^ and eut-orssd 'Tiy-liimIE05e_or^a^il,of_ th^.2©i5all2nt _ cif. - S. _ A- BarHLey, .tliSi^- Jiaa, JIMias. hus"band ai2d wife and residents of this state ^tlaat the respondent collect^ ed the draft uoon-an^nsLocceiaent by the-'wife,_f or her husband and herself, she \/ritin3 tho husband's name upon tlE draft at the instance of tlie re- spondent; tiiat tiae respondent then laie-j that the endorsees -./ere husband and Wife, and jfchat sh3 'nad no author-ity to endorse for the husband.; tliat the respondent, Jifter^collectiizg the draft, issued a certificate of depos- Tt^for the amount to the ^/ife; that tlioreaftor and in September, 1907, jhe d^osited the saraS' vat h t:-.e responde nt subjec t to her checlc; tliat _Q]2 — . the date ^e d ecree^oTirivortte was granted, there remained in the bank, _ "of Jggl?rpe gegF'of the draft, the s um of ^259. 02; and that tlie oxaft \Jas the property of the connunity composed of tha husband and vife^ lie ^~ court further found tliat one of the findings in the divorce suit, in ac- cordance with the allegations of the complaint, v/as tliat there u-as no com- munity property. The appellant contends that the draft \-3as the personal property of the community, and that as such it was subject to his management and con- trol, and that lie had the same power of disposition over it as he had of his separate property. Assuming th-at it 'v/as coiTmunity property before the divorce was granted, under the uniform holdings of this court it there- after ceased to be such. 1!he entrj'- of the divorce decree dissolved the community, and the appellant could not continue as manager of an entity that had ceased to e::ist. In Ambrose v. Moore, 46 V/ash. 465, 90 Jac, 588, 11 L. R, A. (IT. So) 103, it was held that, after the divorce, there is no community, and in the nature of thiiJgE, nc community property; and tliat, viien liie communitj'- property is not brought before the divorce court for adjudication, the f oi-mer spouses thereafter hold it in equal rhares as tenants in common. Graves v. Graves, 40 wash. 664, 94 Pac- 481, and James V. James, 51 V/ash. 60, 97 Pac. 1115, are to the sane effect. It ic also contended that the allegations in the divorce complaint aud the findiiig of tie divorce court in response thereto, tha.t tliere '..^s ao community property, estop tlie mfe ard those claiming through or under 166. her from apsertin^,' Gie contrc^y. Eckert v. £cl-3nitfc, 17 ''ash iJec 466, 110 Pac. 635, is citod in suijport of this vier./. The point is not v/ell t^^Bn. Eie case is ln&ie foi- reyiew upon tlie findin^-E of fact aiu- conclu- sions of lavv only. In ths a'bcence of tlie exiCcjice, ^/e '/ill accept the findings as conclasivo. It may -/ell "be tliat &b v-ife v£,s assorting oiwn- ei-ship of th3 c^aft in the divorce pr-oceecMni's in ^ooc". faith. If so, it is appai-ent that tuch a coiorse . oiilc not -.orlc i^ estoppel- IJhs other authorities cited Vj the appellant ha^e xefe-_'3nc3 to the pov/er of the husT^and over the coiimunitj'- prqpeirty -hil: the iriarriase relation e::ittc, anj?. are not applicable to the is bus "before us. Uie argument tiia,t, as ro'sliist tie retpcnc.ent; the cppellant can re- C07er the full ainount of the 6^- .3ft, is not sound. Ascumins that there was a conversion \heu tiB proceeds of the draft v/eie paid to tZae v;ife, anc". that the hushand could then :iaV3 lecovered from tlie respondent the full ajiiount thereof; it is obviouc tiiat, siixe his control over the com- Viiunity property teriainated and his interott has beco^ue fi::ed by operation of lav/, he can recover no more than tlie value of hi£ interest in the draft. He is nov/ in tl-& same position he \/ould h^ve occupied Iiad he sold a half interest in the cause of action before coim.iencing his suit. It is clear that Qie respondent is subrogated to the rights of the v/ife. ye l:iave treated the case as though tl'e draft was controlled by the lav pertaining* to coianunity property, inasmuch as the parties and the court below so treated it. It is tlie opinion of the v/riter, however, that the husband and wife, as joint endorsees of a negotiable instrument, sustained the saine relation to a thii-d party in reference to it as any otl-fir joint holders of a negotiable instrument would occupy. Hiis view, hoT7ever, utiuld lead to the same end. The judgment is affirmed. Chadwiclc, Fullerton, Parl^er, and Lount. JJ., concur. 169. AHITIE E. BEACH, Respondeat, v. AEBIB D« BRGWN, Appellant. (20 VTash. 266.) 1898. Appeal from Sirperior Court, lang County. — Hon. Orange Jaciarbs, Judge. Affirmed, ThB opinion of the court was delivered Tjy Dunbar, J. — This is an action "by the respondeat against the appellan t for daJDOges for allenatii^_the: _af f^ctAons_of respondent 'e^ husband . Fde-L imta-rer "was^int erp a£,ed_to_ the -Ojms^laiJit^ - to^fche-Bf f ec t that it did not state facts sufficient to constitute a cause -of-acjtion a which v/as over- raled» A" mdtiorLfi^a non-suit was sJLso rn^jde and overraled_. Upon the trial of the cause a verdict vjas rendered in favo r of the respondent, judgment vas entered in accordance ti:B-rei^th-, and an appeal~was" tafeen to this court. It is the ^cjajtentionof the_ agpellanV in^the-fir«t instoaee, tha±_ this action cannot be maintained., for the reason that a married wwnanin the state of Hadiington cannot rnaintain. a suit in her ovai najne for tort vdthout her husband joining her, where the damages secured would "be oatn.- munity property- This statement assumes somevhat the legal questions at issue. But on the main proposition, as to whether a married \/oman can maintain this action for the loss of the consortium of her husband, the authorities are somewhat conflicting. In Duff ies v. iniffies, 76 Wis. 374 (45 H. "57. 522, 20 Am. St. Rep. 79), a case which v.as strongly relied upon by the appellant, it was decided by a divided court that she could not, but vvB are not impressed ;7ith the reasoning upon \/liich that decision was based. It is conceded that at the common lav; the hushand mi^t maintain an action for the alienation of the affections of a wife, Ijut it is said that the wife's right to the society of the husband is different in degree ard value, acd, in a long opinion, the court under talses to substantiate this proposition. Tha leasons given are too numerous to set forth in this opinion, but we thinlc they are unsatisfactory- and illogical. The decision is also Tjased vrpon the fact tliat at the common law the \i;ife had no prop- erty in the consortium of her hushanci., and that her position as a wife precluded her from bringing the action. An attempt is made in this case to distinguish the cases thz.t hold that tlie wife at oommon law liad a right to bring this action, Tmt \!Q tliini-: tlie s-ttenipt was unsuccessful; and there are other cases maintaining the ssine view. EOvvever. tlie case of :;illi?m3 V. V/iliiams, 20 Colo, 51 (57 Pac. 614), scuarely decides the proposition tlie other vjay, and shows tlaat the doctrine is really based upon the ajocient idea of the couiparative inferiority of the 'Afe, E-ie court in that case said: "LIr. Justice Blaclcstom, who nrote 150 yeai-s ago, gave as a reason for denying the v7ife's right of cction in cases of tl-is I-dnd the follov.'ing: 'Eie inferior liatli no IdLnd of property in tlie compajuy, oaxe, or assis tiiice of the superior, as tlie superior is held to ::£,ve in those of the inferior, and therefore the inferior ca;. suffer :j.o I.-,rc o-: injurj'-. ' S Bl. Gcanm. 142. 170. 2hi5 language sgoibs strange in the present age, however familiar it may have teen din-ing the last century." Aiid tlE court then quotes "barren v, Uarren, 89 Ilich. 127 (50 N. U. 844), \vhere it is said: "The viTife io entitled to tho cocietjr, protection, aad support of her hustand as certainly, under the la>.\f, arid "by moral right, as he is to her society aai services in his household." Foot V. Card, 58 Conn. 1 (10 Atl. 1027, 2S Am. St Rep. 258), is also quoted, \^here tlE court said: •So far forth as the husband is coucernod, from tii-ne imnemorial tlie las? has regarded his right to Cie conjugal affection and society of his wife as a valuable property, aixl lias compelled the man who has injured it to make compensation. Whatever inatjualitiws of ri^it as to property may result from the marriage contract, huabaixl and \7ife are equal in rights in one respect, namely, each orjes to the other th^ fullest possible meas- ure of conjugal affection and socioty. The husband owes to the v/ife all tiiat the wife owes to him. Upon principle, this ri^t in the v/ife is equally valuable ti) her, as property, as is tl-^at of tlie husbaiid to him. Her ri^t being tiB sa£ce as his in kind, degree, and salue, there would seoa to be no valid reason vAiy the la\/ should, decy to her the redress which it affords to him." Shis reasoning, it seems to as, is more in conformity ^7ith modern thought on the subject of tho marital relations e:cistii3g between husband and wife. See, also, Bennett v. Beanett, 116 H- Y. 584 (23 N- E. 17); Van Aruam V. Ayers, 67 Barb. 544; Haynes v. Howl in, 129 Ind. 581 (29 N. E 389, 28 Am. St. Rep. 213; Lynch v. Kxiif^iit, 9 H. L. Gas. 577; V/estlaJce v. V/estlalE, 34 Ohio St. 621 (32 Am. Rep. 397). But, however it may hav6 been at the common law, the trend of judi- cial opinion in this country has been in favor of extending rijits of this k±Qd to Ihe wife, a:id it seeas to ;ie tl^at the right is placed beyond a peradveature by oinr own statutes. V/e do not think that the cases decided by this court, vhich are cited by the appellant, bear upon this question. •I!r-e legislature of this state has, from tiris to time, plainly sought" to remove disabilities of this character from married v/oraen, and Sec. 1408, 1 Hill's Code (Bal. Code, Sec, 4502), provides that "Every married person shall l-sereafter have tilB same right axd liberty to acquire, hold, enjoy, and dispose of ©very species of property, and to sue and be sued as if te or sl:£ \7Qre unmarried." It would seem as if tliis statute was xrAry nearlj' conclusive of this pt^stion, but, if not, Sec. 1409 (Bal. Code, Sec. 4505) makes it absolute- ly so. That section provides that "All laws which impose or recognize civil difabilitics upon a wife, \Viiich axe not imposed or recognized as e:cistii:g as to the husband, are 171. hereby abolisliod, and Tor any unjust usurpatio-i of her aatui-al or prop- erty rights she shall have Gie same rij;ht to appeal in her own iiodividual aariie to the courts of law or onuity for rec-ress and protection that the husband has;" Uli it vail "be observed that all the ei'xeption that there is to this S'^eeping law is made in a proviso to Sec. 1409, to this effect: "Provided always, that notning in this chapter shall be construed to confer upon the wife any right to vote or hold office, e::cept as etherise provided by la^lf." And an investigation of the statutes in relation to the rights of married women sho\/B that in all cases \iiere exceptions are intended they are provided in the statutes. Ihese statutes also do avray vath the necess- ity v/hich existed under the cOiiaTion law, as held by soae of the courts where the right r/as sustained, that tlie action could only "be maintained v/hen the husband joined in it. But the action in this case was brought by the respondent after she had obtained a di-orce from her husband, and it is therefore urged by the appellant that, if she a-ei had the right to bring this action, it was lost when she sought and obtained a divorce; that all rights v/ere settled by tlie decree of divorce; and cases fror,i this court are cited to sustain that contention. But we do not t'nini: that the cases cited or tlie law bear upon tlus chsxacter of rights. It could not, in the very nature of tilings, have been conte;,iplated in tiie divorce decree. It is a damage which ic' peculiar to the vdfe, which the husbsnd, under no rule of right, could have any interest in; and it would be a harsh rule of law that, conceding that the wife had this right during cov9'>*ure, v/ould deprive her of the right -/hen the wrongful acts of vhich ^le cor:;^ plains created the noceEsit3'' for and caused the action for divorce.. Of course, the daiiiages could not be calcalatod after tiie time vhen the decree of divorce was obtained. Having^ tlien, the right to maintain this action, and tliero being no community, — the coomunity ha'.lng been destroyed by the decree of divorco, — we need not concern ourselves about the proposition that tlie damages v;lien secured -all be coriii-unity property. The judgj^nt S9ttle£ tlie question as to the o-vnarship of the amovmt secured for daiTiages This answers the d.ernurrer upon both grounds, viz., that the complaint did not state facts svifficient to-^onotiti\to a cause of action, and that tl-^ husband v/as a necessary party plaintiff; and also the error alleged in overruling the notion for a non-suit. It is alleged that the court erred in sdnitting in evidence letters v;ritten by tlie husband. Beach, to the respondent during coverture, for the purpose of sho\.lng the affection of the husbc'-nd tov.ards the wife, V/e tliink, under the circxmstances of t".ais case, that the letters v/ere admiss- ible, axf. the testimony \J3£ as conpetent as any other testimony showing the relations between the husbaixL and .."ife, and they certainly do not fall under the ban of the statute cited by the appellant. It is also claiiTied t'lat tlie court erred in e::cluding testimony of the witness Stull in i-elation to the object '.vhich t]ie husbard avov.Ted that he liad in virriting Qie letters. We thinlc this testimony wac properly excluded, •and that it falls under the head of salf-soiving testi.r.ony. . Oie appellant alto objects to the following instruction given by t!ie court: 172. "Tlio lav/ presume:: that a husband, who lives with and cohabits v/ith hie wife, she boariag children, the issue of such cohabitation, that he has all affection for her; and this presujTiption continues until it is over- throvm by a fair preponderance of the testimony to the contrary." '.7e are not prepared to indorse the pessimistic vie%v of the marriage relation contended for by the appellant, and we think the instruction was correct, and t2hat there was no error in the modification by the court of thi instructions requested by the appellant. There being no prejudicial errors committed by the court, the judg- ment will be affirmed, _ Anders, Gordon and Reavis, JJi, concur. ) -^ ^; ^ ...^^^ u 173. GEORGE H. CO.; et al.. Respondents, v, LUCY TO.-PXIiSOn et al.» Appellants. (39 '7ash 70,1905) Appeal from c judsmeut of Vne superior court for Spotame couuty, Kennaa, J., entered April 25, 1S04, upon findiu;?s i n favor ^ f_the_plQin- tiffs , after a trial before the court v/ithout a jury, in an action to ' quiet tit le . Af f irmed. . Fullertou, J.-'-Ihis is en action to quiet title, to certain lots and tlocks in Huzzy's acf^dition to the city of Lpoka^ej. The facts shown by the f^ofd'~ai^,^l'irEubstT.iice, these; On Hovember 15, 1860, one Hirman Huzzy mcde a homRsteof^g.-it-.-y r>-,i - r.,aj::jfc-,3.a__c[uart Gr se ction of land, situate nei.r the city of Sppl-:ane»_i-iid,^tOSQther \4th his fa.-:iily, .consisting of his m-fe and five chilcLren, tool; up his residence thereon. On January 6, 1886, ilrs.^ Muzzy died, leaving as^ one of. the heirs at 1:.\/ the appella nt Lucy Tomplcin* "foa. loathe early part of the ye:j: follov.-in^,' Huzzy made final proofs oiT his homestead, end on June 2, 1687, received his final receiver's receipn therefor. Patent v/as issued on Hay 26, 1886. Immediately after receiving his final receiver's receipt. Muzzy platted a considerahle portion of the property into streets, alleys, lots, and blocte, under the desisnation of "Huzzy's Addition_tp_Jpplcane Fells;" and, after dedicating in \a-iting to the public use forever tlie streets and alleys shov.-n thereon, caused the same to be filed, as provided for by law. On August 8, 1892, Huzzy^j^ in consideration of the sum of (5,000, tii en loaned him by the respondent^ ii£a2:se_jI^_Cox, ^:ecuted_ard delivered to Co:: a mortgage on thclots and ^ Jblocks in question in this action, the saiae being a part of the aduition, so platted as above stated, to secure the repayment of the loan. Huzzy .5hereaftBr_def;iiilted__iu_ the payments provided for in the mortgage, and tEe seme was foreclosed, _ani. theproperty cold on February 6, 1894. 2he re- g)ondents purchased the property at the sale, receiving a certificate of^ Vale at that time and a sheriff ♦s deed on February 7, 1895. Immediately ^ after the sale the respondents entered into possession of 1he property,- ^ t-^^ and, frora~8iat~tirae^dOT?ir to the cominencement of this action, have maiataia- ed such possession to the exclusion of every one else, tnd have paid all the taxes that v/ere lav/fully levied and assessed thereon as the same matur- ed-' -a period of more th an, seven years, -_ After the death of his -..-ifo, Huzzy believed himself to be the c.-ner in fee of the homestead property. He at once assumed sole end exclusive dominion and coiitrol over it, put sudi of it as he had platted into lots and blocks on the market for sale, and has sold i^iany of the lots to per- sons who purchased them for residence and business purposes, gi"ing v/ar- ranty deeds to such purchasers. In short, the evidence shows that Huz:;y not only claimed, to be the sole owner in fee of the property, but has ex- ercised such rights over it as one usually exercises a-/er his own._ Of the lots sold, many of them •■vere i.nproved by the purchasers by the erection of costly and permanent buildings, and the streets shovn on the plat v/ere at once assumed by the peOj.Jle and city authorities of the city of Spokane to be public streets, and have been used by the;n ever since as such. The \ 174. city also hr.s imi:/roved the streets fey .;jr-:.diu3 them raid construe tins Eide- wr-l&s thereon, cjad hcis laid, end :t^ermitted to be Ic-id, vr.tor mc-ins :.nd ^cs pipes therein. The appellant Lucy Tomplcinson lived with her fcther on the homeste:ai V claiiTiT'r.fte^nilielier-th of her mother, until August, 1887, at viiich time ^ she nr;riled~Tuid"v.-ent to the home of her husband. Shortly Giereafter ste ^ became estranged from her father, end no longer visited at his home, or permitted hinrt o^'visit her. C h^ has lired. ho^/ever. ever since her m;-!-- 'riage, either in the city of Spolcoie or within five miles therefrom, and imev; that the homestead property wns bein^- disposed of by her f ther to persons v/no pfirchased on the faith of his title, ...nd kne"' at all times of the improvements tll:^t '.Gre bein^ made on the property. It v;as shovu tlx.t, as e-a-ly as 16S1, she tool-: tiie advice of counsel as to her interests in the property, but took no active ste";:>s to laalie l uicvn her clcims until some- time in 1896, ^vhen she e:-ecnted deeds to certain parts of the property to"" her co-appell-nts hei-Qiu, hich were xiled and placed of record without de- livery. It is conceded, hovJever, that th.es6 deeds were not executed for the purpose of convejan^ such title as die claimed - nd possessed to the Sratitees ncjued therein, but for the purpose of clouding the title, and com- pellins persons claiming through Jiuzzy to brin^; actions against her. On tlie fore^oins facts, gie trial court held that the r^ll r^at L ucy Toraplrinson, as heir tojier motlier^ r.cqiTirod ti tie _.to.^-ji_ undivided one^i^tBnth interest In" the" homestead property, on dio issuance of the patent by ^he ^-^■<-^. government "to her "faJier ,"''but that slae had been dj.voEt_ed of such title by ^ — V Qie operation of "the statute of limitations.TjicT was no-v estopped from ^ asserting ny interest therein. A decree v'as thereupon entered quietin;^' * in the respondents the title to the property described, from ••hich decree she and her codefendjuits appeal. Under the rule ~::aaouncjd by this coux-t in the case of Ahem v, Aliem, 31 V/ash. 354, 71 Pac. 1023, 96 i^. St. 912, the appellant Tompkiuson un- doubtedly acquired, as heir to her mother, an undivided one-tenth interest in the land in dispute, on the acquisition of the le^al title tlureto by her father, so tla^t th-o sole question to be dotei-iained here is, hr.s she lost tliat interest by failing to assert it v/ithin the statute of limitat- ions? It seems to us tiiere can be but little question that die hr.s. Her counsel do not deny that one tenant in co.ruaon may hold the ccnraon property adversely to another, even thougla the cotenr.:ite bear the relationsliip of father and daughter, but th^y contend that possession by Oxie coteurnt does not become adverse to another until thr.t other is d-^finitely notified by the cotenrjit iu possession that he disputes ant. disavows ony claim of in- terest mcdc by V:£. other; aid coiosel argue th:..t die facts f 11 to ^'.ss-i that ".uy such notif ic .tion \.'as given in this case. But v;e think counsel make too brocjd a st<_tement of the role. As the possession of land, held by a coa.ion title by one tenant in common, does not imj.:ly hostility, as does possession by a stranger to tlie title, stronger evidence is required to sho\/ an advei se holding by a tenrait in common tlcn by a str-oiger, but the evidence need not (flfier in 'ia.nd. Actual \'ei'bal or vnritten notice is not necess. ry to st'^it the statute run- ning in such a case. If there be out^.-ard acts of ei-clusivo o -nership by V y^j. ^ ;:^p^.1^ V 175. the teaant in possoSsiou, of tuch a laaturo as to preclude ilie idea of a joint ovsuorsliip, 'brouj.-ht home to the cotonaiit, or of so open auc. public a character that a reasonable nan •vould discover it, it is sufficient. 1 Cyc. 1071, et ceq. The facts in fee case before us wor think shov; con- clusively that the possoscion of Hirain Muzzy of the homestead, property \/as at all times adverse to the appellant. He not only had and maintained ex- clusive control and dominion over it as lonj as he retained tie titls, but his outv;ard acts -vath reference thereto —ere inconsistent ^dth any other idea th?n that of sole o^dership. •."e thinlc, too, they ^/ere of suf- ficient publicitj-- and notoriety to put the appellant upon notice of his claim. It would be difficul!: to :;ive more publicity to one's claim of ovmership and title to real property than to plat the sane into lots and blocks as an aac'dtion to a city, and sell and convey such lots by deeds of warranty . But if the general stc tute of limitations could not be successfully pleaded, the respondents can claim title under sections 5505 ard 5504 of the code. Iheir entry into possession under the title acquired at tlis foreclosure sale was sufficiently adverse to start the statv-te running'. Cain V. Furlow, 47 Ga. 674. Am?, tlieir possession and payment of tazces for a period of seven years conferred titla on then under the sections cited. Philadelphia Lit^. c: Trust Co. v. lalmer, 32 V/ash. 455, 7D Pac.501. V/'e conclude that the respondents have ti tie to the property in question, and are entitled to heve s-xh title quieted in themselves. She judgment appealed from vviil therefore stand affirmed. Itount, 0. J., Dunbar, and Hadley, JJ., concur. Rudkin, Root, end. Cro-./, JJ., took no part. .^H^:c.t^^-<^i^'^^^ C V 176. BEDAX Qt vex. V. SAKE. (Supreme Court of Idaho, June 28, 1904.) (10 Idaho, 270). Sullivan, C. J., diccentins Appeal from District Court, Ada County; Geo. H. Ste-.vart, Jud^o. Action by CharloP Bedal and wife against Harry Sake. Judjment for defel^dairtT-aiflriJl^rErtiffE appeal. Affirmed^_ ^ Stockslaser, J — The plaintiffs filed their amended complaint, to wMch defendant demm-red. The demurrer was sustained, and, plaintiffs refusing to furtliGr plead, judgment was ordered entered in favor of de- fendant for costs. The amenied complaint alleges -'that plaintiffs, Cloarles Bedal and Ilasgie Bedal, ever siJxe the 20th day of "larch, 1900, have been husband and \7ife; that the: plaintiff Ilaggie Bedal and the defendant, Harry Saloe, are the joint owners and tenants in common of 80 acres of land, in Ada county"; alleges the marriage of Haggle Bedal and Harry Sake in the stats of Iowa in the year 1872, 'and thereafter lived together as husband and wife until January, 1895; that in the month of March, 1899, said Ll^gie Bedal commenced a suit £.gainEt said Harry Sake for a divorce in the cir- cuit court of the state of Oregon, in the count;'- of Clacismas, and in the month of Hay, 1899, a decree of divorce -.vas duly allayed and entered, * * * * and that said decree of divorce is no-.; in full force and effect; * * * that no mention '.;aE made in said plaintiff's complaint for divorce of any property of any kind cr description whatever, nor was sny property rights of said parties mentioned in any of the proceeding's, nor did said court adjudge or decree any property rights, or gisT-e plaintiff any alimony, or require said Hariy Sake to give or pay to plaintiff in that action any money or property. * * * The only effect of the decree being to dissolve the marriage relation. * ♦ * That there never has been any settlement or agreement of any land between said plaintiff Haggis Bedal and defendant, Harry Sake, of any property rights existing between them, nor has said plaintiff Haggle Bedal, by any act on her part, waived her interest in and to the aforesaid community property; tliat iiiQ said circuit court of Oregon had full jurisdiction at the time said divorce decree was rendered of tiio said parties and subject-matter in saad divorce proceedings; tliat in said divorce proceedings personal service was not had upon said defendant, Harry Sake, but service v/as duly had by publication in compliance v;ith the laws of the state of Oregon relative to service by publication in divorce proceedings; that at the date of said decree of divorce said plaintiff Maggie Bedal and sail defendant, Harry Sake, were, now are, and ever since said date of said decree joint owners and tenants in common of all of the aforesadd. real property, and the whole thereof, was acquired, purcliased, and taJon up from the United States governcient with tie efforts, labor and expense of both plaintiff Haggle Bedal aad defendant, Harry Sake, during the time they were living together as husband axid -rife; that on or about October 4, 1895, with tlie consent and request of said, defendant, Harry 177. , Sake, said plaintiff llasc:^ Bedal filed far record a v^ritten declaration of hoiTDCtend upon the aforocaid rsal property in recorder's offico of Ada county; caid declai'ation was duly signed and acKnowl edged ty said Vi3L^;^ie Bedj.1 in the nsniQ of Ilaggie SakQ v/ho at the time was the la\/ful wife of said Harry Sake, and was liv5xis and res id in;:;; upon said real property v/ith said defendant, as their home and place of residence." The fourth alle- gation is "that plaintiffs are informed t^ t^a believe, and therefore allegOj that Llasjgie Bodal is now the owner of, aii). entitled to an undivided one- lialf pai-t or interest in ard to the aforesaid real estate, and ttiat Harry Ealiie is now the avmor also of an undivided one-lialf part or interest in said real estate; that def er.dv'jnt , Harry Sake, now is, and ever since on or about the 30th day of January, 1895, has been, in the possession of said property, and docs ani has ever circc said date refused to allov; said plaintiff Haggle Bedal to enter upon, take possession, occupy, or use said real estate, or aiiy part tl£.reof, althougli sla has requested and demanded said defendant to allow her to visq said real estate, and has asserted her rights to her interest in said property by claiming and notifying said de- fendant as to the saKe; that she has never made conveyance of her said in- terest in said property to any one; that there are no lions or incumbran- ces on said property appearing of record, or to the toowledge of plain- tiffs, and that no persons other than the said plaintiff Ilaggie Bedal and said defendant are interested in said premises as ov.ners or otherrase; tl:iat plaintiffs are informed and believe, ai:d therefore allege, that said premises produce each year a crop of the value of ^500 net over and above all expenses nccessaiy for maintaining said premises aid. the raising of said crop, and that said premises have prcdicod said crops each year since on or about Zie 30th day of January, 1895." Then follows a prayer for judgment for a partition of tla said real property according to the re- spective ri^its of t2:ie parties afarcsaid, or, if a partition cannot bo had -vvithout material injury' to those rights, then for a sale of said prem- ises ard a division of the proceeds The demurrer to tMs complaint is on two grounds. "(1) CEiat the complaint does not state facts sufficient to constitute a cause of actJ.on. (2) E-^t the said complaint is ambiguous,^ unintelligible, ard uncertain, in this: that paragraph 5 of said amended complaint, commencing at tho word 'tliat,' in the fourteenth line of said paragraph, to arxL including the v/ord 'Sate,» in the thirtieth line of said paragraph, is a sin:5le contence, in which no positive allegation of fact is made, in that several allegations are attempted to be made in said sen- tence, caid allegations being connected v/ith each other by the conjunctions 'or' and 'nor', and tlxjt it cbes not appear therefrom v/hat course or action was taken with reference to the matters ani things therein referred to, and as to what v/as and was not done with reference to the matters and tilings and by the parties therein referred to, and that it does not appear therefrom upon what theory the plaintiffs rely as to the matters and things tisercin stated; t!'^.t in tr£ fifth paragraph of said amended com- plaint, in tlv ninth and tenth lines thereof, that the following allega- tion, 'that said Kaggis Bedal has never made a valid conveyance of her said interest in her said, real property to any one, ' is amb.iguous and un- certain, in this; that the inference is that a conveyance of some kind or character was made by said alleged Ilaggie Bedal to soiao person or per- sons who may or may not Inve an interest in this litigation, and vho may be proper ard necessaxy parties, either plaintiffs or defendants, herein.; and that sail language" implies that a conveyance was made by plaintiff, said alleged :.Iaggie Bedal, either to this defendant or some otlier person 178. or persons, leaving. said allegation ambisuous and uncertain as to the in- tent ard moaning of the plaintiffs." We have read tie brief of counsel for appellants, together with the authorities cited, with a great deal of interest and care. He insists that notwithstardirjg the fact that the plaintiff IlagglG Bedal left her hushand and hons in Ada county, Idaho, in the montli of January, 1895, went to the state of Oregon, and in the month of Llay, 1899, obtained a decree of divorce fron her husband, acd on the 20th day of Llarch, 1900, became the wife of her coplaintiff, Charles Bedal, she is entitled to recover her interest in the property left in Idaho vhon she took up her residence in Oregon. The laws of Idaho deal very fairly \7ith the v/ife in regard to community property.- Certainly no fair-minded person rculd say that the wife should not share equally in the accumulation of a lifetime spent in the acquisition of property, and that is v/hat our statute gives to the wife. Cor divorce laws are certainly as liberal as could be desired. The grounds upon which a c'.ivorcG may be grsnted in this state are as num- erous as any of our sister states. Hence, under ordinary circumstances aui-l conditions, it is unnecessary for any one to seek another forum in which to prosecute an action for divorce. The plaintiff in this action, for como reason best laiova to herself, sav/ fit to leave this state and prosecute her action in Oregon, certainly laaowing that a division of the community property could not be decreed by the- courts of that state on a service by publication. V/e are not informed by the complaint upon what ground or grounds she obtained her divorce, anT. it is immaterial and un- important, so far as her right to recover in this action is concerned. Suffice it to say, hov;ever, that it is liard to conceive of an e::cuse for her to leave tliis state, or even Ada county, to prosecute her action^ If her charge was extreme cruelty, or if she felt sbe was in danger of bodily harm from her husband in case she commenced her action, on a proper show- ing, the court would have protected her from any danger from her husband, and required the defendant to furnish her ',lth means of support during^ the pendency of the action. On the final deteraination the court could and certainly vv-ould have rendered such a decree as to do equal justice to both parties to the controversy, thus ending tte differences between them for all time. As we view it, it was the duty of the plaintiff to commence her action in the jurisdiction where the property was situated, procure personal service on the defendant, and thus acquire jurisdiction of the property, and, in the disposition of the case, place the court in a posi- tion to settlo th3ir marital relations as v;ell as their property rights. The plaintiff I!aggie Bedal in this action does not enlighten the court as to her reason for seeking a dissolution of the marital relations in an- other forumfr starding on the naked legal proposition that the property once held by reason of her marriage relations with defendant remained hers until she disposed of it, or until five years after her decree x^as granted in Oregon, vhen it is practically conceded that the statute of limitations would run against an action of this character unless she asserted her rijit to her interest in the community property. Ihe questions presented to us by this appeal are new in this juris- diction. \7e find no case, either in territorial times or since statehood, ^Therein these particular questions have been before this court. We have examined the authorities cited by appellant, acd many others, bearing on the questions involved, but find no one ;^ere the facts have been similar. 179. In all our iuvesti:iation., v;e have teeu uiiable to find a case viiere the plaintiff left the ho.ne voluntarily, souglit redrecs in aiother forum, procured a decree of divorce, and toolc unto herself another hus^band; there- by disEolvins tlic marital com.nunity of herself and her former husband, aod creating a new one vath her present husb/.-nd, viho is coplaintiff in this proceeding. We are not prepared to saj/ that if personal service had been made on defendant in the state of Oregon, or if he had appeared and contested the action of his vdfe for divorce in that stdte, that court would not have acquired jviri£.diction of the co.7imunity property in tide state. But it is alleged in the complaint that tlie service was "by publication, end it is not alleged that the defendant aFi>eajed to contest tloe action. Hence v/e conclude that court did not acquire jurisdiction of tliG coiranunity property. The statute of this state only gives the court power to dispose of com- munity property after the divorce is grenteed. Indeed, it acquires its power from this source alone. The hus>on.d controls the cormiinity proper- ty up until the very hour of tlie dissolution of the marriage relation. This being true, the question arises, how can the courts of this state ac- quire jurisdiction of v.iiat was cornaunity property at least up until the time the divorce v/as granted by tlie Oregon court, even though it be true that that court v/as not as feed to, aid made no attempt to, settle the prop- erty rights between the parties as husbjnd and wife? It is presumed from the coraplaint, and tlie demurrer concedes it, that the plaintiff Haggle Bedal in this action, and Ilaggie Sake in that action, got all she asked for, \Aiich seemed to satisfy her until tl'jree years and more after she had assumed a new co'nmunity, aiid entered into a life contract with another husband. As we see it", the courtb of this state are powerless to dispose of this property as co;.'iaunit3r property ■under the e;:isting circumstances. The courts of tliic state liavs not been called upon to dissolve the marital relations existing bet^/eeii Harry Sake and Maggie Sake, aid, if our conclu- sion is correct, tliat our courts can only acquire jurisdiction in an ac- tion of tliis character- that is, for the purpose of disposing of the com- munity property — by the entire divorce proceedings bei:ig before the courts of this state, then our courts are powerless to grant t>je relief demane.ed V/e think our statutory provision is in the interest of good morals and public policy, aid any o tiier rule would be dangerous to the welfare of the citizens of our state. Tbe plaintiff llaggie Bedal says in her complsint thst she has made frequent demands for the possession of sad the ri,glit to occupy her inter- est in the property settled upon and improved by herself and former hus- band. She does not say when or how she made these demands, and counsel for respondent insist in their brief tliat the first information defendant had of her claims" "S-as." -hen the surxions .'as served u^^on him. ' e do not tiink tluE a matter of great importance, onl^^ as it mi^ht shov; tls good faith of the plaintiff liaggie Bedal. Certain it is that she had lived separate and apart from her former husband almost nine years before she coroiaenced this action, and ^-e are not inforr.ed by the complaint \,hy it v.-as not commenced at an earlier date. It -.-ould seeim t!x.t after she had lived av;ay from her former husband and home for almost nine years, and hcd takan uiito herself another husband, .ho must necessarily have enter- ed into a contract to support and protect her until death ended the con- 180. tract, or another decree, cmd three years and more hcjd passed under this new contract, tl-e defendant hcd reason to believe thct hie "labor alone' on the 80 acres of lard -culd be left to him and hie children, if he had any, for hie declining years. Tliic \vould certainly be the equitable viev; to take of it. It may be that tlio hucbaud was entirely to blame for the separation, V/e l£no\/ nothing; of this, or vhat their troubles -..Bre . But as v;e have heretofore said, the courts of tins state -/ere open to her, and \jould liave provided lier -..Itli all the protection slie needed, and re- quired the defendcint to support her and provide her v^rith means -./ith \T4iich to employ counsel and conduct Iier case t]-irou3h the court of last resort, if she desired to do so. It is a matter of common information, not only in this state, but throughout the Union, tliat courts v/ill al\;ays see that the wife is properly represented and protected in the trial of her case; and, \hen the final decree is entered, she usually has her full shcire of tha property, if there is any. V/e v/ill nov; briefly revie--' the authorities cited by appellants in support df their contention tliat under the complaint in this case the plaintiffs should recover in this action Counsel says: "The primary cfuestion involved in this case is \/liethar either party to the decree of divorce may thereafter maintain an action for a partition of an undivided one-half interest in the real property acquired during their mcxria^e, vhen the pleadings and decree in said divorce piroceedings did not refer to or determine any disposition of any property, and svc'h decree v/as recdered in a state other than --.here such property is situated." Ihis v/e conceive to be the important question, and the one upon ^Jiich this case must be reviev.'Sd in the light of our statute. Hie first authority to \/liich our attention is called in support of this cQitention is De Godey v- Godey, 3S Cal. 157. Tlie follo-./ins facts are stated in the opinion: "It appears by the allegations of the bill that the parties v.-ere married in 1862, and that for some years there- after, and up to May 20, 1869, tliey vBre la\/ful husband and \/ife. On the last-mentioned day the decree of divorce -.."as entered, divorcing the parties, in the Si::teenth Judicial District Court, for the county of Kern. Die appellant instituted the action in that court, ttiousla at the time of its commencement the parties in fact resided in the county of Santa Barbara, in the Seventeenth Judicial District. He fraduleatly brought the respondent into ICern county for Gie purpose of having the process served upon her, and, tkiQ service havin^- been effected, he mis- informed her Of the purport of the papers so served upon her, and, ./ith a vie^/ to conceal their true nature from her, he, as soon as the officer making the service load dep^-rted, violently tool: them from her possession end destroyed them. He thereafter returned the respondent to her home, in Santa Barbara county, and there Iccpt her restrained of her liberty, and secluded from all intercourse v/ith her frieiads, ai:d- in i.'^noraice of the pealeacy of the action, end thereby deprived, of course, of anjr op- portunity to maiie her defense, though she had a good one on the merits.' Can it ba seriously contended that tlie facts in this case have any bear- ing on the issues involved in tlia case at bar? It /ould^have been a _ groBs injustice to the vafe to have permitted the husband to talce the ac- vaiiage of her in the manner there attempted, and permit him to thus de- prive her of her rights by fraud a:ad deception. It v;ill be observed, hoxftjer, tliat Che plaintiff in that action did not leave the state of 181. California, in %iiich both p-arties resided, to commence his cuit for di- vorce.; only soing into another county and judicial district of the state. He also procured personal service on the defendant, "but destroyed it be- fore she iTcd an opportunity to inform herself of the nature and character of the action, end his every act was tainted -.vith an atterapt to defraud the defendant. He soes into another county of the state to connence his action, and does not attempt to have the property rights settled. She comnences her action at a later dato, and after she is informed of the nature of the dccroc in tho former action to settle the i^ropcrty rights, and thj coia-t says she is not barred, Vfiiat else could firi, court say, under tlic facts in that caso? She hac". not voluntarilj'' had her day in court, and Irnd had no opportu.iity to litigate h'_r ri:jits. In oth:r v/ords, she had not pi*osocutod an action for a decree of divorce in another forum, and tlion como back to the hone county that she had leoluntarily left to prosecute another action in the naiae of lierself and another husband for a division of the comiaunity property of lierself aix. former husband. Our attention is ne::t called to the case In re Burdicic's Estate (Cal.) 44 irac, 754. Tne facts in this case have no relation to the case at bax, and it follov.-s the case of De Godey v« Godey, above referred to, and -re are in fali sympathy vlth tlie foinner case, under the facts as tlierein related. In the case of Bi^si v. Bijsi. 58 Cal. 55, Z2 Pac. 805. Mr. Justice Harrison states the facts as follo'/s: "Ihe plaintiff -.-as at one time the vife of the defendant Harcissa, and in October, 1888, pending an action bet'w-een them for divorce, they entered into an asroerrent for the division of tleir property, in -..hich it 'as provided that a lot of land situated on San Pablo avenue, in Oaliland, should be sold, ax£. the proceeds of the sale equally divided bet\;een them, but tlic.t aich sal3 should not be for less than 05,100, snd that, -..henever offer should be made therefor, one Vaiodercoolc should be the exclusive jud^e as to the value of said premises, and as to accepting or rejecting said offer, and that they .ould abide by his judgnent, and sell tliS premises for sujh sum as Vandercoo:: might de- termine. 2hic lot of land had been purchased during the marriage of the partias, ai:d tlie title thereto talcen in the names of them both, but the juc!-gmc-nt of divorce \;hich -..•as afterward rendered bot-.veen them ..•as silent upon the disposition of the community property. In June, 1889, Vaiaier- coolc received an offer of C'3.200 for the property, -./hich he deemed suf- ficient therefor, and \hich the plaintiff agreed to accept; but the de- fendant, v/hen requested thereto, refused to accept the offer or sign a contract of sale unless he should receive the entire proceeds thereof. * * *" il:ie trial court held that the plaintiff had no interest in the land, v/hich the Supreme Court said A;as error. V,hy not error? Ihe par- ties to the divorce suit had agreed upon a settlement of this property as community'' property. The court hoxl jurisdiction of the persons and property. Tliey had entered into a solemn contract tliat the pi-oceeds should be equally divided -di^ii the property should be sold, and the court of last resort said the contract should be enforced. In Salland v. Galland, 58 Cal. 265, cited by appellants, Ilr. Justice Crockett, speaking for tie court, states the facts as follows; '"Bie question presented on this appeal is \hether or not a v/ife, vdio, TTithout caxisQ or provocation, is driven from her husband's house \/ith her infant 18E. Child, and is v;holly v/ithout the means of cuirport, can maintain an action against the hushand fcjr a reaEonable allo-.'anre for the maintenance of hor- Eclf and child unlers sle couijIge v/ith tha application a prayer for a divci'ce." Ihe facte in this case certainly a;:*e not in harmony -./ith tlie case presented to us by tZie complaint, \/hich contains no allegation as to •.7hy Elie left lior home in Idaiio and -.vent to Oregon to procure her divorce. In the California case juct cited the complaint ijtated "tliat in the month of ITovcmber, 1654, defendant, -.Tithout cause or provocation, drove plain- tiff from hie house, and ever lias aiii?. still does refuse to live or cohabit v/ith plaintiff, allo\/ her to return to his house, or to spoalc to him. * * *" It is true, plaintiff alleges in her complaint that she has demanf.- ed possession of her portion of the real estate -..hich -.aE communit-" prop- erty, and that the defendant refused to alio.- lier to occijpy it, but it is not shova '>;hen slie bade this dema'jd; o-.iug to the fact that she took up her residence in Oregon, procured her divorce there, and ^.'2.s married to her coplaintiff, Charles Bodal, on the 20th of Ilarch, 1900. Ue assume that she did not mal-:e this demand until after she had. formed a new com- munity -,dth iier present husband. It is I:ardly' faix- to assuce that defend- ant, Scs,1:b, -.vould sjitend a very varm reception to the plaintiff Maggie Bedal, or encourage lier very much in her ambition to procure for herself and husband one-half of the property that he had boon loft to care for and improve during her absence in i^rocuring a divorce and the selection of another life companion. In tlie case of Laire v. Benf.er, 18 ITev, 561, 4 Pac. 711, 7 Pac. 74, v.-e find the facts to be stated as follo\/E: "Vilaen the cause came on for trial, it ..as agreed by tlie respective parties and ordered by the court tliat t!ie issues relating to the disposition of the property should be vathdra.m from tlae consideration of the jury, and reserved for future consideration and determination by the court, in case a divorce slaould be granted, ^pon the special findings and the verdict of the jury the divorce prayed for \jas granted. Subsequently the court, sitting -..Ithout a jury, tried tte issues relating to the cliaracter and disposition of the property, and founci. that it belonged to the defemf-ant individually. It does not seem tliat any judgn^nt rendered under the above state of facts could in any r.'srj affect the case at bar. It is a very long, instructive^ case, \/ith tJ:e autliorities bearing on the issues presented, collated, and commented trpon; but we find nothing- tliat enliglitens us on the issues in- volved in the case we are considering, cc- that strengthens counsel in his position. Again, in vreiss v. Bethel, 8 Or. 522, I'lr- Justice ¥atson states the facts in tlais language; "This suit -./as originally coi:ijmenced in tlie cir- cuit court of Jaclson county, but v-as after-.-ard transferred to that of Benton county by an order of the court first named, upon v.Titten stipula- tion of parties. After the transfer, plaintiff filed an amended complaint, by leave of court, and made several other parties defendants. Her amended complaint states, in substance, that she vvas married to defendant, Albert Bethel, in 1857, and lawfully obtained a divorce from him on the ground of desertion at Gie June term, 1866, of the circuit court of Jacteon county; that at the time of the divorce the defendant, BetJiel, was the o\.-ner of the Adam Holder donation land claim, in Benton county, Oregon, containing 520 acres; also of lots 1, 2, 5, and 4, bloc'.: 3, of Cie city of Coisvallis, in said county; that at the time she filed her complaint 185. for divorce she \i-sls igaorjint of the condition of said real estate; that said Bethel l3pt his buciuoss secret from her, and led her to "believe that he had sold or effectually incum'bered it, so that at the time she did not lcao\/ hat disposition he liad made of it . * * *■' Kov/ can this case, under this statement of facts, have any "bearing on the (raestion at issue? Thd vdfe comiTienced her action in the jurisdiction -.hore tlie de- fendant resided and the pro^^erty tas situated, "but in hor action for re- lief she pleads that by the fradulent representations of the defendant sloe \;ac led to "believe that the property vra,s incum'bered, and tl-^t she could not reach it. lio such charje ac;ainct the defendant in t'lis action, and no reason ^iven for leaving the jm-icdiction of the- defendant aoid property to ooraaence her action in another state. In the case of Tftietstone v. Coffey, 48 Itex. 269, tlie facts, as we gather tiem ixom foe opinion, are tlxit the plaintiff in tliat action lived -.dth l^er hus"band upon 520 acres of land, tlie ri^ht to -vhich had been ob- tained under the pre-eoiption laws (\7hetstone and his v;if e ) , The plain- tiff in this case resided upon the land from 1850 to 1659. In 1859 the husband sold tie land to Ben VansiclcLe, • without her consent bein^ ^iven to the said sale, Eie coui-t says it \/as then community property of Anf-- erson V;hetstone and his wife, Ilarsaret V/laetstone. To shov/ that she never parted \7ith said ri^ht by abandonment or otliei-vise, z^n& allowed that she Nvas forced to leave her said homestead and follow her then husband and family; that he shortly thereafter abandoned her; tlaat neither he_^nor she liad any other homestead up to the tiae that a divorce \ras obtained, in 1865; that she has never acquired one since. Under such a state of facts, it is not to be concluded that she had lost her ri^ht to the land up to the time of the decree of divorce by his abandonment of and separation from her. It is not slx\m here that the plaintiff, v/ho seeks to establish her ri;^t to her interest in the communitj'' property of her deceased hus- band, although she -.vas divorced from him, sought such relief ••ith her co- plaintiff, her husband, at the time of the institution of the action. In other \/ords, she had not formed a new community. But it v/as sho'.ai that all proceedings v;ere in the state of Tesas both in the action for di- vorce, as well as the one for hsr interest in the property. Colvin v. Reed, 55 Pa, 575, is cited by appellants. Ihe statement in this case is that Jemes and Susanna Taj^or at the time of their mar- riage, in nay, 1857, were citizens of Pennsylvania. Shortly after their marriage they made a visit to Iowa and returned, rirs. Taylor not being pleased v.i tla the country. After their return she declared to him her in- tention not to live v/ith him, and refunded to him O^O his "bill for the e:rpenses of her journey to Io\"7a. She remained in Allegheny City and he went back to Bedford county in Odtober, and remained tlaere. until Llay, 1858, vhen he sold his farm to the defendant, and removed to Iowa, leav- ing his wife in Pennsylvania. In 1860 Taylor commenced proceedings for a divorce a vinculo, and, after di;e publication of notice, a divorce v/as decreed on the ground of the desertion alleged to have taken place in Pennsylvania. Susanna Taylor had no actual notice, aix. at the time was a resident citizen of the state of Pennsylvania, never l:iaving left it. The question, on this state of facts, is v,hether the lova coxzrt liac". juris- diction to declare the divorce of :.!rs. Taylor, so as to discharge the lands of lier husband in Pennsylvania from her right of dower. In closing, the court say: "Eiese arguments have been noticed, and it has 'oeen shown, 184. I think, that the principle fii^ds limit, xhen confronted "by the equal and prior ri^ht of another state, and "by the acts of a plaintiff who has atandonod his domicile and his remedy to tals up a ne-./ domicile, -./here the dGfoudant lias never appeared." Applying this rule to the case at tar, v/hat ctandin^ has tlB plaintiff in this court? Eln voluntarily atan- done her domicile and talces up lier residence in another state, there pro- cures her decree of divorce on a service hy puT-jlication, the defendant not appear! nj to contort her action, ani then, after a num'jer of years, and after fce-jp ne-.? contract of marriage, comes to the court that always l^d jurisdiction of the property for lelief. In Heel v- Elder, 62 la. 309, 1 Am Eep. 414, cited hy appellants, TO find the follovdns lan^uase in tl:e syllalDUS: "'Hie injured party in the manriase relation must seel; redress in the forum of the defendaiit, lualess ./here the defendant has removed from ^ilat • as l^ef ore the common domicile of "both." \Te scarcely feel justified in prolonging this discussion, or reviev;- ins the larse numher of authorities cited "by learned counsel for respond- ent. It seems to us that the authorities '.tb liave heretofore copied from and discusGec"" preclude the appellants from a -ecovery in tlois action on the pleadings, at least ac they nov; stand; cncL the plaintiff having dis- solved tl-js old connunity, if not "by her Oreson divorce, "by her ne./ one^ formed in tl:e marriage to her coplaiiitiff, precludes her frou maintaining an action for the coram"unity property. In Heatou et al. v. Sa.vyer, 60 Vt. 495, 15 Atl. 166, it -Jas held that v/here the '.dfe axd children on t]:e granting oi' tte divorce moved from the premises, sad were absent to yeais, it v/as an a"bandonment of the home- stead. Wiggin V. Buzzel, 58 H. H. o29, holds that "a divorce ottamed 'oy a. wife "bars her homestead right in her husl^aid's property, unless such ri--ht is reserved "'jy the decree of divorce." Brady v. lireuger, 8 L. D. 464, 66 H. W. 1083, 59 .^i. St. Rep. 771, holds: "Where the relation of husband and 'ife is terminated "jy divorce, she ceases to have any claim upon or right in his property, whether homectesd or otherwise unless such right is reserved to lier '^y the decree of divorce. lienever thereafter she seeks to assert any claim of ar^^ charactei in any part of tlie hus- TDand's property, slie must esta'olish her rig^it Vy such decree, or ^jy valid contract oet-zeen herself anc?. him." In r.osholt v. llehus (H. D. ) 57 n. U, 7SD, 23 L. H. A. 2j9, a well- considered and interesting case, in • 'Mch the authorities are collated anc. discussed hy Chief Justice Baxtliolomev;, he usee tlus significant language "And it is true that courts 111- er ally construe homestead la 's for the pur- pose of effectuating their -.vise and Tseneficffint intentions, to the end that no family, through the misfortune of poverty or the death of its legal head, mqy "be deprived of shelter, and, "hen the homestead consists of a farm, as in tlus case, of support. But all tloe reasons .-hich liave induced the la' to f-,vor the --/ife or wido.; in the matter of homestead r\'ghts are entirely absent in cases of divorce." See Doyle v. Co'rarn, 6 Allen, 71. Barnatt v. Bamett, 50 Jac, 507, a Hew Ileicico case, ■:y Chief Justice Smith is a very interecting one. Ve find tliis pertinent language used: "It is wisdom t:-!at for"bids the nfultlplic-^ti on of litigation on the same EU"bject, and spares suitors needless vexation in tlia deteiTaination of thair rights. 185. The partiss to this c ontrovGrty, '.lavinG: "bGen tepar^ted "by final decree of a court of coiTrpetcat juiisc-iotiou, t^re Q^to'jj:.QC from iurtliox }iaraLLia2 each othear as con&orts ia ano tiier trrjunc.l." A great many otl.er aiithori tj.es are cited ":y co'oassl lor respondeat, supporting those alrsady i-eierred to in this opiaion, -ut ■ 'e do aot feol called upoa to pursr.e this diECusaioa iurthei.- S.:ie plaintiff UaQ-jie Bedal voluntarily a^bandonod liar I^ojiie, and o'^tained lisr decree of di-/o~ce in a loruiii xlthout jurisdiction to diipoce of the com.;iu::ity property— oein^' service ■b3'' p"u\^lica,tion— -thsi'eaftex ma:.ri3£ aiother, and then ioim& £, ne.. cor.iunity, end shs 111 "rj^ro to loolc to lier precent cor.inunity for her futuie cupport and happinesi,. v/e do not tidn": che.EliOrJ-d eajoj'' the fruitc a her- ne;,' coniiumity, and have a pension fiom her I'omer one. Che jud^i-jent of tlie district court 1l ^A'fVxX^&Cf './ith costs to re>- spondent. ~ " AilshiQ, J., cov-cuis. l=r-o^ i^ Sullivan, C. J. {distentinc; ). I am unajlo to corjsar in tl:e conclus- ion reached li-j tlae raajority cf tl:e court. !i.ection 24-80, ?Lev. &t. 1887, provided ho'v conmunity and hoinestsaf. propsrty c:::all 'r:- disposed of in case of divorce, anr". ic us follo/t: -'In case of ths dissolution of t:„3 raarria^e "by the decree of z. court of cor.:potent juiic'.iction, Ifhe coiu-iunity property and tL-.o honestead must 'js assis-ned as follo-'i: (1) If tl£ dec-3- Tdg rendered on the ^rovnd of adultei-y or e;;tre.:'fi cruelty, the cccL.iunity property must Le assigned to the respective parties in such pioportioas as the comt, from all the facts at th^ case, and the condition of the^ parties deerns just. (2) if the decree bs renc.sred on any other '^.rounc". thaa tlor.t of 3d.-dtery or e:;treae cruelty, th£ community property must be equally diviC^d Iset "een tie parties. (G) If .. homestead has "been select- ed from the coiauunity propertjr, it -may ho assi yned to the innocent orrty, either ahsolutely or for a limited period, suhject in the latter Case to the futiii-e disposition of the court: or it aay "be divided or he sold and tlie proceeds divided. (4) If a homestead lias "been selected from t:-£ sep- arate property of eitliex, it must he asEijiied to the iorm&-_ oraer of such property, suliject to the po ;er of the court to assign it for a limited period to tlie imoosnt party.-' In the case at ■';sr it is alle:;ed in tie complaint tliat the propertj'- involved is comaunity property accuired "by the joint efiorts of hoth hus''j.:aad aiK. .ife, anif. thereafter v/as homestead-ed under the la\7S of t^iis state l^y the ■■'li'Q, "JhllQ it does not appear on "hat grounds th.e v.lfa o"!3tained the odvorce in ths Ore^jon coiat, the pre- svxiTption is thet it ■•■■'b^ on s'ifficient pround, a;id that the hus"ba^. ••as in Jault. If it ^lat obtained on any other ground tljan tlir.t of adultery or e::treme cruelty, and had heen o'tained in a competent court of the state of Idslao, said section of the statute provides that tlie community property must "be equally divided hetv/een the parties, and in other cases it must "be divided as the corct, from all Che fucts of tlie case and coxation of the parties, deems just. And I do not tliin"-: the fact thj2.t Hie divorce './as detained in t!:B sti. te of Or-egon is a suiricie-it reason for dcpri^^inr tlie. ^/il'e oi a part of the property tlxit she l:^x\ helped to accumulate. A court of equity •.;ould Irave pa. er to do justice "betveen tlie parties after the evidence v/as introd.uced on the tricl, crd, if it chov.Bd the :ii.e ^as ^;.^ (^^^i-'tf-^o /i^j::s^:^«-^^*<^ ^^. .<>t^ t^t-'t' r \^^i^^^f-^Ao ^i»--a-^ z' •' .-<>th^^^.^ 166. entitlod to receive a portion ol' tiie property tlic-t sl"^ assisted in ac- cu,;iul:itiu3', Ll's certcinly ou^ht to have it. Kie plaintiff in tliis actio:.'. lia.C filed a c.3clii=.,tion of hOiAai-oeacl on the 1. nc. in controversy, i ncL section 3041, ?.3v. Lt. 1887, declared thit a homestead can "be alD ndoned only "^y a declaration of abandonment, on a 2-^J^t of oonve-yaixce thereof, esecuted and ac.-io 'ladled as thsrein specified. The c^uettio:i oi' an imoceut purc:is.£Gr of said property, for v J.ue, 'athout notice, is not involvad in this aase. I think thie allgoatious of of th3 complaint state a cause of action, and the denujrer should have J 3 en overruled, j/w\yC/^<^ ^^*^— <7 ,-**'^^ -^ ' /^ C ,^6e^^^^ ^ .-.^^a:<^^T-^<^ — -:^'^;^*-*-^ J . '-^ V 187. a. ■5' GECRGE L. HILL, Appellant, v. A. B. YCIMG and ""^ HIUDA /.. YOUHG, RecpondontG. (7 Uash. 33, 1693.) Appeal fi'om Superior Court, King County. The opinion of the court was delivered "by Stiles, J. — This is an appeal from a judgrmnt of dismissal rendered in a pairtition suit, consr-Gnced as a suit in equity. !Ihe judge sitting for file hearing of equity causes heard the testimony of the parties until each had rested, and then finding that the cause involved the determina- tion of facts concerning the title v;hioh v.ere proper to ''oo sutnitted to a jury, instead of calling a jury himself, made an order transferring the case to another department of the same court, where in the orderly dispo- sition of the business of the court jury cases v.-erc usually heard. In this second department special issues covering the question vliether the land sou^t to be partitioned had been acquired by the grantor of the re-^ spondent, A. B. Young, with money which was his separate property, or with money which was the community propertj'' of the grantor and his v/ife, v.-ere submitted to a jury and determined. Upon application to each of tho judges who hoard the case for judgraent upon the special findings, each declined to act, upon the ground tliat the other had the only jurisdiction in that matter, and tte mandamus case of State, e:: rel. Hill, v. Lichtenberg, 4 ^ash. 553 (30 Pac. Eep. 659), vas resorted to to settle the question. In obedience to the writ of mandate, the judge of the equity departirent pro- ceeded to a final determination by dismissing the action. Upon this appeal from that judgment, the first point made is by the respondents uxjon their motion to strike the statements of facts, of v/hich there are two. Er.ch of tlie judges lias certified to a statement as con- taining all the facts, etc., in the case before him, but, of course, not as containing any facts occurring before his associate, aid the argument made in favor of" the motion is two-edged, for it is urged that inasmuch as neither judge has certified to all the facts, there is no complete statement certified by either, aaid therefore no statement upon \'zliich the court can review the case. neither party took the position exactly, but it seems to us that the simplest T;ay out of the matter will bo to entirely ignore the statement concerning the jury trial. There was but one legal trial, and that \-3.e the one before the equity judge, the proceeding taken to place the case be- fore a jury having been entirely irregular and unwarranted insofar as it attempted to transfer tho case to a department presided over by another judge. \.'e \70uld not bo here understood as holding that the judges, in counties having more than one judge, may not refer the entire hearing of a case, or of any integral part of a case, to some other judge. But there can be no propriety in sending a part of a trial on the merits into anoth- er department, or after the trial has progressed, in sending the v/hole case to son© other judge, merely because there are found to be questions vhich 186. mi^ht "better 'ae suTDmittec". to a jury. In t lis instance tlB case had been fully lieati'd and submitted for fins-l determination flf tlr^ question of title before the order to transfer v.-ac m^.c'.c u;^Jon tLs court 'g q-jo. motion, aix. all benefit of tlae hearing v;aE threatened to be lost, wMch tlireatjv/as so far realized that UJon the jury trial the most rmi:>ortant •-.•i-jness hC'.d ^one hone to ?_-ot:iGr state, "tenco he refused to retua-n. Holding these viev/s, ■-'e shall sustain tie motion to strike tlie statement of the jury trial anc'. re- tain the other s.l the stoternent in the case. 2. CSie coi;-X( ALaiat sho'./s on the fact of it tliat tlie resi^jondents hs-C. been sin ce IHS5~Tii po s session of the land sou:^ht to be""partit ioneTr ijidcr a conveyance of .ihe whole tract i' ro ;i the fa tier of the appallant, vHid ciaxmsrra half interest as sole n eir of nirmofciei, deceased in 188'J~be- fore tb.e convey ance. -Hie so f acts, r 3 &:,-.onden t s cT^rrT, "l^r e cludo d any suit for 2a:iA ition until there ha d beffi an "acTi'on at lsA/_to_trj'- tittle'. 'Our statute. Code i'roc, Sec, 577, provides; ^'V/lien several persons^EOld and are in possession of real property as ter^nts in com.vion'"' t'lere rnay be a partition, and t he c orj-ion la\/ rule is '/ell settled that \.'here tlae party geghing parti tion Itp.e been_QU£t£d of pQs>.o::Eion by his aliased tenant^ iir coinrnon under a clain of adverse title to tl"^ "vhole estate, equity v/ill notdet^rEi ino-ths-leTVal lig hts of the, parties. _rree:.ian on CotenancyT Sec. 447. VJliere the pleadaag-s of tls defendant disclosc-c. tlie adverse claim, the practice ".a- to stay the partition proceeding vintil the plaintiff got his jud~ment for possession at law (Brov.-n v. CrsJiberry Iron J; Coal Co., 4:0 Fed. Bep. 849) .^ but vhere the complaint itself failed to allege posL« ©Esion, or, as in this case, alleged adverse possession in tlae defeix'.aiLt, natirrally a dismica?! follo-'.ved. Such has been the construction under statutes having the same language as that above quoted. Florence v. Eopldns, 46 IT. Y. 182. Freeuign on Cotena/ncy, hec 450, ho-evei , sho.rs fh&i tlie rule lias been to tiie contrary in Jiacsachusetts and Ixaine, and closes thtis: "In truth, t::e liinitations attending proceedings in partition are constantly -.;ea-ening, cxad. the tG::^-ency to do il'.ll srid complete justice to fce parties in one action is beco.iiiig ir::esi£tible. v/iierever the question has recently arisen a-c a ns-; question, the ans -er to --^/.icii the co.TTts v/era freo to give v/ithout consulting decisions i^irde at an early day v^nen the cominon la'- rules v/ere more ^.-otent tlian at present, it has been resolved in frvor of talang jrjrisdiction -/heneverthe complainant shows liinself seized of the requisite title, whether the landc sought to be x^sirtitioned are held adverse!;" to hiiii or not." This nev/ practice has long- been in vogue in California, -./here Bollo v. ilavarro, GC- Cal. 459, and liar tin v. "/sl'.cer, 58 Cal, 590, ./era decided, and it -/oulo. seen to be the only rational practice under a code, especial- ly -.hen our Code Pxoc. Sec. 583, is considered, that section providing as follo'.;s: "The rights of the several parties, ^.l?intif±s as 'ell as defendants, may be put in iSLUe, tried and determined in sucli sua to*' /^ V y*^ 189. ThiB lav; e:cistE in Cal iforuia, azic". the court, in Usirtin v. Walkor, alludes to it as sji a6.ditional reason for its ruliuj conf inning niany pre- ceding caoec ou tlin same ct'bjent S. It v;aD not necGCsary to allege that tlioro v,as necessity for a sale in lieu of partition, or that partition could not "be made witliout great prejudice to tlie ov/aers. Code Lroc, Sec. 584, prcrvidcs that, if such a state of facts appeal's from the evidence, vathout allegations in tlie complaint, a sale may "be ordered. 4 ffiiere had been no administration of Gie estate of lire. Hill, de- ceased. V.e hold, hov/Gver, tliat ^here the v/ite died in 1663, leavinj an only child anc'. her husband surviving, am?, tliere ]md been no administra- tion upon her estate, cr upon the coranunit;^ px-operty, there v/as a clear presumption in 1691 that as to the c Qrimunitj'' ie2l property tliere was no necessity for administration, aiid Ciat fi:e ri^lit of the child to the pos- session of his share in the c aa^mnity real estate as heir to his mother was completOo 'Ihe -lusbtuxu alone has tlia pover to r-ianso's cud control cor.i- mimity ronl property, aixL he alone can incur indebtedness v/hich \rould be- cccffii a charge upon such property, e;:cept foi' fainilj' necessities- Ziese are his debts, and to him tliey are presented for payment. Statutes of limitation vail run against aiem while he lives and remains in the state, and after so long a time, aiil no petition for ac'jninistration having ever been filed, it ought to "be presumed in favar of the child, either that there were no cor.imunity debts, or that fihcy have been paid or bea-red. '.7e so rule, in full vie'.r of Balch v^ Smith, 4 Ua£h. 497 (30 Pac. Rep. 648). 5. The land in controversy was acquired in 1871, being conveyed to the husband by deed of purchase. Tie act of 1869, "defining the ri^Jits of husband and vlfe," declared tliat propeirty acquired by either husbsiid 01- ^/ife, e:;cept that acquired by gift, bequest, devise or descent, should be ■'common property." Sec. 2. It also provided tix:t the husbani?. shotid have the same absolute pov/er of c'd-sposal of the coiiroon property as ho ::iad of his separate estate - Sec. 9. Kesponc.ent£ maintain tlaat fiiis povrer to dispose was a vested right in the luisband., \/hi<3i could not be talEn sf/Esj by any subsequent statute. But it is not necessary to decide this point. Z~& act of 1869 haying declared certain property •"common property-,'' did not mate provision far tlio disposal of sucli pi-opertj' upon the death of eitlier spouse, as was done by later lav/s on tlie zsiiiQ subject; but '.'e tloinls: that -litlaout anything ixir tlier thaii was contained in tliat act the courts of the territorjr \.x)uld have been bouix". to administer upon such propert;'', after the fcath of husband or \7if9, according to the established rules of tliose states ^id countries i-iere couiraon or community propertj^ la\'s had er.isted. Tlie first aid car-dinal of such rules vas that Uie camunity -"as dissolved b-f tlie decease of either spouse; ne:it, the right of disposal in either spouse ^>'aE en^f-ed; and, third, the property becane vested by moie- ties in the sui-vivor and the cliildrea. Pnai-efcre, upon the death of Its. Hill, in 1883, even if the -ct oi 1662 './as tie only la-7 applicable to this land, the rijit ol' the liusband to dispose of the ./hole estate terminated. And it may be furtSier stated tliat the puichaser in this instance Iciew of the Liarriage relation v;hicli e::istad betv.-een his grantor and I'xt, Hill, and lais';/, alco, tliat the appellant v/as tlieir only cliild. 6. V/hatever objections raa.;' Iiavo been v;ell f oiiided as agsdnst the •X-tf-2^/- ^ ->*s?<:«i,^^ c^ ' / ^- i-'^-r:^ V -i?*-M y x--< *>r ^ -^.^^ ^^^^^y -^ ,^^,-«:s; t ( .^^^ ^. -^ >:^ — v- 1-' ■ ^ c^ ^/ ■l^ho:>.^. '.V y «_- 800 of the money derived therefrom vvac used to buy a farm in Kins county. In 1866 the farm vras sold for a cash payment of 0^00 and a credit, Vviiich i/as never collected. Ihis C?SOO was perhaps used to pay a part of the cost of a steamboat called the •'Gem, ' tlie whole cost of which was between ^iS, 000 aind ^4,000. The. testimony of Hill as to where he got Cie balance of the money paid for the boat was that "he didn't know; he errpected he made it someviiere . •' He ovmed the ''Sem" until 1872, and from the time he bcuslat her, about 1866, until 187£, he operated her on Pu^et Sound, himself actin:; as captain. Over and above the operating e^i^pecses, he received about CilOO a month for his labor and the earnings of th3 boat, and he testified that the money he paid for this land must have been money accfuired from his use and operation of the "Gem," as he was then in no other business. But again he sai?- that in the years in v^iich he was not ctcanboating — 1860 to 1866 — he made money right along in other business; tliat liO. never iiept ai^ account of any moneys made in any transaction, and that he could not tell -.iiether his money came fiom his steamer or whether it v/as money made before. Und-er every consideration of the lav;, such a state of facts left it entirely uncertain \iliether tha property viiich Captain Hill owned before marriage had auytZiiug to do vath. earning him as^^rthing in 1871, and the pre sunn? t ion of the deed was undisturbed- Upon the viiole case, thereforo, we are of opinion that the court erred in dismissing the action, aiad that the cause shoulc. be remaiided for an interlocutory judgment establishing appellant's title to an undivided one-half of the tract in cjuestion, and his right of possession as tenant in common \ath the respondents, and for further proceedings in the matter of the partition. So ordered. Hoyt, Scott and Anders, JJ , concur. DonbaT; Q. J., concurs in the result. , J CHAPTER 111 CITATIONS. How is it dissolved? (&) By separation. (Id) In fact, Branscheid t. Branacheid (1902). Herrett v. Herrett (1910). Tituo V. Titus for den v. Worden (a) Power of court to av.-ard property of spouses. Howell V. iJunning (1920). Van Gelder v. Van Gelder Clemana v. Western Miller v. Miller MitchQll V. Mitcnejl Ramsdell v. Eamsdell Eidhardson v. Bicterdson Cozard t. Oozard Markowski v. ifejteowsld. Hay V. 3ogg3 (b) "vVhen property ia mentioned in the complaint but not cared for in bhe decree. Helson "7. McPhee (cj' RelationoMp of the parties \\hen the decjre© does not award the property. Graves v. Graves Duval V. Healy Lumber Co. Hicks V. Hicks Balch V. aaith Cox V. Tomkinson 27 ^iaah. 358 60 7/ash. 607 66 V/acQi. 345 96 Waah. 592 109 Wash. 591 61 Wash. 146 39 Wash. 290 38 Wash. 605 39 Wash. 431. 47 Wash. 444, 36 iVash. 272 48 Wash. 124 44 Wash. 594 77 Wash. 321 59 "rtrash. 103, 48 wash. 664 57 7;ash. 446 69 .Vash. 627 64 Wash. 39 Wash. 497 70. .<^^ .^ "T" S^^ ^/^^=^-tg/ -<:^^ ,X^- ^ C-t^\--*^ r ^'^ -<^^-t^ ^ .-C?- 191. I o ^ « \ B.iFJl p. £;Ti::£R5] et al., A.->i:jellaats, v. BAltv of ::iffiIGG:'r et al., KesjoiidentE. (82 ■-"asli. 106,1914) Appeal i'ro;-.; a ju.".;j;-.ient of tlia cuperior coiu't for "uiitrnan county, IvbCroskey, J., entsi-sd PeTDru£,i-y 26, 1S14, dismissins an act ion to reco-:2r poc.£.cs£ioa of pe-£;oiii,l pio;^;Grty, upon sustainiiio' a denurx^Cir to tloe corc- plaiut. Affiiued. Cxose, J. — BiiG is an action to I'ocovar u^e pocce;.sion of pronicsory no tec, cartif ico.tos of dcpooit, ^'jc. :aoney,'anountin:y in', tlie ao3^eo2^~*° nore tnan ',^27,000. Tlie defendants save: ally demurred to tlie coraplaintj,- for the re.xon tnat it does not'etate facts sufricient to coustituta a cause of action. 2h.e denua-rers v;ere sustained, c.itl the pl.:,iiii:if f s el^ct- in^' to stcncl on tljeii- complaint, a jut-^aaut was entered dismissin;^ the action. Ihe plaintiffs appe^^led. •lHhet alle:§ed cause of action has its "bacis in a-aitten instrtUiieut e::- ecuted by t'ue several appellcjits aiid one Ale::a:ider Stewart in his life tLne. Tlje instrument, oaittin^' sisnatui-es ait'- the attestation clauce, is as folio-,7s: "Vfliereas, the underLiG,ned, Ale:: Etev-art, ox 'V/aitE'bm-s, './ashiriston, has heretofore craised to be conveyed and transferred to Bair P. Etev.'art, niizabetho G. Ste./art, Cliarles 3. Lte-'art, Dd^^ L. Ste-.7art am?- I'anor P. Ltov/art, certain real aoc'- personal property, situate .both in the stj.tes oi Plori(^.a and 'w'ashiii^jfion, and oGier states, "And \71i3reac, all or the propert3r, botli real, pe.soual ai^T. rai.:ed, nov: held aid possessed b^r 3arr x. £tev/ai-t, lilizabeth G. Lte^■?a-t, Chai'les B. Stff.-'ort, nd^'ar L. Ste-v'-.rt, Miner ?. bte:'^xt, was received indirectly in trust froa Ale:: Etev/art and l^elon'^-:: to tl:a u?id Ale:: £te 'art. "And YiTneroas, it is understood ■bet^■/een tliD parties hereto that all prcrpcrty, both real, perco:£.l -.nd ni-;ed, held aix. possessed by Barr I • StGv/art, Elizabeth 0. :.te'-£j.-t, Charles L. Lte :art, W.:^ci-' L. Stevrait, i:i3::s: P. 5te/ai't, at the tii.ie c£l tls death of said ;J.a:: Lte.^art, should he not survive theu shall vast in sc-id parties in fee caid bocouie their property absolute, char^^-ed only ./itli tlie aaintenance of Iiai~ia C. Ste-'ait, "Am'- ^/liareas, it is understood bet»een the parties hereto that all of saic- property-, both real, personal and. ni::ed,, nov held 3m\ possessed by tlie said 3arri'. Ste./art, IClisabeth G. £te'vart, Cljarles B. £te^/ait, IJdc-r L. htr'-jrty Kiiior x^. LtewcC't, crii'- t.o be hereafter caused to be con- V3yed to them bj^ the said Ale.: Ote'/art, and held aid possessed in ti-ust fOx hin, sIijJLl bo ai all tiiiies i."TX-^ tLa life of said Ale;-: Lte-,;art under ■lis control and Cdrection, and tlie said parties herein iiaaed holding- said possesiion the saioe shall co:ive3' aiiL dispose of tls saije uif-er the oidsr aiid direction of the So.id .Ue.: f:ta--:.rt, end to ai" p.rty or parties n.-nad b- hin. 192. "And ^ihereac, Ilaria G. btev'/art, vile of Ale:: Ste\/,.rt is not nov; of sound and disi^JOEin^ mind z.ixi neraory, aid i& being' cared for an;'- looVred after by the said Alex Stewart, it is undGrstood tliat El".ould slie survive Ale;: Stewart, t'li^iA, all of tie property, botli real, porEonal and ni::ed, heretofore and hereafter caused to be conveyed snd transferred to BaiT S'» Stev/art, Elizabeth C. Stewart, Charles B. Stewart, Edgar L. Stev/s.rt, Kinei y. Stew?rt, sloall be and remain a trust fnndid in their hands for tlE maintenance aixL siroport of the said liar ia G. Stev/. rt so long as the lives. ITow Therefore, It is underctood snd a^'^^eed by Siid betv;ecn Ale.: Stev- axt, as party of the first part, and Barr t. Sto..'art, Elizabeth C. Stev/- art, Edgar L. Stewart, Miner F. Stev;crt, as parties of the second part, "V/itnesseth: '2hat first party, being in fret ovcaer of all the prqp- erty, both real ard pergonal novr held and possessed by second parties in both ti:e. states of V/ashington and Florida in tiust for first party, £n.d tlie second parties, are to hereafter hold a'iX'. lossess othar property, both real, personal ani mi::ed, coijveyed and transfen-ed t o them in trust for : first, party. All of said propertjr is helf- anc". possecsedand to be held aiX- poEsesced by seconij. parties, su.bject at all times to the control and disposition of first party during his life tine, ^nd in order that first party do have control aid disposition of said property, secoi:d parties agree to convey an.d transfer said property at any tine to whomsoever di- rected by first party aad pay tlie proceeds thereof to first party. "The sole and only purpose of t'.iis agreement is to .«Becure the main- tenance and support of first larty and hie invd id and derrented wife in coafort; and plenty so long as each of them sliall live, that is, furnish them a good home vath all the comforts of life and pro:,.er care in tlieir declining years: after vhich it is tl^.e desire of first partjr that the re- mainder thereof siall go to cccond partiac as tlieir possession ard the records shc.ll tl'jsa. show. "It is expressly understood that all of the parties hereto in the execution c£ this agreen-snt fully assent aitl agree to ^11 of the terms of this agreement as .'611 as all the facts herein recited in relation there- to and tiiat the sssr& is bi;:f-ing both severally and jointly." V.'e have italicized portions of the instrui-nent to give prominence to to Its daninant purpose, -ifter setting out this instrruaent, the con^-laint alleges that Ale:;c-nd6r Steuart died in fho state of Florida, in Sie month of novenber, 1S12; "tliat under zxic. by virtue of said as?:eemant hereinbe- fore specifically ret oiTt, said parties of th^ secoix. x-£.i"t, being the plaintiffs herein, becarae tlze o.-'Hers Of, aid. under cjic\ by virtue of said c^-reemcnt ard. in lurtuance thereof, sai d /JLe:.: Stewart transferred tto them under said agreement," dui-ing his liie time, tie folio- ;ing described _.i-o. - arty, to wit:-' ffliis is follo^/ed by a description of the notes and cer- tificates of deposit aud by a statement of oIe a-aount of monay in res;, ond- eat bank, it is further alleged Giat, inJsnusry, 1910, Ale.:anif.er ^'.te-.-j.rt •iflade a last -v/ill arte:- tect-mout, setting it forth in h^-ec voiba; tli't in March, 1913, tlie Eu.-orior court ox '■'hitmai: oounty entoi-ed ai oreter, cd- mitting the ..ill ard testsj.ient to probate and e^^ointing the res ondent Sh6i-m£.n al..n.nistrator of the estate vlw-- t:ie vdll cjine::ed; that he 193. qiaalifiQcl and is acting as aucli adrainic trator ,• tlx,t he filed a verifier. iuvGUtoi-y embracing the i)roreity iu contro-crsy^ in v.c-^ich he ro:,Ji'eseats that it v/as tie coranunity prOj.Jcrty of his iatostate and his survivin3 -,/ido'./ Ilaria C. StG\vart,,and tloat lie represontcd it v^as all the :2^0jQxt" Tael online; to the estate that liad "coi-ae to his imov/ledse or i^oesceeIou." It is furtJicr allosed that Cic r-esi-ondonts lia.vc posscEGiou of the proi>- crty Eou^at to ho rocovei-ed,, that fiiey liavo liad srch poEscssion •'since ■before thj death of said Alcsiander Stevort,'' and that they laave refused upon doiaand to deliver it to the appellants . V'e thinl: tiie demurrer v-'as propci'ly sustained. It r/ill "be observed tho a^jreei^ont recites that liio property belongs to Ale::ander Stcv/art: that all property viiich ho slx)tild transfer to the apiellants "before his death aJf- -./hich is "held and possessed ' hy them 'at the tine of the death of tjio said AleL-:aiiler Lte\/art, '• e1x)uM he not survive them, sl-iall vest in Giem in fee, char,G;cd v.lth t!^o raintcnancc of his demented wife. It further recites tliat \,'hatovcr pioperty is ''licld and possocsod hy than" is "in trUEt for- him ' and under his dii-cction and control dui-in^ his life tiitxi, End that cujh pr'aperty, should his vaf e smvivo him, sliall be and remain a trvst fund lor her naintcnance and support. It reiterates that the deceased is ''in fact ovrner of all the property'' theretofore tranc- f erred to the appellants or thereafter to be transferred to liiem, to be hold anc!. possossod by tlx^m ''in ti-ict for first party,'' mcanins tiao de- ceased; that it shJDulc. be hold by them subject to hie control and dis- position, and that iliey -.touIc convoy to T^iomso-ver he directed "and pay ttio proceeds thoroof to fii-st party." 2ic. contract slio'/s tiat the de- ceased Was a rjariicd raan at the time of tlio 6xocution of the instrument, and that his xrifo v/as then non compos mentis, The prosujT©tion is that Z\o property vas community property. To state a cause of action, it i/as incuiiibent upon the appellsnts to ?.lle^ tliat the propeorty involved %as tlie separate property of tlie deceased. In re Desclxamps' Estate, 77 \iash. 514, 1D7 Pac. 1009. Our statute, Rem. Cc Bal. Code, Sec. 5915 (P. C. 95 Sec 25) provides that property and pe- QTccaisxy ri^-hts avned by th^ hi^sband before i-ngj i i s^e 2nd that acruired by him afteravards by Gift, bequest, devise, or descent, :ith the rents, issues and profits tlereof , sliall be hie sepaa^ate property, and tl^t he may raanase, lease, sell, convex^, encumber, or devise b^r -.vill such prop- erty v.'itlaout the co-operation of his wife. Section 5916 (I- C. 95 Sec. 9) provides that property ovnied or acquired by the wife in the same '-'ay sliall be her separate property, <:aid tjiat tie sl'all have a lite independ- ent power of disposition of it. Section 5917 (P. C. 95 Sec. 27) provides: "Property, not acquired or owned as prescribed in the next tv/o pre- ccdin;:; sections, acquired after marriai-e by eithsi- husband or wife, or both, is community propertj^. Bie husband shall liave the raana:;ei.-Bnt and control of CQ-.wxxnlt-j personal property, v,ltli a lilce po^7er of disposition as he has of his separate personal property, except ha shall not devise b" will more than one -half thereof." Section 5519 (P„ C. 95 Sec. 41-1) provides that a husband and wife may enter into a joint aiTeemfint coixernin:; the status or disposition of an^' portion of tiE comnunity pi*operty tJien a\.Biod ar thereafter acquired by them, "to talE effect upon &.e deat'n of either.' Section 1C42 (P ■ C. 409 Sec. 639) provides tliat, upon tha death of either husband or wife, one-half of tlie community property shall 30 to the survivor subject to e» r- ^,,,.<^^^^ '2-e is foihidden <^ to devise by will more than one-lialf thereof. He sou^-ht by the instru- fiert under review tOhQld the equitable title to the property during' his life time v/itii full po\^r of disposition, aicl to dispose of the fee and subject it to another trust after his death, in violation of the spirit of our law. BallinG;er, Comi-.-iunity Property., Sec. 78. The appellants rely on Gae case of Lines v. Lines, 142 Pa. St. 149, 21 Atl. 809, 24 Am. St, 467. This case proceeds upon the theor;:,'- that, in tlie state of Pennsylvania, the v,-ife has no interest in the personal p-joperty of tha conmunity. It is said "he (the hus-batxl ) may even besj,ax himself and his family if he chooses to commit sich an act of folly."' Our law is more just and humane. KcSay, Community Property, Sec. 514. As ar::;ued b3'- the respondents, the purpose of Sec. 5917 is to s^i'ro the management ar£. control of the community personal property to the husband for the pvtrpose of facilitating the business of this coinnunity. He can neither beggar hit family nor use the community personal property to grat- ify a caprice to thv/art the law, or for his o\,n personal aggrandisement. She judgrrent is af finned. ^::^ y<> y^ i )<_ W Crov/, c. J., Ellis, riain, and Chadwiok, JJ. , concur." ''^J y^ >L/^ 1^/-: '^l .i/'./f ^,-',yt. ■\^,'^ •n./tA'*^ I r^/--^^- I./ ^L^y^ A 1S5. J. L. STUEBLZFilHD, Appellant, v. J.MvIEE McAULIFi' et al., Respoiidents, (20 Uash 442, less) A^'jeal froi.i Superior Court, ualla 'Valla County. Hon. dUioraas H. Br era t s , Jud^-e . Af f i r raed . Hie opinion ol tho court ^'as delivered by Reavis, J. — Action by appellant to recov er ju dj;^gu.t .ajiai/is t res:^-ond- ent Jssnoi. licAuliff on t'-o prorniscpi^rapteE. e::eQute_d "by^nim, and to fore- clOL^ thrDo .10. t;;ajcr. e.;ocr.ted to EGC-oi'e tlie notes. 1!he notes were re- spectively e.--ocuted payable to the order of iBster ti-^Boy-er,,, £.:ii. transferred ■Jy'tl-.ern to a.-^ollant. fflae principal morts^se, Lecurinc one note, v;as e::ecutecl by J:j.vr^'l'[Glinllxf and Ms fnan -/ifo, Isabella IIcAuliff, snd the real ^^■ro^^erty incluc.ed in the mort^-ase v;as ti:e coi.¥nunity estate of IIcAul- iff anf. v/ife. 2ie v/ife, Isabella IIcAuliff, died intestate on Septeinber 1, 1889, and no adininistration hzx been had upon her estate. 2he respond- ents, James, Pr^jnlc and 'ViHiara McAuliff and Anna Glo-/e, are the children of Ssraes IIcAuliff and \7ife Isabella, deceased. J'anes IIcAuliff made var- ioxis payi7ientc on tiae note more tli<;;a si:; years after its maturity, oome of these payiTients v/ere roade ■■hile his vd f e v/cs living;, and oEierc after ' .^ her death. 'Pnere is bo contention tl-^t Isabella ItoAulif f authorized &1Y of tl:e payments made after the ric.tu-.ity of tl-js note. Tho res^jondents, children of Jaines and Ssabella ItoAuliff , ans-.-'erod the co .-.plaint, claiming a;- the heirs c£. Isabella IIcAuliff, deceased, ai undivided one-half in- terest in the real property described in the aort^ase, free from tl-.e lien of the mortga^-e, a.xf. set up tloe statute of limitations a^'ains t the note and mortgacje. Uijon the issues so niade bet^/een ap^-ellamt and the heirs of Isabella I^lcAuliff, the cause .-roceeded to a finsl decree in April, 1697. ^e superior court adjudged the heirs of Isabella IIcAuliff the o-.aiers of the undivided one-half interest in the comraimity estate wliich had been raortgajed, raid sustainee the plea of tlie statute of limitations. The important question presented here is upon the stctute of linit- ations of this state. Sec. 4817, Bal. Code (2 Hill»s Code, Sec. lo2), v;hieii i*eads: "TrJhen any payment of principal or interest has been or shall be mad.e upon apy existing contract, \h.ether it be a bill of exchange, pro.mssor;^ note, bond, or other evidence of indebtedness, if such ^aj'ment be made after too same shcJLl liave become due, tls limitation shall commence from the time the last pajrment "./as made." Upon the note executed by James IIcAuliff in 1880 and secured by tne mortgage executed by himself a-jc". ^if e, Isabella JIcAuliff , payments had been made by isnez licAuliff at sucli intorvals, both during the life time of Isabella McAuliff 32xc after her death, tha.t the full period of six years did not elai^se betv/een the accruing of tlB cause of action and the first payr.ient, or bet"/een any t'/o payments.; and a^.ellant maintaiins that 9 . \ 196, such paynsnts x^revent the hsa- of the statute in favor of Isaibella IIcAuliff and her heirs. Resjjondentc, the heirc, maintain that, •. 1 ith out the e::press authority of Ssabella, IIcAuliff, the :,;ayi-iients niade hy Jsffjes IIcAuliff coulc. not inure against thsm. She rule enunciated by the later cases is tloat part iJayment by one person, boii^s equivalent to a ne-'v contract based upon an old consideration upon which a cause of action accrues at the tii^e of the x-ayment, binds only the person raalcin^- the pajmimt, or one v/hom he lias authority to bind by a new contract to pay tlie b lance. The position of the IIcAuliff heirs is fairly stated in Banlc of Albion v. Burns, 46 U.Y. 170, as follows: "The property of the\vife having- been mor traced to secure the debt of her husband,' slie occupied tlie position of a suretjr, ^ath alL the ri,:;;iits, ISG'al ;nd equitable, incident to tliat telation: and the defendants having' succeeded, by inliei-itaiice, to the estate and interest of their mother, occupy the sanie position, aii?. are entitled to every defense ^;hich could have availed to the original mort^asor had she lived The v/ife, aiid. those clain-iin:^' under her, are entitled to the benefit of th& rtxles pro- hibiting all dealings of tlia creditor with ttxe principal debtor to ^~q prejud-ice of the surety," Also the principle is discussed in ilcColl-.lin v. Bou^liton, 152 Ho. 601 (34 L. \'!. 460); Wilmer v. Gaither, 68 15d. 542 (12 Atl. 6); lord v. Morris, 18 Gal. 482; Crattan v. \;iG;-;ins, 25 Cal. 16, •She distinction v.hich ^.'as the 'feasis of -aio decision in Cross v. Allen, supra, bet\;een paymait made before and. -aifter the bar of the statute has attached, is , as obser'ved in V/illoioghby v. Irish, 35 Minn. 65 (27 H. '■■!» 379, 59 .'>jn, Rep» 297), founded upon no principle, Aut'-Ority to inake the new contract, or authority to e;:tend or revive the liability, is essential to its validity, and it is just as unreasonable to assume it in fhe one ca:i.e as in tlie other; and tJie distinction has been e::presslj'' repiidiated by a lar^'e nuxiber of the courts. It is clear tloat, under the section of our statute req^uirins a ne'./ promise to be in \.'ritin:j in order to revive or continue the obligstion, one of tA7o codebtors could not make such progiiGe for the other \.lthout eiQress authority, vhether the ac'aiowledsrnent or promise vas made before or after the statutory bar had attached; and it is equally axvarent, uon vrinci:^-le, that the same rule controls in payments upon ail e.:isting oblij;ation. The superior court's construction of the statute of limitation is, therefoie, a^-^roved. Otlier minor objections to tlie jud3,ment have been e;c- amined, but we ia not deam then sufficient to warrant a aodification of Gie judgnent or reversal of the cause, and tlie juc-^ment is, therefore, affirmed. ■ f-o N— \^_a_j<- ^ Scott, C. J., and Dunbar, Andei s and C-ordon,JJ., concur, i 197. H. L. TIB3AI£, SP.., A^Ji-iellaat, v. Johii Iff laud, Respondent. (10 V/ach. 451, 1895) Aiveal from Su'^^orior Court, Jefferson County. The opinion of tlio coiirt v/as delivered by .^iHderi, J. - -On June 15, 1869, the ap^ ^ellant, ty an instriiiiient in v^rittns, duly e-iecuted, leatec to one Herinaa ?rc„.)eur a certain store room in tlie city of iort Z'ownsend f or~'0Te~pori^d^of~ftve~7©ars~ffbni tl^ fir^t day^of^Ilr.xek^ 1890^ for the sun of one hundred dollars peTlnonth, payatlo inadvance on "the first day of each and every month, ••.hich sun the said _^apeur a^-reed to pay in accordsoice with the terns of said lease.. Gai Api'il 6, 1390, the said lessee assi:;ned dl his ri^lit, title and interes_t in^ aad to said loa&e to one ".".littlese^, -.jiio on October 22, 1891, assisned the ^ane to the respondent. Iff land. 'Hie respondoiil, about the first day 'of ITovemb'jr, l&Cl, wout into poscession of the preiniE.es, 2nd paid the rent to appell;n.t, according to the ^/rovisions of the lease, for tZaree raonths thereafter, and then failed :nd refused to mal:e furtlier pay.tieiits. This action (ori^inall;'- Uro actiSis, which -./ere consolidated anfi- tried as- one)7~was instituted to^ recover the rent alleged to be du.e for si;: successive "months, be3inning_wi th l;iarch, 1892. 'The respondent set up as defenses to the action, (1) that_o"^ *^^ 1^^-- day of January, 18927Tie,""by ah instrument of -.vritin^- duly aciaiov;l eddied, assigned, for value, all Tiis riGiht^ title aiac. interest in 2nd to the lea&e "allSjed in the coniplaint" and'the premises therein described, to one Jol^n B^aett_, aa;. si^rrendered the possession of acid _premis es to said Barnett" and put him in possession of the sai-ne; and (2) an adjudication in his favor in a justice court in an action for the rent for the month of Feb'- ruary, 1892.- Most,- if- not all, of tlie testimony offered as to this latter defense v?as rejected by Uie court, and the case ^'ent to the jury upon the questions ra ised by tlie f irst affirmative defense pl2adec!i"and~;there was a verdict eJxL j^xC.^asilt~foV flae defendant. Yfliile tlie statute provides {(ie-a, Stat., Sec. 199) that the county auditor shall, upon the i^-ayment of his feec therefor, record leases v/liich have been aclmov.ledjed or proved, no provision is made for recording assio'i^ments of those instruments, 2nd therefore a failure to record tlien vdll not alone render them invalid.. Leases of real estate for more tlian one yeai , bsinj incui-ibrauces upon fce property demised, must, under oui statutes, be created by deed aix'. with tie usual formalities of deeds. But tlie interest conferred by a lease for a terra of years, whether for a lon^ or sliort ^-eriod, is only a chattel interest (1 V.'ood, Landlord ancL Tenant, (2d ed. ) , pp. 145, 149; Gear, Landlord end Tenant, Sec. 2), and is ^saerally subject to Kie la-: pertaininj to chattels. In tliis case, the lease ^'as transferred by the respondent, as we have said, by a -a-ittan iustiument \.hich \-o.i si;:;ned, vatnessed and ac«t lcnov/led3:ed, and ■•as tlierefore valid even upon the theory contended for by appella:it, tliat such acsiG;nnents c:n only be effectually made by deed.. 198. Tlie first iUGtructiou :;ivGn by the court to tliG jury, -liich is cl^i;n- ed by aiJj.Jellmt to bo orronsou:;, is -s follov:E: •"'5. In Siiis case I in^ctruct you tliat the defendc-iit H'flaiic. had a le.-.l'ul risht to a ^s & i Jn' thT~l o as o of t lis, Jj ui Id la:, ,_ fo r uiich the pljiin tiff claims^rent, tCThothsi- 'S^eTzoi-i. for ttie x)ur2P-Be..of_,ri^dxiiS hi;:£eif of liabiirty" to^'jc^;; "rsimo'^Iilaiutiff ^l^nd if you believe frora-Boe^av if jsnc 9 / that "'t:ae defe^c[aiit"^a£ sighed all his interect in the lease on -.tAcli :jjlaiii- tiff c i ?i;.i s rentj^ei' or e~t"he f i r s fiiay " of l.Iarch, 1G92, cad sujr.'endered 'PoasocLJjjii of theJ buildinG in rueotion to Jo>ji Barnett, thsn you must fivL foi t>£ defendaiit.'"' \ !i?hiG instruction is "sub ct -anti ally in accord •'.j th the authoriti es. ?J^ ai._-ellant*ir objection ic iiot •ell t^Icen. 1 "Vood, Landlord end Tencnt, _.'. 749.; 1 Vashb.u.-n, Seal xro: eity {5th ed. ) , 525; Jol-jnsoii v. Ehenncn, 15 Gal 287 (75 I'ja, Dec. 461); Ghilds v. Clarh, 3 Barb Ch. 52 (49 Am. Dec. 164): xrabue v. IIcAdaac., 8 Such, 74; Duiand v. 3urtis, 57 IT. Y. 7; Ssiiders v. ifejrtridse, 108 liass. 556. Hor -^/ar it. error to -^ive instruction Fo. 6, --..hich it in the following' "w/ordc: ■'You are inctractad that if you find iro..-; tlie evidc;nce tr.at i-s de- fcnc'uint as£.i;jned the lease on '.vhich rent is claLnedbefore tlie fiist day of liarch, 1692, and surrendered .os-ession of tl-.9 i^i eniset- to John Barnett, then you nuct find for the defendait, althou^'a yon fiiic'. that plaintiff hcd no notice of such a&E.i^nnent.'' Appellant contends that -..Ithout notice tQie s.iiCi~;iar.ient was ineffectucl as to him. But the authorities ap.-ear to be the other r,'ay. Sie la'-v appli-- Cable to this, as well as the precediu:^ instruction, is stated by '.7ood in his valuable treatise on Landlord and Tenai'it, supra, in tliesc -/ords: =*Tlie asoi.^nee mas'' ^'i'"- hiijself of all liability to the lessor for rent, aiid tlie covoncnts in the orio-inal l32.ce, by re-as-sicnin,:. the lease to any person. He may do this Ithout jiving* notice to fire lessor, or obtaining Ms leave; and, not\<'ithEtandir!G; a covenant in the oriG'inal lease tha t the lessee, his e:;ecator& or adiHinistrators, shovad not j.ssijn .athout the license of t!:ie lessor* IThere is no fr2.ud in the asEi:inee of a lease re- assi^-nins ]iis interest -with a viev; to jettin:^- rid of the lease; hence he laay re-assi^n it to a beSo^r, or a vjarried v/onian, or a person leaving the Idn^'dom for the express purpose of relisvii:!^ hinself of liability uraT.er tire covenants. It is not even necesscj'j' thst the person to 'hora the re- assi^ir-ient is rnade should tahe possession of the irenises, or assent to tlie lease. In one casfe it v«.s held tirat c re-assiga^ent of a lease raight be la\vri'ully made to a prisoner in a Fleet, .''no '.'as :i.-aid a, sum of money to accept of the assio^raent." And to tire sane effect are the otI-:er authorities above cited. Ere renainin,; .ins tr-..ict ions, the ::;x7rjir; of ".hich is assigned as error, are the folloviix;: 199. "7. The court inctrrcts you tl-iat iu tliic case it nalass ao c'j.fier- euce viaietliG" I'li. If Hand \cs a inc-rried mrm or an unmarried man at any of tiio times mentioned in Gie toctimony, aiid you 'vill therefore disrejai'd all testimony as to vtether he was a nai'ried man cr not. "8. Tlie court inEtrix.tG the jury, tOiat tlie testimony offered to slio-iV dilijj-encc on the part of defendant in produciaa; \/ritten evidence of the assi.'^imont j.n min:.t;3nn In t3-iis case, xfs.s dii-ccted to the coua-t and is not lor your consideration.'' The latter of tlicse instrajtions tut states a familiar rule of evi- dence, aix". the oljjoction to the fo^ner ic v/holly uiitonable. If the re- spond ent vra,E a married man_he liad the cane ri^iit to assign and trangj'sy the leasii tliat htJ I'lad'^tb dJsposo of chattels generally, v/ithout the coii- ~s^t~i3f-iilTn7ife-(-Ge3rrl'^sndlord and Itenant, Sec. 183), and if he vas un- .^^^ried— he -ceulft, of course, maJTO avch disposition of it as he sav/ fi^. It v;aE"T;herefore inraaterial \/hethGr he vas married or not, so far as the ri^lit to malvs the asEij,maent v/as corcerned. Hiere are soi.s other points iaised in appellant's brief, but as -/e do not deem them tenable v;e v/ill not no\7 stop to discuss them. ■«-\.c\ T =A- ^^^^i^^2^ ^r IKie judgsent is affirmed. T~~*^ *'"^ "^ Bunbar, C. J., and Stiles and Hoyt, JJ., concur. ~^ ...J^ J#C<5-p r ' -^~' • ,a^ — - 200. AKDRET; H. SI&.Y, Rcc-pondent, v. EAR.Ui L. SmY, Appc-llant. (59 V/ash. 651, 110 p. 549). Api-eaJ^Jroni a. jydsn:eat._pf_th.e superior covart for 7dn[^ county. Prater, J., entered Jar.uar^' 26, 1910, upon tie pleadiu^-c, in a contcEt over the proceeds of sn award in condemnation proceedin5;s. Affirmed. ~ Crow, J. — The city of Seattle comraenccd this action in the superior coui-t of Zins county; 'to'CTDadeiaa,- for street purposes, certain real ect&to, as^the coranunity proper tjr of Andrew H. Stay and Sarali L. Stay, hie wixL-. !IIhe jury awarded v3,500 dana:;es for the property taken, and judgment was entered asainst' Qie city on July 15, 1908. for that sum. Sarah L. Stay, then livll^ separate and apart from her husband, and claimins a community interest in the judgment , filed in the condemnation action a notice to the cleric of the superior court directing' hin not to permit a satisfac- tion of tlE judgment "by her husTjand^ On OctoTjer 50, 1909, Anirev; H. Stay, "bein^: unable to collect or satisfy the judcment, filed against his v/ife"^ Sarah L. Stay in the conderaaation action, Ziis petition in interpleader; in \hich he allejed the condemnation, the appearaiEe of the conmunity'lDy attorneys employed by hixa, tho award ard jud^gment for damages, the filing of the notice by Sarali L. Stay; tliat a special assessment or ';G50 had'' been levied by tho city against" tho portion of tteir property not tairen; that the award v^as needed by him to satisfy such assessment and to pay ojQior__indebtedness ; ana further alleged: "That prior to the rendition of said judgr.-ent the respondent Sarah JL^Etay commenced an action aR'ai ng t tliis respondent in the E^^perior couit of Kiii,'j countyT'^^ashington, for a divorce^ being cause JTo. '56,911, and that upon the trial of said catise a decree of divorce^vvas on the 6th daL-' of April, 1908, denied on the merits; that after the rendition of §aid judgment in this cause said respondent Sarah L4 Stay again commenced an action in the Superior Court of King county, V/ashington, for a divorce on the sar^ grounds as in l:xir first suit, ohd. in said suit restrained the collection of said- judgTiTsnt, being cause ITo. 61,966 in said court; that in said cause judgment v/ac rendered in said cause against the respondent Sarah L. Stay upon the pleadings on Hovember 2, 1908; that said respond- ent gave a supersedeas bond and ^pealed to the supreme court of the State of V/ashington in which court said judgment was af finned.' To tlais petition, Sarah L. ttay, on December 9, 1909, interposed an answer, in -liich, without-denying' aEy^ of its material allegations, she affirmatively alleged that for more than tv;o years she had necessarily and justifiably lived separate and apart from her husband, that she had maintained and supported herself, and that ho intended to collect and ap- propriate the judgment to his o\vn use and e::clude her from its benefits. On these pleadings , jud^nent v/as on motion entered in favor of the hus- band, authorizing him to collect and satisfy the Judgment. The defendant Sarah L. E tay has appealed; ■ ' Appellant, invoicing the doctrine of equitable conversion, contends that, by reason of the involxmtary alienation of the community property y^ /_ J ^ ^ ^^^,^,,,=2^^*-.^*-*^^ ^ 201 in t::e couderiiiiatiou Bi^oceedin^-, tie jf.c'.;jjreut ioi- damasec shoulc. be re- garded ar c onjTiuiaity real pi-opsrty, ciad tl:at she sliould 'bG entitled to have lier ri_:hts to sucli ooixiunity reality- ac.judicatod aiid protected heie- in. '.Ve thinl: the a^/ard of da:ia,j"es for -7^1 ich the jud^uent has "been en- tered should "be re^-arded as persona^, property. Had tli3 city v/ithout autliori t\'', ri^iit, or license seized, trespassed upon, or injured the comiauuity rcsJ.ty, and l:iad tlie husoand and vn.fe prosecuted to judgment, an action for t^re recovery of dsiiacas on accoiint of sny resulting- irgxr;' to the propsrty, or on account of its iiapairinent in value, a jiad^r.-cnt for such c'a-.ir.sos , "Kie:! entered, v,-ould unaoubtodly "bo personal prax^ertrr. Such a j uc'.2):ti.n t coulc. "be collected and satisfied lay the hus^band, v/ho, under section jQ17, Rem, c; 3al. Code, would Tdo entitled to its nian-ar^e- ment and control vath po-.;cr of clionation. '•'ie see no reason vhy tlic ju/.^Tixint in tliis condeinnation proceedinj is not lila>--.,d5e oomaiiunity per- sonal propertT'-. Api-jellant, ho-.,Bver, insists, that as one of the spouses of th-^ e::irt- inj conm'onity, she while living apart frow her hus^bond , is entitled to have her property ri^lits adjudicated and protected, by an order entered in this action. If, as she conteixLs, she is nscessarily and justifiably livin:;- separate and. apart fioa her husband, on accoint of his wrongful acts, it is apparent that sh-e could liave all property rights to •-hich slic is entitled, or the i?atter of I'jsr separate naintsnance deten.iinedj adjudicated rnd settled in an action for divorce; or in one for separate Maintenance. If, as alleged, her husband intended to appropriate the jud^T.Bnt to his Q-.m uae end deprive her of her con-nunity rii,hts therein. she could prevent such ^vrou^ful acts on his part by invohinj; the equitable pov;ers of the court in an. action for divorce or separate maintenance. Eie allegations of her ansv/er, if true, v,-ould, in a propei- action and in the absence of sjjij foiKer adjudicc,tion, entitle lier* to a decree of di- vorce and a proper disposition of the coranunity anc. separate property'-. It appears from tlx; pleadinc's, ho'.vever, that it lias heretofore been ad.- judicated, in an action for divorce instituted by her, that she is not rightfully and necessarily living separate and apart frou her husband, and tliat she is not entitled to a decree of divorce. Kie opinion of this court on the appeal pleaded by her husband is reported in Stay v. Stay^ 53 Uash. 554, 102 Pac. 420. She cannot, in this condemnation proceeding, relieve lieisclf from the effect of auoh foir.er adjudication by formulati^s aixl tendering issues \;hich should be tendered 5n an action for divorce or for separate maintenance, nor can sl-je by any such procedure prevent her husband from e::8rciEing' his legal ri:;it to collect and satisfy- tlie judg- ment herein- Hie jud^j-ient is afi'iraed. \ — o -i^- V^ \ iludhin, G. J., 2arl:sr, anc- llount, JJ,, concur. 202- M3IEL KOCvER v. BAVID J. CHAIIBERS . (3 Wash. Ter. 26 1607. ) Appeal from tlie District Court holding terms at Ol^pia. Second District. Tlie material facts are stated ia tho opinion of the coiirt. lir. Chief Justice Greeaa delivered the opiuioii of the court. Ihis is an api-eal from a final decree of the District Court, render- ed upon overrui'.in^ a dsraiirrer to an affirmative defense to k complaint in equity. SuJ^t \vasJ)ro_ij^ht_to corritiel tho defendant to comply v/ith an alleged 3.:jreo\-shi: i of his to Kic ecute to the plaintiff a lease of a certa^-^n farm. To~tTKr^lTeG'ati ons of the complaint, the defendant, after denials, pleaded, "that the prem;iJ3es descri-oed in plaintiff's coLaplaint are cora- munit;'' property ^^ Tselonsin^ to the defendant and his wife, Elizabeth Chan- bers; that prior to r-iaianj; the lease to plaintiff, and at the time of malring said lease, the plaintiff loie-.v the defendant A/as a married man living vath his \;ife, and that the premises so described -/ore community property.'' To this the defendant deranrrcd. i. Eino;le question is decisive of this demurrer, namely. Is a lease" in this territory an encumbrance upon__ real estate? For if it be such an encumbvance . then tliis case falls ^^5?Ehin the decision in Jacltson v. Eolyolae, Z ?ac. P.ep. 841, and the dis- trict jud^e was ri^^'ht in overruling the demurrer; but if it be not such, tlien the affirmative matter of the ansv/er was no defense, and tl^e judg- ment based upon it is erroneous. In this territory the statute of 32 Hen. VIII., uuif.er which the rights of the remainderman or reversioner to rent pass to his assignee or vendee, is in force as an aiaend.isnt to and part of tlae common la:; of Sngland; but the doctrine t'.iat under the condition of things there a lease is not in general to be consideied aii encu.nbrance is plainly not applicable to affairs in this territory, vhere the condition of things is v;idel-/ different. Tliere land is ^•enerally in large holdings, here in small; there lent is principally sought, here possession; there the value of land is comparatively fi::3d and stable, here it is fluctuating an?, generally and rapidly appreciating; there land is capital, here it is a coiOiTioditj- ; there its uses remain largely the same fran generation to gen- eration, "iiere they are infinitely varied, and changeable v.dth evei-y ne--/ possessor. \7e are therefore of opinion tliat accoid-iiag to the principle contain- ed vri.thin tiTeo'ld "and approved definition of an enciJimbrance, a lease ^^^t-tr«^-deemed— such in fiiis territory'. A similair conclusion as regards a lease iiTSotitla Carolina 'aas reached by the Guprema Court of that state in Grice v. Scarborough, supra, thougli not by the sane line of reasoning. Since, then, a lease is to "be regarded as an encumbrance, a contract 303- "by a married man to mako a lease of coiiintviiit;'- re?.l estate, ',/ithout his wife joinc iu the mauner pi-escrited "by Esctioii 2410 of our Cods, is clsarlj'' in contravention of tliG prohibition on the huc'baiu'. contained i:- tliat section, anxL_j.t__iollO'ii that the case "be-roie the coux-t is •./ithin wie decision of Jaclzs on v. Kolyolte, siipra. Let tl:e jtid3r,eat of the District Court "be e.ffiraed. Turner, J., sx£. Lan^ford, J,, concurred. ^ ^ ^. ^6v^ -^ ^^-^^i^iIZ^ -«*-' \ 204. ALILCUTDBF. ILMC&, SMIUEL ISAACS Al© l1 their ans3ver_£,ili3:,^dr that t^^ plrinti-rfn v,-m-p> v->p -.■■;-; ^r* ■■-^•^, aid set uE__fe;ie ^- ^ecessai y facts t o vho\: iii;.t_the property lec-sed v;-.e at all the times specified coniinunity property of the plain tiffs j_ezid their said •■•ives, czicl alleged that said purported lease 'i^as void 'Decause tlie same lizA not hoen- e::©cuted by fh© T/ives of olie plaint if f s . Appellaucc contend tlift bj" res.^on of tlie premises stated no action coulc7"^'niainti^inecl on Xiisr lea^e, slid cite Hoover v. Charibers, 3 'Tash. 2 UG^tl^'^acTIlGp". 217)7 £^iiHolyoi:o v. .Taclrson, 5 Uash, 1'. 255 (13 P?.c.Ilep. 041), in support of their pordtion. ".hile pocsiblg' there may "be some- thing sc.id in t>^ opiniono rendered in those cases which would in a mea- sure justify tliii. contciition, 3'3t the facts here are so essentially dif- ferent fro„i the facts in ei iiaer of thot-e cases that we do not regard them as applicable. In the first case sv.it "/as brou;Jit to compel the husband to e:;3cut6 a le-rso of C0ui:u;.iit:" lands in coroplisiice 'vitii zn asreement made by I. in. 'ZiQ .■lie was not a p.^rty to the a:<;ree/ii3nt, and tiie court refused to compel t-e e::ecutiou of the lease on Zie ground that the hus- band had no po-./cr to lea.se co;;^.iunity lands, Eie lact case v.'as an action bro'.ijht to co..ip9l the specific perfor..irnce of a contract enternd into by the husband to bell ccuv/oaity real est: to oi for driiia^ss. It vra.s sub- secpaently rebolved into an action for djiaajes only. Z'lC defence :.et up was tliat the contract was -.nade './ithout tlte IcnovledS'e cuid ajaiiist the vill of the\.lfe, s;?.d that she refused to join in the sale. The plaintiff knev; of the aarriai'e ^el-.tion, aiid that tlie \/ife liad not cons m ted to the sals, and that it v;aE caa.iunity property. 'Ihe money which l-iad been paid was tendered back ^.ith interest, end it v/as decided tlict the plaintiff was not enti tied to the i elief demanded. ..... -.-T -I • I . ■■ ■ ■ J '■ ■■XI :-,r 205. In Gie case at bar the wivet. of the plaintiffs have at no time appeared upon tiiG soeiae, nor did they in aijr manner interfere v/ith the defendantc* use cud enjoyment of the property. Tlie lease contained the follovans covenant: "AM the said parties of the first part covenant tliat the said par-"!, ties of the second part, on paying the said raonthily rent, and perfomin^ the covenants aforesaid, shaJ.l and may peaceably and quietly have, hold and enjoy the said demised preniises for tlie term aforesaid." Wliile the husbr.ndc could not e::ecute a valid leace of community lands, we do not th?.nl: this rear-e was absolutely void. If the defendants had been ousted v/e see no sood. reason vdiy t>£y could not have maintained an action for doma:^e£i u:,;ou the breach of the covenant for quiet enjoyment. It does not appocr tliat thq/ imov/ the plaintiff -were garried aen, or laew the property v/ao conKvonity property when the lease was er.ecuted, so tliat it TTOuld be contended they stood in the position of :;illful violators of the lav;. ^"/e a re satis fi siied, the_def a:x".a:it>:^co:^d not avoid the pirf on.x-nce of t he teras of this lease upon their payt without first demandiiij a vali d lease fro.,! th e pl.^i ntiffs ^ ,md it co'es "not appear thot they ei..\ t:-i£ . ■'^e are also of the opinion that where a husbsix'- e::eci'ted a leasee of co:s- m-jnity lands, t:iereb3r Luidertalcino to e:,ercise a po-'er that the la.' does not vest in him, end in violation of the la"', tlie tenant •.ho has talten the lease not id for more or less time thereafter it nay ".;ell be a. source of e:::^:e;-se rather tha:. profit, a_x. the profit o;.ly be derived after co:.ti:.ui:^ therei:. a sufficiei.t le .^th of time to becor::e Is ov.i: a:-d established. The co:-.tiL.ua:-ce i:- oi.e locatio;. \TOuld ordi:-.£xily be a- importii.t factor ii. arrivi-:^- at this result, a:-d certai.-ly or.e vaio has leased premises u;-.d.er such circui:ista:-ces for a loi^; period of time, :.ot Ic.owi:-' the facts so ths.t he hLrxelf -..Duld stii'xL i:. the position, ^f a wi-oiis doer, should not be cor.-pelled to co::ti:.ue there- i:. a:;d lay out money at his peril or at a loss with the prospect of h-av- inS his business sacrificed after ectablidii:^ it at the a-.:pe:.£e of time a:"id money, by bei:.:G>' ejected from Gae premises by the avi^rs, or tliat after a demai.d for a valid lease a:.d refusal to Give one, thc't he should, be compelled to remain in possescio:. until notified to suit or procesdi:<^"s should be instituted to eject hin# A;i estoppel mi^ht arise against the '■•ives upon learn.in^ the facts ui.less they in due time made some eifoit to obtaiv. possession, but the tenant should not be compelled to wait for this to dovolOj;^. If. however, tlie tenant toiovdn^ the facts sliould con- 206 tinue to occupy ths premises he could :iot set up the invalidity of the lease as "a d^feTis'e to airac tTcn for the recovery of the rent stipulated, "a-A this b ri::i?s us J lO— the-cn-sl(f.eratio:: of a further question in.volved "ii; the determinatior. of this ca^e, CEhe jud3ne;.t is reversed, ei.d the cause remaixLed for further proceed- 1:15s, A:xLer£i, C. J,, a:id Du::bar, J., concur. \: ^ 207, JCfllT E. KTJtt-HRTJS, .RonpoLde-t, v. lilSWJS S0R"1^3'Jil et ale, Appella;itE. (35 Wash 553,1903) Appeal from a juclr^meiit of the superior court for Spok2.;ie cou;;ty, Pratier, J., eitemd Llarch 29, 1902, upo.i fii:di:-5s made b^r the court iii favor of (lQfeix.a.-.:t£ axto.- a:iRnh3T-c'ii^ the jUiyjJLis/.iiELi-..^- a., actio:- to recover the possession of resl estate a; id to cuiet title. Reversed. Per Curia.n.--5his action v/ac iDe.'^u:. iu the Eupei-ior court of Spolca:.'? County by recpoi-dsi.t Joh: E, Eu'iiphries against appellai-ts r.aEi.iuE Sorenso-.i -Ai^tar-M.— So^errs^ir^ his-^fe, Ililton Shbwalter, azid Abbie Eho-.valtev, his •.vife. 51ie~re£j?o:Ld3nt_r_^his coiTijpIaL-t alleges, that he is the ov;i^er in fee simple of g 3i tlxriands, in t/ie above count j'; that _in uie rnontli of Deoeniboi^^l&fST— pp^llarit -g-It&srnus aiid A;r-a M> Sorenson ■;ro32f'^''-lly a^-^^- u:ila\vfully entered into fclie possescion of such, real property, ai'-d ha^/e, eve r since that~ frin!ey erolier by d'emselves or ^oy sppella:itE Milto^. Cho*:* waiter and Abbie Sho-valter, been in^^io possession thereof; th?t eiae Lho- 'r-alters are" in the encf:u£i.ve possession of such property;-, claiming to"~liOld th3 same under "ar 057. tree t of purchase mth the Sora^isons. Her,po::dent dr- mxided jud^-meiit 'f br'pcssGssio:i,__dai;iagsc for vvrori^ful det"eii.tion, that his. title in s ich lands be caiieted as asair.st iJ.1 claims of aFpellaiits there- in, that he recover costs, 3..d have all otlier ziA further relisf- Appe 13 aj-;t s , by their amended aiisvirer, den-jr i^espon.ds: .t*s ownership a;-n r^3ht of pOEser-sian to the premises in question, the \»-roi^'ful entry £-d wit:i}ioldin27~a:^Td-'tli3 claijTi for daa^ses; a.d adait the possessio:- of the ~Shc\/alters~unds? "a>,o;itraot of purchase v/i th the Sorensons. I.t v/as lur- tlier alleged"i:i~tiris^ancv;er, that on the 19th- day of Au^'ust, 18SE, Catherine L, Loree, then bei:i3 the avner in fee of said la:ids, mort^a^ed tha same to J„ IL Gri..S!;ead; that on the iOth day of Q:'to"oer, 1892, she coiiveyed the land in question- to D. J, .Lee; that such mort^ase ^/as after- wards foreclosed in a eartain actio:: instituted rn the superior court of £polia::a couiity vfiierei:: J^ II. Grinstead was plaintiff a::d Gathori..e Lores, Moses Loree, a::d T.J. Lea v;ere defe:.da:-tc ; that on the 29th das'- of X»e- cwmber, 1896, appellant Hasmus Sore:iEo:. purcliased saicL property at the sheriff's sale o:i such foreclosure proceedi:i2s; tliat slicli sale v;as after- v/ards co::firm6d, szid a deed enecuted to purchaser {Sorev^so::) o:i Iiecember 30, 1897, a::d filed for record in fiie auditor's office of the above cou:--ty ac that date; that he e-nterec. i.i.to pos session uij.der such sale a.-d deed, allesii:^ title in fee by virtue of sixh proceedi-^ss a:-d deed. AppellS^itc prayed th;tt reEpo:xdent take nothi:.^- by tiis action, th?,t appellai-t Rasmus Sore:iEo:i»s title i;: tliis real estate be raieted, \;ith costs ta:ed as^i:-^t responde:it. Respoiide:-t, "bj his reply, deiiies the material alle:iatio:;s of nevv matter alleged i;-. Qu above a:isv;or, a::d alleges, that at all the times mentioned t:-:er3i:i Hoses a:id Catherine Loree nere husba: .d sad; -:ife; tliat the mortgage give:i to Grinstead., ar^ the :.ote tlierei:. mentia-.ed, v/ere signed i.^ tlie name of Gather i:i3 Loree by Koses Loree v;ithout authority; 208. that uo payiae;ios v;ere rnade itpo:! said note; &.'! th2.t rnore tlaa;: si:: yss-xs lisve elai^ced si:.ce the .rrturity ulaereof . Tlie cause ca:ne o:. for trial be- fore the court a-id a Jury, At the co:.clusiO-. of the tectinouy, re£po:x^.G.t mox'ed for a dii'ected veraict i:i his favor. 'Siereupo:; the trial court dis- charged the juiy, aiid recuected respoiideixt's cou;-.&el to '"prepare the find- ings si'.d j-a::jnQ.:t." Mr. V.eGtfali, appc?.la:.tE' co'X-sel, the:, stated in ope;i court: "a:xL we ctu^ have ^.i e.;cG^-tio:. to each, ai-i'', a.'^d every fi::diL^'' Pi;:dii:^s of fact a.d caiclutions of ls^••, •"dth form of jud^ineiit, -/ere pre- pared a;:d served o:. appsllo-its" coo;-£el Harch 28th, 1502. The cohiiio:. soitrco of title to the l?.x. i:. co:.trcn,-ei£;y v/as x:. Moses loree a::d Catli.^ri::e Loree, husb -:d a.-d vdfe. Kis appella^.ts, havever , cor.teixd tl-iat this real ettate never "belor^ed to 'che hus !)£:■/., iDut was ithe separate property of the v/ife (Catl-firi'ie Loree), .'hich ca.tentio:. ./ill Tse considered later on. Fro.i the testimony adduced i:'. the trial court on "be- half of respondent, it appears, t:;i5t on tlie 14th day of iipril, 18S2, SclDin AlDhott aiid vvife, "by warrs^ity deed, conveyc^. thy premises in question for the co-.sicLero.tion of }2,j00, e;5>res£ed i:: liie d.eer. to Ca'a^eri^'.e Loree; tiTat, at uie tine, Ho^es ana" Cat!x-rine Loree -'ere huE"b<.n.d ai.d wife, resid- ents of the state of /ashi:xi'ton; tiaat on £epte;Aer 4, 1694, Clias. K. Kc- Grev; recovered judQne.it for '!;397,65 a:-d costs acainct Hoses sxL Cathsri:^ loree, in the s uperioi coui't foa* "Valla walla cou:ity; that o;. .april o, 13S>j, a traiascript of this judGtr£;-t -"/as filed a:dL docketed in tlie cler^r's olfice of the superior oorxt for Gpoicaiie cor.:..tj-; thc-t o:. Mcach 17, 1896, the jud:,- ment -Jas assiG,:-.ed to Lillie Sa-::;er: th,: t o:. Ju--.e 5, 1896, elocution israed out of the latter com-t on such transcript-, tliat on J'oly 11, 1896, in pur- EuaiKie of Evch e-ecation, tiic sheriff of £pc!a:-e county sold the land in question to Lillie Eaji^er, sixL such sale v/aii confirrned "by the superior court of Spolcai^e county o.: Septemljer 21, 1895; tl:&t, purs-^av-t to such pro- ceediiiG's , o:i Janus.ry 8, 1901, the sheriff of that coun.tjr er.ecuted a deed of said preroises to respondent J. E. Humphries, assi^'nee of Lillie Sanger. Eespoiide:it hases his ri::.ht to recover in the action at tar "by virtue of such deed forcided o:. these prior proceedings. 'Hhe mortjaGe set iip in tlaeir amended ai-s-'er v;as foreclosed upon these premises on tlie theory tliat Catlierine Loree -v.'as ti:e sole o-.-v.er thereof. On appella::ts' behalf the evidence s.javed, tliat the mort^ac^'S v;aE enecuxed by Catherine Loree, per Lloses Loree, under a po'/er of attorney theretofore G'iven by the wife to the husband; that Catherine Loree en.ecuted a co;:vey- 2.\ce of the pre.iii&e& to ii. J. Lee, as alleged in taid sa.£-jer- a:id that tlie mortsase \7as foreclosed, sale had axa. corifi-.-3d, and Gie sheriff's deed of the premises e::ecuted to Rasmus Sorenson; and thf.t possession there- of-.Twas t.ken by appella:.ts in pursua::ce of tl^se proceedii.js prior to the commencemeut of the present action, T:xq evidence also shovec. that vaien the mort:;a3e was enecuted to Grins tead by Catherine Loree, a:id the deed of the latter made to Lee, the real estate in c^ucstia: -whe the coriiTU-.ity prop- erty of Liosec a^id Catherine Loi-ee; a:\C. aie trial couit so foaid. Sie co^t also found as a conclusion of la-/: "Tliat 2ie jud^nei.t of plaintiff (re*« spondent) asaList said itoses Loree a::d Catherin.e L, Lores T'as a valid lie:. upon said laiiC-, ai'd. that the ezecution is cned thereoi. was duly a:^! ie::,-'-.laJ.-- ly issued, a:i.d the proceedir/^s thereu:idea ao..-n to s^jA i;xJ.udino- tl^e issuance Of sheriff* s d^oeC. to tie plaintiff, -'ere duly, resularly, properly Iigd -n.d 3nad.e«" Appellants enceptod to this conclns io:. of la"', a:Td allege erior. c^ 209. Upon tlE correctnesc of this ruling depends the ri^ht of rcspond- ent's recovery i-i thz case at ''opt. Iu Hurray v. BrijG:^ , 29 ^/ash. 2Ar5 , 69 Pac. 765, thifs ciourt held, that in Cie absence ol ctatutory authOx'ity, an e:;:ecuticn caaiiot legally is cue on a irare transcript of a jud^irjent filed in orje couv.tj'', sliov/iu^j' the ori:;jinal jud^ireut to have "been rendered in aaiother counts'-; al^hcu^Ii, tha filinj ol such transcript hy virtue of Bal. Code, Lee. 5^.o?,., creabes a lien upon the debtor's real estate in the county vix-ro fiied; that e::ecation sales "based upon such transcripts are void. Eierefore \7D conclude f.^at respondent's ri.3lit to recover in the case at har, "bein^- founded upon, tlie cheriff 's deed to hiin, in pur- suaixe of Gie sale d' th<"^ propertj,'- in cueE-tion, on e::ecution issuiii^' out of the Euper^'.or court of Spolraiie county on the transcript of the judg- ment rendered in-'ialla lialla county, ir.ust fail; that such sale and pro- ceedings v/ere void; that thxC learned irial coui-t erred in holding- th^t such evieoution v>»3.s L-alj aoid, re2,ularly issued, aif. Giat the proceeding had in pursuance thereof, down to aiiL incJ.vx^an^ the. issuance of the sher- iff's deed to respondent, v;ero regular and valid. If this ic the proper oonstnxitxon to te placed on these proceedings and. this deed--and we so hold — the respondent is not entitled to recover in thiF. action, for want of title in hiinself . It is immaterial v*2ther appellants have shown title in ths-nselve^ or not. The- respondents must recover, if at all, on the stiensth of his oTvn title, and not on the "v/ealmess of tha-t of appellant. Ktishes v^ Sou lib. Bay School District, Ho. 11^ 52 ^iash. 573, 75 Pac. 778. T'.ie- e:ecution ir.s:u.in2 out of the superior court in Spolanf; counter, aiid all proooedin--;G had under tiie •rrit vrare i?.ull and void. It is en a;:.i.om of lav; as well ac in physical science tliat, "Life cannot he hEeathed into a dead thing.'* The appellan.ts pray in their ameixled aasvmr, en viiich they tal:e the hurden of proof, uudex- the-ix aff irmat-'.ve 6.e-pQ:ap.&, that the title in fee simple iu this land he cuieted in appellant Ka:5r:ari Sorenson. 2taey' allege that, at the times when the mortsa^fi to Grins tead sad the deed to Lee ■were executed hy Gather ino Loroe, the v:as tie owx'er in fee of this real estate; and appellaiots atteixgjt to esta'clish title in tlieraselves "by virtue of the proceeclin^js alleged in. such ansv;er as to the foreclosure of tliat mort^ase, sxL Ea3.e and sheriff's deed tliereunder to appellant Kasmus Sor- enson. V/e are of the qp.-^.nio.ti, i.hs,t the reccrd fai.ls to sustain the is- sues tendered by appellants under such defense; that, under the testi- mony adduced at the heaiv'.rv3: in iiio. sv^pericr court, this real estate \\ras, at the tines atcve noted, the-- c.on^Mnit5,- property of Moses and Catherine Loree, and not Sie separate pro3->'5r^y of '^i;;a..Ti'^'. (Catherine Loree); that the trial court coinmitted no error in so finding, and in adjudgin:;^ such instruments antl proceedi-^ngs invalid.; and therefore we cannot grant ap- pellants the afiirtnatix'e relief for which tiiey pray. Hie respondent, hov/ever, cannot recover "becajipe of his failure to sliow title to this land, or ri^Jit to the possession thereof, in himself at the corarnGncasent of this action. Tlte. judgHEUt ox tlie euperior court shov.*^y be reversed; sni^ the cause ikt ' ! remanded hi ^i directions to ditMcs tlie action at rssponaSkt ' r> costs^ and it is so ordered. — ^^ 210. L. H. AUDEESOTI, Recspondont , v. D„ E. BIOiLOV/ et ur.^, Appcllaut-s. (16 '.fesh. 19B.) 1696 Appeal from Superior Court, Hiiurston County. —Hon. T. M. Reed, Jr., Judse, ReversGd. Hie opinion, of tiie court v^as delivered "by Hoyt, C^ J. — The action was brou^lit to recover damasos for tlie al-:_ le.-^d treacli of a co venant of v;arraa.ty contained in a deed made Tjy appel- lants to respondent^ H-ie covorwiat, viiioh it was claimed i^jd. teen 'brokea, v.-as f or qUJoU'erjoyrront^ and tlie G"rou;id of Qae claim \Tas that, at the time the dend K^iiT^delivgred, the property descrited .t]:;erein had teen dedi- cated to puVLio use^fOT 'the pu.fpo^^es of a street. Pl?antiff sought _to ^tatlish the fact tST; the iLa'^il hz,d. "been r.o dedicated "by evidence tend- ing to -Ell ew acts on til c ;gaTt of the defondasts which estopped then from" denying that it liadHjeen so dedicated. He 5lT.o claimed tliat t!h& fact tliat the land load been so dedicated hrd 'boeii determiaed in a certain ac- tion in which joe v.-as plaintiff an.d oi-.e Panrjer viras defendant, and that th.e defendants were so co/:.Jiected mth that action that tliey wore "bound "by the decision rendered therein. Upon tie firt;t proposition, Kiere v;as evidence introdijccd tending to shov that file def^nd.?nt D. R. Biselo^/ had. made statecents to those a"bout to purchase laid in the vicinirj- tlia.t the land, in question liad "been set aside for street purposes; "bub there was no evideixo tendijog to show that the defendant A, E, Bia-Glov/, \b.o \/as the vin.fe of the other defendant, I:ad done or said anythin.;. But it was slio^n tliat, at tl:i& time D.. R. Bi^elow made the decjao' attend relin;d iX£.on, he hold a power of attorney from his ■wife authorizi:.v-; him to £eli her real estate, receive payment therefor, aad make conveyances tlicreof . !I!he superior court instructed the .iurj'- that the wife v,-as "bound "by the declarations of h-or hxi^lranc'. "by reason of having jiven him this poi-^r Of attorney. I'here was .noth.i^^s in sucii power of attoro-e'v; which gave de- fendant B. R. Bigelow aiithoriitjr to d.o more than sell tlie land. Oliere v;as noGiing said therein alx>iri- riattjng it, nor ab:>ut dedicating ans por- tion tlioreof to the use cl the pu"blic. And while it is true that the setting aside of one porticn for street p'jrposes might have added value to other porti.a-i's , j-c might the uonvc-yai.ce of one portion to an inc'dvidual for a certain puri^or-e have adac.d va\ua to otlier portions f^r other pur- poses. But the fact tiiat one trn-^t had been sold for a certain purpose \i.ould not aithcrize the attorney to convey ajaother portion without receiv- ing value therefor. Zie general p')\;er to sell did not authorize the per- son acting thereurider to males a dedication tor street purposes. See Du- pont V. Werthcman, 10 Cal, 554; Ilotb v. Smitli, 16 Cal. 551; Randall v. Duff, 79 Cal. 115 (19 Pac. 552). The court held that tlie allegations of the complaint as to the judg- ment ip. the other action and as to its effect liad not "been denied in "the answer, aad that unless defendants had shown tl^t it v.as collusive and fraudulent they were "bound tlieroby. It is not uecessar,- for us to deter- 211. mine as to tlie cufficiency of tlie denial, for the reason tlTat e are ol" t'sj: opinion that the alTie^'atio^is in the coinplaint, if ajdmitted to "be t:.uej ^/ere not suffioierit to ciiov/ tliat the deienuants v/ere bound "bj' the jud^-..:3Mt. TiiB only Gtate:ronl: tendfn^ tc connect the dofeudantF., or either of thsm, 7.'ith the actionj wr.s tha'''. during;: the pendency tliereof they had itill notics and knowledge of fho- sov-cral matters involved, anc\ tliat the said defenda_t D. H. EisQlo>7 att ended upon the trial of said cau&e and v/as a vatness there in in behalf of the .Plaintiff; and tZiis was not sufficient to shov such a demand upon thsm to appeaj.- and procectite the axition as to iiialre then re- sponritle fo,-.: --.he resul';. And v/hatever nay be tlie fotrce of a juf'-jnent a^'ainst a defenda-it to tlie effect that the plaintiff had a title parcxnor.nt to that con-voycd by tlie deed under r/hich such defendant held, /hers tlie grantor tl^re^'n has not been re3;u3.arly called -upnn to defen;l, no case can be found whe.rs, luider such circunistances, a juc'igrneut asainj;t a plaintiff in favor of a dbf.-^ndaat has been held to in an:y manner ai'fect the ri.^its of tlie girajitor ?.i-i the deed iinder A/hich the plaj.ntiff claimed. In iact., it may vrell be questioned "^.ether a grantee \^!ho sees fit to voliunt.^-xily so into court is in a situation to have any riGJ'its established in an ,e£tion thus voliratavj ly bjrou^ht, v/hicli shall have au-j ef^"ect in an action- brought by him a^ai/o&t his srcaitov.-^ Au3. it is certain that a jvid^inent rendersd in such an action to /hit-h Uie grantor is not a party and in v.-luch he ha.s -tot been le:;ally noti5'-'e''! to protect the title conveyed by his deed is not even prima facie evidence in an action brousht lay the grantee against the Srantor. The judcjnent must be reversed and the cause remanded for a ne-.v trial. Scott, J., concurr. ,,.^-*--<--;j-t^-*»->-^.^B'^ 212, RAStlDS KOKHEliUli', Appellant, v, J, C. FRAUDSELT AKD ELIZABETH FHAHD&EN, Bespondeats, (8 Wash. 551, 1694) Appeal from Si-Tperiar Court, ICing County* The opinion of the court a'iS.s delivered "by Dimhar, C. J. — The a^pollant coatr aatgjL. I>ferch 14, 1690, to clear certain l&g^s T3e loi3gin3 jbo_defepd£n ts^ antL to rece ive in JBai/ment c s rtCin othaF lands d3 scribed in the coniplaintj The s^reerne-nt was reduced to ■jTitinG. and signed by J. C. Frandsen, tlB husband of the coidei eudant , SlizabetirPraaasen. — ^^It ic conced".ed tloat the tr ajct of land ifiiich is asked tp be conve^'ed'is community prop etty.^JIhs prayer is for specific pevfomw gn.ce Of tl^e contract, aM for damages in case tire contract for any reeson fiaBuot be enforced. A. deimrrer -Tas interposed to the complaint, v/hich ••/as overruled by tTie court. An answer vas interi>osed, and upon the tri^l respo ndents obj ected to the introduction ot plain tif fj^ evid(^ce vipon the folloring groundsv ~~ ' "Eor tlT© reason that plaintiff*? con^plaiut does not st: te facts suf- ficieat to ccinstitute a cause of action for specific pei^ormance of a cer- tain contract therein set fprth^ or_to entitle plaintiff to a decree coro- pellin g defen dants to consrey ce rtain lan ds therein described to plaintiff.-' She court overruled the first and. souond objections, but sustained file thiid objection, and rtiled that the complaint uid not state f^cts suf- ficient to entitle plalntiCf to a decree of specific pofi'ormance oontpell- • in^ defendants to conv^r the laads in question, Che objection ./as sus- tained by tlia coiort upon the theory that it apjeared from the conQplaint ""that Gie plainti-if ^s^actioa is based iQ>on a ^Titten contract to 'vhich t-ia e-^^ Tii© -vas not a party, aod that as appellant toev at the time he entered into the contract that the land xt&s community property, he cannot no*?' enforce the performance ijpon the part of the vriA'Sf aid. therefore he took nothing by such contract, and that the "/ife.'raas not_ ©stopped irom claim- ing or asserting- 13iat £h.e had nothing v^iatever to do .dth the contract because she v/as not a party to it. It seems to us that there are t'.u reasons -^y the • If e in this case should be estopped, if the alle^ticoas of tlie conflplaint are t.ue, for •'hile it is true that tlie asreement is set forth in the complaint, the other allegations of the coinplaint plainly sho\7 that the contract ^as actually made v.ith both of the defendants. Eie second alle^jation recites that lajaas C. Frandsen, in making said a^re^nent, represented the com- nionity, and in al.1 thiuss vAierein the coranunity, or comrauaity interects ■.'ere affected, represented both his arm. and the comniunity rights aad in- terests at tihe request and by and 'vith the full knowledge, acquiescence, consent and ratification of said vaie; that said agreement -/as made and entered into by the appellant, and b;'' him f\illy periormed, carried out suA completed on his part by and at tiae instance, request and full consent of 215. said doi'endaiit Elizabeth Froiidsei:., ''Ixi asristod plaiutii'i in caxryiu;, out a:il periormii-ij said a'^ieemeut ^poia liis paxt, and in all tliiucs done tlier.s- undsr by plaintii i the fully concurred, and assented s.jyC. rati:.lcd evsr/ act in pursuance tiierooi' until Ion:;; aite: plainti:-.v 'lad completed his pa-t Oi Eaid so;vea.:3nt, £nd cleared all or saic. la.nc.. Tlis tliird para^va.-h re- cites that plai;itiii ', in pursuance oi saic- asresiTisnt, lully anc. lai tlxL-illy psraformed all t?\e -.'orlc Cierein rec^uired,, aic- tfid ever'/ act upon his pi,:.-t to be d.one sxiC perxoiTned, and,, -afc:.iin thetima lecuirec'., iully coniplied •vitl: air'. coLXu^leted said a^reen-jsn t on his part to tlie ■a.iiII satisiactio'? o:. tie deieixl^ntE, aiC thereciter, ■'•dth dei'end^^nts" mil 'i,i0' ledjO, consent s^z. approval, aiuL ox each oi thei'a, entered on Sie said laiJcLs co to be con- veyed to plaintiiT by deiend£;.it s , uirf.er 5;id a^reev.ient, and tooV: possets- ion thereoi , aixL slashed, cleared anc". otIier"'ise Liiproved the saiae to ?. ^■reat 3::tent, and at larG;e and necessary e.-pense c-xiH. resultant incre.-.. e in value thereto. It is contended hy the respondents thai all the asreements bet-reen the parties \;ere iinally '.jer^-ed in the contrc.ct, aad that, I.lrs...Frsndssn not beins a party to that contract, she: -./as not bound by the terms thereof. Ox course the soi^eral pioposition that aH prior a^-ee.iients betv/een tna parties v/ere merged in the coa tract oannot be dispute^"-, but the allegations Oi the complaint are not that the contract -'as anj.^ diiierent iro.u tie con- tract enpressed in v/ritin^, but M.iat iirs, Frsjidsen v/as in reality a party to Qie oontract, and tiiat it v/as e::ecuted at her re that this agreement '".'as made at the rec^uest and ith the lull knov/led^e, acruiescence, consent end ratixication of the -.Tife, she should no:/ be estopped i'rou: asserting; tl^at the l-nc. is not c ner" b-y Frandsen, and ifom denyin:j the tenns of uLie contiact. It is also contended by the respondents that, under the rale laid down by this court in "organ v. Bell, 3 Tash. 554 (28 Pac . 925), inasmuch as the complaint sets forth the contract upon v.hich their cause of action is based, acd prays that provided specific perfcimance cannot be had plain- tiff be ccmpensated in darcages , the ccurt has no jurisdiction of the case, for the reason that the only basis upon v.hich a court of equity can tal5n jurisdiction of ajiaction fcr specific porformsnco is that there is no -GdRquate reroedy at lavr. WTiat Y,-as decided by this court ia llQT^an v. ^,^^i:Z^^?^i^Cfe^c,,f/f , ^ V. 214. Bell, oupra, ^s^l, t'js.t iu aa action lor rpecii'ic per-./oi'Tisnce, v/here c.e- •j. e-iidant , v;itliout cny fault oi; hie o-m, it Iss^lly isicapa.citatecl froil per- lormiiiG; the csontract, ond thin lact ic liioo. to pla,i:atiii'c vhea thai' com- mence cuit, tlie ooujrt ha2 no juric diet ion Ox Sie ca.e: and having no jurisdiction to decree iien'ormeaace, it cen. reuc-e:;- no £2teriiative jud^iient xoi- dsrnasfJ'-- Ii^ tla.t cace it aiOpeared th:;\t the plain tii"i' loie"./ at the time 0:1.' th3 conxaeuoenont oi the action tliat Lpecixio periOrniance could not "be enforced becauce the titl3 nB.t not in ■&iedeier!c'uaut, and it vis.z jJlainly an action broucJit in tl:^ et^uity cairt to avoid the a::,ceccuent 01 tlie daLmoBc by tlia jury, ^'here the ec^ui table action Tact oi nececr. ity lail and not tliat the dau'nao'ei. vsre incident to fiie failure. Tliic court in th:.t c^r.e, ai'ter f^uotins Sec. 47 oi' I'omero;'' on Sontrrctc, cays: "^. e t:.;:o it th?,t the i-ir corollr.::- to thi;. i-rOj^ocition ■.ould be, fts-t where the le^jsl re.iedy Oi daaa^ec it ell that cr:n be decreed, ecv.ity all not e:ei*ciLe juriL diet ion,, ^nd the ori^iic. 1 proposition applis- moi' 3 iorciblj^ i.here the i?ct ii deterained that le^-cl drj-n^^s- -^e all that ic sjctv.slly j.ou:3^ts aJid in this cace the plaintiffs must have brou^lit their a,ction on the theory that a compensation in daiTia^es •^oald furaidi a coni- plete and satisfactor3^ remedyj lor tlie;r loie"/ that no otlier remedy could, be decreed." The court proceeds to cay: "Under the authorities, ho^/ever, .here sonethinGT inequitable i^ ■"'> shown in the tran.sactions of Uie party "'.vho is tii-jin;^ to avoid tl:e specific periormance, or vhere tl-sre are ineoui table circUinstiLnces surrouxxding the C3se, courts of equity, notv/ithstcniiiUo; tTnsy cannot decree the MexiOiK- 3iLce of a contract, \7-ill ^r.-at relief in daj-nases, 3iid whether or not sac^^ an eice^jtion to t"j3 general rule can be justified on ixte ground of ree son, the doctrine seems to be so ■'-'ell established by the decisions of -are courts that it cannot \"ith sai'etjr be disregarded." Ko such principle a:- ic discussed in I-ior^'an v. 5ell is. involved in tliis case. It is true that the prayer ooncl'.x.es that if it sliall 2i:pei.r that defendants Iia,d no sufficient title, and therefore cannot convej'' said lands, and tae ,tiole thereof, to plaintiff", and coulc_ not at the time of the coiiiraencement of this action^ or, for ar^" other ccoise, the first re- lief herein prayed la- cannot be had, then tlu.t plaintiff have judgment ajainst said defendants, and each one and both of t;^^m, for sir: hundied dollars d-'jiia.jes ind costs. But that cannou be construed f ;-.rther than as a precautionary application for relief by 'VEy of darjtg'es in case tie ds- landents had wron^jfully disposed of the title to said lend sft6r pladn- tiff's ri^lit to the specific performsuce hajd accriied, -./hiich under -21 ths a'JithOrities -/.'ould be a relief to v/hich he "as entitled in an -ction foi- rpecific perforaance. Testimony should be allo-.ed to be introduced under the allesations of the complaint aiid the denials of the ansv;er and reply, and if, in the opinion of the court, the allejationf of the ccmplaint are sustained, th3 appellant Till be entitled to a jixl^nent as prayed for. The judsraent of tiie coiS't in di anl tit;lr!^' t;he action ■viHT't/iererore, t e Teverse d, anf.. -che cause reroanded ^ritli instructions to proceed in accordance with tiis o:^r-Lio. Koyt, Scott, Mulders and Stiles, JJ., concur. p" ^ -y— \ \ .ia.5. TIKTOn HOTEL COMPAITr, nesfondeiat, v. 'JILLIAII HMIiHF.iLI at SwU, SppellEOits. (?:> ^Vash. 641, 135 P. 658) 1913 /.ppeal fi-ou a jud^nxTiiit of the superior coxirt fov Yakima county, Preble, J., e-ite.ved Jar.iD.rir 20, 1912, iu favor o/ tlis i^laintiff , ia aii action to rfuiet ti tie., tried to the court » AfflzaedT Mount, J.-- - On ITovemTier 9 ,_1905, Pri so illa^ Leo , tiE ovjner of certajn lots il l nor t il Yalcima, entered into a contraxii-for fee-taie-oX-the-loi^ to './ illiam Hiiilim jjt for 07,500. The contract i:rovid.ed for the payment .of QPOO^ Tn cash., and the'rem ainin;;; C'VjOOO wxis to te pai(?- on or before Ilay 9, _19067~'vfaen a ue"e d^buld be ^i^en. CTie _contrrj ct is i-i t-.hft »r.iiA.i_-f.cLgm_fi-f' Q::3cutoiy contrac t for the sale crd purcnc^e of laiid. It provided t!:at tij EO' M3L^~^ ^t'ne essence, and that, on default of the vendee, the vendor'^ .n i#it decla r e~~a. I'aneitureT ghi s contract v/a&.eiiecuted by-PriEGilla Lea aiid^V/illian Maashein^ It \vas af ter-.«i,rds duly recorded in the records of Yalcima countyT William Liaahein vas a married man at the time he entered into this contractV^d~rGmi.ned3o up to the _ 1st" day of February, 1906, when his \^^died, laaviiog four adult and t^vro minor heirs. On Ilay 9, 190?^, tlie time^fi:ied in thG_ c ant r ac_t far_iJic_payment, J/illiam 2aiilieiiti"faxted- to-pay aa ^i. v> tlie_bal£aico due: and on the ne;:t day^,__Qis_vendor served upon him notice oi^ forfeiture, .inch 'ac .iccepted bj'- Liaidieim. Kc aclmov;led3ed-ti!e-rrotic«— 6i_forfeitur^ in woi-ds as follo-vVE: "."uad I do hereby acSnowlcidse that said contract is at an end, aui that all rights thereunder have been for- feited.'' Tl'iis notice of forfeiture, vath the aclaaowled^ment of '..alliam llariheim, \vas on the aaae day filed for record. Priscilla Lee had at all times been in the possession of the propeity. Biereafter, on tlie same_ dgsL. shQ_CQ nveyed the lo ts to J. P . jJedill; ^^_'^y suc-cossive tiubcequaat CO nvqjrances, title passed to^ the plaiatif 1 . During* tiie_ o-.nership pf_7Jl- llattlBro. titer s~I^gQ^ Q?ated, an interveulug ovaicr, the property was im- proved by the erect ion thereon of a three-s to ly brick building, at'2rc"Ost of 040,000.; iUid^ it_i£_asroedLt]a£jL.^e_prpperty_'ic"ja6vr^c^ tlie value _on the (±.ildren of "I'illian _?1a^- TTei m and wife, a nfl., tlierefore^ tjae cliildren at tiiis date h ave the ri^ht to spec ificall3r e2iforce tbB contract. I t is a settled rule in this state tha t e:cecutory contracts for the v v -^ sale and purchase of land do noi_c.onv^i^tiDlXleither legal or eq uitab le . R5ddi"Eh~v. £mrEh7Tro Wash. 178, 56 Pac. lOOS, 45 Am. St. 781; Pease v. B?xter, 12 V/ash. 567, 41 Pac. 899; Churchill, v. Acterman, 22. Wash. 227, 216. 60 Pac« 406; Johns Qu v. Eekor, 53 *",%iBh. 205, XOl Pao . 829; Younkman v. Ilillmaix, 53 WaGh. 661, 102 Pac. 773. lu Cliurchill v. Ackermaa, euprs., at pacje 231, vliance v/ith its terms. A purchaser means one vho has acquired the title, not one v/ho holds under a bond for a conveyance. Gilpin v. Davis, 2 Bibb (I^'J 416. "In Reddish v. Smith, 10 V/ash. 178, 56 ?ac. 1003, 45 Jja. St. 761, -.B held that contracts providii^ for forfeiture of installir^ents paid at op- tion of vendor, as does this contract, v/ere conditional sales; and in lease v. Ba;:ter, 12 './ash. 567, 41 Pac. 899, and Ch-urchill v. Acterman, 22 Wash. 227, 60 Pac. 406, the holding was Uiat saCui contracts convey no ti- tle. \7q are inclined to regard these authoritiss as decisive." 217. It is , thorefore, iJlain from our previouG boldliigs upon contracts of fhio chai^acter tliat, until the ccntract was perf'omied, no title, eitlier legal or ecoaitable, pacsed from fiie vendor to Ihc community; and that, upon the failuro of tlE Ilaaheims to comply vdth the terms of the contract, no intai-Bst \^iatcver in tiie property xjaz vested in the Llau- heims, or in any one claiming throuji them. Concediaj tliat -vhatever interest "Tilliaai ijiaiihetm acquired in the contract, or tlie sale to which it referred, -.Tas a '5 oiia.nu li tj," interest; t:Tat interest uscessarily dopsadec. upon the fulfillment of the contract, ■./illiam Manheim Vvas the agent (£ tlie coivimuni ty , and \vac authorized under the statute to have the managomeiit .and control of tlie community property. Rem. & Bal. Code, Sec. 5S17, 5918 (P. C. 95 Sec. 27, 29). ;uid until tlie iaterest -.vhich la acquired at that time 'oecame an absolute interest, and vested some soit of title in the corjraunity; tha cornmunity had no gre^.tjr interGst tlian "/illiam Manheim himself . It is jl<;in, -./j tla ink; that '/il- liam IJanhcim, liaving sclaiowlodgod that Jho coiitract v/as at an cud, and fiiat all rights tlx;raundcr had been forfeited, is in no position to claim any iutoroct in the contract, or in the real estate to T/hich it rafeired. .Uid thercforo it seems plain that this claim boin^i' made through him, tlie coiniHmitjr has no interest. For ^7hatover interest the community acquired, it acquired throi^h the act of 'Villiam Manhoim. 2hc interest of the com- munity ivas incipient, and until it ripened into a completed interest, the community acquired noCiing. It seems too plain for argument that, if Jlrs. Ilanhcira liad survived the period of the contract, and V/illiam Hanlieira, during her lifetime, had made the acknovdedgment v/ldch he d id make, she \\ould liavo been bound thereby.; aM tliat the contract as to both Y/illiam Manheim ahd his wife \70uld have been entirely avoided. Ihe same rule must folio was to 610 se claiming through I Irs, Ilanhcim. 'Ve think it_is plain, both upon teas on and th j rule of t h is c ourt, that "the heirs of l E^.'iranheim have no ri ghts midar tne contract.. It is, therefore, Im- necossary to consider other questions T^hich are presented upon this ap- peal; excei)t possibly a question \3iich is claimed by tie appellants to be a federal question. Appellants state in tiieir brief, in SLibstance, that thej'' have been deprived of tieir property vathout due process of law in contravention of the 14th amcndmont of Sie constitution of the United States. There is no merit in this contention; for v/ljat -.ts. l^.ve heretofore said upon the case indicates quite clearly that Iho appellants vv-ere brought into court by regular process; they appealed in liio action and submitted tlieir claim to a court of competent jurisdiction; thty iuive prosocu test*, an ap- peal to thicr coiirt; they liave assorted their claim of ripht, and it h^.s been found that they liave no claim of ri^t. It has been said by the siipreme court of the United States: "A trial in a court of justice according to the modes of proceeding applicable to such e case,, secured by la s operating on all aliice, ^ht. not subjecting tiTe individual to the arbitrary e;:ercise of the po'iveis of govornment unrestrained by the astablisbed principles of private right and distributive justice — the court having jnrisdictioa of the subject- matter and of the parties, and the defendant having full opportunity to be hoard — mot the requirements of duo process of lav/." Cliicago, B. i C- I?. Co. V. Chicago, 166 U. S. 226, 234. 2ie. See, also. Unit od States v» Cruikshanl?:, 9;i U. S. 542- Lcopcr v. Te::as, 139 Uo S. 462. No Federal question is involved in the case. The judameat of tiie lower court is tlierefore affirmed. Crovt, C. J., Chad^clc, and Parlasr, JJ., concur. FT-© ^^ ^^^. Goso, Fullerton, Ellis, Ifein, and ICoi-ris, JJ. , concur in the result. ~7 ^ ~ ' , >r>'t--^c? a^^.^^ <^^,. Ou.a^/i^^j0--,,^,^<.-'lju.,U^ ^-^ /i^'lj^^^-^-'^^^^-^^ -^' c^ - f 6 i, -^..*-«.-»,_...-i— ^^-i_ /■-^^ _,^ J .^oixi-^2^^^^:^ d ^ ^^-7, 4 V -6^ .1^ 219. (HRILTLin 2HYiIEEJiir et ire, Rcspondoats, V. E. C. rEUTELDER, Appellant. (9 Wash. 455.) 1894. Appeal xrom Superior Court, "thatcom Couuty. The opinion of the court \Tas delivered by Hoyt, J. — Chiistian Thj'-^-oEGii made a^eed of assignment imdor the proviaiou£i of tho insolvency act of Ilarch 6, 1890 (Laws, p. 83). Ihe assijnoj named tleioin liaviuj failed to qualify, the appellant v/as, in ITuicuanco or f;o"ji-ovisioh's of the statute^, appointed assijnee and qual- ified and entorod upon liiG dicchaxje of his duties as cixh. Lz a part of the assets ol tho estate h^ collected certain jrioncys due upon a lease, v4iich hofore tLe e::ocution o f th 9..do-ed-Q£-assl,;-;nHic,nt. h ajdJb een i Ti a d e by said Cln-istian Chyjoscn to one Br am and one Carter. Thereafter said Chri^Tiaiil TbiyjeEen^"aiiL.IiJon JI. Ttiyjcsen, his wife," filed their petition in tiiG superior court in tho assi^nroint proceeding-, and prayed that the a£Eijnoe should be required to account for and pay over to them the money sa_collQCuted^ _ Tho superior court imdc an order :jrantia^ tho pra^^cr of tlio petition, from v/Mch this appeal has been prosecuted. Appellant re lies upon several propositions ^s furnishing reasons for the reversal of GitTorder, the fii-ct and most important one beiiaj tiaat the deed of the insolvent debtor, althouji his -./ife did not , 70 in in tl^e o::e- ~ cutlon thereof ,'~v.s:s "effectual" to convey to Ms assignee in trust, purs-a- ant to the act'^bve cited, t ho Gommu nitY_r^eaI_es tate Tor -Ehe p%menJ;,.of th^ co;miunit3' debts. If this contentiou~of the ~appell3nt is sustained the result will be a reversal of the Oi-der; for it is conceded tli£.t the real estate, for the use of aiich tlie rent was paid, v/as coraaunitj^ prop- erty; and it is also conceded that 1h.e debts v;]iich l:2,ve been proved in the iusolvenc3' proceeding- ijere tliose of the cormunity. If the deed of assijament e;cecuted by the husband alone is to be cousti-uod as a convey- ance of the proiB rty therein described to tlie assignee uamed tliercin, for the purpose oi l.iavii\; it applied to the pa;7me-nt of his debts, it is clear that it cannot liave force so fax a£ the coi^raunity property is concerned. In otliir words, if tlie assijnraent thcrci-n rnade is to be treated simply' as a conveyance £t common la\.', end the provisions of oUl- statute applied thareto in aid oi the common la/-7 assi janent thereby created, the property of tho corrmunity could not be conveyed Ciereby. Hie effect of deeds of assijnment under wiic statute Ims been already detormiaed by this court. Iii Traders Banl: v. Van "./ajenen, 2 V/ash. 172 (26 iac. 253), vre held tliat the lormei- lav; upon the subject v;as one previa in^ for the applica- tion of all the insolvent's estate to the payment of his debts, and that vJien once set in motion by tlie action of tlie debtor, it passed to tZ:fi as- sijnee all of his property, ^hEther set out in the schedules or not. And in Mansfield v. First national DanH, 5 V/ash. 665 (32 Pac. 789), \^ l:ield tliat the la\/ under consideration Iiad tal^en the place of the foiToer one, and that proceedings thei-eundei' \vGre for a li'.ae purpose, and tliat the i-ljlit to all of the property of the debtor passed to the assijnee or to 2ao, the court iu stitch tlic proceec1in:;;E v/cro inst5.tuted, far the bone-fit of thG creditors, rec;ardlGcs of the qiDstion as to\*.othcr or not all of such property \v2.s not out in the doed. It is, therefore, umeconsary for us to further consider tho quoctic; as to tho nature of the proceeding under the insolvency act in question. It is now the settled law of the state that it is but one of tho means b:' \ihich au incolTont de^ji-.or may jsurrondor to the court all of his proix;rty lor tho purpor>G cf haviu;;; it a'pplicd to the pa^.taent ol his debts. Tliis beinj so, tho important question is pres ented for our decision as to \licther or not_jtho hu'; band can alone put in motion the irachincry of tho ^ act_Tor_t Iie~ benefit of the com rjunity . and for the purpose of payinj^its febts. In the care of the Ore;jon Iar-?rovcnont Compcny v. SaoTncister, 4 './ash. 710 (30 Pac. 105R1, v/e held that a judjmont against the husbaiid for a liabilitj- incUi.-rod in the prosecution of his ordinai-jr buEiucss '.vas priiaa facio one wile h \/ov'ld bind the coKraunity, and that coramunity property,' mi£$it be sold in satiffaction thereof. Sec, also, Calhoun v. Leary, 5 V7ash. 17 (52 Pac. 1070); Abbott v. Y/otherby, 6 V/ash. 307 (35 Pac. 1070). From v^iat was said in these cases it appears that Uie only question which was oioen for irwestijat ion by tlae wife was as to the character of the indebtedness. Thoujh it \i^.s prima facie that of the corrmunity, she could., before or after judjraent overcaao the presumption bjr shovdnj af- firmatively that it v/as not the debt of the community; and this v;as all sho could do to protect tlie community propertjr. if shi could not shov; that the dobt was not a community one, she could in no manner recii-t tho enf crcoment of the process of the court ajainst tho community property in satisfaction of Gic jucl^raent rendered thereon. From -.hich it all follow tiiat in a case lilK the one at bar each of tho several creditors could have procecu^ted his claim to jud^.ent a^'ai ngt~t h5— htisba id~ aloneV and had satisfaction thereof by levy ahSr sale of'tlae'^cbiTfflunity^pr^er^^il Hot only would the creditors have had this ri^it , but th e husband , f car the purpose of savinj e:rpense, could have gone into court and confessed judgment upon each of the claims, v.i th tho saue effect. 'Die only difference between a judgment by confession and one in a rejularly prosecuted action would liave been as t o the raestion of jood faith on the part of the husband &x£. the creditor; and, it hav- ing been established, such judjnent could be enforced ajainst the com- munity property the same as any other. It follov/s that the interest of the \,-'ifo in tho community property is coutin:;ent upon thce"^ fat e^ of the affairs of the coraiwinity as conducted ■by~the Iiusband.. lQiis~bein^ so, and i€ beinj T/ithiu the power of the creditors, v/itlxtut any act on the part of the rrifo ei.thcr negative or af- fiiToative, to subject Qie propertj?- of tlie community to the debts incurred by the husbard in tho prosecution of its btsiness, we see no reason why he should not be allowed to save the eiicpense incident to the prosecution of the several claims of the creditors, and at the same time do justico bet'u-een them, by voluntarily placinj all tho property of the coranunity in the custody of the court for the benefit of sich creditors. Of course his action in tliis behalf would be open to attaclr bj' tho wifo, if not in «->■«■ "3. yt^\.^ .xt^»--ir 221. ^od faitli, and it -.yould also al^vays "bo open to lior to scie that the com- muuity property v.c.c not applied to tho paynout of other tlian community de"bts. And -..Ith theto r i Jats rGserved to hor, it v/ouli ccem that her in- terests a2x"'. those of the community and of the public '.-oulcl bo best sub- served 'b-j the ri^ht to tiuc apply the c ommunity property tO'- the payment of these debts beinj rcjco^niiied in the husband. But it is cort^fded on the part of the respondent, that to i;ivc to the deed of the hu£.bancl a.lonG any force -.hatover, is in violation of our statute {'3en. Stat., £)ec. 1400), \vhic2i provides that no conveyance oi- in- curabranco of the coinmunity real estate shaU be valid unless the husband and v/ife join in tlia mairinj thereof. K this deed coces \dthin the in- hibitions oi this ttatute, it is undoubtedljr void. Bat in our opinion it does not. .Is above sujjested, wo thinlc that it is not a deed or an incumbrance of the property in the ordinaiy sense. On tlie contrar;,', it is but a surrender/Of the same into the custod;'- of tie court for the pur- pose of havinj iV applied as the laM requires it to be; and if there is an3r sxzrplus romai'.ninj, it v/ould be returned to the cooraunity. Ihe pg?or executed by t Je husband should therefore bo considered not as a conveyance but as one of the methods hj i.-liich the proper tj^ may be subjected to the comnunity debts, and th^t it beiaj in the po\/er of the husband to contract such debts in the prosecution of tlie business of the community, it is vdthin his power' to set on foot tie machinei^r of the law by vtiich its property jnay be applied to t-cir pa3m)ent. The title to the corxiunity real estate passed to the appellant as assijuoe in tlie insolv^nc^' proccedinj, antl he i-ijhtfully collected the rent as a part of the assets of the estate. Tlia orders v/ill b e reve rsed, and the cause remanded \n.th instructions to d ismiss the petition of the respondents. Dunbar, C. J., and Stiles CusL Asaderc^, JJ., concur. — ^ ' Scott, J., dissents - 222. WILLIAII H. CAIHOUN, Respondent, v. JQHH LE/JT^, JACOB PURTH and LEMIY-COLLIFS LIM) C0r5-;J]YJ Appellants, andll,!. V. 3. Sll.GY et al.. Respondents . (6 .Vasli 17, leSbJ Appeal fro;n Superior Oourfc, Kin,; Comity. Et© opinion of tlxe court "'/ae delivered by Hoyt, J. — In J.^iuorjr^ 18G4, M. V. S. Sti.cy, Jo>ja Leaiy and A. Mackin- tOsli desired to joiutly purchase "ttie lancTlhe'" title to wliich is in contro-^ 'ygr^sy~in~t iiics ac tXon. The first named had the money 'ith 'Viiich to malce "She purchase, and was willing; to raa'ce it cai tlie joint account of the three. It v;as therefore agreed "between them Giat the purcloaso should be rasdo, and the^ntire conrideration paid by said Stacy. Under tlais arranjomaat th_3 property was purchased by said Stacy, and Islie lG:;al title thereto placed in's^»idHaclcintOElifc'and a memoraudian mct-e betvTeen thoa by vr.ich it"'''3S- a^-reed thrtaach of said pai'ties should have a one-t]iird interpst in the sarae, the said Leary and liackintOEh,eacIi_t_o pay. said Stacy the sum of $^2,666.67 wi&in si:: .'ion ths,_ with interest thereon from the date of the aGreemont at one per cent, per .nonth. Lfpoa sudi payment by said Leazy and Mackintosh, each of the parties \va^ to be entitled to a deed of an un- divided one-third interest in the property. V.hile the le~al title j'-et re- mainted in said Macuiutosh, the tdlC Leary paid his share of the purchase price. Tlie said Iteckintosh never paid f o r his sl2£.rej_and at this tirae_dis- claims all interest j-ro.an^' out of said ajreelient; and, so far ac his ^equitable interest is coacorned, it can cut no fi::^ure in the case, as upon such disclaimer bjr him interest tlerein, if he ever had any, ■./as in ecuity vested in said Stacy. ISie said MaclciutOLh, at-the holder of the lejal title, issued to said Stacy a certificcte t^io'i'cc: thc.t he ■•'cc the o-rner of ai^ undivided one-t.ird into:, est in tSie l£.nd. Soon aftei' such certificate" was issued, Sticy, for a valuable consideration, assigned and transferred it ant thereunder to one Matliiis, •ho, by like ascijiinentj ^Od' als by quit-cI: in c.e.K-, conveyed said intereclfto'Pi-eS^ E. Scaler, '_Ano thereafte: received a deed fron~lfecV:iiit05h, the holder of the lej ; 1 title, conveyixi^ to hiiii Uic tauie iatrfi;ytt^ Sin6.er ana '^'ire then conveyed to SvesVs ITiniiu.i Iir"^Cai:iDTraV"f-'^'^lI-iutif±^ in tliis :ction. ...ftor the payaent of "Sis Koare of ^tlie"^purcha&c price by Teexy, end lon^ after the tiirB v/hen the interest of said liiChir.tosh sl'^ould have beer psid for unc.er the tercic oi said ajreeroent, the property was levied ugon and sold un d-sr an o.:ecution issued upon a juc-^ment in favor of nne Georje D. Kill^ SJtid a^^-ainct saTC £tacy -ixL Lear-v', at hich sale- the prop&ity .-es bid in by s^id Georje I>. Kill, v;no~th.ereafter reccived'a slieriff's deed tl^erefor. The title, iT aJiy. thus acquired by scid Hill was after.-ai-ds conveyed to :nd vetted in tlie re- spondent Jolm H. IIcGra;. Such title was, questioned by cert,:.!:^ parties, v*io instituted a suit in equity lelatiu^- tliereto, and such procee'in^ were had tliat the matter v/as •iin^-.lly compro.-.iis ed "by the payment of the claim ot those attc.iptin- to accort ecuitie3 as ■a:;c;i.i£t cilC. title by saidlicGra- i- the interest of the title derived frOin said Killl Before the interest of said Hill 'Vas purcJiased by saidllcGrsw, he h;d, in theinteie&t of the several claimants, been vc5te<§! with the lOo^l titla to ax undivided tv/o- 223. thirds interest iu said 1: ud as the trustee for said claimants. At this time, ard before saic. i^urchase by said McGraw, nesotii'.tions were hcd be- tween him and s-id Learj-, by which it v/as arrsn^ed betv/eeu then that the title derived by said Hill under said e:cecution sale should be purclicsed, b by said HQGraw iix the interest of himself a:af. tha saic. Leery. 2iiE ax- ran^-emoit was carried out, an-' the title of said Kill purchased by said McGrav/, anil tha turn of 08,000. piid therefor. In lurtlier pursuance of the arrauje.v.ent between said Les.xY aid LIcGraw, the interest of those atte^iptin;;, to assert equities as against the Hill title ".'as purchased in tlieir in- . teres t b^- said iicGra'v, a:a.l tha sira of 04r,000 paid .it!:«3Efor. It '.^as under- stood between said I.IcGrav atf. Lecxy th,.t tiaey each had aa ec^ual intei^est in tliDce trails act ions. It was urdei stood bet /ee.^ tlien that the entire in- terest held by both of thea xio.t a two-tlnrds interest iu the property in question. At tl-e request oi" said Leary, and in pursuance of this unc'.er- ctaiidinG', tlis said McGra couvo3'-3d to one J^-cob Fui'th, as trustee for said Leary, eoi andjvj.ded one-third interest iu said property. .Durin;; all this . time the said II. V. B. Lt.;cy and t:,id Jolm Leizry were marrisd men, living witli their -/ives in the city or Seattle, ' liere the property v;aE situated. Some time after the transactions hereinbefore set oat, t>e Ssid Stacy anc- his \afe convsyed theri interest in the entire property to John Collins,^ and he, his vafe joiniu^- him, conveyed fde saxae to the Lea: y-Collins Land Company, one of the appell:nt£ here. At the ti;r£ these last conveyances WBBB made it is clear that the :;;rantee£ in such convex/ ?nces h?d ffll "oio^''- lec-e of all the facts above set forth. Thsj also had full lmov;l3d-e of ^th fact that tl:are v;as 3n oral a:,-reeaent e::;istin:v bet'/een the said Stscy ard his wife tha. t each of thorn diould luve tlie sole maxia^^snext of tiieir ov;u property, and that ell property acquired "-by either of the spouses before or during mar-.ia^'e should, as bet^'een them, be tlie property of the spouse thus acquirin;;;. Under th-is state of facts the question preeantod is as to tlio re- spective interests in said praparty of the paxties to the action. The appellsQt tlx- Lo3XY-0olli-as Land Company clsims th=t it is tha o-'ner of the entire title, for the reason that Cie laril, -.iien acquired by said Stacy becaane at ones co;.Munity property and could only bo conveyed by the joint action of the two Ej.-ouse&. V/e are uiDabl e to ajree v/ith this contention for the reason that the le:;al title .^s never vested in said Stacy, either as separate or comjiunitjr propertyi .Ul th-at he had ^.^ss an interest, the rijht to which he could assort in a court of equity. If tlx.t ^;aE all the title that he had, it •as all that tho conaunity could have. It vv-ould follo-w th^t neither the corainunity as a vhole nor the spouse \b.o had taken no part in the transactions could, assert any rijit to the lard vhich it would not be equitable- thus to assert. How, hateverthe effect of this Orel asreeaont bet .een said Stacy gjid liis wife ciioht have had upon sascparty acquired after marriaoS, where fire leG'5.1 title had been conveyed, it is clear t::at in a court of equity neither of the spouses could assert any rijht to property thus acquired in t ha h;jads of a purchaser foi- veins, v/ho liad obtained it solely fro^i the otlier spouse. V'e laioiv of no reason \hy the members of a comniuni tj-- as a whole or separately slxuld not be bound "'^' the same rules of ^-.ood conscience as those ?LOt occui^-'yin^ sucl'. a relation; and, as an individual ^vho held another out to the world as hr.vin:;^ full aut-.ority to deal -vith and malre title to any property, real or personal, \.-ould be estopped from attachin;; the title thus conveyed in liie hands of a purcliaser for value, we see no reat-on v/hjr a manber of the: community siX)uld not u^on the Sane :^Ji-inci_.lG "b-e estpi^jed fran assertinc ri;,iitE to a title conveyec. by the otlier v/ho.~i olie had, not only at the time of the convoycoice, iDUt for a lon^j time liotl-i "b afore and aftei- it, held out to the -/orld as beiai:; en- titled to thus deal v/ith tlis property. Besides, even if the interest v/hic" said Stacjr acquired in the i^roperty sliouM be held to have been a corrmunit; interest, mc thinl: that such interest wDuld have been cJLvested by the sale on eicecution. St is clear that swch v;ould liavo been tlie effact of tha sale had it appeared tlxt ihe debt for viiich the jtidGpaat was rendered v.'as a conmunity debt. But it is claimed tSaat in the absence of cny. shoving of this kind it will be presumed that it was the sepai'ate debt of tihe spouse against viion the jud:^'mGnt v/as renclered. In our opinion, everj' debt createc by the husb ud. during the e.-'.istence of the rjarri e^'e is priina fact a ccn- munijiy debt. All the property acquired by him is prii-.ia facie connunitj'' property, aixi \jq thinic that justice aixL jood conscience demaisi that tlis oth3r presumption slxuld also prevail. In the absence of any proof as to Gae nature of the debt this presUiiiption obtained, and., for the pur:^.os3t of tills case, the debt upon v/hich this judgraeat v/as rend.ered must be held to have been a cor.iTuni ty cebt, aid for that reason the entire property of the co;.Tnunity divested by the sale made therei-ndei; aai, as this appellant is charged •Mth full notice, it can assert no ri:J^t v/hich the coraiMunitj^ oiuld not h£V0 asserted if it had not conveyed. It follov/s that it has no in- terest whatever in the property. Tlie appellants Leary and Furth -gfoo, for all practical purposes, may be considered as Leary clone, as Furth has onlj/ been made a party by reason of the fact that Leary^s title it held by him as trustee, do not assert aiythin:; as against the title of the respondent Y/illiam LI. Calhoun. Their contention is that they are entitled to the re.:iainirig tv/o-thirds in- terest in the property, and that tlie respondent John H. Hc'G-Eav/ is entitled to no intei-est v-hatever. It is claimed by them tliat the one-third inteiest which Leary obtained by reason of the original arraii,:.ement at the time or the purchase of tlx? property has never been divested, and that by reason of til© conveyance form McG-raw they obtained another one-third interest. In our opinion, tliis contention cannot be sustained, for tv« reasons: First, Because the original interest of Leaiy in the property was divested by the sale on e:cecution; second, 'hether or not his interest vvas in fact conveyed by the e::ecution sale, it clearly appears from Hie proofs tliat this --as a question taken into consideration at Sie time of t!ie arrange;r.ent for the purchase of the Kill interest by said licGra-'v in the interest of himself and said Leary, and it was at tliat tiae understood bet'-een tlien tl-at upon such purcliase said Leaiy's original one-third interest, together \lth the other one-third which it was supposed Kill hcd title to, would pass to said ilcGrav; for tlieir joint benefit. Under this state of facts equity and good conscience v/ill not allow either to assert as against the otLier acL adverse title to said tv>ro-thirds rnterest, or any part thereof; and, as said Leary did not at any time have the legal title to any interest in said property, it follovTS tliat tiie coitLnuiiity, or the wifs as a neinber thereof, obtained no such interest tlieiein as cotild be asserted against one having superior equities. In v.hat -./e have said. \'q have not overlooked tlie point made in the in- terest of the appellant the Leary-Collins Land Corapany tiiat an equit^^ble interest in ]a nd could not be sold, on e:ecution. In our opinion, our statute settles tiiis question adversely to such contention. I op.-:; The decree of the couit tolow ^vroL^erly adjudicated the title as 1)8- f'-eon the sevei 5I :;?rtieE to the action, mid must, therefore, be affiiTied. Stiles aiid .uiiers, JJ., concur. Dunbar, G. J., and Scott J., concur in t2iB result. -i^C-^!^ --entrac,t , _ Kaennes v/as a married man, liavin^ _& \nf>z and s"!::' children; and, tojcthcr vath his wife and children^_en- "tered into possession of^tixTproirerty:: and, "between that time and the time of his- death:- which occurred on ^ril 3, 1902, put permanent im- provements on the-proper ty, consistiixj of ahoiTSO; "barn, ac^.ditions to "bUildiujs already- t>i:ireon, of tlie value. of_Ol» 000. Thereafter, at~the__ request of t:. , 'i^yellar.t Hiennes and jwife paid out to the appellants use vl50 for labqi^^wliichT sum Giey were entitled to have credited as a payment on the contract of purchase. On Karch 2, 1902, Siennes tendered to the appellant tlie balance due on the contract and doma.nded a deed to tiie^remises7 "but" said tender and the reque st for a deed were refused. It was ^further f ound that C. S. 'aiennes had, on Septsra"ber 16, 1902-, sijned a v/rittcn a^Teement purporting to surrender" to the appellant all hiE_ interests in the contract, "but it vas fouixL that Ihis was not Ei{^edi-.^^ or aG,Teed~to "by tLio v/i'fe of OJieimes, and v/as not intended as a surrender >^ oi" TlienncE' interests in the property, "by either of the parties, "but ^7as ^ 101 the pur:,oj;o ol jrotjctin^- Tlioimes, from certain. _of_his:_c>edi tors vSio had •bejun.actions_ae;ainEt-him., in which actions, the propertjiLjira^liTEely t o "be come^involved. It v;aE founc'. furGier that Tliennes died on .ipril 3, 1902; tliat the respondent Zeimantz is his administrator, and tliat the respondent /imelia Thennes is tie widow of C. S. Kiennes, and the guardian ad litem of the minor respondents . It also appeared that the respondent Amelia Siennes, together mth the minor respondents, liad been, at all times since the 4&ftth of Co 5. Tliennes, in possession of the property, tiat they hac. tend- ered to appellant the balance thsy thought to be due on the contract, rjid paid the monej^ into court on the commencement of fioic action, tliat tl^ tender vra.s refused by the appellant, not on fiB g'"0^^»^ that sufficient was not tendered, but on the -round that he -.^a-s no lon:;er obli:;ated to 227. loerform tho contract. The amount so paid \'ras less tha:^ the coT^pt fiaolly foujxl to te due, axd the respondents were directed to pay into court tho difference 'bctv/eGn tho amoujat tendered and tho a:r.oimt found to to due. On tlTis beina- dcno, a decree v;a.- rendered directirc the appellant to con- vey the property' to the administrator of tho estate. It is said, also, tliat the purported release of the contract trj C. S Thonnes is o'bii3'atnr3'- on the recpondeiibs, even thou^ fraudulently made, on the principle that a transfer of property raade to defraud cred- itors is valid as 'bctvoen the parties, and, bein^ valid as 'between tho parties, is valid as to the heirs and devisees. But tiis rule cannot apply here, even conceding-: that it would in any such case, as this as- si:;niiient, if made in jood faith, -.vould not have had the effect of cancel- iiiG' the contract. Ihe_^ interes t acquired by Thennes and wife in the prop- ertj' by tie con'rract v/as coaiT:iunity propcrtj^, and coire affirmative action on the \/ife^^pfrrt, 'Tn connection vdth the release, v/as required to maice it valid. Jii tiJ.s releose LIrs. 1!hennes took no part; ^in fact, it is not " shovm that she even loaev; of it until after her husband's death. On the whole we think the evidence supports the findjnjs, and tliat the findings suppiort the judsment. The judgment will therefore stand affirmed. _. - -, v I p 228. THOIIIS BOJEPlS Gt al., Ap;,::© 11 ants, v. CIDPJjIiS \I. 110(1) Qt al., RespondeiatD. (52 T/ash. 384, 100 p. 846)1909 Appeal from a .iudsirsut of the superior cotcrt for Xinj couuty, Gil- liam, J., GntGrod llarch 10, 1908, upon fiudin^'S in favor of the defc:xl-_ ants, after a tibial before the court vxthout a jury, in on action for (£i5a:;jes far the breach of a contract to convey^ real esTatol SffirmeHTT Fullerton, Jo~In 1905 tlE_aE£ellaJat_Elizabeth Bov/ers and. tie re- spondents, acti:3s throu^a their a^ent, ^one Julia A. Itoderwood, entered "into an orai""contFact whereby the appellant agreed to "buy, and the re- spondentsa:j^'e,ju'to_sell, a certain tract of la:2d, .situated in'ITihs "counts, fOr'lTcoZsi deration of $700. At the time of raaldns tie contract. Firs, ^ov.-ers paid upon the pmchase price the txm of ten dollars. lirs. Bower 3 and th& anient, who seetaed to have made tloe contract in tie absence of third persons, diiiacree as to its precipe terms, but it appear:- that Lire. Bowers .^nade aviall payment:, on the piirohaco price from time to timSi v^aaich asiresated on E opt ember 6,~1906, the date on vrtiTch tho lact payment was made, the cum of (:100. nothing further was don© in the oatter until llai-ch, 1907, \/hen the respondent Charles "£7. Good waited upon rj:c. 3ovqti isd told her that he could wait no longer for the balance of_, tle_ purchase g^ce. Tliis call was made upon Friday, Ilarch 1, 1907, and llrs. Bowers desired him to ^ive her until the next iionday in -.Thich to raise the money. Eiis he refused to do, but, as_she testifies, did a^^^ree to ^ive her until the ne::t day at noon. She further testifies t::at ahe appeared at his^of- f'ice on the next day at noon vath the money, ^en Good refused to receive tt; declaring that he -..ould not carry out- the contract. On Ilarch 4 Tnere- affer, all raonejr paid "bj "ij-s. Bowers, and ten dollars additional, vas re- turned to hor in settlement of her rights under the contract. Ihic action was be^un by Ilrs. BQ^-'ers and her husband in 'lay, 1907, to recov~er damasesfor the breach of the contract of Eale_. To a com- "Plaint alleging the contract aM its breach, the respondents first ans- wered by a general denial; but on the day the case was called for trial, they obtained permission and filed, over tlie appellant's objection, an amended answer, in v;hich tley denied the contract as alle^-ed by the plain- tiffs, and set up affirmatively an oral contract of sale, the failure of the plaintiffs to perform, and its subsequent settlement and release. To tins a reply v/as filed, averrir^ that the money returned to la^s. Brov.n, ard allejed to be in settlement of the contract betv/een the parties, was so returned without tin ioaov/ledje or consent of Iier husband, and against the v/ill of rirs. Bowers, she beina- induced to accept tlie same by false and fraudulent representations made to her by }'it. C-ood and his gs^nt Ilrs. Under-..ood.. On the isstes thus mad-e, a trial vi^as l^ad before the court v/ithout a jurjr, result in:j in findings ain. a judgment in favor of the re- sx->ondant . On the merits of the controversy, the court fovind that tlie re- spondents had returned to the appellants the several payments that had bean made to their a"cnt for them v.lth interest, and, 229. "I!liat said money co returned ty the defendantc v/at returned to thorn and paid over to them on or atout tlae 4th dajr of Ilarch, 1907, in full catiGfactioii aud settlement of all doaliASC theretofore hsd bet\7een the plaintiffs and defendant t on account of caid lot, and on account of the moneys paid "by plaintiffs to defendants' aG'ent as aforesaid, and th£it said cum of money v/as accepted by said plaintiffs in full settle- ment and liquidations of all transactions theretofore occurrin:; 'betv.-een the parties hereto on account of said lot, and tliat at the time of said cetftlerrent, the said plaintiffs absolutely released and discharged said defendants from any claims or demands that said plaintiffs, or either of them, mJ:;ht or did liave a::ra-inst the defendants on account of any transactions rel£,tin5 to said lot, and at tie time of said payment to plaintiffs of tie money tl^retofore paid, v/ith interest, all contracts or asreeirents relating- to said lot were "bir mutual consent anc. for a valuable considei-ation rescinded, cancelled and held for nanz^t." The ^pglla nts conte nd, however._tligit_ the settlement -Tas induced by conspiracy and fraud on the part of Good and his a^ent , but in our o^Jiiiion "the" eviaKaCe" does not support this contention. Lire. Bowers' ""testimony shov.x, that they did no more thaji state to her their vie\7S _of her rights under the contract of sale* and this at a time_af ter_di£fgr- erces had arisen between tliem, and vidle the parties v;ere dealing at arms lGn:jth, "and v.'lien che_had_ rpason to suspect their motives if they were other_ tliaa honest. __Under these circumsta:a:es,. we think it too H-*-W\ much to say that Ilrs. Bowers was either aisled by the respondents or co-'^' p "Srced_by_then into doin^ something against her mil. It^is ur:;;ed also that Ilrs. Bowers v/as without authority to ma'.ered I!arch 2, 1915, upon tlie verdi ct of a jury reucLared ia favor of the dei'enda a ts. in '.an action of unlawful detai ner. Rev ersed. HolcomlD, J. — Appellazits, ^byjanla'.vful detainer proceedinss, soujit to recover pot^Lsr. ;.iqu oi_a^ricultuv-al lands descri"bed~in their coaplainty .'.!" the cloce of tli3 evidence, appellants •onsucceEGfulljr moved for a ver- dict to "be directed in tlieir favor. The verdict of tiie jury in favor of respondents roculted, ac appelli^its clai,-.i, from erroneous instructions. '^e lands_in question were uixLer leai.e "by appellants to one Eudio on January 17, 1910, for a term of five years conmencins October 5, ISOQ, and terminatin:^ October 5, 1914. Before tl-£ end of the term and -^.hile in possession under the lease, on about :iarch 1, 1913, Rudio sold to respond- ents a lot of persoijal property and G^ie plovdnG and surniasr fallov/inj on the leased premises; and also, on Ilarch 17, 1915, P.udio aad wife executed _an ins4; ruaent-in-T/ar-i^aias -aH«3^ stoisamvledged as a c'.eec-,- By whiuhrjtlluy: a«- leased, reliaouished . and Q_uitciaimed to appellants all their ri^ht, title and interest in a nd to the la nds in cues ti on and their leasehold. 3ii3 in- , strunent v/as lefTl^ escrovj by Huc'.io a.'j£- respondents pendios final arranse- mentc bev;teen then and appellnts. Tliere t/as also drav/n a nev/ lease, to be executed by appellants and res:.^ondents, v.-hereby the same premises -.-/ere to be leased by appellants to respondents foi a terra commencing Llarch 17, 1913, and encUn;;" October 5, 1914, >/itIi the option to respondents of renew- ing the lease at i ti. e::^.iration for a period of tliree years "if they so desired." Mrs. Lproit..er, for some reason, refused to join in the es- ecution of the nev; lease to resxjondents, and it \7as never eicecuted by her, but was bjr her husband', ^.lone. It seems to be uiidisputed tliat the real estate is oo m-jiinity real estate of appellants. Respondents v/ent into possession of the land on or about March 17, 191S, ard remained in possession more than £i:cty days after the termination thereof on October 5, 1914, gnd continued to hold over and produce another crop. On October 6, 1915, appellants caused to be served on respondents a. notice to cuit anf. surrender the premises, as their lease had e;;pired October 5, 1914, and that thjir subsequent holding over for a further period had e:;pired October 5, ISlo; tendering liiem t'sB sum of yeso as the value of su^xier fallo-./in^ land on ^a premises for the ensuing' crop, at a stipulated pricie of 72.50 per acre under the provisions of the ?>udio lease. It is hero noted, ho-:ever, tliat the same terms vere specified in the nev; lease; in fact, all the terras vrere the same, e::cept the Parties and the option to renev in die ne'-v lease, and a difference as to furxiiiaM.'C:" saclci. to co:_tai:'. the le-^oi-s* ::et portio:. of the trnoLhed C;rai:.; the old leaae providi:^- ihat tlie le^seow L-hould fvir;-.isla the sacl:^ , the i.eiv oi-e piovidi:.- that they should be fui~::ished by the lessors. IHiis last differe:-ce, Iiov.-ever, ii: sloo-:: to have bee:, a mistaJze of the scrivei.er'. 231. a;xL the reti.o:iCe:--to uo ix .c'-erotocxi a.ji, -.vhile i- . i:o:.:ejMio:-, furidwhecl tlia sackc for tlie leccorc' >ortio:-. Both leacec o©:-tai::ed a CDiiditio:^ a:,ai-.^;t culiletti::^ or ao:ji_.:iae; .t "by tlio lascee. \at:-.ov.t tliQ -.vi-itts:. co:-.ie:.t oi' lewcorc. Ho \v:-itte.. co:xe. .t to ai.y ai.wijuae:.t "by Huc'.io to recj?o:.de:.t^ appears to have Taee:.. ^ivo:., ax", i:. a:,::_:ella:.tc' :.otice to quit, cei'ved oi. recpo-'.der.t:., t:j3:e xl a declaia,tion that veGpo:xlG;.-tc "arG operati:^" 'x.dev the lease of Hudio," purcl-iaced by reEpo:-de:..tc. \ll\e:. Hudio reliixuiched Ml. lea^-e, lae OT,.'ed appella-.ts Ol,900, \7iiicli appellai-tc required recpo:'.d~ e:it:, to aocuma and pay, together xath OlOO additional, \/hich t:-£y acciyned, save iheir note ior, aiid afterr/ai-dc paid ia full. ?tet;poiJie:itc paid Radio $7 .,650 for tiae ctock a:.d other percoiial property ovr..ed a:,d uced hy them Oil ti.e premicec, a:ji the $2,000 to appellai-tc ac co:.cideratio:. for the tra:icfer to then of tie Ltock, perco:ial property ai.d L.umitier fallow ai-d plowir.j oil the ploxje a-.d a leace to them for a tei-m of yearc . Of all thece facte arjd the tra:xactio:.c vath Kudio ori the part of respondeat:;, appella::tc, i:. eluding' lli-c. Spreitzer, had fcov/led~e. On llai-ch 17, 1913, rs.po::de:.tc, v/ith the lGio\;led-e of both appella;.tc and without objectioi-, ',/e;.t into poccection of the premiGec. Itrc. Spreitzer had ajreed to enocute tie lea^e to recpondentc, "but Ions af tervvai'dc , on fip.di:— that there \-cz iomethinj in it that the old a^Teement did n.ot have, refused to v,i\,y. it. Duri:^- all the time reopondentc were in poc- secsion, tlie rent was rejularly paid according to the terms of either lease, and reoeived a:.d accepted vdthout objection by appellant. Eie premises were properly farmed according to the stipulatioix ii- the lease. The coui-t cubmtted the case to the jury by instructions iu accord tath tlie theory of the defense, to th£ effect that, a prepondera:.ce of the eviderxe so justifyin;^, a lease for a term of years, althouc;h re- quired originally to be in writing a::d sic;ned ai.d aclc-Owled:;ed by the parties thereto, may be so effectually ratified, acquiesced in, aiid per- foitaed as to estop the dissenting party to question it, s:'A be thereby established as effectively as though it had been eicecuted \ath all the required formalities of lav/. The jury were charged that, if they fou::d by a preponderance of the eviden.ce that resporxlents occupied the premises under the new lease a:-d not u-ider the R-udio lease, a:-xL if they found that tlie new lease \'vas bin.din:; upon Jlrs. Spreitzer by lier having a^i-eed to enecute it and respondents' occupyin-- the premises for t\TO years o: mors, fa^uuho thaw aix. returnr.;:; rentals in accordance vath the lease risaed \>y Johji SPreitaer ?lone, the consent of Ilrs. Spreitzer bein^ ^-^^ P^^- cumed a-.d she estopped to deny the validity of the lease, a:-d tl-at re- spondents continued i:. possession aiid paid the rent to appella::ts accord- ing to the terms of the new lease after October 5, 1914, by and v.dth the consent of appella:itc, such continua:iC6 v^rould be a:i erei-cice of tlie op- tio:-. to lease the premises for the additior.al tliree years "vaaich would be binding upon all parties, no nev/ lease i;. ':'ritinG; ox notice thereof be- ii-j necessary. Of this su'bMiSwio:-. j:/. i .::t-UCtions thereon, appellants conjplatn.- Th3.t the i-elation of landlord a:d- te/.snt betv/een the parties v/as established is clear. But that it vas not established under the orig- inal Rudio lease is equally clear, notwithsts-idins the subsequent decla- rations of appellants. Tlie minds of all the parties, at the time of the transactions bet'-'esr^ theu ■.^hen ^.udio surrendered possession.^ met 232. upon the release of Rudio. He formally ciirrendered pocceccion a:.d re- leased a:id relj.iiq-uiched hie lease "by a formal co:iveya:xe. while it was nominally placed in escrow, all the evidence goes to cuhctantiate tl:ie fact that the lossorr. ai^cented to his surrender ar.d that they accepted responde::ts as fcen,=ints nn his place. Ihe old lease was terminated and its fu:ictions had coatied. Uor can it "be said tliat there was any form, or cubsta:ice of a transfer or ajisiGnraent of his lease "by Rudio to re- spondents. The r^-t'ore of tiie instrument e;:ecutod by him was not of that character, and respo::dents ne^-otiated vath appGlla:its for a new lease to them vhich, aocordi::^ to their evideixe, appellants a^^reed to give. So far a^J the v/riter is concerned, were it aii oriG,l:ial question in this jurisdiction, he would feel inclined to declca-e such a state of facts as v;as chovrn arxL resolved "bj the jury in favor of resi>oiidentc , particularly \Jhere the lessees actually purchased tlB term for years from the cctm^mity for a larje cum, sufficient to estop "both members of the community of lessors to deny tie validity of the lease for its full and optional term. Were they tvra joint ov^ers of tie premises, not a community, Jolm Spreitzer would certainly he bound by his deed, and also by his acts and conduct. The other party, in such circumstances as here detailed, disre:,'ardii:i,'"j the nere payment aid receipt of annual rent vJien due as an act of estoppel, ou:jht to be bound by her acts, con- duct, and silence. And sirce a married v/oman has by lav; (Rem- Code, Sec. 5925) "the same ri^ht ... to acquire . . . and dispose of every species of property . . . as if . . . she were unmarried;" and "contracts may be na-de by a wife, ard liabilities incurred, and the same may be enforced by or against hei' to the same entent and in the same manner as if she were unmarried" (Rem. Code, Sec. 5297), she should be bound by her acts, conduct, and silence as if a feme sole, to the Saras entent as any other person sui juris. Jut , unfa- tuna tely , the statutes provide that all_ conveyance s__ of real estate". o rjmsLJjaterest therein^_ aKd^l'all contracts cr en.ti n,^_or evidencinj any encumb rance upon real estate shall be by deed" {Rem_. 0ode^SecT^745) , and "property .' . . acquired after marriage-by either husband or \,n.fe, or both, is community pi-operty"_ (Rem. Code, ^ec'.^Sgi?); and "the^husband . . . shall not sell, convey, or encum- Jjer the communit7"real e::tate, unless the wife join with him in execut- 4Eo" the deed or otlici' ini;truiient of conveya.i.'tr. o by v/hich the real est&te J;S_sold,_con7eyedj_^r_encj^bered, and such deed or other instrument of Ciinyeyanc_e_fflU5_tJbe^_acl3iQWledS'ed by him and his wife." (Rem. Code, Sec. 5918.) Hence it has consistently been held thata contract to lease V- i;;- -ccmrounii y, land,, made _by_a-man--^ied-man vdthout- his -wife joining- him in ~^ the manner. provldecLby__the last quoted section, the lessee loiowinj of _its coEM jnity c haracter, is clearlj'- in' contravention thereof. Holyohe V. JaclcCMi, 3 Uash'. Ter. 235, 3 Pac. 841; Hoover v. Chambers, 3 'Vash. Ter. 26, 15 Pac. 547; Isaacs v. Holland, 4 ^Tash. 54 , 29 Pac, 976; Bro^^n- fieldv. Holland, 63 'Vash. 86, 114 Pac. 890. Co nsequent ly, as to the wife member of the community, the facts l£TQ ^ show_t]a.t ther"e vas no^th inc; more tlian an oral a^Teement for a lease, and ^^ L_cileXLC.e., and conduct viSiich oujht to estop h.er to der^ p^ ^£^ks2-< a^ 233. Sat it^loas teen establiched tiiatj under the statute, an oral lea^^^c r^t, or an oral a:p.'eement for a lease, boiuj interdicted t;' tlie statute, _can- •n5t Tie suKtainettT'ac creating a tenancy eixept v3ien the leccee ic le^tj.n-- ^~pos se ssion andjjg're"'l:ias 'boGu part perforoance, and then only as a tenancy from mont hTto month or from period to jiei'iod., Richards v. Redel- sheinierr36 V/a'cir. 3Z5,'i6 Pac. 934; V/atkinc v. Balch, 4-1 'Vach. 310, 83 Sac. 521, 3 L. R. A. (IT.S . ) 652; Brovmfield v. Holland, supra. In the case of a^Ticultural laads, vhere the tenant enters under an invalid lease, every holdin3' over for more than si::ty days after the e:3?iration of any annual rent period continues the tenancy fa- another crop year or rent period. Rem. Code, Sec. 813; Snyder v. Hai'din^', 38 './ash. 665, 80 Pac. 789; O'Connor v. Oliver, 45 Wash- 549, 88 Pac. 1025; V/atldns v. Balch, ani BrCTnTield v. Holland, supra. .'UxL tl~je eixl of a period is the time whea the rent is pajrable. Snyder v, Hardinj, "/atlons v. Balch, and O'Connor v. Oliver, supra; Dorman v. PlOMnaii, 41 V/ash. 477, 63 Pac. 322. Here the end of a period occurred on Octoter 5, each year of occu- pancy, and holdinj 60 days thereafter. An oral lease can he terminated, as the statute provide:, "by vnritten notice jiven at the prescribed time "before the end of zzch period, '/atlciias v. Balch, and Dorman v. Plo\man, t-Tjpra . Under our statutes and precedents, we cannot hold tliat an invalid, unsigned, and unacIaiov/led:;ed -written lease, or an oral a^Teement to lease for a term of years, can "be estaliliclBd for the full term lay part performance, ratification, arxL estoppel as a^jainst the community ovmer not liound ty deed. Hie payment aM acceptance in advance of a lar^e sum of money for a lease for a term of years cannot te treated as pur- chase money fo' a title, l)Ut only as additional rent. The tenancy here in controversy was lejally terminated hir due no- tice. The case v;as improperly submitted to the jury upon the lav;. For th6 fore^oin^i' reasons, the .lud.T nent J f reve: sed and a jud^pnent ordered for the appellants upon their paying tie amount ^f their terder. Ellis, C. J., Parker, and Mount, JJ., concur. Y--"c3 234. VETUTOn IlimL'"-, ac Guardia-a etc., .appellant, V. VlilTOH -1. 2ATRJCI:, KGcpondent. (105 T/ach. 442. September 3, 1918.) Appeal .flora a jud^^-rrsnt of tlie cupeilor couit I'oi fjpokaiie county, HcCroslcey, J., oiitered ITovera'ber 25, 1917. upou f indiu:;G i^a^avor of^ tlie_(lef»a'i "m-^nace- ment of hie ectr.te," "proceeds of his est.te," In other v;ords, by the act the :ju:.rLin is c,iven the mancsement of property viiich tloe insrne person possesses, nd the 3Uo,rdi:n c-^n only e::erciEe those ri.jhts of m-Ji' .cement which the ward, when s.-ne, ecu Id h-ve e::ercised. Th& ^nxdirin of cm in- sane wife Cannot tate over the niana3em£nt and control of the community property, that bein^^ {civen to the husbani. If the guardian. v;ere entitled to tl:e control and. raanaC'enEnt of the wife's half of the conmunity property the property \.ould, of necessity, ha1?e to be divided in some manner* In this case, the comiTiunity realty having been sold, tl:e husband, in effect, divided it by dividing- the proceeds, .and, as Gu^^^iaJi* -i^<^- the custody and management o? one-half, for v/hichhe accounted in the probate proceeding. Under the law, he was not obliged to do even this. V/e do not hold that Gie husband is net bound to support and maintain his insane wife out of community property, but tlsre are waj's in v/hich husbands seekia^ to evade that duty may be compelled to perform it; but, as we have stated in tlie ^e^innin^j of tliis opinion, the question of support and maintenance is not involved in tl-ie case, our conclusion merely bein^ that the guardian of an insane wife does not, upon his appointment, secure the management and control of community property. The judgment is affirmed. \r-~ ^ Ilain, C. J., Ilouut, and Eolcomb, JJ., concur. \::i. -x^ Chadv.lck, J. (concuriing) — "/Ixen tls husband had accounted to tlie court for the v/hole property and -./as allowed to retain tl:e one-half tl'x. t was his ov.Ti, his dischar^-e as guardian operated as a distribution of funds vdthin the jurisdiction ard. keeping of the court. The court could not re- assert its jurisdiction, and, for the same reason, tlie successor guardian caja assert no interest in the divided f urd. . I concur upon tZiis groimd. /f. y^ y ^ ^^:>^ ^p^^^^i-reinisjc as lessees tliereof for a term of five years from Ifoveraher 10, 1919, cuie tin;:; their interest and title in the leasehold_for such period, and enjoining; defeniants from distur^ins plaintiffs in the possession of the premises as lon^ as plaintiffs should perform tlie temis a£d~croirdittojis of fiie lease. On April 23, 1914, defendants, u!x), as the OTxiers of lot 11, tlock 16, of S. A. Bell's addition to tls city of Seattle, v/ere erecting tlere- on a ■building; to "be used as an apartnaat liouse, executed a lease of the premises to G. E. Shonvood aixl .dfe for a term of five years from Septem- ter 1, 1914. Tills lea^e provided, ho^;ever, tint, in Zie event tlie huild- ins v;as not rea:.y for occupancy by Septernlaer 1, 1914, the lease should not be^n to run xmtil the building v/as ready, v;hen the tisrij should run for five ye:J:e therefrom. In accordancy xiifa this provision, it was Uov- Knber 10, 1914, v/lian t::e term be^^an, and it was to run until November 10, 1919. On February 20, 1918, one Driscoll was tte tenant, the property h^iVin^ Passed to him tlnrou^ several h^ads. He was liavin^ financial dif- ficulties and was unable to mate certain needed iinprovexents on the pre- mises. Amon^ otlaer tliin^^s, the installation of coal burners or furnaces was necessitated by the then eriistdns oil shortage, notice havinc; been given tlut oil vo uld be d-iscontinued. Driscoll thereupon g;ve up his ten^ anoy, one R. L. Lander agteein:: with appellant Perldns thr. t Ijb --'ould take an assi^-nmaat of the lease, aid an extension thereof, for his brother, Roland G-. Lan:,er. Accor^insly* Perkins s^nt tlie following^ letter: Seattle, v/ashin^ton, February 20,1918. "E. G. Lander: "/e will draw up the necessary e;:tension of tiie pre- sent lease of tha Sheridan Apartraents, or make out a nev; lease convnencin^ Hoveraber 10, 1919, for a period of two years at $9 per room, and the tliree following years at $9.50 per room; tezms and conditions similtt to the present lease, ;ixi th£ present raortgase on C^e furniture as security to be e::t ended or ^-ranged for by you. "■iDP:A- Yours truly, hm. L. Perkins." K«>-^w.©:^^:^^»''TA^ JL -- — Y*^ I 237. H^recfter appellrjats refused to on tor into a formal asreemoat lo:. tLe erctensiou of tlio lc.:se or tl.e makiuj of a nev/ lease, in accordance rdt:i the ttrns znd co-.iciitionE of tlic- letter in ruer.tion, and notified resioondeutG tliat tliey (appellants) would not te "bouud thereby and that respondents rav.^t t;arrvjnder the prunioes on ITovember 10, 1919. Respond- ents tijen brcu^-ht the action for specific 'perforiar-nce of tl.e alle^^-ed ri^roioin'^nt in (f.io.r, tn. in = Various rnlir:^5 o-£ the tri^l court are assigned as error, tut v;e tMnlc a decision a^ to v/liether the failure of Ilrs. I'erlcins to sign or actoc-./ledse the a^rrerr.^nect for th.e extension of the old lease or the e:z- ecution of a ne-,v one e::cused compliance therevdtli; or vliether the cir- curast:JiceE of the case „re sucZi as to estop her from denying the valid- ity of the G^'jX'eanent, -r.lll "be conclusive of this appeal. :: rs. Pe_rk.-iriE testifi ed to the effect tZiat she had always t een sat- is f ie^^jto_J2ave]]!^TT^12I^^;^^^Ie][cora^u^^ in^^j f community real estate : aad the cuestion is, vfB^.er she iE^n6\7 estopped to deny his authority to represeiit h&r in this transaction. On tI:i.iE questrion of estoppel, responde::its cita, among other c-ises, Youns v. Porter, 27 Wash, 5ul , CO Pac. 362, an actioji for specific performcJice of an oral asi'eement to convey an undivided half interest in certain real and personal property/. Specific performance was there decreed, tut, in order to sho.' that th^re the facts v.ere different in material respects from those cf the instcjit case, we tfuote from the concluding? portion of tile opinion in that case as follows: "So fax as flie personal property was concerned, it was simply an incident of the real estate; and, v;Mle the Td,fe was not a party to the original agreomaat, the findjj::^ of the coui t is to the effect that it was at all ti;3£f. c-istoTa.ry for the hustciad to personally'' conduct all com- munity tusiness of hi^aolf end vafe. 'Uiis he ha.d a ri^it to do under tl:e law, so far as tlje personal property was concerned; end it was per- sonal property v/hich, under the agresraent v.'ith Hie respondent, was in- vested in thjs pottery plant. Sh£ also Imew of the position occupied ty f.-e respondent in relation to the property, for she joined ■rrith tlie respondent and hei- husbcnd in the Hease of the property. OtJier testimony in the case shcv;s conclusively that she was cognizant of, ard in effect consented to, the v/hole transaction." It is plain that, on account of the difference in circumstances, that case hjis no tearing upon tZ:e case now tef ore us . On tl::is question respondents cite, also, the case of Washington State Bcnk of Ellensturg v. Dicteon, 35 'wash. 641, 77 Pac. 1067, anotZier action to compel specific performance. Respondents here rely upon the language in th.at opinion viiere, referring- to the contention Qiat the contract for tl.g conveyance of commimity property there under considera- tion v/as void tecause not signed ty tl'B wife, ve said: "But it is not the rule in thns state that a contract for the sale of community real proper t;,' must "be signed ty the wife in order to te tinding upon her. V7e 1-ave lield it enough if the contract, when made ty tlie hustand, liad the sanction and approval of the wife, or if it v;as sut- 2,-33 . sequently rcitified "by her." (Citing aufcorities.) To diEtin^nicIi the Diclcson case from the one at "bar, it is only necessary to seh ont the Iso-caage of the opinion in the Diclrson case iamediate3y foiTow.inej the aLioff'-" qiJ.or.^tiou, as follows; "Here Caere was toth a previous a,nthorization and c subsequent rat- ificntion. HoOrJidlens himself (the hL:sb<:uid)' testified tliat he liad talh- ed the matter cv^r v;p.th his \7ife prior tc entering into the contract, and that it xra^ eisfnvei 5nto with t&r toiov.ied.'je ard full consent; aiid it ■'.'.n.ii "(je rP'TierTliured that she joined vdth her husband in a deed of the premises to tie ryRpondeiit. " It may "be remarhed here th^at Mrs. Perlcins does not appear to h^ve had any la3,o-.iec".33 of tlB letter whicZi is the subject of the present con- troversy. liiich rel.ian^.e is placed by respondeiits on the case of Zinn v. Knopes, 11 V/azh.. Doc. 4£&,191 Pac. 822; but v;e said there: "The testimony e!1x>";s that the land was the separate property of the h^usbar.d He_iry lihopes, and that bein;^- trns. if the lease v;as other- wise £,ooa, the fact that the vvife load not joined in tlie e:cecution of it is immaterial.'' In the present case, the property belonged, of course, to the com- muiiit;^' consisting of a:i?pella:-ts Perkins nnil T;ife. Eespondents also claim that the case of Matzger v. Arcade Bldg. & R. Co., 80 Wash. 401, K-1 Pac. 900, J,, p.. A. 1S15 .". 288, lends much sup- port to tLeir coiitGiiti o:. in respect to t'ae question ui.der discussion. There the lea-^.e in question \;as xxnaclciov/lev-ged. It appears that the tena;it there h^ild the p'^'operty u:.ider tie If^nse for a co:.siderable length of time. ETOitles wo.ze tnere slicvx: to estop t^^e dei.ial of the validity of the lease. Tr:e IIatr;/;er case was later cited by us in the case of Armsti»ongv. Brjrlcett, 104 Wash. 476, 177 Pac. 355, where tte lessee soi^ght to avoid the rule governing oral leases by settir^j up certai:: facts \^iich she relied upor. as creaci::g a:, estoppel, '.'e said in the opinion: "■Hhe mere possessio:., the payment of re;.t and the conduct of a bus- iness in the usi^al way and for the sole benefit of tlie tenant, unaccom- panied by circumstaiices which v/ill create a conoideration going to the term, will not make a;: oro,l lease from ponth to month a term lease rest- ii-g i'i estoppel. ' (Citir.g the Ilatzger case.) Andersonian Inv. Co. v. \';ade, 108 Wash. 575, 184 Pac. 327, v/as an- other case involvii^- thjs question of estoppel; but, as to it, as well as to most of tlie other cases cited az^d discussed on tlu-S point, v/e say, in the la-gii^ge suggested by coui.sel for respondents, that: "Hie numerous defi:iitions of estoppel ca:n.ot be weldsd into a fi::ed rule of law. Equitable estoppel rests largely upon tlje facts and cir- ciiDEtances of each case. CEie cases themselves mi;st be looked to and ap- 239, plied br vra,y of scialogy, rather than: by rule." la Spreitzer v. Killer, 9H Wash. 601, 168 Pac, 179, we cited the loiiguage ol'Sec. 5913, iljm. Code, to th3 efiect tiiat: "T!:ie hiisbai^d . . . shall r.ot sell, coisrey, or encumber tl'^ con- miuiity real estate, unless the wife ,ioi:i v/Lth him in execiiti::g the deed or otlxjr ir.stni.m'SJJt of conveya-xe by v/luch the real estate is cold, con- veyed, or encuraberod, c;:;c. sTXh deed or other instrument of conveyance mills t be acICiCv/1 edged by him ai;d his wife." We than said: • "He:ice it has consistei^tly been ?ield that a contract to lease com- munity land, mao.e by a married man -.athout his v/ife joinir.g him in the ma..ner provideo. by the last quoted section, the lessee knowing of its commu:iity character, is clearly in contravention thereof." (Citing authorities ) . ■.7e quoted, vjxtli approval, the above language in the recent case of HirJdiouse v. Wacl^r, 12 Wash. Dec. 2i9, 191 Pac. 681. Expenditures by respondei.ts are also relied upon as part performance rendering the proposed enteusion of lease bindirg for the iie\r term upon both spouses, citing IJatzger v. /j:cade Eldg. c; R. Co., supra, which is distiuguiSiied ffora tliis on the grounds stated in Grubb v. Hoi;se, 95 V/ash. 200, 160 Pac. 4-21: "In support of this cause of action, the case of Hatzger v. Arcade Building & Realty Co., 80 Wash. 401, 141 Pac. 900, L. E. A. 1915 A 288, is cited; but ifiiat case is diEtinguishablc. There *A,' the tenant, at the timo of ma'Ao^; ths loa-'^o, paid a oon:^ '.deration \4iich went to the en- tire term in addition to the rental to be paid at stated periods through- out the tena; 'B' put in a new front in the storeroom tipon the faith of the lease; and ?G,' the manager of defendant companj', recognized the lease as valid v/ithln one year prior to its enpiration. In this case, no consideration vv'as paid for the lease -naioh went to the entire term, no recognition of th. e Isase as valid v/as made -Jithin one 3'ear prior to its e:q?iration, and no permejaent improvament was made by the lessee. . . "No authority- has been presented which -.vould sustain the proposi- tion that the good "Till of a business may operate as a permanent improve- ment to the freehold so as to remove the bar of the statute of frauds. The ver- natm-e of the good ^411 is sich that it could not tsjII be con- sidered permanent. ' Here, respondents entered into possession under the valid, une::pired lease, having eighteen months to run. Gha expenditures, except those for the coal-burning heaters, v>ere such as the lessee had to malce under the lease, eizcept that interior painT;ing was done instead of tinting; and the coal burners were voluntarilj'' installed and are removable. Hence, such e:q?eadi tures are not ci:ch as to constitute part performance and create estoppel, as in the Ilatzger case. /l.,.,^,.^^/--^ .^.^^ ^^;.^:^-^^^^ X^«--a<_ /^-^"--^ .^ / 240, From the foregoing, it rollov/s tint the judgment of the trial court must te, atid it is, reversed, with direction to eater judgrtcnt for ap- pellants . . .^ Ilount, Ilitchell, Tolman, and llain, JJ., concur. ( ^^<2'tu^^<^^^^::c^:ip-^ 1 .^^^^^-'o. .iC^-.^^^^^^ (^y y ---'=<»-^^^ -^ f U ,f'-0-\^^Z^ V ^'^^t^^c^ _e;««i-t.-<-rf<2'i£i»,^ ..:3^ ^ -f -"^--^ -^^^ , /.-^<^ ,^ .^ I 341, (SuproKB CC'^jC^ 0:? Califor-aia. Jan. 5, 1915.) {:/>9 Cal. 101) Departrmrt 1. Appeal from Superior court, laags Count;^'-; Jdha 5. Covert, JrtdjG. Action "by Ma.-: Strauss asalnst D. J. Caaty. Judsitent fcr plaintiff, and from t.Iie .radjment, and an order danyins a motion for a new trial, defendant appeals. Jud^ineat aiid order affirmed. Sl-cs^^, J. Tiie defendant appeals from a jud3,r.ent quieting pl^in- tiffJ^:^_tiJ;Jji-tnzszii:^&rot land in Zin^s county^ He also appeals from an order den;-!'!^,'^' his notion for a new trial. The plaj.ntiff clai>x£ as successor in interest of Jj-ney L. V/eddle, to v;how the Icna v.as s^-anted "by a United States patent on Karch 7, 1892. lEho ci.Gfer.dant claiss undor a ta:: deed, and also relies upon a title ty preocripi/icn and tl\e statute of limitations. (1, P.] ?he plaintiff showed a socd derai^nment of title from 'Teddle . TkB record Ci;,.:tainu reference to a deed from Lucinda E. ".."eddle (wife of Arney L. ) to .Vri'ia L. V/eddlo. The deed was intended to convey any possi- ble incerest of the wife to Gie husband. Waiving the question of the effect cf the mistake in tlie grantee's name, there is nothing to show that the vrf.fe had any interest, and, so far as the proof goes, Arney L. Y/eddle was the ^ole ovo^er of the land. Even if it was c cnimunity prop- . erty, he liid the r ight to convey it for a valuable consideration. E6~ *L^ dJ^ convey^il; to Feeder it-. It in 1907 "by a deed reciting such consideration. ^ Thsreafler the plaintiff obtained a money judgjre'at agairst Fredericic, had e.:eGu-:ion ].f^vied, and purchased the property at the er.&ciition sale. The shoriff'o d.?.ed wa^ e;tecuted to the plaliotiff en Hec ember 12, 1909. The evidf;-.\ce offered by plaintiff in this behailf consisted of the judg- ment a{^ainpt Frodericlc, the e::ecution, with the sheriff's return shov;- ing the sale, and the affidavit sliowing due publication of notice of sale, ard the sheriff's deed in proper form, ([hose papers v.'ere suffi- cient to show the acquisition by plaintiff of Frederic Ic's title. Blood V. Light, 58 Gal. 549, 99 Am. Dec. 441; Hihn v. Pock, 30 Cal. ?80; Peter- son v. \7eissbein, 7o Cal. 174, 15 Pac. 769. The judgment and the order deiiying a ne\; t-rial aro affirmed. We concur: Angellotti, C. J.; Shavv, J. w o y— V\^ i 242. (39 Atl, Rep. 890, ) (Supreiie Coxirt of Errors of Cormectiout. }kJ-?.a 5, 1£]4.) (b3 Ooan. 42) . Appeal frori Superior Coiart, I.Iiddlese::: County; v/iniam H. V/illiaras and Uaxov.f- H» Holcorab, JiCges. Action tv Eli.;?abefi C. Bro\n a^^jaiust Hhomas S. Bro\m. From a ju ^- xaent f or da-C'3ada".i"b , plaintiff appeals,. Severaed and remanded for fur^ ther proceed?. 103-0. Qiayer, J. "Zee plaintiff "b;; tliis action seels to recover damj'3j:c'. a-iC wi.f^ .i:i legal adontity and capacity ox a.mins prop- erty, v.ns laid"; and taat siuMf fb3 act took effect "husband and wife alite reta3zi lr:e c-^jpaoity of cvpr.ng. aoquirrag, a^d disposin:? of prop- erty, v/h;.ch rje.Ionr:s to T:nv,arried person'^." lu that action a v/ife hac". sued her hu?b^:o.d for ■bt'saoh of contract.* E-^ act provides that tl-js '..If.; shall h^A-e T.-0'7or to nialce contiac-cr. -,.•;( th third pcrsonzi, and it was clar-n'- ed that, a^ it in terns g.?,ve hur^band ai\d wife no pov.-er to contract mtU each of:-ifr, !:-;;c'i r.c-.ver t& prohibited; but it %.D.!i held that, as the act' •'is in th:: rative of :a:ndei-.a:5tal legislation, it involvei: all the re- sults nece:;raj~:lly xIomL^; fro-D. the prfaciple established;-' that the con- seqiiencec result lii{y from the iae\/ status established by the act '.;ere not to be prohrbitsd by inference, imless Ei-.?,h infere-ace is necessary; anfl. that the r ijjiit of iifasband ard v/ite to sue ea^.h other for breach of con- tract is one uf 'cIs coaceqiiences of tlie new ftatuj; established by the act. In Ilarrie v„ StErnford Street R- H. Co., 64 Conn. 9, 23, 24, 78 Atl. 582, 35 L. ?.. A. (H.r . ) 1042, ."jm. Cas . L?\?:Z, 1120, -.e held that, as the result of the lesol status created by tlie act of 1877, the wife may nov;, by an action in liev o\;n name, recover for physical inj-uries tor- tiously inflicted upon her as fully and to the sane e::tent as a husband may vhen he is the person injured, and tliat the wife's right of recover;^'' for her injuries is e::clusive. In that case a husband had been allowed to recover, amons other thins'S, for the loss of his wife's services caused by her injuries, and so much of ths judgKent as allov;ad him dam- ages for the loss from such injuries v;as set aside. By these tv.'O cases it is established that a vafe, married since April 20, 18-77, may contract -Tith her husband or other person ard nay in her (3wn nane sue her hutband or sixh other person for breach of such con- tract; also that she has a cause of action upon which she maj* recover in a suit Ku-3';g.h.t in her ^wn name f jr perscnal injuries T.Tongfully inflict- ed upon her by others than h^r husband. If a cause of action in her favor arises from the '.wrongful infliction of such injuries upon her by another, v.hy does not tl-£ v-rongful rofliction of s'Xh injiaries by her husband nov/ give h^ar a cause of action against him? If she may sue him for a broken promise, v/hy may ste not sue him for a brolten arm? Hae de- fendant's answer is &x.l a wi^e public policy forbids it; that no right of action accrued to her from such a tort prior to the statute of 1-377; that none is e;:pressly given her by that statute, ard that none can be implied; and that this is tlie holding- of courts in otfier jurisdictions in cases Ahich liave arisen under similar statutes. It is triB that courts in some of the states ha,ve held tlaat stat- utes more or less similar to the one here in question give a married woman no right of action against her husband for a tort. They fxuL in the statutes construed no legislative intent to change tie legal status of husband ard wife as regards the legal identity of the two, but sl-nply an intent to ameliorate the condition of the wife by permitting her to retain and deal with her o\n property and to contract v.'ith and sua and 244. "be sued ty others than her husliaxid. These courts generaJ-ly hold that., unless there is ?ii e;ri?ress provision ^-ivinr; her tie ri^ilat to sue her hucbaaid, she ]Tas no ar-tion af;a'.nst hin upon contract or for tort. It is vumoces^sary to review the ii^dividual cases. As v;e said in Ilathev/son V. IIathe^7^son, supra. x\n.eve an act vMch loaves tiie foundation of the rnarriage status unchanged, and rrerely iDrovides exceptions to tl:e neces- sary consoquencss of t'Jxit status, srch e::ceptions ma-- properly ■be'llimii- ed fey the ne.ce.irjary impcVL-t oi the la'a2,iJaSe dcscriting them. If the legislative iL-.itvnt in sroh an enactraent is not to Ghani-;e the foimdatior. upon vdiich tlie statns Oj-; msrr.i3d porcons was "based at common lav/; najXieXy . their le^al l'lcx.t-'.-cj , ■[-.ut its purpose is to enpov;er the v;ife, \/hile thr.,t status e;:ists, to contract and sue in her o\vn name lii:e a feme sole, it mi^"ht -ell ■hf. held that lan^vaje 'bestcriviu/j this ri^iit could not "be so e:ctonded as to perxni b her to contract v/irh her lousoand or to sue him for a tort, TDOcrr.r.e the statu.te intends that her identity slnall still Tae mer^-ed j.n tliat of her h-js'band. In the t*.7o cases atove cited v;e have al- ready held tlvxt the losj.3lat3.-/e intent in the act of 1877 was to change th2 foundation of -f-he iesal statiis of husl-and and vafe, and that the statute effeolB that clian^^e. In marriases •.hich have occurred since the act took effect, the pai'ties retain t/ieir lesal identitj^ and their civil' rights are tc be dete?rrr,iued in accordance -ath the status thus establish- ed. Eiese ri:;yri:E, except so far as they are modified by the statute it- self or by other statutes, or are necessarily affected by the reciprocal rights and oLllgaticn.^ v,hich are irJierent in the relation of husband ani?. wife, are the Lsas az they \;ere bsicrre marriage ., Tlie statute leaves nothing to ir.ipi;.cat,ion, The ri^it to contract -./ith the husband ond to sue him for breacli of ccaitract and to sue for torts is not given to the T/ife by the statute. Triere are rights v/hl.-ih belonged to her before mar- riage; and, because of the rev; marriage stati-£ created by the statute, are not lost by the fact of marriage as tlsy were under the common- la"..' status. The statts of the parties after mairisge being fi::ed, there '„^e no occasion fcr providinr,' in e::preE3 terias v.-iiat the consequences wou.ld be. They follov/ed logically. In the riathe./soa Case v/e held that -& \dfe's right to contract with the husband aiii to sue him for breach of scch contract followed neces- sarily from the fact established by the stature, that her legal identit^- v/as not lost b"'- her coverture. It is an equallj'^ necessarj; consequence of her retention of her legal identity after coverture that she has a right of action against her husband for a tort conKitted by him against her and resultiig in her inju.ry. Srch a tort gives rice to a claim for damages. Euch claiin is property- not in her possession but vhich she may by action reduce into h^r possession, just as sI-e might before her co- verture have had an action against him for such a tort committed before that event. The husband's delict, whether a breach of contract or person- al injury, gives her a cause of action. Both necessarily follow from the fact that a married woman nov; retains her legal identity- and all her propertjy-, both that which she possessed at the tine of marriage and th-.t acquired afterv;ardE. (5) In the fact that the wife has a cause of action against l"£r hus- band for •.tt'orjgful injuries to her person or propert;/' committed by him, we see nothing which is injurious to the public or against the public good or against good morals. Tliis ic the usual test for determining ..^^^c^-'Cc.^^ / o ^^'C^ ^^^yC^,^. B. l/atson; that at the time the deed to the first tract was made S. R. V/atson,' deceased, was about 60 j^ears of age, was a very illiterate man, v;as mentally ■\-;eak and v-us wholly tinder the influence and control of defendant, v;ho v.a,E a datcrraincd and strong- mind -.d \raman; tl-iat defendant pHTsuaded and induced £. R. V/atcon to have the deeds to the two tracts of land made to her with the intention and design of improperly obtaining from £. R. V/atson a portion of his prop- ert^-- and of defrauding his legal wife, plaintiff Gallic "/atson, and his legal heirs out of said property. Plaintiffs alleged that the facts set forth created a resulting trust inuring to their benefit; tliat defendant held all of the property aforesaid in trust for them, as surviving v;ife and heirs of £. R. V/atson. Hio petition also contained appropriate alle- gations showing that defendant had disposed of certain of the personal property, vdth a prayer for jud^-ment against her for its value; also with allegation of value of rents and revenue, and prayer for damages. Pls-in- tiff prayed judgment for the restitution and possession of the land.E de- scribed and of tho personal property,, for costs, etc. "By her first amended answer, filed .'^pril 14, 1909, defendant plead general demiirrer, general denial, plea of not guilty and specially plead three, five and ten years' statutes of limitation; prayed that the dtoud cast upon her titles because of plaintiffs' claims be removed, and else 248. plojfd ttiG four vearc' cta.utG of Ximtationr. , referrii:^- to cause of s.c- tici:. other cLaii' tIaoGe for tb.o. reccver-j. o£ "-eai-ty. On a trial befcve the court vltLovit a iury, .ii^l;^rr.'r.jii; :vas i-Fi-idored for def.nidaiii- for all of i-ho laixl aid perrioiuil prorpercj'- oncic-. for, .?:acl. cf-netirje; Ij&r in lior titlo tliere- to. To the Jui^nriQt of Kino court tie plaLatiffs e:xG-pted., and in opaa coiirt save notilco of avp3<'>l -' ■-^''■^- court, aaaercafter on Hay 18, iS09, plaintiffE filed a-.i appeal iDO-.-r'. horein." At ti'e reqx-.stji- of fcJao plaintiffs fae court filed laerein his f iud- ings of fant pijd ccricluftioiis of hyrr, an fclloT/s: "FindiiTgs. of Pact. "(1) I rx:r. olnat ths plaintiffs reside in the state of Geor^'ia, ai/. that the pld.i>i.;.ifx Tiallie 'v/atson is the le^al survivii^c.' wife of E. R. V/atson, deo<--a?.3d, y.ho died April 6, 190^; tliat 5al]ie Viatson anl S. R, T/atEon ware Id'ViulIy luarriod lu Ilarioij. counter; Ga. , in the year 1856 , and the other ."■c.r'^.ies plaintiff are the lav/ful children of t. R. V/atson and Sal lie 'Vat con. ■•"(2) I find that S. R. './at son left hlr v/ife and faiaily in the state of Georgia acout the year 1882 or 1663, leaving thera tlie home and prop- erty, and removed to Palls cotiuty, Te::,, l)rin:.;in:^' soite mear.s, "but I can't say hov/ much, ^no. lived -./ith the defendant I!. G. Eai'ric as hie ^/ife until shortly liefer e his death in 1908. "(3) I find tliat Co ?.. i'/atson vjas never divorced from Sallie ITatson, and v/as legally married to h-er at the time of his death. "('i) I find that LI. C. Harris, the defendant, lived in the state of Georgia, an?, in the same comraunit;;,' in v;hich S. 2.. './atson and his family lived, and left the ctate of Georgia at about the srme time that £. E. Y/atson left; and v,hat she laaewCaJlie V/atson, the v/ife of t. R. Y/atson, and laxcvf that Lai lie "Watson \;as alix'c and had never "been divorced from £. R. Y/atson. That defendant \2,555, 05OO of vhich -..as cash, :.'?[500 of v/hich v.Tis claimed "by the defendant as her sepai-ate property and ^200 as that of her son. " Ohe remaining $2,055 v/as evidenced 'b-r the joint notes of £. . R. Y/atson aiad the defendant and vrere paid oy them "by moue;- earned by t::eir joint la"bor ancY joint efforts on the farm. "(6) I find that on novemher SO, 1896, S. R, Y/atson and the defend- ant sold the 110-acre farm in Falls coiinty for the sum of ^3,750. 7he defendaut claimed the proceeds of this sale as her Property, the sail S. R. Watson stating th2.t it rac hero, and she deposited this money -.vith one J. L. Littoral, and aftervards loaned the money to J. L. Litteral and took his note therefor in his name. "(7) I find that on Decen"ber 1, 1897, the defeiy?.ant purchased a tract Of 170 acres of land in Lampasas county, Te::., talcing the title in I 249. thG ncme of II. C. '.VatEon, and paid tlierefor $800 ca£lx and four notes oi '^.300 each, wliich -..■fere given and paid. "(8) I find that on the ir.th day of Ccto'oer, 1904, tlie defendant pxn-chased a ser.orxL tract of 170 acr?.c of l-a)rl in Laiipasao comty, talcing the title in the r-ii-no of 11. C. V.'o,tc;o.a, payi^s v700 ur.sh and ascuning thii paj-ment of (^00, xihidh. -.ras paid. These two 170-acre tracts of land viQre paid for cut of Cie funds sheared from the sal e of fiie Falls county ti'ECt, and frora thf^ir further joint labors in Lampasas county, "but in Tsiiat propor(:ion 1 can't fay. '•(9] ;i" fi.iai that on Ceptemher 10, 1907, I. K. V.'atson and the de- fendant purchased a third tract of laad in Laiapasas count-y, talcini' the title oin the n^-ne oi' ?. E. V/atson and ::. C. V/atson, payrjg therefor §1,500, i;;840 of vhich \:at cash, an.d assunins the pa:,Tnent of two notes of (iSOO ea^Ji, v.-hieh %vere not fully paid at the date of the death of £. R. wavson. At the date of the last purchase, L. R. Watson stated that all tie property -.c^ tho defendant's. "(10) I flrid that S. H. V.'atson and the defendant lived tosether as man and wife dm ii'g iha years of their resideaoe in Falls and Laripasas counties, and hoth v.r.rlEd in the acqr.isiticn of the property in their possession at the death of S. E. V/atso.u. '''(11) I iind tli^t L. R. V/atson left Ter..is in the spring of 1906 to to to Georsia on a visit, axiC. -while there died on the 6th day of /ipril, aad that after hit death an attempt v/as mi_de hy certain of Me relatives to pEOhate in the courts of C-eorgia a nuuoiyoative -.all, alleged to have been made by S. 2.. V/atson, but its probate was denied, and what property he attempted to convey- b-" this nuncupative will I cannot say. "(12) I find tha.t at the death of S. P. V'atson on April 6, 1908, that the personal property in the possession of Z, R. V'atson and the de- fendant amounted in value to about v800, and that a reasonable- value of all the lards \,o.s •)5,000. "(13) I cannot say «hat props rtjT or nesns £, R ■'.^tson or the de- fendant had or OwHsd as their property at the time they came to Texas, nor can I say in ihat proportion their joint efforts have contributed to tho accumulation of the property in their possession at the date of the death of £. R. V/atson. ''Conclusions of Lav;. ii'(l| Plaintiffs having specially plead tlaeir title claiming as heirs of £ . R. V/atson; deceased, they must be restricted to this title. "(2) Plaintiff Sallie V/atson not claiming title by virtue of axuj community rights but claiming as heir of V, R, './atson, is, therefore, precluded from recovering herein as to her communit;- rights in property that might have been ovnied by J'. R '/atson at his death, and could only recover herein a right to one-third for life of his realty and one-third absolutely of all personal property in fact oxKieC by £. R. '.Vatson at his death. ^ 250. "(3) The court f^x-'ther concludes that if the plaintiff bailie "^a±- son could, unier her petition, recove- as to a comauuity interest or ri^-ht tiiat the same would as to the two trcicts of 170 acres each, convey- ed'^to'll. C. -.Vatson,. he l)arred iron recover^' lay tloe four years' statute of limitation interiposed ty defendant. "(4:) The court concludes that no recultin^- trust is shovaa in favor of plaintiffs to the t\/o tracts of 170 acres each, it not being shovm t:?.-.t such v/as intended -fay the parties at tte time the title to said f-;o tracts of land was made to IT. C, V.'alson. •■'(5) iTrje court fratijher concludes tliat plaintiffs have failed to es- tablish their ri^ht to recover any part of the interest of t. E.. V/atcon in tl-£ leo-aore tract of land conveyed to t. P.. V/atson and LI. C. ■7atson by their failure to establish their title by evidence froa either I'ae sovereignty of the soil or fro/.ic oraaon source. "(6) The court further concludes thrt plaintiffs cannot recover as to ofi-y personal or separate property of S. P.. ■.'.'atson, it not being sho ai that he actually owned any at tLe d=te of his death." Appellants* first and second assigrments of ei-ror complain of the trial court's first and second conclusions of lav, the contentioii being tiiat the plaintiffs' petition -was tufficient to entitle the plaintiff Sallie ^"atson to recover upon th^ theory th^-.t tiE property, or a portion Ox it, v/as the ccxiuaity estate 0:6 nerself and her deceased husb.nd. V/e sustain that contention end li©ld tli?.t the court belov; erred in the rulings referred to. it is true, as pointed out i'^ appellee's brief, that tl'B petition did not, in specific terms, allege tht-t the defend mt held the property sued for in trast for Sie plaintiffs as surviving wife £iid heirs of E . R. V/atsou, nor did it allege that Eallie V/atson sued in her ri:J^t as surviver ot" l^ic ooraTjnity, a nd it alleged "/itiat £. R. V/atson -'as the ov/n- er of the property sued fOi at Qie tiixe of his death , aixL that the plain- tiffs v/ere entitled to it as his legal heirs. It did nllege thrt the plaintiff Lallie Vatson was the lawful \/ifo of £. ?<.. '/atson long prior to and at t he time he accyaired tlie propertj^, aid did allege tliat the defend- and was holding it in trust, aiid the uecessarj- implication would be tliat the plaintiffs '.vere the beneficiari es in the trust referred to. Even as against a generjl der.iurrer, the rule is th^ t a pleadLig is not to be strict- ly construed, and it is to be aided by all reai-onable inferences 3.nd in- teiKVnsnts. That being fsB rale in considering a general demurrer to the petition, uost a^curedl3'- the same, if not a more libe^j.l rule, should be applied when that plea^.ing i s c onsidei'ed for the purpose of rendering- judgment. Hence we hold that the petition in this case entitled tha plaintiff Sallie "Vatson to v;hatever ri>Lts inured to her by reason of the fact that she was the -.Ife of I. R. V'atson, as disclosed by the testimony and t he findings of fact. Th^ third assigument assails tlje trial court's third conclusion of law, to the effect that as to and t^;o 170-acre tracts of land, Ilrs. Sallie 'ctson's ri'Jit co recover her c onrauni tjr interest \/as bai-red by the four yerrs' statute of limitation. In its essential features, the suit was an action in trespass to try title, and not .n equitable .rction to cancel I 251- c'.eec'-s, end tQieraforo the lOin- -jziZ-S' Gti.fcte oi limitation had no appli- cation, and th 3 court St-r'^d in ruling otl:er-Tire. Lttifford v. Ltaffa-cL,, 96 Te::. lOG, 70 f., V/. 75; Lell '"iju^ly v. -^cl\.t , 120 ^j, ^>". 10?5, 1072. Hie fouxS: aJ sl.^um'sv..b is alfSrecsGd to tlie trial court's fourth, ccn-- clusion of lav/, hoUJ^j thr.t jio ~ss;:ltiy,;' trust \;-s,e sriov.'n in favor of the plaintiffs to t-e two l?0-eare tra^^.ts f:f 3.rnd. "Hie court fount", an a iact'chat 3. S. 'Vatscn titid che (=• t^fe-LiCJ.pjjt pxrcd'asel 5, tract of Irrnd in Pall-: ooiiiTty Iri TiBS?. f:)r a conPiafrali'JBGt f?';i,5'3C5' Ibat O'^,0r;6 therecf \7a3 i^ai'l in mone-- e.-7,r-aori. 'b" S.-ip. ir jolAt lalvors aad efforts na the faria; tl-oat th.s^.^ OT:b>?..ty la^^.d', and in 1997 "bought a tract of^lvO ar.T&^- ir. Lmpasac ccic:i.-^y, aziil in I'^-'A "bOLielif; aaothsr tract of VfC acres i;i tie caci'i r:oinrty„ "be.'.n:: tho t-„o l-racts in/olved in this s-.iih, a;j.d tiiat S\e.£3 t'-u tra^.-K cf ij-.D^ were f.aici ft r cui of the ivrAs dciivfed ir-ii. i-.he srxlQ if the Tails co-.uti:y trts^-t said frcm iJieir joint labors in Lntr.pasa^ o.nua^jy. It is tm: that the deeds to tlie two tracts referred to v^re t?.v.!-^ri in the npiP.e of ^hi defendant. In Hayv.or^.h v. TTJlia^s, 10?, To:;. 51", ri*? S. Y'. 45, our Supreme Court in consic.3.f;j-i^ tiac-- rights of a 0:-:.rr:.ed voj'isin ocoupyin,^ the same re- lation to a man tha,t rlxi dof'snd-mt in tris case occupied tovvfjrds S. R. 'i.'atcon, -uced thi*: L?.r.::*Jii,rG: ''(Hie records sho'v that in L^CO the laid in suit v;aE conveyed "by d--9'i re^ilarly e::ec'ated to '/jiomas Jefferson for a recited cas}i oousidurat-' on. a'^V.:nov.leg.;-r;d to have boe;^ paiii "by him at the timci. LlarcTSth iVilLisxT.;' rl^'-t .if thi:^ property x^ a racstlor;, of fact to 130 cub.-Dr,.M-'.'d to ths jury i;.oder pre v.^r uvitrtictlor'5 . X:? Ilafi'^eth '"/V.l- liai-ns can e?avv that the laoney \;:Ltl-, \/hj.(jh uhe jand vb.s py^chased v/as ac- quired in v'hclo Ti- ii-i pa::t hy ?£3:' lab'^r- .in coijasoticrj vlth Hicr^s O'effer- cor; before t'-r-i ti..vra v,her. the la/d. vr.t pur'il-iase'.l, thou eh? -.;oul.?. 'be en- titled to a £har.'3 in the l.'-iid in tiao p^cjpjft Ion that her laVnr ccntri>u- ted in prod\-n 1,1:3 ^'^^- purchase money v riot.-iins ".-Thjoh she did c ontrihucin^ to the inprovou-^t of t.^-p. property or ot'iervJi, re :.n c.c.-ai'.p.ction 'vn.th Thomas Jefferson after ftie deed V/ac ijade arx!. f .: e larsc paid for ?.;jn affect the title. Her ■•.•l,::;ht nar.t ha/e e:ris*ed in the fijiii which purchased the land, and no trust, ra favor of iiargreth './i'l Jiaiu-j vrill arise oni of the dealings tetv/een h9.r a^il ir&.fCr>rFcn after the ti-.Ta had vestec^ ir. him. Allen v. Allen, ]01 To:-.. 'rC-.:., 107 5. ".7, 5P5; KiJilcv: v. Znilow, 72 Te::. €2-9, 10 S. '<7. 72^. It 5,s r.'v, roiicessar^- ihi'l liargreth yillicmr. should prove that she produced Vy l:!er iahor a Part of the very mciwy viiat '..■as uiied in pur- chasing liio Isrid., If £:'£ pzd Tneraas J-.^ffersoii. ■'.vere v/orhirig tcgether to a coixion purpose-, axf. the proceeds of ?^'bor xosrfoaaed by tl^n bee acre thje joint property of the tvro, then she -.oij.d occupy tlB position that a raan v.Duld l^ave occupied in relation to 'Zionas Jefferson under the same cir- cianstances; eac?a voald ov,n the proper^Vy acqiiirad in proportion to the val- ue of his labor oonbri"^jted to t3ae acquisi\,ioi_ of it. In the statement of t:-£ evidence in this case by the court as it is ribinitted to us, there is no rr.enti.cn eade of the financial condition of T'hon:a,'i Jefferson or of Ilarsreth v.^] liams at t^ie time that they united their fortunes unla^/fullyj nor his financial condition at tl£ tiire he came to Te::as. Hie source from v/hich the money v.-iii derived for the purcliase of the lard is not iUPxle to appear. T-.o legal title was vested in Taoae.s Jefferson by the deed, and, in order to partici.pate in that, Ilar.yreih Viiliiaifls must show a state of facts --liich ..ade ILicaas Jexfeiscn a tristee for her benefit, and must prove such facts as :/ill enable the jury to say viiether or not I 252. she contrituted anytMag to the purchase of tic land, ard ii' co, the proportion of Iior contritfution." J.s Ehow-n 13:- the case cited, S. K. V/ctson cicqmred an interest in ^ the f.-o 170-acro tracts to fha e:;tent of the consideration furnished h'/ him. 21-iC lindiiXi'S sIx)-' that t'ley were paid for out of the funds o'Dtained from the sale of the Palls ceunty tract, and the joint labors of £. R. Tvatson and the defendan'!:; hut in v/Iiat proportion of Joint labors tlje judge said h3 could not deterxnine, Ihe seventh aixl eijjith findinss of fact sho^7 that a cash p^Tmenb of $900 -..as made \fl\e-a the first 170-acre tract v/as piirchased,,and that a li're payment of v700 -./as made v/hen ^e other 170- acre tract was pxirnliased. Lfo--/ it is clear that these t^vo payments, £.norjitin3 to §1,500.^ vera rnade out of uie prcceeds of the sale of the Falls county land. 'Hie rc.lls co-onry tract -./g-e deeded toC. E. './atson, .ml if the proof failed to sbD-.v^ as the tricl oourt held, v.hat proportion of the consideration paid fov t]:a.t laif. \;a£ fiunished by the defendant, ths cairt should h^ve treated the --.hole of the Cl»200 comprising the tvo cash pa:Tnents far tlic 170-acre tracts ^£;■ the prapert^' of £. R. watson; and to that c-t'int at leatt tl-j2 defendant >j5ld tliose t.vo tracts in trust for the; j!i£iiiB4^^s, unless the defendant acquired title to the Ol,500 referred to by donatio:-, or gift from S. Ei Watson. On the latter subject the court, foi some reason, mat?-e no specific fird-ii^j; but aereTy stated tLiCt the defend£:.t claimed the i:'roccGds of tic sale of the Falls couixty land., t ooh poEiSQEsio:. thereof, and loaned it out, and took the note in the nano of S. 11. Watson a:-d that he stated that it '-/as hers. Instead of reciting fiie testimony bearing o:. the cuection, the trial court should, liavo rjado a finding as to -..h ether or not I. P.. V/atson cade a gift of the money referred to to the defei.dant. If sich gift -.ras made the plaintiffs, TJho assert title thrt)M-gh a:d u;-d.er S. R. ■'.■atson, must fail. This, ho-.- ever, \;ould not be ftie case as to the plaintiff [Jallie V.'atEon claiming titlc by virtue of her cor/nunity right. 'Tnile it is trre that the hvts- band, ./hen not acting in fraud of the rijits of the v;ife, can sell or oth(3."ri.se dispose of co.jmnity property -..Ithout !:er consent, he cannot, in fraud of her rights, give or donate her interest therein to a stranger. Pom. Eq. Jur., Lee. 503; Ilartin v. iloran, 11 33::. Civ. App. 509, 32 S. Vf. 904- . It is so repugiiant to oui- sense of justice that this court v.lll i-ever sanction the propositio;-. tiiat a husband may desert his lav--ful \n.fe, axA., vhile living in ad"ultery ^vith aJ-iother v,TDma:.i, donate to the latter as a gift hie ./iie's interest in the prcpert^' ov.'ned b^- then i:\ common, vai- lesE the Legislature enacts a law vhich -/ill admit of no other construc- tion. Of course, the lule is differe:it as to children end all others. v;ho claim title by inliex'ita:ice,, because a:i heir caiuiot question the right of hit ancestor to do as ho pleases -.ath his property. 3nt tliat rule of la;' has :io application to a husband or \.ife asserting title under the statute regula.tir.^' the status of comnunity property, Hie E i:uli as si gnue:^.t relates to the tiial coun-t's holding in regard to the i::erEo:xJ. property'-. Iluch of v.hat has already been said has appli- cation to that bra::ich of the case, \vitji tliie difference: If there v.'as no vritten title to the pe:csonal property the legal title rested in both S. R. Watson a:id the defe::daiat; and, in flie abEe:ace of proof to the co::trar;;s it miglit well be assumed that each furnished half of the c ons id e ratio:, and a/ncd a:i undivided one-half interest, u:ileEE it sliouli be made to /y^ 7^^_ ^ / /t^^t-^- ^.^<^^'i^^ V I Eo3. 5;ppcar tliat S. 3. 'Vatsoia hafl. micLertalEi^ to doi:ate or ^ivc his intorect tloereiu to the cLefai-c'.aLit, iu rlucj. ovar.t Giq rules of la\/ lioreinbeforo gpaouuced cor.cer:..iiz;,' j^if tc v/ould have application. The othei- assiji^jnaiitc presout questions already cousiderod in tiaic oiJinioii, and lurtlier dircu$sion is not deemac". nececsary. Eie trial corxt's iindii^s of i'act are not Etti'icient to enable tliis court to dispose of the case on its r/erits. Iterefore, on acco\:n:t of tie errors relerred to, the jud^aent ir -^^eversed and the cause re- rjsaaded for another trial. Reversed an^. i-eEia;idad» ' .Mhi-^ x^'-y^. 5 ^ e^. vj- M \ 4^ ^^ ^ C^ ,-c5-t? ^^-^ iP^-'C^'^-^ CHAPTIIi IV CITAII ONS Power of husbarid to manage and control. Eichmond v. Voorhees (1694) Barker v. v;oolery (1895) Standard Furniture Company v. Anderson (1905) First National Bank of V/enatchee v. Fowler (1909) Schramm V. Steele (191i1) Olive V. I!eek (1916) By an v, Lambert (1908) Wooding V. Grain (1894) Koth XT. Kessler (1910) Bro\mfield v. Holland (1911) Washington State Banlc of Ellensbiorg V. Dickson (1904) Converse v. Labarge (1916) Norgren v. Jordan (1907) Olson V. Springer (1910) Kanning v. Foster (1908) Schillroff V. Schillroff (1908) Payne v. Still (1894) Holly Street land Ccmpany (1908) Prouty V. Prouty (1892) Snyder v. Harding (1904) Monroe v. Stayt (1910) Pearl Oyster Company (1909) Horr V. Hollis (1898) Zinn V, Znopes )1920) Hensel v. Bissell (1920) Heinemann v. Sullivan (l910) Thomas *. Scougale (1916) Hargrave v. City of Colfax (1916) Young V. Porter (1902) Colcord V, Leddy (1892) Try on v. Davis (1894) Hinkbouse v. Wacker (1920) Spreckels v. Spreckela (1897) 10 Wash. 316. 10 ;irash. 484. 36 Wash. 582. 54 Wash. 65. 97 Wash. 309. 103 Wash. 467. 49 Wash. 649. 10 Wash. 35. 59 Wash. 641. 63 Wash. 86. 35 Wash. 641. 92 wash. 282. 46 Wash. 437. 60 V>'ash. 77. 49 Wash. 541. 50 Wash. 435. 10 Wash, 433. 46 Wash. 422. 4 Wash. 174. 34 Wash. 286. 57 Wash. 592. 53 Wash. 101. 20 Wash. 424. Ill Wash. 606. 110 ^aah. 566. 57 Wash. 346. 90 Wash. 162. 89 Wash. 467. 27 Wash. 551. 4 Wash. 791. 8 Wash, 106. 112 Wash. 253. 48 Pao. 228. \P> m W «. V~ 254-. » c-f v^ Q. Wv^^a^ "T* f^N .a. >^ «^ ^ II. i". BLuI'i ot al., ?ior,pondontG, v. V/ILLIAi-I J. 51:121-: et rl., A;i:pollants. (66 vrash. 192, 1911) Appeal fro;.! a jurfc-.-JS/it of tla.3 suparior ccui't i'oi Ki.ic; county, iJf-CQ- nan, J., Cli-i'jer.'cr'. ■.pvil 24, 1911, upon liyX-iu^i,- in f.-voi- oi' tlio plaiutirlX, ■i". an nr^-in, v'nv - p,',rn p.. j Oil -iic c?nc6llL.tio:-i, after ; tr i al 'oefore t -x. oQUi't wltho^lt a jury, affirmed. SlliL, J.— Ib-e jes-.;our.eats bi Q--rjit tl-is actip-.i to rescind a co'ajiract for ail e;:ciic::.,e of re:.l e-Jtate for ^ lease siic. tlie furnitvre_of aai api.rt- iv m:.riToTr> .j i:- ; ;: x'^ ""oro7~of~£ea-ctle, aid to~T3t aLic;.3 a j leed oi' "cort-„i^ re el 3rt;..te. iVi.ido t'..3.i to t:y -,-jp-Ti..'i.,-iitL., on tiie aroui-iT Qf fraud and deceit- clcli^isd to liave '•:)Og:i pv.:.ctic3d by tlB appellants to i:-Lduce tlie e::claa:ii^ aiid clco 0.: t:z£i j^cji'L ox alle :5ec-- fa ilii-e of tlio appella:it& J o perfoit ri^the ^ntraci; ou t:.iOi-- pa:'t. Hie cause -'as tried to the cotrrt -/itlaoiit a jur:;''. n-ora a c.ecreo resnii.c'i.iijv,- tLa coutract ..uc". cetting aside t!:3 deed, tlie de- f3iids..ts lic.vj cp:pej;ler.. xlie a3-re-j.:o-.t for t>.a e;cclx,:aiG'0 V/ac iyorbal, a^i- tiae evidence as to vviiat tie airscneiit aot.-cllv- ./as is e::t:euiely corflictin^. The coirrt fou:id a^-d -,,0 tnii.;-: 'die fiidiuj -ras supported hj a prepondaruico of tls evideuce, tLat it v.-a^- agreed ■cl-..^t tlie def ei^-riits, appsllcttitb, appollaats hers slioul;" trstisfor o[' bill of sale to f_j3 pljintiffs, retpoiidents here, an ap^.j.-ouent Ixouse laioifn ar. c?..e Hetropoliiaii xiotol, consistins oi the iuruisMni-b, 5,'ood \7ill of tiie busf.^ss, t-.ll adv?5iced reiits, tii3bool;E of the business, a lease of fiie proMi;:»cs ■ath a ^.-ritten consent fion the l:.ndlord conse'..ti:.'.i' to tha' transfer end e-;te:.idin£,' -iiie lease for t-.'O years, ^iid reducing 2.1.3 rental froa .'-I-dO i^er ..lon-Jh to '.C;7o per aonui,: tnat, in oncloanse fa- ti-...ese tl.ii:^-s, ti.e plai^itiffs \;ere to convey o" deed to tlie de:,.endants tthe lous and ccrcago described in tlie couiplaint. It is adait. -ce'-'. tl-iait on Llay 10, 1910j tLe respondents dalivered a C.qo^. of t.e roal estate to tho appellants, aid Z:z app^.llant Loretta biniti;. de- livered to d.e respondent.' a bill cf s;:le of t:.e fui'niture and ftirnishins'S in the ap ho nejiotie ted the a.icl.a:i3e th^-t Izei hni- b-.;.d'c si:;;nature ".;as not uooecscry. 'Zie-~3 "as.^ however, no evidouce tend- in^' to &„o,.- that this prope_t-y --.'as £ie sepsn-.it3 property a£ LL-s.. Sniitri. the clii;-:ied thi-t the failure or her Iiusb:^^?- to join in the bill of s£..lo . v/as a irxire arersiiiit. Upon leceivinc t"ie bill of sale, respondsnts e^siraed l>osceEsion or 'd.e premises. It appeals th.-.t, on th3s.a^ie day, Ivh-. Blvsn, Hr-. , Liiuth, aid her a::'ent , a IIi . 'Jilson, called upon Vest c; V/neeler, agents for the OT^fliar of the hotel building', ?nd sor.jjlit to secure theii- coi^ssent to tie traiisfer atid six entenfcion of the lea;.3, but tliesc a^;^nts refusec. to accept u-e rawpondsnts as tencuitc .Ithoiit firvtlier in-v 3: tiyation. Zie :^e~ spondcnt Elnia ^ave ti.sa certain refe.ences as-id "'^nt a-.'a;''.. A day 01 t "o later, ihs. Sraith deliv-ered to the ret-pondent Dlmw the locse, 'r.'ith an i 255, acrisiment e::eci:toc'. liy herself sutl Iiuc^band, 7h.Q leace "by itc tornL coiild not to accijae ■r'.C- t^aciu'e thei-r con:.ent to' the tranc^fer; that Blum thou ctatyr tl-at he coult. not ~o at tl-at time, "but tl::at he v/ould see to the matter hiu- tslf; tliat he caid he cared notlain;^' about the Icate an?- e;:preccod diccati::- faction v/ith the numser of vacant roomc in tic houce, but at that time h3 save ha- a va-itton agreement to furnirh abctractc of title to t:-j2 real ect?te v.hich he I^^d conveyed to t23 ai^pellantc. lire. Smith then paid to tho recpondento about ;';32, \/hich che claimed ---ac the amount of advanced rente collected by lier. Blum toctifisd that he ag: in called upon the prop- erty'' acentc , c:x. tliey ag:.in refucec. to con:.ent to the trancfer of tl'ie l?a.i'^.., and nover at .-..ly tine recosuized him ac a ten;;nt= It appears tl'jat, at about tl-iL tim3 the recpondentc dsterrnned to bring ruit for a reciccion, a:id "ade no further effort to secure lecognition ac tenant: . ^he evidence sho\/c tliat t!'e leace had been i'ormerly aLcignod by the Smiths to one Jax- nigan, but t'nat they '.till retained pocoeccion of it, 'j.id co far ac the evidence r.ho\/c, J.-i"nig?n rrde no cl;ira upon the property. Both re!:^:ondontL testified, in effect, tl-uj.t during the negotiationc leading up to the e-:ch,?ngG, Utl. S^nith repr'^tented that Sie room;, of the hotel v;ere noar?y -^11 occupied by de':irabl9 te:ia.ntc, and thrt the bucincj.;: •"ac producing a monthoy incorne of over '';^700, -n.d represented the mont'-'ly operating e::pen;.e ^.t about 7400; tlaat, -l.ei die e::hibiued the roomc for t:-J2ir incpection, all bui thirteen of cL.e eighty roomc chov/ed evidence of tenancy, lucIi a- clothing, valines, and tl'£ rei-iains: of food a"Jt: drinh 'upon the tablet: t:i^t C\z told thoa L.i::t3'- three of tlie roO;-r were occupied ':y deciiable and good P-:yii:g- tent-nts, a :x. that che -va^ leceiving foi' each of the rented loora:; aix. apartments- much more Cisn che was act'-ially receiving; tli£.t Eoon after tli^Y tool-: pocceLiion, the fret develo^.ed thst only abor.t tv.'enti'-five of th-3 roomc "ere occupied, : :d thece for t/.e noct part by im- moral people givon to lightiiAg end other die orderly conduct. :J.1 of tl:3 fo-.'egoing testimony of the recpondentt wao vehemently con- tradicted by Mre. Lmit:., ■ "".lo testified to the effect th.c.t respoixLentc v;e: 3 accorded every opportunity to investigate for thenselvei.; tliat she told them tls/'c. :, great ..lany of the rooms './ere vacsnt and th^t elie mjx.e no repre- seno-tioni, a- to ■-•^rt th3 montliLj'- income a:j*:. e::pense v/oald lie, but c^ld tell them that bucinsss was then dull. The agents 'ho negotiated the a/.change also testified t':at tlsy told tl'.e respondent 31um f.'iat m£ny of the rooms '.;ero vacant. On ths- other hcnc., t^e res:.-ondent£ produced a paper shomng figures \hich they claimed -.rere msdc ''oy Mrs. Lraith in dei-nonstrating the inco.ie and enpenses of the bxis iness .hich corroborjte their t3stimon3" as to her re^iresentationc. Ih-s. Smith end not deny tliat che made tie figuies, nor did che offer airy satisfactory e:::^jla:iation of them. It also develope'.- tli„t the cuii'ont t3i.:es upon tie furnituie were unpaid. One Ljvenberg testifiec. that the res_.ondent Bluin, dxortly before trls action -..'as coirtnenced, told hi:.T that he v;as going to su.e to recover the propert3'' conve3?'3d becs.cs e theie had been found tracfe of coal upon a ce:- tjin twenty acre tr_ct, aid th:-t, if he could r scorer tiis tr^ct, ha GO---.L. .aa"!cs a good sale of it. 'riie t9stimo::;3'- of tliis -..Itness -vas not convinciic? ^nd in a;iy event, ■/e consider it of little materi£lit3- in viev? of the en- 256. tiro record. It •./£.-. ^jroven "b^ a iiuinlier of v/itnei^cec that the lotc and acroase conveyed to the ^.p^cllantc by the i-eo^-ondaatc h^,d a value oi" about ,'3 , 500 . Ou ilay 26, lalO, the reG:,:'Ondentc instituted thic action, and both Pi^rtiei. deuyir^- ov/neriiil^, a receErer v:ac ap_:ointed by t/e court to talre cliar^'e of the f\-.rniture, r/Mch v:ac finally sold by the receiver, uixler th3 direction of tlic 30urt, for 'vTOO, v/Mch, with rente collected, remainc in the resictry of the court cuTcject to the erzpencec of the recei-trerchip. Slaa fores'oin^; anr.lycic of the evidence meket- it plain that the judg- ment of the trial coiu-t should be affirmed. It xc manifest that the agre'^ neut of enchange v/ao never perforned by the appellant c. There v/a^ a f ailui - of consideration for tZ:e recpondents* convei^'ancG of their lotc and land. The appellantc di':^ not rnalce e/ny effective trancfer of Eie le:-ce, nor secure an G;;tGn£ion thereof, ,.iiL the evidence malcec it reasonably clear that they could iiot do CO. In f:.ct, Ih-c. Smith ctated that the appellants did not o-''n t:j2 leai:e, r.nd-rs!; fin.- lly driven to the position that all tliey attempt- ed to Loll v/as the fvixniture, a position contrary to the overv;helming vreish'' 01 the evidorjDe omL utterly inconsistent Tath her ovn, act in attenpti::S to trai-sfer tl:Q lease. ' .hile tZ-j^re .Jas evidence to the effect tlmt Blum said he ';ould attend to tlie lease himself, and cared little for it an^./ay, tI^at vas after he had parted -.it:- his deed; a:d- it is aj?p?.rarit, also, tliat ■..'as %fter he hac. discovered th;t tlie valuo of t;...e business rx.d been grossly misrepresented. The evidencs \.'as not sufficient to estop him from claim- ing the right to rescind. There ca:i be little djoubt that the appallairts representee tli.it tliej o./ued diG. lease, could ti'ajisfer it, could proctr-3 t.e o'.rner's co-^ent thereto, a_id could procure a:-, entension. Tliese rep- resentation^, u:xlji tho evidinc3, co instituted actianabls fraud. Jaidco^/s^' V. Slade, 60 %ch. 6S1, 111 Pac. 77S. EiG res^-.ondo::ts also had the richt to a valid bill of sale. Thoy never received one, a.d none -./'as ever tendered. In the total absence of evidence tliat the hotel f m-ni tiire ->.'as the separate property of tl^ \.lfe, thore is a presui.iption th:t it -./as cOirimunity property of herself and her husband. The statute, Re.;, d Lai. Codo, Sec. 5917, declares: "T!ie husb^^rc^ sl'^^ll have the manaG;e.-ient and control of r-.n.-a.-nni ty pp-r- sonaj ^px'0^^3r'C3', -./ith lihe pp., Br of dis_.os it iQj^_as_he Jig.s of h is_ separ ate pe rsonal pro', ort-,% 3,.G...t he sh,-rl 1 not c:.^Trl= by -nil v. -iotp. than one-half tTIereof ." ^ the reco rd beiore us, haC the bill of sale been e::ecuted b- t2'i 3 Z -Usband aix. lie, or by tli^e husb^.raif- alone, it •"-■ould have been SLa'ficien t . v^^i- rl£vl:-<;, ^° " e:-ecut3d by tie v/ife alone, it -vac _aj]ullitj^ . Under t!ie evi- ^ -.^ * dence adduced, t'.ie res^joiidents -.-ere entitled to a redicsion for failua-e of \ perfonaaiice by t-.e appollsnts. 17 Cyc. 856 et sec^. Ilorcover ti-.o evidence cuctaini Sie court's finding that the appella:its ■■ere guilty of fiaix. a:x. deceit. A careful e::a.vdnation of Gie evidence convinces us tl^at Mrs, Lmfc represented tlie monthly income fron tl-js bus- iness much in sixers of tlie realit^'-. She also represented that tZia tenants "■•sro 01 a dacir:bls cla.ss. The evidence indicatec tl;-,t tlisy -./ere not. » I 257 i Tliec'C -.■ere mattarc i^cculiarly -.athin t:-e luiov.-lec.3;e of tl-.e ai^^pell-itc cncL unloiov.-ii to tlie Toc^'Ond.3-^tz, l.^a reciJOixLeutc rnaCc an impcction of fce preinirGc, but n:it:ier of tiiese tl.ingc .oulcl "oe cUccloccc. "by an incpectio:.^ and tliero it. ovic.ence that vacant roomo -'ere co arr ngecl ac to appear tenantec.. 2h.3 rot-jonclants liact tlie ri^lit to rol^' upon thece repreccntation-': , especially -.."Iian active Gtepc v/ere talisn to tlirov/ tlien off t'^.eir gu^.rc.. E-jat they did go rel';', can hardly "bo quectioned. Johncon v. Hyan, 62 '..'a^ih. 60, 112 i-r,c. 111-.:; \.'ooddy v. Benton Water Co., 54 v/ach. 124, 102 Pec. 1054, 132 .Hj-ii. Lt. 1102: 3ect v. Of field, 59 V/ar/n. -J:66, 110 xcc. 17 SO L. ^-. A. (H.S.) 55; 'I'aconia v, Tacoma Liglit & V/a"CGr Co., 17 '\IexZ::., 4-58, 50 JCac. 55; Siraonc v. :ie^;:ia, 6Z \7ach, 115, 100 i-ac. 200.; ttone v. Hoody, 41 \7ash.680, 84 lac. 617, 5 L. ?.. A.CJ.?.) 799; IlcIIillan v. Hillmsn, 25 "ach. Dec. 458, 116 l-ac. — , li- iX4 J; Ii.ig. Uncy. Lav/ {2d ed.), p. 125; Dii-elo".-, Fi-aud, p« oZi-. , Eie trial cou.^t'i. fii"idi;:^-c of fraud a;-d failui-e of perfoimance on w:.3 appellaitc' part ••ere i:act-;.ined by t".:3 more co;vvi;-jcing evidence. Tlie ccuit coaaittcd no ai': or in enter in^;^- u'lc docree appealed iron. It ic affi-racd. Dunbar, J. J., Oro' •, Mor-iL, ijid Chad .iclc, JJ., concui-'l '~ I 258. A. H. IIclLi-in: ot al., Rogpondentc, v. KOIiLDP. t; CILlfSE. ApijeL'i-ant,. (96 '-/ar.h. K-6 IS]/^), AlTjoal fi-oin a, juc"'.3::.-icat of tlzc Etipc^-ior coiu-t I'or ICinG' county, FrSiicli, J., entored Jtily 28, 191S,, upou find in --.-::. iii f avQi- of tlie PlainM Iilfe, iii an .:;.c tioa ior replevin, tried to th e cnvi^t.. AffirmecL.- Ilount, J.— gii s soti.ca --'as laroujit Tj? tlie respoa dcntE to recover a De clror Brot Aerc"lpTa 5o o.i.- itr. val-.;e. .1 .:^iid;jment r3g3lJLQd_iu^jj,yor_of ..the rsspondsnts" f or the v&'Uie of tl^c insw ap. Ejo dei^endaat liac appeE.led. 2he facts are, ■briefl3r, at follo-./s:' ae raspondeiits are hucbaiid end -..Ife. liL-E . LIcAlpine lia,d ctatsd to her hiisbcnd tliat £he deeired to e::- c.,.an:;;e , a Doclcer piano -Mch they ovrned for a plaj^er piano. Her hucband inforiJDd l:ier tli3,t ho did not decire to.ditpoee of the Decher piano, aixl that hs :ac not j;.olo to ptirchace a plaj^cr piano: that, as coon as he \ia.z a'ole, they rd^'ht pro'ba'bl" purcliasG a player piano. Ihc.. i:c;i>in6, -.iien her hxistand -..-as a-.ay from the city, '.'ent into a e.tore, of 'hioJi A. A. Ca-iptcll -..as manager for appellant, anf. told Var. CaitplDell that the -./anted to loolc at a player piano » Upon the nei-.t day, Ilarch 20, 1915, Ilr. Canp- "bell "brou.jht a player piano to her houcc. She tectifiod that che told IE.'. Gaiiipbell that che •js.o not authorized to ogH her Declier piano or trade it for anotler, "bocaiuae her hu&tand liad so bold her. She al£0 testified, in suTDEtauce, tliat Ih . Oa.-43-bell told her tl^?.t ho ^/ould leave the player piano tlaera for si;: uionthi Cf a year and that she mi.sht use it, and if she -.vac not satisfied .;ith it, she could return it, ^.nd fiiat he v.'ould talce her Decker piano and store it for her until she '.-tis caticfied to nia2:e the e::-- c:-an^:;G. Zaj playoi piano /as valued at ^BOO, and lie ai^reed to allov her a credit of y^lo foi' tlae Leclsr piano. At tliat time, Irs. Ii;Alpine signed a conditional till of sale for the player piaJio and a "bill of sale for her Dec'.ier Brothers piano, '/hich -jas taicen av/ay by Ilr, CamplDell. She also testified that, at foe tiise she signed the hills of sale, she did not read tliem, and that sie /as infonaed by IIi . Canphell tliat tiiey v/ere simply re- ceipts for the pianos. Upon Ih-. AcAlpins's return to his honie so. .e throe d^s after, he "^.'as infor:ed hy 1L.-S. ilcJ-lpine that the player piano ha*?, been left in their ho:-e for one yeai- for approval, ./ith no o'olij-ation to p-urchase, and tliat the L'octer piano l-ad "been talren a\/ay to "be stored pending tl^ir decision, ol-B did not infer, lier husband ox the e:;.ecution of the bills of sale. Eiereafter, on or about June 20, 1915, tlie appellant -ade a de xird upon 1'i.s. i:c„lpine for pa;;:r. ante due and in arrears under the ter: .c of the con- ditional sale contract. Hhe. tlen infoi-.ed her husband that tl:ie appellant '/as assortins that the player piano had been purchased by her and the Decher piano sold to the appellant. Upon beiu^; inf or: .ed of these facts, lir. IIcAlpine told her that she .ust rescind trje contract and retxxrn the player piano. Sliereaa ter , on ITove;.ibe» 26th, li-s. IIcAlpine served a for;-£-l ■litten de, .anc. Tjpon the appellant to tahe possession of the plaj'er piano and to return ths Declar pia'no. On IToveiber 28, 1915, tlie appellant re- :.oved the player piano fro., respondents' ho: e, but refused to return the 259. Declier piano. Tliereafter, in Feliruiiy, 1S16, this cction was brough-^? suit resulted in c ji:dg;j3nt in favor of the resi>ondents for ■''.;125, \7hich the court found to be t/ie value of the Decler piano. Upon the trial, the court was of the opinion that Mrs. ItoAlplno was not authorized to sell or ejichange the Decker piano and, for that reason, entered judg-.-.ent as stated. V/o are of the opinion that the trial court v.as ri^ht in this respect. The statute (Rer.- Cede, Ecc. 5917) provides: "The husband shall have tlx r-anagerp-n t and control of cor; -.unity per- sonal property, -.'dth a lite power of dicpouition, as he has of his sepa- rate personal property, e::cept he shall no-:^ devise by v/ill nore than one- half thereof." It is coixeded eiat the Becter Brothers piano was the corriunity prop- erty of the respondents. It is not disputed that Ilrs. LcAlpine v/as told by her husband not to dispose of the piano. She told the agent, Ilr. Camp- bell, that fact, nevertheless, he toolc the Dec her piano fron her and 3fter\/ards sold it for C'125, -.Tithout her consent. It is plain froii the statute above quoted that llrs. ItoAlpine was not SLithorized to dispose of the piano, ana tliat her contract v;as voicL. In the case of Liars ton v. Itue, 92 \7ash,lS9, 159 Pac. Ill, v;e held that the vdfe, in that case, vq.s authorized to sell an autor.iobile v/hich was ovaied by the co;.-^iunity , but that A/as a caseviliere :;he husband had purchased an automobile ani load left his wife and had gone to Alaslca, and '.here the autoi.iobile was classed as perishable property, and we held, under the facts of that case, that she was authorized to sell it ard convey good title. 7nat \vas an. e::ceptional case, and this court said, in closing the opinion: "V/e do not by this opinion enlarge tho rights of a wife so as to give to such as buy fron her any presu;.iption of good title. On the contrary, these :»ust buy at their peril fron one \h.o can deliver title only in an unusual situation, Tliey can prevail only after justifying the exception beyond reasonable debate." The case at bai- does not present the "unusual situation" presented in that 'Case. Here the husband and -./ife were livitig together. There v/as no necessity for selling the Decher Brothers piano. She v/as not author- ized to sell it, but, on the other hand, had been I'efuscd the right to do so. The agent of the appellant was inforr.ied of that fact -.vhen he took the piano av;ay fron the house, and, as said in Tars son v. Rue, supra, he iviust buy at his peril. The appellant seelcs to justify this appeal upon the ground of rati- fication and estoppel, but we thinlc there v;aE neither ratification or es- toppel, because Ilr. I'iJAlpine vas not infer:. ed of the facts. He was told, upon dicct3veri!:g' that a new piano had been placed in the house, that it v'3-S 260. estopped after r^alcing no o'bjections thereto. Quotiiag fror.i O'Shea v. Eice, 49 HeTj. 893, 69 H. V/. 308, it is said., in Ilurphy v. Clarkson, 25 ¥ash. 505, 66 ?ac. 51: '"It is eleiientary lav/ that knowledge by tie principal of the nater- ial facts is aa esseuitial eleneut of an. effective ratification of the unauthorized acts of his agent.'" Hr. lIcAlpino was not told the raterial facts until nonths after- wards. When he was told that the a;?j?ell£jit claiied a sale and e::chang3 of the pianos, he Ixiediately notified his v/ifa that she rust rescind tha sale, and thereafter she sent notice to the appellant. Ihe appel- lant cane and toolc av/ay tie player piano and refused to redeliver the respondents' piaao> ^/l^ich had been tatnjn and sold- \Ve are satisfied, under the statute and the facts stated, that Ilrs. JIcAlpine v;as .Tithout authority to enter into the contract of sale, and that there \-3a5 no ratification by her husband after the facts -.rere oade Imown to hin. For tliis reason, the judgj-snt of the trial court is af- firmed. ^ . !-=■ '-• \r~- It is unnecessary to discuss other qaestions presented in the briefs. Ellis, C. J. 5 Fullerton, Parlcer, ard Holcozib, JJ., concur. i^-'^n-'i-tS^ii^*^ /ci,-i-o^ , 261. 11. H, It^PSTOF, Appellant, v. OlAF EUH et al., Respondents. (92 V/ash. 129, 1916). Appeal fro:.i a judg-.v-ent of the superior court for King county, Frater, J., entered. Decenber 7, 1915, upon finding's in favor of the defendants, in an action of replavin, triad to tlie court. Affirned. Bausnan, J. — The Harstons, r.s,rried in Alaska, had accu.iulated there up to 1912 sundry nining properties, v;hich in that year tlaey divided lay deed to the v;ife of a half interest and lier aclcnov;ledg.;.ent that it con- stituted the husliand's full settlei.Bnt of her i-ights in those clains . Under just viiat relation the nines had "been acijuired is not clear. The ■wife's acquittance recites the one-half interest as hitherto held "in trust" for l:er, ani the neager testinony points to a "business partnership in uinirg property, acquired as she testified ■■'by joint efforts.-' Be this as it .lay, the division ty its e;:preEs terr.E goes no further than to sever those particular assets. AssuiMing it sufficient for a sev- erance under Re:.i, u Bal, Code, £ec. 8766, it -..'as partial only. It set- tled no otlier present or any future property rights. ■'Ee gave it tome not because 'le -.rere separating hut so I -.vould he protected aid he v/ould not throw a'v'ay evsiything on tliat "./oman. Hiat nevei- released Ilr. llarston as far as my support or taldng care of Be ".'as concerned in any '..ay, shape, or form." These coji-ients on the document are not controverted nor. does the record sho-.v ai'rangement for divorce » After this the pair ne:ct appear in Seattle, -.here they lived apart, and the infatuation of the hushsnd for the otloer ->;o.-aan becoming shame- less, he boujit am:, gave her the use of an automobile costing 02,200. After this ha returned to Alasla. Hie paraiaour flaunting herself intol- . erably in the motor car for three or four months, after his departure, the \rite toolr it f^om the garage and sold it to deiendant, not out of neces- sity for money but iron an assertion of right = Us present suit is the husband's replevin against the purchaser. The marital property laws of Alasfe not being in proof, ^ve conclus- ively assume then to be the same as our. o-.-n. Sheppard v. Coeur d'Alene lumber Co., 62 Vash. 12, 112 2ac. 932. ium. Cas. 1912 C. 909, 44 L.R.-l. (IT.S.) 267; aunderson v. Gunc.arson, 25 "7a£h -i59,, 65Pac. 791; Clarl: v. nitinge, 29 Uash. 315, 69 i'ac. 736. Hie automobile, acquired after marriage, -."as then presumptively com- munity personalty. To be sure, the husband liad a right to prove this machine his o"Tn out of the previous property'" set aside to him, but hi& ovTi testimony, -..'hich is all Giere i£ on this subject, is most unsatis- factory. He bought it, he says, from the proceeds of "my mining opera- tions in Alasla."' This is uncertain or evasive. He liad not bought it until the year follo^aug the settlement. Lljstlier in that time he had or had not acquired nev/ property or received ne\.' a£.rnings from speculations, he does not sho-.v, or whether this could not Iiave been from foi-mer property 262. still undividec-. ITo'v the -burden of i^roof , so long as tliere v/as no divorce was clearly on him. The lov;er court found the automobile to "be a f£u-.iily asset, and -..'e shall not reverse tlv,t finding. How a v/ife*& rights in family personalty are not of the CD.iitinaent sort, liHe do\/er or survivorship, but a present estate. True, "by our statute the husband is mgde manaser v/ith full pov/er to sell and dispose of this. But it does not folio-; tliat he can give it a-;ay. He is, so to spealc, only the hes,d oi a firm. The personal proper- t3' is just as much hsrs as his. Tlie very statute that gives him sale port- er over the whols ^•estricts his testament ji^r po"ver to i half. Under our la-7 she has lielped to create it as -.luch as he. Conss uently the idea is not to be toler^.ted that a husb.ixL can give a mistress stocte and bonds or j^recious. stones out oi' the fa-iiily money. ¥.0 pj.rt of those savings coji he mj-3 gifts of against lier consent, even to his o-. i^^^ .S«— ^l^^^v-x-W^-M/ ^ Or^^-CA^ V<*-^'^**^^2^ y -r ^xjeS^^^^^^'^'OT.-p fi ' f l!7 ^,>^C^ ^ *^^<2^*n-t-55^^-^ 263. Eor property ri^^t in it is as groat as his. Indeed, it maj' fairlj'- be said tliat the only cure protection she caild feel that the mistress \70uld not get possession of it again if stored in another garage as family property -.as in getting it off her hands entirely "by sale, "hen a hus- "banci in fine leaves a '.Ife vhere she must seize a piece of joint property inmorally givea by him to her worst enemy, he shall not call her to nice Recount about the disposition she raalEs of it \;h2U it is e::pensive to Icaep and he has gone to a distant region. Even under the one-sided system of the coraaon la'.;, -ubBre the v;ife had no interest in perconalty, she coi'dd sell soitb of it if she v/ere left in distress, and \hat that la\.' was obliged to e:cteud to a dependent be- cause of her i:eceEEity, our own cannot deny to a partner in estate. Ihat Qiere is in the wife inherent pov/er under our lav; to act in a serious absence of the husband is plain. la soire cases he may be un- avoidably detained at great distance for a frear or years, unable to com- municate with her. He might be an absconder or in distress or unable froti many causes to get back, yet laavir^g perishable estate. Shall a v/ife have no ri:;^t to soil stored eg^'S after many months? Shall she be forced to hold idle in her hands declining stocks? Eliall she be unable to sell a cov; to get cash for the farm? In these assets, if they are acquired after marriage, she is aa equal partner, bome ri^t to act therefore must be given her in extreme cases. Ho\; far solely on account of absence slie may go need not be decided, because here v;e have both his absence and his authoiri ty to another to coirmit av/aste. Ihe lOTTer court having found that the sale by the wife was for a sufficient consideration^ we do not feel justified in finding oth6rwi£;e. The consideration -./as about half of the estimated second-hazd value of a motor car driven in a fe\/ montlx fourteen tliouE£:ai miles and requiring some a::penditures. ■]!ha question now is not between the Iiusband and the vifQ, but bet-;een tlao husband and her vendee, to '>hom, if slie l:ad a right to sell at all, El^e -lafi. a rijit t.o sell as a husband loas, on toy terras not fraudulently lov. ITeithar is it of moment fliat the wife in cross- e::amination concedes that in selling she !nay not laave intendod to convey Llarston'c half interest also. llTe vendee of family personalty is not to be affected by mental reseirvations of tlB selling spouse. It is si^gected that a bill of sale she gave was d.eficient since it •was signed not in Ilarston'c name but her av.n. A sale of personal prop- erty is good by ir-ere delivery. In Blum v. Smith; 66 '.7ash. 192, 119 Pac. 185, a bill of sale -.-e spoke of as necessary '..aE contemplated by a bargain for lodging house effects in a btiildii:g not o-aied bj' the vendors and ■rthere title to soiTC of tlie ai'tiolec; might b£ set up b;'' otiBPs. VJe do not by this opinion enlarge the ri^ats of a ">afe so as to give to STioh as bX3;/ fra-a hei- m.i' presumption of g-ood title. On the contrary., Ci&^e must bu^r at their peril from one -Jno can deliver title only in i-n unusual situation. Toby can prevail oul3r after justifying the exception beyond reasonable debate. .-f f i med . llorris , C, J,, Holcomb, Parter, and I Iain, JJ. , concur. 264. L. T. C^iiiTCE V. V/. H. ESTElSCin aad L. POOL. (2 \;asla. 204 1691.) Appeal from Superior Court, Kittitas County. The opinion of the court \,a5 delivored ty Hoy;t, J. — ^Defeudaiat '.7. E. Petersoa ciac 9_A is negoti^.'ble p r omissor y note to jjr s. Eliza B. Pool or or dor for -aie^sum of $liP70. This note tiie payee's old to fiie plaintiif for a Traluabie con2 jderation.'^and' inSois- ed t£e~^aa s, aon?. tlHllvered tt 'to said plainti ff before its maturity. Plaintif f sov^t in thia action to recover upon sajijaote against tjis maker. ^r7 ~F ool7"^e iias'& and, intervened in the £tLit4_and alleged that tlio money loaned lor '.duicli i^e note \.as given • as conaaunity property/ '^Ecrcg gmea tjiat_tg6~"tr^sfer to plaintiff 'jas void, and thgt he had no ti tl g^ upon ■:./hich he could recover of tlie nal-Er. H:© court "belov; sus- tained~tiHE coaTenti'dn'of the lausliand, aid. gave ju6.gijnent for defendants. There vas no evidence tending to shov.-'bad faith on the part of plain- tiff, and the only cii-cunstance relied upon to charge him v.lth notice that the note v.'a.s claimed "by the coraaunity vas the fact that it v/as pay&. atle to a w-oman '.hom ho sipijoced to be married. Under these circumstances, \-ve think plaintiff toot cich a title to the note that he should have been allowed to maintain his action against tho defendants. The. raalsar prom- ised to pay ?IrG. Eliza E. Pool, or crder; ond in malciug the note so pay- able he guaranteed, to ever;'" person taking snch note in good faith, iier ability to order the seme paid to anotlsr — that is, to indorse it — and as to' everj'- such person buying in good faith aix. for stalue such guaranty v.-as conclusive. Ihat tlae maimer of negotiable paper thus guarantees the capacity of the iiayee to indorse and transfer the saiae seems to arise from the uecessity of the case, and Ihe rule is tI-£refore founded upon reason. It is li"33\d£e abundantly supported by aithority. See Daniel, Il9{&. Inst., Sec, 93, tuid cases there cited. IhiE rule Z-£.s been frequent- ly aFPlied to notes aac'.e to and transferred by infants. See Sec. 227 of autJioriiy above cited-. Like'-lse to married -i/otten under the disabilities of the coranon la".;. See sans autliority. Sec. 242. In tiie case of a mar- ried v/oman under the disabilities of the corinon lav such a note v;as the property of her husband, and besides she had absolutely no pover to malce a contract of cny ::ind, ard if., as v;e lx:.ve seen, the i!)alzer of a note to such s^erson could not dispute the title of her indorceo, it is evident tliat he could not do so in the ccse a.t bar. Under our lav/ the \;ife is fully competent to ina^^e a peisonal contract, and an indorsee of siXJh mar- ried T.x>man sta.iids in a nuc-h stronger position than under the common la"/. .."-nj," other rule at. to the passing of title to negotiable paper \.-ould be contrary to the universal practice of tho commercial i.-orld in its deal- ing tliere\/ith. An indorsee too-- ;s that he is responsible for the genuine- ness of the indorsement luidei ..-hicl-i l:ie holds, and he .understands that in further transferring it he guara^ntees that the first indcrser is the "pay- ee, and that the indorseosnt of each ^^ecial indorsee is the genuine sig- nature of the person so named; but v.-e thinl: that it v;ould v/orlr a great 265. revolution in liDEijness circlas, and cause aja luihoai'd of ijonic therein, if the doctrina v/as once estaljlisted thiit, in addition to the responsi- "bilitiec abova named, he also assioraed that at a, guarantor of the title and capacity to sell of all prior indctrsers. V/e do not lose Eigjit oi" the fact that all property, personal as v.ell as real, acquired after iiarriage, ic prima facie that of tio corrmunity; hut v;e hold that, frcm the very laiture of negotiahle paper, one \;ho roe.liBS it payable to the order of any person oannot be allo\/ed to say to a bona fide holder that the authority v/hich he in terms gave to aich person to ccrder the came paid to another ic void. V/e think, moreover, tliat, from tilic nature of cvch property, money and negotiable paper bear a different relation to the oomiQunity tijan other property. Hot that they do not be- loag to the couiunity, as betv;een tlie spouses r^t all others havir:g full taiov.ledge of all the facts, but that, as between the ci:e "x^o is in pos- session thereof axd. one dealing in good faith ard fcr value, they chouli be treated as the separate property of such possessor. V/e cannoi; see thai public policy •,'ould be subserved by holding the precumption as to ov-nership of ouch pocEessor to be less than that of anotiier person \fh.o is in the possession tliereof -..ithout any semblance of title except such possession. Yet tie books are full of cases where the title to purchasers in good faith of sxch property has been sustained although it appeared tiat the one from whom title v.r-s received had none except possession. 'Er^ possesijion of these classes of property raises a much greater pre- sumption of title tlian the possession of other classes, and we think that the rules of the la"..'~merchan t in relation thereto iiave not been changed "by our statute. Ihe claim of intervenor is so unconscionable that courts -..ouli not give it effect unlets the statute very clearly v/arrsated his contention. He says that the comiunity liad Ol,070; that it loaned it, and obtained the note in coiestion: that it delivered said note to plaintiff, and re- ceived thoreforiJljOVO, and is thus placed in e::actly the seme position as "before the note -us tal:enr but tl-a,t it is still entitled to recover of the ma]£er of the note another -^1,070^ theieby, -.Ithout any considera- tion haviug passed thei-efor, c.oublirg its ^^.one^r, 2nd this at the errpense of the plaintiff, ^ho^ thouvh havi^i' contributed his. ^1,070, to the com- munity, is turned out of C0':irt -./ithout a cent. Si e judg r nen t musjt_be_re:::, versed, end th3 ccuse reraanded fa lurthor proceedings in accordance '.dth ^STs^ooinion. , s=ii Anders, G. J., and Bunbar, Scott, ascd Ltiles, TJ. , concur. A: 266. In the Hatter of the Sucrdianship of P. P. .ood, an incompetent Jsrson, (110 V,ash. 630, ) 1920/ Appeal from a judgnent of the Superior court for Chelan county, Grirashaw, J., entered June 28, 1919, adjudging a person to be incompetent and appointing a gu;^rdian, after a hearing on the merits. Reversed as to appointment of guardian. Parker, J. — Annie S. Y>food petitioned th e su ^rior cou rt for Chelan county to adju dge her hus band, ^^PTZlafiAZjagnt^lly incompetent and for the 3p pc'in't ment' £fjier f elf~a s gua rdian of th e c omriu nity property ov.-nod by them, and also_o f his separat e prope rty if ther e be any. a hearing'^ "uponTSe" raeriT;s resulte d in a judgrrent nf the court ad,iudging I!r. Wood to be i mcompetent a n d appoin ting V.. 0. Pa rr gua rdian of their conrounijty proper^, and also o f his separate prope rty , if there be any such prop- erty. j'jts, wood has appeale d from "the judgrtent in so far as it ordered the appointment of W- 0. Parr"guardiant "instos-d of herself as prayed for; it beIn g~'coRt 'ended~ inT her" behal f that^ sh^ j^^fintltLBjLtjQ is app oint ed 'guardian of the prop'erT y_^s_a^ijatt_er of right, and that, in any event, t gitj co u rt ab gsedTits discr etiCTij4^jrefaaing-±5,,appoiat_ her as-^ _aujc35L g5ara,ia:- The controlling facts, as Vv-e gather them from the record, the evid- ence upon ?vhich the court acted all being herre, are not seriously in dis- pute. llT, .,ood is about eighty-three years old, while 2irs. Wood i 3 ten years y^oungey; There ii~ho property of any consequence in vvhich he has 'ar^"xn^eTest;~otheT than the c ommunity property owned by them as husband and wife, v/hich consists of a ranch in Chelan county of the value o f ^25,000 or more, now yielding^a^ rental income . :.Ir3. V ood has fo r sever- "al~yea rr~laTgBl y b orne the burden of ma n agin g this property, collecting the rents, paying the taxes, etc. It seems plain that she i s a woman of compai^t"ive lyT^'r^busine s s ability, economical, and conscientious. The laanagSment of their property~a.^s not call for any eictraordinary bus- iness ability. It is true she is somewhat advanced in years, but it is apparent that her faculties are not impaired by age or any other cause. Cur statutes relating to guardianship of pBOtert^" Df menJaUy tp- competent persons do not specify who sht;.ll be entitled tc such guardian- ship, so we shall assume for present purposes that the ciuestion of -..ho shall be guardian in such cases rests in the discreticn of the superior court. Shis discretion, ho"uever, must be e::erdised in the light of the nature of the property to be man..ged by the guardian, the relationship of the applicant to the incompetent person, and the interest the applicant has, if any, with the imcompetent person in the property. Kow to appoint a stranger guardian in this case is to appoint a guardian of property in which Ilrs. .ood has a right and interest eq^ual with Llr. Wood. 'Jot only that, the property is not capable of being partitioned between them v.hile the marital relation eiiists, so thf-t she can acquire the independent con- trol ower her portion thereof. Good conscience and equity plainly dic^^t:; 267. that the courts should be very slow indeed to withhold from th» wife, in a case of this Iriud, cont.vol of conraunity property. Were this a question of administration Tol] ow.lng the death of It", ..ood, his wife*E ri-^ht to aiilminister upon this pvoporty would exist as a rc^jtter of legal ri^ht, whether the property be corrmnity or sf;parat.e property, save for sor.e plain disqualification on her part, which clearly does not appear here,. Laws of 1917, pp. 654« Sections 49,61. These sections, of course, are not controllins here; but in view of the fact that the situations are somewhat analogous, we thing they are quite persuasive of the equitable right of Mrs. T.ood to administer this giiardianship, which the courts should be reluctant to deny. Those close to the incompetent by ties of marriage or blood have always been favored by the courts u? suitable and proper guard;'.ans in such ca^es. -oerner, i^merican Law of G^cardianship, s. 133, Manifestly this rule, generally applied where the corrjminity property sys- tem is vmknown, has even more cogent rea^on^ for its application under our community property laws, in the early decision in Brotton v. Langert, 1 "..ash. 73, 79, 23 ?ac. 688, Judge Lunbar, speaking for the coul-t, said: "So far the evident object of the l5W is, to plr.ce husband and wife on an equal footing in relation to property matters. Section 2409 is as follows: 'Property not aoq^■lired or owned, as proscribed in Sections 2400 and 2408, acquired after marriage by either hvisbpnd or wife, or both, is community property The husband shall have the management and control of community personal property, with a liks power of d5.spcsition as he has of his separate property, except he shall not devise by will more than one- half Wiereof.' Shis section discriminates in favor of one spouse only so far as is actually necessary for the transaction of ordinary business," While this observation related to the iranagsment of community person- al property, it manifestly is equally applicable to community real prop- erty, since, apart from the power of disposition of real property, the hus- band's management &nd control of it is, and always has been, the sane as of community personal property. Rem. Code^ Sections 5917, 5918. V/e are of the opinion that the trial court, even conneding that the appointment of a guardian is a matter within its discretion, erred in refusing to appoint Annie S, '.Vood as prayed for. That is, that its refusal to appoint her, under the circumstances as here shownjj; amounted to an abuse of dis- cretion. Some contention is mj-de in behalf of -kcs. V.ood that the trial court erred in refusing to entert.in her application for an order of sale of the ranch, she having petitioned therefor and sought to have the matter heard at the s.-rae time the question of -"ir. /ood's incompetency and appoint- ment of a guardian- for the property was heard. Since it seems that the Sale of real property of i ward, whether a minor or an incompetent person has generrlly been held t o be a .natter of statute only ('.oerner, American Law of Guardianship, Ee-c. 148), and since our statute relating to sales of real property by guardians provides for procedure looking to that end by the filing of a petition by the guardian amd asking for authority to make such sale, (Laws of 1917, p. 703, Sec. 212), we think the trial court did not err in refusing tc entertain the question of a sale of the ranch with the question of Ilr. '..ood's incompetency and the gppoint.ient of a guardian for the property. 268. The joigi^ent i:. rer/ei ceu lu ro I'^r £.c it orc.ari- t'-j.3 cpoointment O x-vAj»lt( ■..'. 0. Parr gv.c".: caca , ::ja:''. tixe cac3 ic verrx. i£.e(f. to tiie aii:«rior court for ^ TT^ri^ther proceediu^'c iu confor:iiit;'- \.lth thi;. OjPiuioa. M rc. "./ood i.. eatitlei to liar coctc irjcuivecL iu fiiic court, pay£. "bl 3 out Of the ^fuarciiaisliip ectate* Holcoml), C. J,, Toli'iTc.il, llitchell, cixL lliin, JJ,, ccncur. ^>' 269. P. E. HilMIOHD EITPOHDMT, v. V;M, K. JACKS OE et cl., Apirellaiits, EPAEIC 3. (EEinSI et ul., Garnisliee Defendajits. (89 Wasli. 510 1916 J Api::eal from a judgitent of the superior court for Kias county, rrater^ J,, entered Cc toter 29, 1914, upon findin gs in faYor _of_thej3laint if f , in an action on co ntract, triad to the court. Reve rsed. Fullerton, J. — The appellant Lulu B. Jackso n, a married woman liv- ing v/ith hor hus'ba nd, \/a5~i5j ured""v^ iIe^^^gitirg from a street ^ ail^^~^y oar operated, b;- Tae'receivers"'oF the Sea t tle, E:entoii & Southern Railway ^ Company. She c one e i v ed^thaj _ 1'^ r in,1 ui y-Jgas-^c cvseA ^by, the negligent op- e ration of the car axL that~she^ vas e njbitled_ to recover in damages for ElCh inj uries. Jo that R'^id r,hP pnipln^rfirl W-ifi foKpn-nrl pnt ^ ■TTrmmnnd , ;ffl attorney at law, to "tirosecute Tier claim therefor , promisi ng to pay him for his se rvices a certain pei-ceatage of the amount recovered. The con - tract was i n T.aitiijg, aod was e::ecuted "by the appellsmt as her sepa i^ate contractTTier husband not joining therein. Hie re&ponde}ii;Jjnmediately CTtHTed~Tipuir"tji5" performaace o? the contx-ac t, first petitioning the court for leave to sue the receivers, an?, failing in that, sought a set- tlement v.'ith the receivers, sjid succeeded in obtaining an offer from them to pay the sum of si:: hundred dollars in satisfaction of tiae claim. \7hile the foregoing ne gotiations \."ere in progress, the ap pellant Wil liam~Xr~JacK£0 n , Sne nusband of th e other appellant, employ ed the lav; I'lmi uf Green c: unester to represent himself aM the cbram aal]^ of _him- seif'~ancr\;ife in the prosecution of the clai m against the receivers. I'jiis emplo^mient ,-ras also evidencecT^y a \.a'itirg, v,hich \.'aE practicallj^ in the same tenns as the contract made "by the -.afe -,dth the respondent. -If ter _ this contract •'"as entered into, the -.-jfe notified the respondent ^ ^■\-^ ther e of_^;_letter , dictated It-j the firm of Green d Chester, In whTch^she told~him to talce no ftn-thp.r action ~Ath reference to th e c la im; saying iturther, "As my h'y.B'bzx^. 'was not a Pai-t3'' to the- agreement you had me sign, ■ I do not feel hound Vf the agreement, and request th£,t you return the same to me. ' Hie fim__ of atto-ne-^s employed hv the husband sjgLCjeeded Jl£L, se t tli ng t he claim vath tLia receivers for the sum of $1,000. Ihe r espondent tio ereupon brouglit the present c..ction a^'a inst the appellants, basing his Jause ^f action upon the con tract E,i:-neci. ti? tne wife. Issxse was Ta'.cen Sn~tti¥ complaint and a tiisl was had before the court sitting without a jury. The co-JC't fouzd the contrac t^ valid , assessed the amount of the regpo^d ^TfirTecove ry drt]^^I75^_jum .B^teged judgment in his _fayor for tliat Bum. Sis appeal ToXIovid^ ' ' The sole ques tion presented is whether a imrried --omen liv ing wit h ^>uti her husband, may mslzo a valid contract i.lth an attome;^ to -prosecute an "P" sc^tloa-ji£jL4iijA^!;j£gg ^ one bv whose ne gli gence she has s uf fared ^ _per- sonal injury. 270. Rem. c-j Bal. OocLe, Sec. 131 [i . C. 81 Sec. 11), provides that, \hen a married \«3meji is e party, her huGbaiid muct be joined vdth her, except (1) vAien tlie action coixerns her separate property; (2) -.hen the action is between herself snd Zicr husband; and (S) xSaen she is living separate and apart from her husband. It IXirther provides (Id., Sec. 182; P. C. 81 Sec. 13) that husband and wife may join in all causes arising from injuries to the person or character of eitlier or both of them, or from injuries to tlie property of either or both of them, or out of an;;,' con- tract in favor of either or both of them. Construing these sections, -..-g Iiave repeatedly held that the husband is a necessary party to all actions a:i.'iEin2 because of personal injuries to the vafe, if the parties v/ere living' tO|2;ether as husband and \/ife at the time tiae injury was recoived. Schneider v. Eiber^ei-, 76 Wash. 504, 136 Pac . 701,, aif- cases there col- lected. Indeed, ou:.- holcdnc has been tliat the Iiusband ^;as the only nec- essary party to such an action. Uiis on the principle that the claiin of damages for Cis injic-)- ".■•■as co/anunity personal property of the spouses, aad, sinne the statute (Reia. c", Bal. Ca.e, 5'ec. 5917; P. C. 95 Sec. 27), vests in the husband larhils livi:^;^ v/ith his ..ire the laanagement snd con- ti'ol of such property, he li^.s pov^er to deal vlui it as if it './ere hie sepj- s;rate property, -.hich includes 'cIe ri^ii to maintain actions concerning it, the v'ife hexn^' only a proper pa;:*ty to such actions. Dillon v. Jjillon, li V/ash. 594, 43 -'ac. 624- Hav/;ins v. Front Street Gable R. Co., 3 'Wash-- 592, 28 Pac. 1021, ^8 .'mu It, 7^, 16 L. R» A. 808; Kaxcker v, V/oolery, 10 ¥aEh. 484, S9 2ac. 100-, ];atthev;s v. Spoisaie, 50 Y/ash. 107, 95 Pac, 627; Schneider v. Biber^er; supra. Prom the loieioini it follows, \;e thin.c, tloat the \rlfe cannot maj:e a val id contract ith an e.ttoin.e;'' to prosecute an action for personal injuries althoc^'h Eufferec. by herself. Since the Ijusband alone can main- tain such an action, it iriUEt follo"' tlu-.t Is has tlie ri3ht to liave a voice in anj'- contract tliat affects the condition upon ■..h.ich tlie action is to be iaaintained. To hold other^;ise is to hold that the liusband's manage- ment and control of t'x& c onaunity personaJ. propert}'' is not absolute as tiis statute precapposes, but is subject to fauch contracts as the other- spouse ma-Y choose to raaire concerning it. Hiis . v/e tliinh, is not tlie -leanii-^g of fee statute. Our attention it called to a number of cases \.here this court has recognized contracts concerning the coiaaunity property entered into by the \7ife as obligator^ upon tlie comnvmit^r, but in each of them we fiiinV: there v.'ill be louuc'- so.x element of ratif ice,tion or acc^uiescence on the ;^rt of the husband which estop^-ed him from gainsaying tlie contract. Buch \;as the fact in the case of Tilliajas v. Beebe, 79 'ash. 135, 139 Pac. 867, a,lthougIi the court rested the decision, in part at least, on tije ,:^round that the wife could enter into a valid contract \/ith relation to the coiamunity property; citing and rel^'ing upon Hem. u Bal. Code, Seo. 5927 (P- C. 95 Lee. 21). But diis section of the statute, as we had thAi'etofore unifoimly construed it, relates to the separate property of a :jiarried './oacji, ^iviii^ I^er pov;3r to contract -..ath refsrence thereto as if EliQ '.;ere unjaarried, but not po'.'er to contract '..1th reference to coia- luunity property. •Eiis po'.er ox contract had been theretofore, in tlie same en:.ctment, e:;clusivelv vested in the husba^^id. jJieebm-ger v. Cald- well, 5^' ash. 759, £2 Ic.Cb 752; ilain v. Scholl, 20 "..ash, 201, 54 Pao» 1125; Hester v. itine, 46 Hc-sh. 469, 90 Pac. 594; United States Fid, &, 271 Guar. COo V. Lee,. 58 '.fesh. 16, 107 -ac. 870. Ovx e:;i)ression iu the casa aont ioiied muicte ro^ardad as unfortunate, ratler tliaii as an authorita- tive deternination of tliB qUGstiou involved. The respondent further argues that the evidence in the present case shows such an acquiescence in tlie contract ty the iiushand as to estop him from repudiati:\'V the contract. T/o ha\'e eriannned the record v/ith this thought in mind and t?iinl: it dees not ju&tify tie conclusion. It is shovm that the; lUTShcnd l:ad loiowledge of his wife's action at the t.i;iie he entered into the contract ivilh Crjester « Green, hut v.e f 5 mi nothing to show that he in any canner recognized or acquiesced in the contract after it came to his Imovdedge. The jud gment it reversed , and tie cause remanded with in5trT:rvtions to enter j udgment in favor of tie appellants, d efendants "below. V^ c.^.,— V -^ ^ i llorris, C, J., Ellis, exc-. Llain, JJ., concur. 272. SECKtS 0, lEKCIE COl^MTI, Sespondent, v. AUHA. iiCI&BI, Appellant. (ill vv-S' *• ^ ■ "*- ^ ' ) 17 Dec. 156, 1921. Appeal fron a judgment of the cuperior court for ICing county, Smith., J., entered ilovemlDer 13, ]920, upon tte. %'-ei-dict of a jury rend.ered in, f avor of the plaintiff, in aa action on contra ct. A ffirmed. llitchell, ,T.->- r;iis is a suit "by tls C-eor^^e C. L eiccke Company, a^qr- pox-ati on, to recover on a cont ract, si:":aed ajid delive red— tfl_ it Tjy Anna ITordty, for a cointiission on the sale of real estate, j'rora a verdict aiid ^ud^enTTT or ttle'^^lalu.tlXf^ tlxe-dgfend^t^Iaas^oagealGd . gh e real properts?- 'jolonged to the cOiTmunity consistiEe of s^ppellaixt aJd her husogoid.. P. P. ITordliy,- ^ tIip. rflF-,?ondent fnurd a purchaser \Aio,^ ' icon the payment of ."^500 ecj-nest nonejr, entered into a v.Titton contract for tl ie p urciiase~of ~t"'-6 •iOTrperty7~ I t v/as sign ed P. ?o Ijordty, oxholOT^-^ John Ec Ryan, aixL cJso 1):/ th e purchaser , 'but \/as~^6t signed by the. aj)- pei-larrtn — -Under th6 sam.9_aat e, the appellant~"e^cutedr'aM~'del'iTe rea_j;o tire~re spondent the contract on v/hich the suit is "brough t. Tlie abstract of~tTtle and a deed of conveyance, proposed some days later, were iipon eccamination found to be satisfactory, but the nighlfc before they were to be passed and delivered and th& remainder of the consideration paid by the pnvr-.ina «^p-r _ T- , ff . :in:-r'iny fl i pf . Ihs delay in cj -jE^lgtJ ^3. the deal cau sed by his aeath resulted in chcoi^ing the full details of the purchaser_^E contract by a formal canc ellation of it aif. in plotting him iu^ ossessiCT . oft he propert:^^, 'vith the _jcXQaJiJrff' erstrni^ niK,-hQi:Gver, that as soon as proper steps v;ere tal33n in the Probate de p.'^.rtment of the oiperior court, the transfer \>oulc. be ma de for the consideration origiaslly fined;^ and for that purpose Gie party viEo by^vray of" loan to the purchaser vas to supply the lar^'ar pa:^'t of the purchase price held the money until some %7eete later, after proper court proceedings had been tali:e:a to malte the title sood, he ftirniclx:d it to the purchaser, '.tio in tiu-n paid it, to- gether with the otiier considerations for the deed of conve;"ance. By several assignments of error i t is cont ended tliat the contract of th e appellaat to pay a coirmissicn v/as terraiiia-ced "by the ca:ic3llatidny,_^^ ^_th e eai-aest mone-f contrac t, bec a'ase oy th &_J:erms "of her contract^he . agreed to pay the GO.-iUission if the purchaser completed the purchase ^ •'und er the teri3S~"ajIt~CT g iliblun L ; ^^ot_tbe eai 'iiest moaey"~c on trac t. TM ar- gument is tliet the cancellation of~l; lie earnest money contract deprived the contract sued on of some of its essential teims. ''e tiunlr it does not liave that effect. Tlie contract sued on, since it refers to the other, is to be construed ac if th2,t otter to that e::tent •-as incorporated in it, and the cancellation of the other, being between entirely different part- ies, in no W3rj depreciates its value. The one that was cancelled is in erristence and is in evidence in this aase. Hor ws.s it cancelled until tlie purchaser \iz.s put in possession of the px-upertj' ~v,ath the understand- ing that he v-as to complete the contract as soon as £!-£ title to tlie prop- erty could be perfected throxagh the court; uid there is abundant evidence. 273. Gio^sh disputed ty the api-ella-iit, to have satisfied the jury, as it evident ly wac satisfied, that the coatraot v/as fully completed "by the purchaser- "by a substantial compliaase vdth the terns, of the cOiitract as v/ritten and tJiereafter orally agreed, pricr to the coinmeacement of this suit. The saine reasons ansv;Gr the argument of the appellant t]Tr-t the contract in suit, to the extent it refers to the cancelled contract, is defective uader the statute of frauds. Under another collection of assisnxnents of error it is contended the' ai)pellant is not individually liable for the reason that the real estate v/as coriimunitj,' property and ti-^at the respondent vas dealing with the com~ launity an:l not vAth Ilrs. iiord.hy. But she r:jade the contract. All former j ,s\vs Y/hich iirfposed civil disahilities upon a va fe v^ich vrere not recosr nized as e gistii^- against _the_h '"r.'bflnd Kive "heeiT fiboT i shed ' ^v~statute (Rem . 'C ode', Lee. 5926) and rBT cmtracts an d liabilities may he enforce d (Rem. Code, Sec. by-<— - \ \ Parlcer, C J., liain, Bridg'es, cJid Tolmaii; JJ., concur. \ 274, ELIZAaETH 11. BOUroS, Respondent, v. I'lIEITIE E. G/iL- BBAIOH, as IL:ecutri:: of tho Eotate of j\RCHr2 R. Q.'-LBR.Viai, Appellant. (17 Dec. 161. 1921.) Appeal from a judgrrent of tlie superior court for Spoteaae cotmty, Oswald, J., entered Lecemlier SI, 1920, upon the verdict of a jury render- ed in favor of the plaintiff, in an action on contract. Affirmed. Hitchell, J. — 2?he respondent 'broi:^^ this action to recovet for per- sonal services rendered'~ to the appellant fro m h ^j tSlj e r~r 57;T90gr, /^o_ITov^ "Member, 1916. The trial l-esultea in a verdict and judgn:ent for the re- sp0j3jdeat~in the sum of ^4,290.30, asainst only Minnie E. Galbraith in- divi(?iially, from v/hich she has sgppealed. Appellant is thes urvivin,^' wife of .Irchie R. Gal' br^i^^h, der.fia.Red. Respondeat i'S the davghtex- of Archie R. Galtraith, deceased, ty a former ' W.l'e . In het- Orisinai cOi,ipiain.r agarnst tto"'~appeTlant as sole defendaiit , re£".3 ondcat alle.'^ed uiat, a"bQut September, 1904, "at the requ est of jbhe uefend ant aa id Archie R. GalTjrait h, " she •, /priced upon their ranch, and con - "tinued''to do so until about iJov mtoer_l , 1916, itthat_t^_Y.prl; consisted of c oolong for taie f amily anr ! farm handE^,_houE^worIc, includi ng" v©.sh iug aixL ironin:^, raTlkins cows, feeding pigs and chickens, anci. v/ork in the harvest fields, pScIcing fruit, and aiding; in clearir^ land; "that shortly after plaintiff began v.orl;, defendant and the dece ased^ Gglbraith promised the plaint if 1 if she -.oula continue to v/ork . . . that fitiey would pay I^ r~v/ell ^ut of the proceeds of the s ale of the ranch wlen sych sale "sRoald be riade, and _tto:LS-ai4--r^a£h„\^s_,SQl^'fo? $25^000 in Augixt, "1918j_'' ^at plaantgf h as 'not been j aid , and that^ - QE per day is reasonable for .Jborjservices . By leave of court^ Sie 'cont>iaint v/as amended by making Ill's. G-albraith, in her capacity as e::ecutri:: of lier deceased husband's estate, an. additional part-'- defendant. In the amended complaint; after alleging as fojmerly that she --orked for then at their request, and de- scribir^' the \/ork performed, she t:::en alleged, ai:nong other things: "2hat shortly after plaintiff began said v/ork, and on or about the 15th day of Septanber, 1904, in Ibpol^sne county-, "ashington, the defend- ant, Ilinnie E. Gelbraith and her then husband ^ the said Archie R. Gal- braith, deceased, entered into a contract and agreement -.vith plaintiff by the tenus and conditions of ./Iiich the plaintiff v.^s to do and perform and render sei-vices to them end to be paid for said v;ork the reasonable value thereof; am?, at said time the said Ilinnie E, (Jalbraith, on her own behalf and in her o\/n capacity as an individual and for the purpose of inducing and persuading tliis claimant to enter into this agreement, prom- ised and agreed that she, the said Minnie E- Galbraith, would individual- ly pay and cause to be paid to this plaintiff the reasonable Tjorth and value of the \/ork and services to be rendered, \vhich said payment was to be made at the tirae the said Uinnie E, (Jalbraith and Archie R. Galbraith, deceased, should sell and convey, or dispose of their said ranch; and that on or about Aug-ust 15th. 1918, said ranch was sold by said Galbraiths." THiile there is a conflict in the testimony, there is ample credible 275. evidence to suivort all of the material alle^'ations of tlia amende-: com- plaiut that '..'ere coutroverted by the ansv/er. Respondeat testified, ty questions and ans\/erG, as folio- /s: "Q. ^";hat, if ari7, conversation did you hcve ^ith the defendrnt Mrs. Galbraith in the fall of 1904, the fall or summer of 1904, dovaa on Gollese avenue v/ith regard to your going out on their ranch? A. She wanted me to go out and do the housework. Q, V/hat did she say about pay. A. Ihat I would get my money when the ranch v.-as sold. ':l, Lid era s^.y v/lio v;ould pay you? A. She would pay me. ti. You state to the jury whether or not you v/ent out to tlie ranch pursuant to that conversation. A. I did." Furthennore, two other witnesses, v/holly disinterested, testified t!hat once to each of them during the tv/elve years, in tlie absence of the respondent, the appellant stated that slie was paying -./ages to the respond- ent. The respondent testified, and was corroborated, to her performing the services and labor as alleged during- the \;hole of the tv/elve years, and admittedly she had bean paid nothing for her services, for the defense v.'as that slie './as a member of the family, treated as sudli, aid. tliat all her services were gratuitous. Assiggments of error 1 aad 5 are that the court should have sustain- ed a demurrer to the complaint and an objection to the intrcduction of evidence upon the gx^ound that no cauce of action v/as alleged. !Ihe con- tention is tliat the allegations show tliat the obligation charged v/as a com- munity de^t for which the vafe is not individuall;' liable. That rule does not apply in cases such as tiis , ^Section 5927._Pi .era. Code (P.O. Sec. 1450 ), provides: "Contracts mr;y be r;iade h-j a. -.a-Fr, -rnr^ 1 i - . bi 1 i tinr , innurr n r' ., a nd tlie_ _same may be enf arced by or against hf^v tn t>p. nai-y. ^ -tRnt --.t! in t-.hft_ same manner as if she were tmiraril ed." Assignments 2 and. 3 are predicated on tlio r&fus-.l of the co-art to strike, cjrf. to sue t in -, demurrer to, the ra-nended complaint. Ihe argument is thr.t, as the original oomplaint did not st-.te '. cause of -jction, t}:ere w;,s nothing to -ment. In our opinion, there is no merit in the point. -ssigument 4 is that :.p ell:nt's motion for judgment on the pleadings should not h:.ve been denied. Because there \/r.E no denial of an alleged affiimative defense setting up the st.:.tute of frauds, it is ojrgued that "the sole uestion involved in the notion --saiCer discussion is ^7het2ler tiie promise, as alleged, is .Ithin the st-.tuta of frauds." That is, it is con- tended that the allegations in the amende^- coni^olaint, viz.: "And at said time the said Liinnie E. Galbraith on her own hehalf raid in her o\ra capacity as _^ individual, _ixL for the purpose of inducing' and persuading this claim-nt to enter into this agreement, promised .nnd agreed that she, the said Minnie E. Galbr_-.ith, \;ould pay and cause to be paid to this plaintiff the reasonable /orth- and value of tl:e work and services to be rend-ered," is a collater-il -nd not -n original pror.iise, particularly because of the words tlx-.t alie "would pay or cause to be paid." The langxtage referred to is entitled to no construction inconsistent -./ith the ch.:rg3 tliat Ilrs. Gal- braith mcde - direct :.nd positive contr-.ct and promise to pay, not tie debt of riiothar, but her a.vu debt. 276. Assignment 6 is th-t the refusal to strike certc.in testimony of the res-^ondent to the effect thc.t Mrs. Galtrr.ith, in the- full or surfer of 1904 wonted her to go out to the f:xn 2nd do house^;ork, th::t she v;ould poy -i-^en tlae farm v;as sold, and. th-.t she did so out to co.™ence v;orlc m September, 1904, v;as vj^e judicial error. The arGument is that the testi- mony is inconsistent v;ith the r.llegr.tion that, after she hegrJi uork, the ap:,3ellant and her then hushnzid agreed to pay her for her se 1-1:1 ces ^^iien they sold the ranch. The testimony moved agrinst went in hy questions and oxLSv/ers, v/Lthout any objection on the part of the appellrJit; and tur- thermore, the terms ajid conditions of the agreement, as testified to ana pursuciit to v;hich the services v/ere rendered, v/ere identical v.lth the al- legations of the complaint so far as Mrs. Galhraith is concerne.rs' Investment .Issoci-ation of irJce "/ashingto.i, the corporation before mentioned. By her direction Mrs. Forbes racde a deed to said corporation. At the time of said sale, Mrs. "Tillcie represented to her said agents, end, presumably, through them to tlie purchaser, that the propert3.'- v/as her ovrn, but the business h:,., to be done in the na.me of her mother, for the reason tlia.t she could not deal in real estate in her o' n name, as she liad a husband living ill Chic -go. The defendant Bart had actual laiov/ ledge of the sale to said corporation, and subscribed tlie deed given by his grandmother, as one of the -.•itnesses. Saldsale •vas ircde for a consideration of ^500 in cash and the further swa of vl.OOO to be paid thereafter, secured by a uiortg ge upon the property, in which Mrs. Forbes '""as named as the i.iort- gagee. Mi-s. '7illa.e received all of the -/500, and used it as her ovrn. There ixas "bQeii no offer made by either of the parties to restore any part of said consideration to said purchaser nor to the pl-intif.-s. Several months after said purchase tho corporation sold the S'roperty to the plain- tiffs for the price of 02,000, one-half of vh ich was paid in cash, and the remainder was paid by assui.iing the obligation to pay Mrs. Forbes the principaJ. and interest due and to become due upon the mortgage above men- tioned. Before consummating this purchase, the plaintiffs questioned the title, on the groioiid that llr. Fcrtcs had not joined i7ith his wife in tb.«) conveyrjice to tha corporation; cujI t.o Keet the objections so raised, pxJ. sa.t.i£:.fy tie plr',intixf.3 tlir.t the title "'.s valid, the agents through rhaji tiae sale v/as negotiated, heing tlis seme firm who had tefore negotiated the sale for I.Irs, alkie to the Gorporn.tion, obtained a quitdlaim deed from I'j:, Forbes to the plaintiffs, said deed being for a noraina.l concid- eration. After said purchase tlie plaintiffs entered into actual posses- sion, and Invo eiijendod about ■O'^O in iari:ing inproveaents upon the prop- erty. Tlie defendants both laae\7 of the making of this deed at the time, rjid made no objection to it, e::cept that I'xs. ' ilkie informed tie agents who aslred for it fiiat Ilr. Forbes had no interest in the property. The deed from Ilr. and Ilrs . Forbes to tlieir grazdcon, the defendant Bart, \7as given subsequent to the purchase of tie property lay the plaintiffs aJid the taking of possession mider it, rjid for no consideration other than love rjad affection; and the mortgage from Bart to his mother •>.'as also given without consideration other than love and affection; and both of said inctriments were given at the request of LIrs. V/ilT:ie. The defendants admit that their position, for tlie purpose of claim-- ing the property adversely to the plaintiffs, is no better than tliat wh.vch llr. and Ilrs. Forbes -vould occupy if the deed to the defendant Bart ha^. not been given; but Ihey contend tliat said parties did not by their separate deeds, nor by reason of ti£ facts above narrated, convey an,','- title to the plaintiffs or their grantor, nor become- estopped from claiming the land. Ihey claim that by the deed to Ilrs. Fdrbes, the land became cora-.Tanity property of tlie said grantee and her htisfaand, and in this they rely upon the follo-.dng provisions of the Code of liiis state, viz.: Sections 2400 and 2406 in effect provide that the property and pec-jniary rights of mar- ried persons at the time of marriage, anc; the property and pecuniary riglits acquired by each after u^arriage , by gift, devise, bequest, or in- heritaJXB; ',;itli the rents,, icsiBS, ard profits thereof, shall be the sep- arate property of each respectively; and section 2409 males all property of married persons acquired after marriage, other.vice than as prescribed in sections 2400 and 2408, coiiimunity property . '-^-ien the title to real estate is conveyed to a i:2arried pei-son by a deed \£iich dees not by its own terms or recitals sho-j to the contrary, a legal presumption arises that the property' becomes coinmunity property. 23iis presujaption is in- volred, and the defendants claim that it is strengthened and ijade conclus- ive in this iiistanco by lirs- 'ill-ie's testimony given upon the tria.l, to the effect tliat she intended, by causing the conveyance of tlie property to her motlier, to malE a gift oz it to both of Itier parents. The defend- ants claim further that conmunity property/ cannot be conveyed by the sep- arate deeds of the ovfiiers, nor other. -is e than hy a joint deed, and tliat sjiy contract for tlie sale or incumbraixe of coEi:aunit;^ property other than a joint contract of the husband aif. wife is not enforceable, because pro- hibited by a positive statute, to-v/it, section 2410 of the Code, v»!liich roads as iollo".;s: •'Eie husbanc". has tie management and control of cor.iaunity real prop- erty but he si-all not sell, convey, or incuinber the community real estate, unless the \/ife join with hLm in. e::ecuting Cie Ceet or other instrument of conveyance by \.'/n.ch the real estate is sold, conveyed, or incumbered; and such deed or other insti-ument of conveyance muct be ac Icnowledged by him and his ./ife; prov:jLded, however, that all such coiomunity real estate 279. shall be EUbjcct to the liens of fficcioaaicc azd others for later and rnater- ialr. furnislTed in ereotiog ctrizcturec cud improveir.onts thereon, ac pro- vided by lav; in other catJJes, to liens of judsmcctc recovered for commun- ity debts, and to sale en execution issi'cd thereon." "le do not ascent to the proposition that the property in controversy ever became tjie coi.jTiUnity property of Ilr- and llrs. Fofcbes. The facts v.hich are conceded in relation to I Irs. V/il&ie's actions in Inyins and pay- ing for the property, in ordering th5 sale of it, p.nd receivins and -asiiig the proceeds in connection v/ith the fact that at the tiiiB of causing the title to ■:;o conveyed to her mother she did not, by any act or declaration vMch can be now proven bj'' the testimony of disinteres'ted •.dtnesses, man- ifest an intention to raaice a gift, and the further fact that her mot?-i?r, to \/hcm she caused the title to be conveyed, v.as subject to her influ-snoo; if not entirely subservient to her v/ill, and the motive which she had to place thfe t.'.tle to her oxm real estate in a person other than herself oja account of her oxm status as a married •.'.•oman, aiai consec^uent inability to deal in real estate in her o-.rn name, are anply sufficient to refute her testimony as to her intention to give the property to her parents. 1 Perry, Trusts, £ec. 147. The conclusion follo\;s naturally and irresisti- bly from the premises that the name of IJrs. Forbes' v7aE used in the trans- actions for the salce of convenioi:ce, and ftiat from the conveyance to her there was a resulting' trtist in favor of Mrs. '.7ill:ie as the true owner. Id. Sec. 3)26, Mo, 147. This being so, the deed given by Llrs. Forbes, the trustee, to the corporation by direction of llrs. Willcie, the cestui que trisst, for a consideration equal to the full value of th^ property at the time, was sufficient to, and, in our opinion, did, convey a perfect title. In the second place, t he Ig'.v of this state does no: t-Cx&ate-« on i ran-ni , ty property out of real property acquired by^ gift_;___Kiere is no room for.xais^ "rad^rii Land lug ar inis interpretation, of the statute^ In plain -..ords cec- tront! j:ic:^^ ,f^.^ii^o^-^>uo jza^ ■ / y^, y^^<-e c^ c::*^^-^ y^-^yc? 280. property, unaffected liy other circumstances, still \/e Tiold that the -fnc'f in this cai;e, clearly est?.lDlis:^.ed "by ths evideace, are EUfxicient to create aJi ectoppal aga-xusi; both Mr. and Ilrs. Fortes, de'Darring them fro:-;, claiming the property arlvorseiy to the plaintiffs, llrs. Forbes understco-l that by hor dned given to tl'^e corpora --ion named it was induced to pay a considerable sum of money to her dauj^htsr; aiid, laiov/ins that fact, tihe cannot honestly or r.ithout being guilty of fraud repudiate her solen.j a*"! rir. Forbes Inew of the sale to the corporation soon after it was made, f,r. . yet iDade no objaction to it, nor asserted any claim to the Property, unt-.'. after he had given his deed to the plaintiffs. Shis quitclaim deed, if r<> valid as a conve3?-a"ic e , is at least a diip^^l aimer of any interest in the property, and by it the plaintiffs were induced to purchase tha property and pay for it; and the porson by -vhom they -v.-ex-e so induced cannot by azaj act or deed nov; deprive them of the property vathout perpetrating a gross fraud. Hie plaintiffs had no reason to ^ippose that either I.ii'. or Ilrs. Forbes did anything v^ich thej;" had no right to do in giving either of the deeds mentioned. Ihey are not chargeable v/ith notice of any facts render- ing said deed invalid, and they occupy the position before the court in this suit of bona fide purchasers of the property for its full value from the apparent real ov.ner, and, as against Ilr. and Ilrs. Forbes and the de- fendants in this case, are entitled to the protection v.hich equity affords to such purchasers of property. The case of Holyoke v. Jaclrson, 3 Pac . Rep. 841, 3 V.'ash. T. 235, cited by counsel for the defendants, is quite different in its facts from this case, and therefore not in point. In that case the bargain was made during the vendor's absence from his home, and \-lthout the lmo\;ledge of his vife. The vendee t/as the proposing parly in the negotiations. He knew at the time of the traasaction that the property \;as community prop- erty •,^iich the other party could not sell T.ithout his \.ife's consent, and he v/as distinctly v/arned., before he paid any part of the purchase money, that the v/ife had. not consented to nor authorized the sal.e . Tr.en, at the earliest opportunity after being inforraed of it, the wife dicaf filmed the sale, and so notified the vendee, and a legal tender of the amount of monoy received on the contract, •..•ith interest, vas promptly made, and thereafter lEpt good. Tiiere v/as no fraud in the case, so that there could have been no recover:' of dcmages in a sum greater tlian the amount tender- ed before the suit v/as commenced. Tliat case, therefore, is one in -v/hich the defence rested Ux^on honorable grounds, and it does not support the position held by the defendants in this case in their endeavors to beat a purchaser out of the fi-uits of his bargain, after receiving from him, and \Aiile retaining, tlie purchase money. Tiae other authorities cited on the side of the defense are also inapplicable to the facts of this case as v/e find toiera from the evidence. Upon consideration of all the evidence, pleadings, and arguments, v/e consider the plaintiffs to be entitled to tlis relief prayed for, and av/ai-d them a decree accordingly. Sa'.vyer, J., concurs. ^ '^ ^^ X \. /.>i-,n in evi- dence, -.hetiier regTilar or irregular, and whatever the form of proofs, the lav7 raises a presumption of its legality, not only casting- the burden of proof ;apon the party asserting its invalidity, but requiring him tlarougii'?' out in every particular plainly to malre the fact appear that such mar- riage is illegal and void. Eie strength of the presumption of the legal- ity of a marriage increases -.ath the lapse of time Carough which the part- 284. ies are cohabitiiDS as huG"band and \/ife. no\/, in thic connection, you are instructed that if you find flc3>.n the evidence that a carriage tetv/een Sol- omon and Frances Adorns, prior to Decero'uer 6, 1841, has "been proved ty any of the methods of proof -.hich the la./ recognizes aD set out for your guid- ance in the court's general charge, tlien the lav/ presumes the legality of said marriage, and tho hurden is upon the defendants, xft.o in tliis case are attacking it, to estaolish their contention by clear evidence. Tliis they may do "by shovdng tliat Solomon Adams, one of the contracting parties, if such a marriage v^s consiimmated, was under the continuing disability of a previous valid marriage; but, unless they so shov/, the law \dll pre- sume that such disability vac terminated by divorce, and you v/ill find in favor of the validity of the marriage." (1) Hie action of the trial court in instructing the jury that the burden v.'as on appellants to prove tloat Solomon Adams v/as divorced from his first wife before he irarried Frances Schafer is coEplained of as er- roneous, liie contention must be sustained. Tn.e burden vas on appellaiits to prove a marriage bet\--een Solomon and ?ra.nces, but not ti) prove that such mari-iage was a valid one. A presvimption that the marriage \as valid v.Duld arise from proof that it v.-as contracted, and the burden of proving to the contrary -.ould be on appellees. !El-is they might do by shov/ing that Solomon had not been divorced from his first v/ife at the time he married Prances. Tiie rule is a well-established one, and is based on the principle that the lav/ -.all presume morality and innocence rather tlian immorality and guilt. ni::on v. Wichita Land Cc Ca ttle Co., 84 Tex. 408, 19 S. T;. 560; Y/ingo v. Rudder, 120 S. V/. 1076: Carroll v. Carroll, 20 Te::. 741; Ross V. Sparks, 79 H.'J. Eq. 649, 83 Atl. 1118; Gamble v. Rucker, 124 Tenn. 415, 137 S. '.7. 4;99; llcCord v. IlcCord, 13 ,^jriz. 577, 114 Pac. 968; Lyon v. Lash, 79 Zan. 342, 99 Pac. 598; Parsons v. Grand Lodge, 108 leva, 6, 78 N, \7. 676; 19 A, c"; E. Inc. Law, pp. 1208, 1209. (3, 4) As noted in the statement above, the court in his charge to the j-ary predicated the ri:^t of Pr ances Adams, if she v/as lav/fully the •./ife of Solomon Adams , to convey the land to John E. Adams, on the fact tliat she did so "to pay the communit^r debts of herself and S olomon Adams , or to provide necessities for herself and her minor children." Error is not assigned on this portion of the charge, but it is nevertheless urged that it v/as erroneous in that it did not recognize a right in Prances Adams, after she had been permanently abandoned by Solomon A.dans. to sell the land to provide necessaries for hersdlf , but reqiaired the jury also to find that she sold it to provide necessaries for her minor children. It is insisted, and .;e thini: correctly, that there Vas no testimony shov7- ing she then had minor children. Undoubtedly the charge in the particular specified, for the reason suggested, vas erroneous, but, in the absence of an assignment presenting it, -.le v/ould not because of the error be v/ar- ranted in reversing the judgment. But error is assigned on the refusal of the court to give a charge requested, telling the jury if she and Solomon •w-ere la'./fully narried at the time title to the land certificate '.-as ac- quired. Prances had a right, after ho abandoned her, to sell and convey the land to John E. Adams to provide means necessary for her support. On another trial the charge of the court shotild not be limited as specified, but should be so framed as to require the jury to find in appellants' favor, if they believe Prances andSolo mon v/ere lav ^ 'fully married , that he aftcr-./ards permane ntly abandoned herT^d that she" so Id and conveyed the 286. laxid to John E. Adams for the purpose of providix^' iDoaJas nocossary fo her support. -" For the error E pointed out tlio judgment is reversed ,_arid the cause is remand od for a new trial. t:?<::k^<^-^-'\^^ ) f ^A;as married to James A. Griffith in 1886; she being then 15 or 16 years old, and he 20 years old. That after the marriage they lived together one year at the house of plaintiff's father. That they then moved to Commerce, viiere they lived some time, and aftervards went to Ardmore, Ind. T., v,here they lived in a small house built and ov.nod by James il. Griffith. Hiat they sold said house, and moved bade to his father's. That from there they moved into a rented house at Ilorman, Ind. T., v;here they were living in July 1692. That about July 1 1892, plaintiff, vnth her husband's conr-e-it, went to Ardmore to visit her parents. That a short time aftervcrds said Jas. A. Griffith vrent to Ardmore, and visited her a v/eek or tv/o, but did not live '■'ith her there as his wife. Tlmt he v/ent from there to Ft. T.'orth, Te;:., to look for a house, and \vas gone some two months, during \*iich time they 267. corresponded vjitli each other. That ho did not get a home, "out came 1)301: to Ardmore, and stayed a day or two. Ihat he then asked plaintiff to re- turn with him to Ter.as, and she said slie \.ould c;q v.lth him any.'.'here, ex- cept to live v.lth his parents, v/hich she xiaz unv/illin^' to do, iDecause they had mistreated her. That he left, saying he v;ould set a home near Sherman, Tex., and send for her. Tl-^xt she paclced up her thinf^s, and kept ther/i pack- ed, and \.-ent to tho post office tvace a day for a mouth, but got no letter from him; and he did not come back, and never contributed a cent more to her sUx^l'Ort thereafter. That she then supposed he had left her for 2;ood, and about 10 cr 12 months tlaereafter she went to lit. Vernon to make her h home with her married sister living near there. It was on tiiis trip the injury complained of occurred, at Greenville. After leaving Greenville for lit. Vernon, she accidt'ntally .net her husbaixL on the tr?^in, and rode with him about so:: miles. That she then told hin she vrauld live r.-ith him anyv>aie»'^- under the sun, e::cept at his parents* house. He did not say v.here he lived, or vhat he \;ould do« She told hin that she had had trouble at Greenville, but he did not ask her anything about it, an(?. she did not tell him what oc- curred. Ho s'ave her no raoney, tut save the baby a dime and 10 cents' v/orth of candy. He got off the train at a small station, and she went on to lit. Vernon, and brou^-ht this suit by the advice of her brother-in-law. That at the time James A. Griffith parted vath plaintiff at Ardmore the last time, in tha fall of 1892, he promised to '.-.Tite to her, but did not at that time intend to do so, but intended to permanently abandon her, never intending to live -vith her asain, and never after thit time contributed anything to plaintiff's suport, and never intended to. Tiaac, at the time plaintiff met Janes A. Griffith at Bommeree, she asked him where he lived, and he re- fused to .tell; ar/- she told him that she had had trouble at Greenville^. He did not as:: her anything, made no reply, and acted so indifferent that plaintiff did not tell hin what the trouble was. The evidence clearly showed a perrac.nent abandonment of the .If e by the husband, without fault on her part, and she v;a£ left without any means of support v;hatever. Upon the merits of the case, these facts-- r/ere found by the court: "(2) I find: Tliat on or about June 27, 1693, the plaintiff left Ardmore, Indiea Territory, ^.'.•hero hsr parents then resided, to go to lit. Vernon, Franklin county, Te::as, for the purpose of living with one of her married sisters, -.-ho then lived in said Franklin county, and that at Gainesville, Cooke ccantyV Te::as, slae bought snd paid for a through coupon ticket, via Lherimn and Bells, via the Ilissouxi, llansas Ji Te::a£ Rail 'ay, to Ht. Vernon, Frankliri county, Te::c.s. Tliat srid ticket \.'as valid, and was thereafter dv.ly honored and accepted by the defendant, an?- plaintiff was transported form said Gainesville to said Ih^. Ver:aou by the defendant on^ said ticket, as a p:.EEenc-er on one of its passenger trains. Tlirt the plaintiff on said June 27th arrived at Greenville on the Hissouri, liansas u Te::as Rail^-ay, under her contract as a passenger on said ticket, and attached to said ^ ticket ',-as a transfer ticket or coupon, which the plaintiff had purcnased ^^_ paid for at Gainesville, fuon the Ilisoouri, Ifensas u Te::aE depot to tne ^^^ depot ol the defendant. That said depots ware about one mile apart. That as soon as plaintiff reached Greenville the conductor of the train of the ■ llissouri, ICansas C: Te::as, on ^^hich plaintiff was a passenger, shov.-ed her the transfer line or bus that her ticket called for, on vhich she v/as to _,.' be tra^nsferred fro:.i the Missouri, ICansas £-. Te::as depot to the defendant's- depot. That the manager of said transfer line accepted her as a passenger and she gave him her said transfer ticket, and he accepted it, and promised to Carry plaint ii'f to an hotel to v.^.it until defendant's ne::t reg^alar pas- 288. senger train left Gi;eenville for lit. Vernon; it being then a"bout 2 o'clock p.ra, , aim the time for the defendant 'c first passejQ:;er Jrrain thereafter to leave Greemn" lie for I.:t. Voraon "beins 12 o'cloclc that nisht . Tliat the oanascr sf said rransfer line dp.d ?iot carry plaintiff to^an hotel, but did carry hor direct to the depot cf the defendant, a-cd deliv- ered her to thj3 de.fsndan.t at its depot in Greenville. The plair.tif f had no money, and was with her babe, v/iaich v.as a.bcut one year old, and she \jQ.s a stranger, and did not Imov: the distance nor the location of the hotels and boarding hour-es at Greenville from the defendant's depot. That she inquired ard war. told that it was a raile from said depot to the ^near- est hotel or boarding house. And the court finds as a fact that said de- pot xias a nile f j;om a boarding house or hotel, and that chere ^.'aE no priv- ate residence near said, depot. That the plaintiff entered the sitting room of defendant's depot, at the time the manager of said transfer line delivered her at said depot, for the purpose and -.Tith the intention of remaining until defendant's first passenger train thereafter left said depot for !.:t. Vernon. That the defendant's station agent, I'x. J. D- Bone, at said place, saw the plaintiff Jien she v.as delivered at said depot by the transfer line, and sav; her enter the sitting roojja, and he aslced her if she had not better go to the hotel and stay until the train on which she expected to take passage arrived, and plaintiff replied that she -./ould renvain vhere she then v;as, in the sitting room; to which said agent con- sented, or made no objection. That about 9:30 o'clock p. m. tlae night agent, Kr. Callahaii, of the defendant, in charge of said depot, entered the sitting room \,here plaintiff was, turned down the light in said room, and placed his arm around plaintiff, tried to kiss her, ever her earnest protest, and rtade improper proposals to plaintiff. There \/aE no one at the depot o::cept saic agent, the plaintiff, and her babe. Eie plaintiff begged and pleaded \7ith the agent to desist and not mo],ost her, told him that she was a lady, and finally he '..■ent back into his office, and the plaintiff irmediately took off her shoes, and took lier child in her arms, and, -.dth as little noise as possible, slipped out of said sitting room, and w-ent to the residence of a citizen of Greenville, and gave the alarm of the outrage perpetrated upon her, and the city officers were notified of it, and the defendant's agent vjas arrested; and, as soon as the com- pany va,s notified of said ag-ent's conduct, he was immediately discharged, and has never been in tlio employment of the defendant since. Tl::at the conduct of said agent frightened and humiliated said plaintiff in the e::- treme. Tlie plaintiff vra-s at that time, and is no-w, a lady of refined feelings and sensibilities. Tliat said fright prostrated the plaintiff, and greatly injured her nervous system, perhaps permanently. Her health at said time, and before, was good. Since that time, and immediately afterwards, lier health became bad, end she suffered ^nd is suffering from hysteria. Thx; plaintiff stayed in Greenville until the ne::t day, and tiien -.jcnt to i:t. Vernon on one of defendant's passenger trains, and the defendant accepted from plaintiff said ticket she purcliased at Gainesville in payment of her fare from Greenville to lit. Vernon. Tha.t -.hen plaintiff reached G:.eenville she -.;as transferred to tlie depot of defendant, and -was told by lir. Bone, the agent, about dark, tliat she could reroain in the sit- ting-room of the depot till train time. That plaintiff misled the train that night, but ne::t day traveled to I!t. Vernon on the reirainder of said ticket, after giving a part to the Missouri, liansas c; Te::as Eair./ay Com- pany, rnd the coupon to the transfer man at Greenville. That the ticket puichased by plaintiff, upon -..hich she \ra.s traveling' as a passenger, '^as .^"^t^ / ^ o^^^ ^^5~ / ^^"^i^ '^ . X V -^^ (i-^ x^' / .^■^ ££,0^^^ y ' --^(^-^ft^^^. 289. a coupon ticlret iccucd "by the Missouri; limsas C: Tc::ac Railvay Compniijy at Gainesville, containing couponn as follcws: Pii'st, over the IIin:;ouri, Ii:n.sa.<3 c: Te::as P.ailv/ay (hj^xpany from C-aircsvill'D to Greenville; Geccn.d, Franlc Brame Transfer Cori/iny coupon from depot cff Ilissouri, ISnsas c: Te:i- as Eail\.'ay Corapaay to depot of St. Louis SoutlT..-estern Railway Oowpany; third, coupon of St, Louis Sou.th-.;estGm r.ail\.ay Conpany fron Grec-nville to lit. Vernon. Tl-\at said t'icfcet contained the follov.lng, a^ion^ other, provisions, pr:n-;ed thereon: 'In consideration of the reduced rates at which this tic let is sortd, the holder thereof a:jreGS to and T;ith the sev- eral co'icpanies over -..hose lines this ticl^et entitles him to te carried, as follo-i7s, to wit: (1) That in sellins this ticlcet the Ilissouri, Ean- sas and Terras Ey. Co. acts only as asent, and is not responsible beyond its ovm line.' V/e find further that the evidence sho\.'ed Greenville to be a coopcfcin^' point for the transportation of passcuG.'C'i'^, and tliat ap- pellant Icept its depot open ni^ht cjid day for Cie accoraodat iou'xf persons desiring to take passage upon its trains, and that its passengers would frequently 50 to the depot in the daytinB , and av^it the departure of its trains at 12 o'clocl: at ni^it . Agents vrere Icept in charge of the^ depot both day and night, and pascea^'ers \;ere received in tl3 depot with- out regard to" the len:,tli of tiioe before the departure of trains.'' Tl^io facts above cited \.ere proven upon the trial. Conclusions of Lav/. Th.0 first proposition ur^-ed by appellant is that, under the facts of this case, appellee has not the ri^ht to prosecute this suit \/ithout being joined by the husband. Eic \.lfe had been abandoned by the husband for nearl y a y c c-.r. Six vas Isf t yathout any means of support. 'J5ie~sep- 1^1_ gl-atlon \vas~\dt hout her fault , end pornsnent. Tliis state of f acTs~cIe"ar- ^q ly save h er the rijit to sue alone. Ezell v. Doc'.son, 60 Te:;. C3l; Davis w vTTaladeo, 57 Tor.. 526; ZimpeimanTnTobb, 55 Te::. 261; Harris v. "^Fil- V».•^K. liams, -a^.- To::. 124; VTrisht v. Kays, lO' Te::. 150; Cheeh v. Bello\TS, 17 Ter.. 615; Fuller ton v. Doyle, 18 Te::, 4. Appellant cla ir^ that tlie cmouut of dDmajes avsrded is e::cesEive. V.'e cannot ag^ree to Giis proposition. Actual damages alone have been a\;arded, and \;e cannot say that tlie amount is in e::cess of the injury inflicted. Judgment affirmed. ,_ ^^ ,^ v \ ^ ^ 290. EIDIK V. rEGAH et al. (Supreme Court of California. Nov. 5, 1896.) (ITO. 16,019.) (114 Cal. 667) (46 Pac. 920. ) Commissioners' dccicion. In bank. Appeal from superior court, city and county/ of San Francisco; J. LI, Seawell, Judge. Action by Ilatthias Bider against James Regan and others to foreclose a mortgage. Defendant Edv;ard Kelly, lay his guardian ad litem, alone ans- \/erod, and from a decree of foreclosure, and from an order denying his motion for a new trial; appeals. Affirmed. Vanclief , C. Action j^njTfvrgcl o!^r a jrinTrJ-ga ge e-^ecu ted •bgL-de£eadaat ^e£g-o tn r.p.auvp. j.-^ yment of hJ.P promissory_npte^_jggdejpaya'ble to plain- _ tiff or order, for the sum of §1,500, \ath interest thereon at the rate ^ 8 per csat. per i^nnum. Th^ defendants ndv;ard and Ilary Kelly are hus- band and^^fe , "^d w'ere made x^artijt defendant on the grouixl that they claimed some^int'5re^~tH~Dr~tr6n" upxjn tlie mortgaged premises, r^iich con- sist of a lot 6f"~land 35 "by 80 feet, vath appurtenances, situated in the city of San Francisco. Ed-.7ard Kelly alone, by his guardian, ad litem (he being insane) answered plaintiff's compiaint, denying that defendant Regan ever owned or had any authority to mortgage the lot, and alleging; that, at Gie time the mortgage v/as eiuecuted, he (Kelly) vras, and ever • since had been, sole ovner of the mortgaged premises. He also filed a cross complaint, the substance of v;hich is that in October, 1877, TSiile lie and defendant Ua-iy G, Kelly were husband and wife, he purchased the mortgaged lot with money earned by him during the marriage, and that it thereby became community property of himself and wife; that in June, 1880, v&ile he, with his wife and family: were residing on said lot, she, in due form, made and recorded a declaration of homestead thereon, which ViELs never abandoned; that in August, 1884, he. after due examination be- fore tlie superior court, vns found to be insane, and by order of said court was committed to the insane asj'-lum at Hapa, Cal., and is now, and ever siixe has been, confined in said asylum, and during^ all that time has been, and is now, hopelessly insane and incompetent to transact any business. These facts alleged in the cross complaint were found by the court to be true, and are not questioned. !Ihe follo\;lng additional facts appear by the record, and are undisputed: In October:, 1883, vhile de- fendant Edv-ard Kelly was sane, lie and his v.lfe executed a mortgage on said homestead lot to secure their promissory note for v^OO? payable to the German Savings L Loan Society one jrear after date. In Ostober, 1888, suit v;as commenced to foreclose this mortgage, and \,hile it vjas pending, to v;it, in December, 1888, the defendant, Tiiry C. Kelly, filed in the superior court her petition praying for an order authorizihg her to sell said homestead premises pursuant to an act of the legislature, entitled, "An act to enable certain parties "therein named to alienate or incumber homesteads," approved Ilarch 25, 1874. St. 1873-74, p. 582. It is ad- mitted that her petition stated all the requisite facts, according to said act, and, among them, tliat neither said Edward nor liiry C. Kelly had any means, property, or estate except Said homestead premises and a fe\/ articles of homestead furniture and wearing apparel; tliat said llsxy 291. was depeiideGt for the support of herself ard three minor female children offspring of the ixarriage, upon the asGistaxi.oe of her relatives; and fh&K her husband had no relatives in this state except caid female cliildrcn,^ Notice of the application was putlinhsd, and also personally served on l>.*; piTblic adminisi-.rator, as requi.red by the second section of the act, and the public administrator appeared by cour-.^el for Edv^rd Helly. After hearing the court made an order authorizing the petitioner to sell the homestead premises. Thereafter, on Ap.-il 11, 1389, Mary C. Zelly, by deed of grant, bargain, and sale, ccaoveyed said homestead to the defend- ant James C. Regan, who on I.Iay 4, 1089, er.ecv.ted to plaintiff the mort- gage to foreclose which liiis action -v^as brought. The court below found that on Hay 4, 1889, v/hen the mortgage in suit v/as executed, the defend- ant Edv.ard Zelly "had no right, title, or interest in. or claim to," the mortgaged premises, and decreed a foreclosure of the mortgage as prayed for in plaintiff's complaint. The defendant Edward Helly, bjt his guard- ian ad litem, appeals from the judgment and from an order denying his motion for a new trial. 1. It is admitted by coimsel for appellant that all the proceedings by which the order purporting to authorize ilary C. Zelly to sell the home- stead was obtained \ieve regul.ar, and in strict accordance with said act of March 25, 1874. But he contends that said act is unconstitutional and void, for the reason that a sale of a horre stead in accordance therewith deprives the insane spouse of a vested right to property t/ithcut his con- sent, and without due process of law. Ard whether it does so or not is the principal question for decision. The J.egislat'are has not, by the act in question, encroached upon the judicial department. It has adjudged nothing. The act itself does not directly deprive the insane spouse of any right. It merely declares that upon a specified state of facts., to be founi by a court, such court may authorize the sane spouse to sell the homestead property. The first section of the act is as follows-. "Section 1. In case of a homestead, if either the husband or wife shall becone hopelessly insane, upon application of the husband or wife, not insane, to the probate court of the county in vhich said homestead is sitra-ted, snd upon due proof of such insanity, the court may mate an order permit- ting the husb.-md or wife, not insane, to sell and conrey or mortgage such homestead." The second section provides that notice of the application shall be published for three weeks in a nev/spap'^r,. and personally served on the nearest male relative of the jnsane spouse to be found in the state, or, if no mole relative be laio\m to reside in the state, then uSJoa the public administrator, three weels prior to the application, vhose duty it shall Tie "to appear in court and see that such application is made in good faith, and that the proceedings thereon are fairly conducted." The third section indicates generally what the verified petition of the applicant shall contain, besides requiring that it specifically set forth the age of the iuj.ane, the number, ag'?, and sex of the children of suJh insane husband or w:".fe, a description of the homestead, and the value of the same, and such other facts as relate "to the circumstances and neces- sities of the applicant and his or her family as he or she may rely upon in support of the petition." The fourth section provides that, if the court make the order, any sale, comreyanco, or mortgage irade in pursuance thereof shall be as val:".d and effectual as if the property tliereby affect- ed was the absolute property of the person making such sale, conveyance, or mortgage. The fifth section provides that a fee not exceeding 4^20 be 292. Paid tlifi public administrator for hie services in any case UEder the act. The Ei:rth section expressly repeals all acts and parts of acts in con- flict with this act. Conceding that the insane husband had a vested property rijht in the homestead premiees, and even that it extended to absolute ovmership thereof (vhich is not admitted), yet "all vested property rights are held subject to the laws for the enforcement og pub- lic duties and private contracts, and for the punislment of v/rcngs; and, if they become divested throu^ the operation of those laws, it is only by v;ay of enforcing the obligations of jTistice and good order." Cooley, Const. Lim. (6th Ed.) p. 438. The statute in question is a general remedial lav?, intended to enforce the 'I6gar"6brilat"ibn'bf a hopelessly -C ffi5arre~lra!5band~or \;ife to apply his or her property, in case of necesETity,- to the cupport of the saa:^ '.;ife or husband and their minor children, and — the^refore is no more objectionable on constitutional grounds than vx>uld be a statute to enforx^e -the performance of any other private or public duty or ubligationj. After stating the rule that private property cannot, by either a general or special enactment, be taten from one person and transferred to another for the private use and benefit of such other person. Judge Cooley says-. "nevertheless, in many cases and many ways remedial legislation may affect the control and disposition of property, and in some cases nay change the nature of rights, give remedies v;hBre none existed before, and even divest legal titles in favor of substan- tial equities, where the legal and equitable rights do not chance to concur in the same persons." Page 436. Uor can it be truly said that the procedure prescribed by the act in question is not due process of law. The usual and only practical kind of notice of the wife's petition \vas given the insane defendant by publication during a reasonable period of time, and by personal service of lite notice on a public officer, v;ho pro hac vice was constituted guardian ad litem of the insane defendaxit, and upcm whom vas imposed the duty of appearing for, and protecting the rights of his ward, and who in this case did appear for him by counsel. The cause va.s heard ard the facts found by the court before judgment was pronotmced, and it is not questioned that the facts proved and found justify the judgment, as tested by the provisions of the act in question. If this was not due process of law, in the constitutional sense, it v-xjuld seen difficult, if not impossible, for the legislature to provide due process by v.hich the property rights of an insane person could be affected in any cas@. The insane defendant is afforded all possible op- portunity to be heard in defense of his rights. In addition to the guardian ad litem provided by the act, the court at request of appel- lant's wife, appointed the learned counsel for appellant to that office, who appears to have ably and zealously perfoiroed the duties thereof, both in the court below and in this court. 3. It appears that the defendant Regan, to vhom the homestead prem- ises were sold, vas a brother of the defendant Mary (J. Kelly, who sold it; that her deed to Eegan recited the consideration therefor to have been $5, which v;as not paid; that Regan mortgaged the property to plain- tiff to secure a loan of $1,500, which he borrowed from plaintiff; that, of the $1,500 so borrowed, 0^00 was applied by Hary C. Kelly to the sat- isfaction of the aforesaid mortgage e::ecuted by her and her husband to the German Savings i Loan Society in October, 1883; that the remainder of the money loaned to Regan by plaintiff ($900) was given to I'jrs. Zelly, and she loaned it to Regan; and tliat afterwards Regan, for the consider- 293. ation of love and affection, conveved the homectead, subject to his mort- gage to plaintiff, to Ms sister, i:ary C. Knily. Couusel for appellant contends that the sutstanoe of these t ran?; act ions \7as a mortgage of ths homestead by Mrs. Kelly to the plaintiff, through the agency of her bro Li- ar, and not a sale to her brother, according to the purport of her^deed to Mm, ard therefore was not authorised by the order of the com-t^ vhich merely authorized her to sell, and not to mortgage, the homestead. Con- cediEg all this, fee rights of the plaintiff as mortgagee are not thereby affected, unless he l:ad actual or constructive notice of the alleged character of the transactions by and between Regan and Ilrs. Kelly. Tiiere is nothing tending to pi'ove etch co::^ true tive notice. 'She deed from Jlrs. Kelly to Regan, as previously recorded, both literally a:id Ei*ctantially confomed to the ordor of the court. It purported an absolute sale to Regan, and nothing of its contents indicated anythiiig different. As to actual notice, it is stated in the bill of er.ceptions that it v.bs proven that at the time of the e::ocution of the mortg?ige by Regan, and at the time of the loan of 0l,5OO, "plaiatiff had no Iniowtedge of any agreement betv>n3en the defendants Regan and Ilary C. Kelly, but at all of said times believed defendant Regan was the absolute ovr.er of said propert^r, in ac- cordance with the terms of the deed of Ilary C- Kelly to him, said Regan. ^' V/hethor or not the appellant has suffered injury inconsequence of the transactions herein above stated, f o r v;hi ch he is entitled to any remedy againsjr others than the respondent, is a question not involved in tliis appeal. I think the jua.gment aixL order cqppealed from should be affirmed. V/e concur: SEARIS , C; H-'.YIZS , C. HcFarland, Van Fleet, and Garoutte, JJ. For the reasons given in the foregoing opinion the judgrent and order appealed from are affirmed. It is to be observed, however, that the proRrj'iSr-y of trying appejJ.2»5^a'E alleged title in this action \^as not raised, and this decision must not be talcen as authority for trying adverse axf. paramount titles in an action to foreclose a mortgage. Beatty, C, J. In concur in the judgment of affirmance. It is not necessary to decide or to consider in this case viiether the set of 1874 is constitutional or not, as applied to homesteads created b^r the sole declaration of one spouse upon separate property of the other. The case here is of a homestead declared upon community property acquired subse- quent to the passage of the act in pm-surnce of vhich it was sold. If the legislature has the por/er (as unquestionably it has) to provide gen- erally for tho alienation of ccmitiunity property by the husbaiid alone, and his control of tte proceeds of tlie sale, I can see no reason why it has not the power to provide, in caso of the hopeless insanity of the husband, for the al.ienation by the i/ife alone of so much of ihe coanunity property acquired subsequent to the passage of tie act as may have been lawfully dedicated as a homestead. So far as the act of 1874 goes beyond this proposition, it may bo seriously doubted wh^tiier it is operative, but I can see no reason to refuse to give it effect in a case not involv- ing any question of vested rights. rlenshaw, J. I dissent, under the conviction tliat the act in question is unconstitutional. Section 1 (Act March 25, 1874) of that act is as follo-,;s: In case of a homestead, if eitli3r the husband or the wife shall become hopelessly insane, upon application of the husband or v.if© not in- 294. sane to the Froliat?. court of tte county in \7hich. cr.id hoirestoad is sit-?.- ai-cd, and iipon due proof of piioh inpaxrlty^ tts court may make ar. order peni-ttiag tho litis ciiZ'.d ov vdfe not inn;3ae to S9.1'>. or c cnvey or mortgage siJoli hoT.es tear'.. " Section ;? ;prOTid8fj for puWJoation a'o.i f3rvice of Eoba-.: . of tb3 applirsaticT.. i)eoticr}. o raairas necossax-y the filing oi' a patitica, DEd rroscrite^ what it sl-.all c-.:xr.aiTi. S-^ctica 4 tt.Rclaicss thai, if t"ie cor. rl ^iall maT<-o tlie orde.' cor.terfvpllated by cc-ccSon 1, the sane shall lie eutijred upon Q:e ir.innten, and thereafter an;y sale, coTveyacce, or rjori- gage ra.d© in piii"£;ai:.ij~ce of 5i;ch crrtcr siall to as vaJyZ. and C:f focUial a'3 if the propeT'.-y aifeotofi there'by wcr: tfjo iim-orxce pj-operty cf the perforti xnakiBg ET;ch,sale, cariyeyaace, ot mo rt stage i-v -lee siiaple- It is fiiso ';o Tdo noted thai feie stat.;ii;e is applics.bl'o , not to a'ay particular c.T^es or Icini of horcsstcadr;, "but tc all lienor toad ;3, rfesfrer der/iared upon comnun.- ity prope-i'ty, cr upon iho separate property cf one or otlx^r of the spou'^e.'^ v^ether declared ty their joint act, or liy trie act of eittor. V/hile the hocestead exeiipiion is only to the amount of $5,000, yet real property of any value iriay be impressed with the hnne~tead oharuct-er; and, when so impressed, th?t cnaractcr attaches to all of the property. Tiuc, a home- stead inay be doclaved upca the separate property of t]io vafe of the -^alue of ^-40,000 or $50,000. i'hould the mfe "cecone hopele-r^sly insane, that homestead, at the icr, tigo/tion of the h-:islx-'nd, coul'I "be ;^ubjected to sale. Next, it is to be otieerved that the ai-.thori cy to oi-der the sale is not rcade to depend u?;)c.i a determined need or advisabjlit^r therefor. Ho ques- tion of the receit;ifcy oi" the support of the sane or inr..ane siJoase , or of minor Chi Idxen or cQiex dcpex-dect perrons, is necessarily involved. Ihe bald fact that one par'.y to a marriage has becorse hopelecsly insane, and that there is a hoirestead, whether npm cnfmr.ujiiiy propGfty, or upon the separate property of the insa^ie cpov.se, xs all that is necessary to war- rant the order of sale. Again, it i3 to be reon tfiat the act nates ab- solutely no provision for dir.tritu.tion or di spoi-ji tion of the fm-.ds aris- ing from the sale. The pover of the court cea.^es \;hen by its order it authorizes the sale to be rcade. The intrii-est of chc insane pex-son is in. no way protected, neither the money received, n.?r any p.arc of it, is required to be devoted to his support, or to tlie snipport of any person dependent upon hjn. The result might bo, as in this case it was, that the property of ihe in«:rne o^-aier \\'?.3 so^d, ojid the Jioi-eys turned over to a tliird person, who had not the sliglrtest legal olain apsm hiii or it. There are yet other rr-itters in \-tiich thia a'-.t is at Xea;:-t peculiar. Eot only does it aut3ior:.ze vhe sale of the IfXid of an insane person, -.vithout protecting his i:o.t evened in the proceed^s of tri.e r.a?.c, hut it fails oven to provide for tiie appearame of a gjardian. i'he proc.eec'''ings are begxm and the sale irade by a i?erson standing ii"; no fidu-iia'^y relation to him. There is no sipervision by the court of tlie r;ale . E'-i bond is eijracted of the seller. (Ihe sale ray bo a gift, as in fact 13.iis wars, or the price may be entireily ina-^ curtate . Yet no one is empovered to check any fraud vhich may be corjtjticd upon the uuf or tua^ty ovr-er. He is stripped of his property, wxtiiout hearing and withoirt; redress, becauae, having a horce- stead, he has become insane, There is a tpecies of legislation to vhich Judge Cooloy has given the name "prerogative remedial Jegislation, " t'l^t i.-3 not obrjoxious to the law. It is based upon the recognised power of tne legislature, as parens patriae, to pass proper rules and regulations for superintendence, dis- position, and rDai:ageir.ent of the property ox infants, lunatics, and others 295. under disability. V/iGiin the legitinate scope of such legislation is the pov.cr vhidti nay bo c cnf erred upon one standing in a (fiduciary relation to a minor or incompetent to chanse the daaracter of the estate, and oven to dispose of its proceeds, \.'hen it is to the interest of the minor or in- competent that svch should be done. But in all Euch legislation there is no determination of adversary ricJits, no deprivation of any perscn of his property. Says Judge Cooley: "Tliis species of legislation iray perhaps be property called 'prero.3ative remedial legislation.' It hears and de- termines no rights. It deprives no one of his property. It simply auth- orizes one's real estate to be turned into personal." Cooley, Const. Lim. p. 122. In Paty v. Smith, 50 Cal. 153, this court gravely doubted the poiTor of the legislature to direct a sale of the real estate of an infant by one other than a duly-appointed guardian, Thataaot provided, however, that the person making the sale should account for the proceeds to the probate court, caad tl^is court assumed that the statute contemplated the appointment of tlxtt person aS guardian by the probate coiart. In Brenham v. Datidson, 51 Cal. 352, the act under consideration authorized the guard- ian of an infant to sell the real estate, subject to the. approval of the probate court, for the purpose of enabling the guardian to reinvest the proceeds in other property for the benefit of the v.ard. It v/as declared that SLChan act vac not an assumption of judicial pa.er by the legisla- ture, and this court quoted \7ith approval the language of Judge Cooley to the follomng effect: "The rule upon this subject, as v;e deduce it from the authorities, seems to be this: 'If the partjr standing in position of trxistee applies for permission to mate the sale, for a purpose appar^itly for the interest of tJie cestui que trust, aiiL there are no adverse inter- ests to be considered ard adjudicated, the case is not one v/hich requires judicial action; but it is optional v/ith the legislature to grant the writ by statute, or to refer the case to the courts for consideration, accord- ing as one course or the other, on consideration of policy, may seem de- sirable.'" But in ttese cases, and in the many others which v/e have ex- amined from sister states, the acts have been upheld because it v/as appar- ent from them tha^ the interest of the minor or incompetent was fully pro** tected, and Giat the statutes were, in their operation, benef ic«itnt. Thus, in Rice v. Partean, 16 Mass. 326, the court says: "Ihe only object of the authority granted by the legislature was to transmute real into personal estate for purposes beneficial to all vho v/ere interested therein. * * * No ono imagines that unier this 32neral authority the legislature could deprive a citizen of his estate." Authorities need not be multiplied up- on so plain a proposition. V/e are here confronted v/ith an act entirely different in character, an act v/hich assimes to authorize one not stand- ing in a fiduciary reiition to the incon^etent to rnals a sale of his real estate for purposes not connected with the incompetent's interest, neces- sities, or convenience, and without makingr any provision to secure to him his just share of the proceeds of the sale. V/e are not in this concerned with a definition of the particular chax-acter of the wife's interest in a homestead declared upon the community property. Y/hether that interest amounts to an estate, or vhether it bo a mere expectatcy, it is unquestion- ably true that the husband, in vhora is vested the sole right of control and disposition of tlB cora.:iunity property, has a legal interest therein. Ihis legal estate has a monej' value. V/hen a sale of the homestead is made, it involves a sale of an estate in reality belonging to him. By the act under consideration he is neither secured in that property, nor is it devoted, of Eocessity, to any legitimate purposes. Our attention 296. has not been directed to tho decisJonc of an7 courts in v-hich an act IiIkb this lias 'been corrstruod ard uphold; nor v.'ou.'ld v;c, againnt the great \bx;^-.'. of reason a'ld authority, ho inclined to foiloi/ thoa if ?x.?/ such ooulu he fourd. Refrpoi;aont , it ir, tn^o, malros reference to tlxc case of Forhas v. l.loore, 52 Tox. 1&5. It is there cajd: "Durin,? the InsarJty of the hj.^s- hand the vafo is the liead of the family, a:iu, as Ei;:;h head, h3.z the jagt-.! right to diopose of so m.ich of the cunnon projpnrty of 'nvs'oznl and \7i.fe, or, in caiie there he none, of the separate pro'^or'^y of the h'^sliard, as may he renest.arj'- to n'';ippj.y the v;ant5 of herself and his or her children." But in the later case of Heidenheimor v, Thoitias, 63 Te:z. 23V, this: lang- uage is considered, and it is f^aid tliat, in so far as it f^oerac to indi- cate a rule different from the trie one, it must he regar-led as o!-il?.r, and of no hxnding iorco. And in P.aix.vay Co. v. Bailey, 6-3 T°-x. 19, ]8 5. W. 432, the court quotes v/ibh approval the laaguage of HoldenheiTrier v. (Hioraas, cupra; "'..'e are of the opinion that no suVn po^.-er rests in -ht? wife of an insane person; at least, in reference to community pi-operty, or the separate property of the hush^rd. Eie law provider^ for jai t nuch a case, and renders unnecessary the exercise of an^' sUvVn povver by the Vidfe." v;e ai'e not aaere called upon to cay v.hether or not tie legislature lias the po'.v-er to acoonplish v;hc.t ceeni to hp^e been the principal piirpose of this ac:t, namely, to subject the corjmunity property or the separate property of an insane spouse to the siVPpcr-c of those legally deponlont upon hijn. It is enough to say that the abrtrnpt which finis expression in an act such as this is inadec^uate, improper, and unccn=;titutioual, and amounts to but the confiscation of the property of a person, without pro- vision for the distribution of that property, ard for no other reason as- signed than that te has met -./Ith the most lamentable misfortune of becom- ing hopelessly insane. The judgment and order sliould be reversed, and the caoE© remanded. . _ We concur: lEIlLE, J.; H.'J^S15CffI, J. --- _, "^ ^^ 297. y/orj) V. EnmoN. (Court of Civil Appeals of Texas. June 3, 1903.) (73 S.T7.. 334. ) Appeal from Sutton County Court; H. C. Bavifson, Judge. Action Tsy I.Irs. M. A. Kennon against 0. T. V/ordt. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Ply, J. A ppellee sued appellant to recover 10 I^ ead of horses ,_ or tai§irj?;alue,, a^_^50_each.^_axicL_iia^a trg^l^t^^ avKirded a verdiet for the prppextSL, -upen-'i'ivi^h.-was r e nd ored— fee -judgEeent f r cm -v/hi di _tJiis appeal has "been perfected. It was alleged in the petition that D. D. Kennon, the husband of appel lee _, fcad ^permaaentjy _ al;^"-n rJ nnad h&r , vji ^>i on i f au 1 1 on her part,_and IJedll^t ©le state, and this was a siifficient allegation to clothe her vdjth^thority to institute suit for" the oominunity property. Railway -v. Henneseyr^O Te^. Civ. App. 516; 49 S. V/. 917 r~ '~~~ — ■ Appellant asl:ed that the suit in tliis case "be abated 'because there was another suit pending in the same court, in vhiah the matters in this suit could have been litigatfed and determined. Ho action appears to have be^i taken on that plea, and there is nothing in the record to sirtain the complaint that it was overruled. It must he presumed that it vas abandoned. It v/as not error to exclude evidence as to what appellant stated about it beiiig just as easy to get 50 cents a head for par-turage of the hourses as 25 cents. It could have no possible bearing on the case. The tenth assignment attacl^s the exclusion of testimony offered by appellant as to a conversation between him and D. D. Zennon. In the as- sigiament of error the third bill of e::ceptions is referred to as contain- ing the cotwersation desired to be introduced, but in a statement made in tlie brief an effort is made to extend it to another conversation con- tained in another bill of exceptions. The assigament vdll be confined to the error of vhich complaiit is made. It is not ^^/ell talsen, for the reas- on that appellant, in hie answer, claimed to have bought the horses of D, D. Ifeiinon; but the conversation, had it been admitted, sho-wed that no sale \/as ever consummated, and consequently its rejection could not have injured appellant. The conversation set out in the other bill of excop- tions above raentioned did not show a consummated sale, because no price was ever agreed on between the parties. The evidence leads to the ir- resistible conclusion that appellant had never bouglit the horses. The introduction in evidence by appellee of her mortgage on the horses in controversy to one I.icCrohan could I&ve had no possible bearing on the case, and it should not have been admitted. Still there is noth- ing- to indicate tliat it had any effect on the issues in one v/ay or an- other. It must be presumed that ti:ie jury had average intelligence, and. 298. if s«5h v/as the case, the evidence could not have influenood tlieir verdicr.. The evidence totally failed to establish tliat appellant had purcha'^ty". the horces, aad it v;ac not error to assume tiiat therejwas no sale ^^ and to instrixt tio jury to find in favor of appellant for th e pasturage . The special charges asl:ed by appellant were properly refused. Appelc lant claimod t o ovm the horses, and he couH not shift his position by meaas_of_a-j&h.arse . Heather of the charges contained the law of the case. The judgment is affirmed. ^<=> --^-~~ v* \ '■'■'t'i iz ) >.;■ ■ ."-V \ - : •?'^r .?^:!( CHi.?TER V. CI. TATl ONS. Power of wife to manage or convey. Hammond v. Jackson (1916} Eodda V. Keeciham (19141 Brucker v. De Hart (1919) Jones, Rosquist v, Kelson (191^)- Stevens v. Kittredge (1906) Wright V. Hays Cheek V. Bellows Nance v. Woods (1914) 2ent V. Sullivan (1907) Williams v, Beebe (1914) Palmer v. 2JcBride (1921) 89 Wash, 510, 78 Wash. 636. 106 7;ash. 386. 98 Wash. 539, 44 Wash. 347. 10 Tez. 129. 17 Tez. 613. 79 Wash. 188. 47 Wash. 315. 79 Wash. 133. 299. LILIX\N SnET^ABT) et al.. Appellant g, v. LOUIS CIS'LL'Vi:<} et al., Ec:.::jjc.-jde?:.ts- (50 -gash- 331. 1905.) Appeal from a j'irlgrn,f?nt of tho S'iperior court for P':.crce ooun^^y, rjlj;'^- ford, d'., entered Sop tPinbcr 20, 1307, upon fin'-lj.nr:; ja favor of Ua3 uc- f endsnts, upon grgatiug a nonsuit^ after a trial on fiie merits, d:i£niissing an action for par ti ti on .__^f filmed. Pullerton, J. — !]!his_i^_an action for ■yiepartition of real propartj'-. The facts out of which the controversy arises are, in Euli'stance, ':hepe: On September 24, 1692, UilliamA. FTeei-acii^andJiis, wif o, JJslie FreecTan_j_ be- ing then the ovaers of the property in question, nort£;ag,-od the sane to Robert" ITayj^rd to secure the repayment' v/ith interest;_,_ of a loan of $1,500, made to^fhenTby I.'a.3mard. Ilr. Freeraan died intestate on February 2, 1894, leaviHg~"a's-hls' Heirs at law tv70 darighters and tv.o sons, children of him- SHlT'and BeIle"Fr^enian._ Ilrs. Freeman was 3hor"i;3.y thereafter appointed" ad- ministratrix of his estate. Tlie tnortgafee debt wa.s left un paid, jard v.'a_s purchased from Ilaynar d by Louis Castaing sometim e during _the year follow- ing" ITfT" Ff^ffiBu '"s~d eafir; ' In 1898 Castaing brought a sviit to foreclose the mortgage. To this suit hg__nE.ae J!rsT~lFreeman ~a party , " bo tJiT in. her official and 'individual capacities, bu€~dTd~n6t "raahe the heirs; at l?iW of ilr . Freeman parties there- tol"~The foreclosure proceeded to a judgj-ent and order of sale against the entire property, and the property T/as sold thcreundar to Louis Castaing for the full amount of the mortgage debv, interest and costs. At the time of sale, a shariff's certificate of sale showing a foreclos'ire of the property v.as issued and delivered to C-a?3ta.l.Tg, and later, after the time for redemption had expired, a sheriff's deed vJas executed and deliv- ered to him. Mr. Castaing entered inro possession of the property inmed- iately on receiving the sheriff's certificate of .sale, and from that time to tho comiEsnceirent of the present action lii^.s maintained open ajid notor- ious possession of the prcpsrty, payir^ all state, county and municipal taxes that have been assessed thereon, stich possession continuing for a period of more than seven years ne:.Lt after po'5^ession v/as talren. At the time the foreclosure procoedinss T.Bre institntsd, _tve elder of those reached the age of majority some -four _ years . a f ler his father's death, \fciis the younger was still a minor at the tirre of the institution of the pre-sent action. The appellants in the action at bar are the children of Filliam A. Freerran. Hiey sue to recover a half inteiest in the land on the theory that their father's interest ani title therein dsscS.cdod to them upon his dealth, and was not cut off by tlae foreclosm-e proceedings had by Castaing against their mother. In substaoce, they allege that they are the owners of an undivided one-lialf intercfrc in the property, holding the same as tenants in corrmon with the respondents; that the respondents are in pos- session thereof and deny that ths sPpellanvS h-id any title or interest therein and refuse to account to thon f o r any .".hore of the rents and prof- its of the property. To the complaint the resi^cndeats make two conten- soo. tiojos: First, that tie interests of the eppellants were cut off ty the foreclosure proceedings-, and, secoad, that any right to reccver, conced- ing that their interests did survive tl:e foreclosure, v.as barred "by the seven year statute of limi tat ions . The trjalcourt held vdth the respond- ents on the last grouad stated, and entered judgment to the effect that the appellants take nothing ty their action. This appeal is from that judgment. ^'/liile there is a controversy "between couDsel as to the respective relations of the parties to tlie property, and their rights growing out of the foreclosure sale, ve do not think the questions suggested merit extended discussion. Sicce the property was the commtinity property of William A. Freeimn and his wife Belle Freeman, it passed, on the deatlj of Mr. Freeman, one-half to Mrs, Freeman as the survivor of the ccEonun- ity, and one -half share and share alite to the appellants, as the sole legitimate issxis of the bcdy of Mr. Freeman, ard. that these several per- sons, as long as they retained title to the property, held it as tenants in common. It must follo^j, also, that the appellants were icetessary par- ties to the foreclosure proceedings, if thetr interests in the property T.ere to be cut off, and as they were not ra?-de parties thereto their inter- ests were not affected by it; tJiat the only effect of that proceeding was to pass the title of the one-half interest of Mrs. Freeman to the purchas- er at the foreclosure sale, ard to make sue h purchaser a tenant in common in the property v.lth the appellants. V/e cannot think, hovrever, that when the purchaser entered into pos- session of the property after his purchase at the sale, that hfe possession conferred seizure upon his ootenants. It is clear that he uoder stood that he vvas purchasing the entire property, and that his entiy into possession viSLS for his sole axd exclusive benefit as ovner of the property, ssnd that he never thereafter recognized the appellants or any one in privi^ with them as haviiag any interest in the property. Such a possession, under the rule of Cck v. ToctPkinson, 39 \7ash. 70, 80 Pae. 1005, was sufficiently adverse, even against a tenant in coraoion, to start running the statute of limitations. That case is authority/ also for the holding that the statute has run against the appellants who had reached the age of majority at the tin© the purchaser entered into possession of the property under the fore- closure sale, as sirce that time his possession bad ;'be8fi at? tnel.aopBa and aDieriotiE„:Jindet'.cdlor of title made, in good faith, and during such tins he has paid all taxes legally assessed on such lands. That case vras found- ed, ha;ever, upon the third section of the act of 1693 {Lav/s 1893, p. 20), and by the fitth section of the same act it is e:3>re55ly provided that the third section shall not "extend to lands or tenements when there shall be an adverse title to such lands or tenements, and the holder of such ad- verse title is an infant or person under legal age, or insane." If, therefore, the appellants \ho were miners at the time the re- spondents entered into possession of the premises are barred of their right of recovery, it is in virtue of the first section of the act cited, vhida is made applicable to minors as well as adult claimaats of property. Thct section reads as follows: •"Hiat all actions brov^ght for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, open and 501. notorious possession foi* ccven ouccessive years, haviiig a connected title in lav/ or equity deducitle of record frcra this state or the United States, or from any public officer, or other persai authorized iy the laws of this state to sell such lend foi the nonpayment of ta:ces, or from any sheriff, raarshal or other person authorized to sell such land on execu- tion or under any order, jud;5-nent or decree of any court of record, shall te brotght \.ithin seven years next after possecsion boiug taloan as afore- said, out -hen the possessor e:i3.11 acquire title after talcing such pos- session, the linitation shall "begin to run from the time of acquiring title.' Laws 1895, p. 20, Sec. 1. She question must turn, it \/ill be observed, on the meaning; that is given to the word "authorized." If that \;ord is to have the meaning of '.Vla^vfully authorized," that is to say, if the authorization must liave "be- hind it a judgment or decree of a ccurt of record valid against both col- lateral and direct assaults, then clearly this sale is not auttiorized within the meanirg of that word as it is vised "by the statute. But, on the other hand, if its ^^aniug is tiaat a sale is authorized v.hen it is directed by a juf-gment or decree of a court of record fair upon its face, then it is just as cleea- tliat the sale "as authorized. It seems to us that the latter is the correct meaning. In legal parlance, the order of the court viiich apparently finally detei-mines the rights of the parties in the action or suit is rpolten of as the judgment or decree. In fact, so general arc these terns iii the comi^ion understanding that the ijord valid, voidable, or void is usually prefi::ed to them in order to marlc their rel- ative value. The legislature v/e thinl:, siEice it used only the general terms vithout a prefix, must have meant the first oDder entered by the court -.hich purported to determine fiixlly the riglats of the parties in the action; regardless of the question of the validity of that order. To give it any other meaning \;ould be to destroy the purposes of the act. If tho authorization to bs valid must have behind it a judgriient or decree invulnerable to every foiTfi of assault, there would be very little need of tl^ statute. It could tlien only apply to the proceedings of the sheriff had in the execution of the -jrit or order of sale, cjid it vDuld be hard to conceive of a case vhere the sheriff has made a sale and so defectively csfecuted the v/ri t or order as to confer no rights at all upon the purchaser at tjie sale. The real evil lay in the proceedings bade of the judgment or docreo, md it was tliis the statute intended to correct. It is argued tliat this section v-a-s not intended to apply to the es- tates of minors, but ^;e thinl: the statute clear upon tiiis question. The statute as originally enacted defined tliree distinct cases viiere color of title., accompanied vjxth certain corditions, xjould operate as a bar, after a fr:ed time, to a recovery b^^ the legal ovaier. Ilinors end insane per- sons v/ere exeinpted from the operation of t'./o of them. ::cnif estly, there- foi-e, the third \.as intended to apply to minors as './ell as to adults. The pa;er of the legislature to enact such a statute is indisputable. The rule cjnnot be bettor stated than in the language of llr. Justice Miller in Vaixe V. Vcoice, 106 U. S. 514, 2 Sup. Ct. 854, 27 L. TA. 608, viiere he uses the following language: ■'It is urged that because tlie plaintiff in error \/as a minor vhen this la-,; -./ent into oporation, it cannot affect her rights. But the con- stitution of the United Ctates, to '^iiich appeal is nade in this case, gives 302. to minorr ao special ri,3;litc iDeyond othors, anc. it was ",;ithin the le;:;:iEla- tirc comj.Jotenc-' of the state of Louifciaua to make exceptions in their fa- vor or not. Tli3 exorpption'i from the opbration of statutes of limitation usually accorded to infants aiif. ivarriod vv-oraon do not rest upon any gener- al doctrine of the law that they cannot "be suh.jected to their action, but in every instance upon express lan3ua^-e in those statutes giving then tiite after majority, or after cessation of coverture^ to assert tiaeir riglits." Kie judgment appealed from is affirmed. \— &- Kadley. C. J., Mount and Hoot , JJ., concur. •^ C c:■^'>'^7^^^ , r^*^^"-^^. —f -*ia-Tj^-^^ --'*^^^^ '^. ^r> -^r- 303. V7ILLIA1IA. MABIB, Appellant v. LSItJEL C. V1-!I?TAICEIR et al., ?.e&pondcaits. (10 V/ash. 656 1895.) Appeal from Superior Court, TJiurs ton County. The opinion of the court vvas clGlivered ty Scott, J. — In DecenTDer, 1064 ,. ;jadr e w E. Il abie and Erneline Z. Hunt- ington were married in Washington Territory and lived together therein as husband and vafe until AUGupt^Sl, 1672,_\lien she died intestate ard no "administration was had. ?hey vrere the parents of the plaintiff, aiad there was one other cliild, the issue of said marriage, also living. On the 10th day of August, 1871, one Tilley and lois \d.fe, beii^g the ov/aers, conveyed the premises described in the coraplaiat., eonsistiug of 1,862.60-100 acres Of "land in Tliurston county, to /jadrew E. Lfebie, v.ho held the same \7ith his vafe until her death- On October 27, 1874, after the death of his vdfe, And rew Mabie executed a c.ecd purporting to convey all of said land to one :iaai¥tt71and the defendants claim by mesne conveyances through him. Tlis plaintiff is t./entj^-f ive years old, and instituted tlais action in Hay, 18^2, claiming as an heir of his mother^ The fom of the action is eject- ment, the plaintiff demanding to be let into possession -.nth defendants? ""ar'ar tenant in common, and for the rents and profits, and damages for cut- ting~3nd removing timber. After the plaintiff had introduced evidence in support of his case rnd rested, the court granted a motion by the defend- ants for a non-suit, on the ground that the deed of Andrew Ilabie conveyed the entire tract and cut off \hatever interest the plaintiff inherited therein, if any, from his roDther, and this appeal is prosecuted therefrom. The deed from Tilley and v;ife to .Indrew Ilabie vas e::ecuted viiile the statutes of 1669, relating to common property, were in force,, and the land became the common or coirmunit'- property of Mabie and vafe thereunder. Section 9 of this act (Laws 1869, p. 320, Abb. Real Prop. £tat., p. 472), empowBred the husband to coiwey the entire title to such land by his sep* arate deed, but subsequently the legislature passed another act (Laws 1871, p. 70, Abb> Real Prop. Ptat., p. 476), which -..as in force at the time Ilrs. llabie died in 1872, and Sec. 12 of tiiis act reads as follows: "The husband shall l:iav6 the management of all the coornon property, but shall liave no ri;^t to sell or encumber real estate except he shall be joined in the sale or encumbrance by the v/ife; but ho may sell or en- cumber any personal common property vathout being joined by the ;/ife." One of the contentious of the respondents is that, viiatever the nat- ure of the mfe's interest in the land v.as , the ri^t of liable to convey the entire title could not be talcen av;ay by legislation subsequent to the time it was acquired by him. But leaving out of consideration all ques- tion as to vhether lie could only e::srcice such ri(Jit \saiile his wife was living, and could not convey the entire title ucder the former law after her death and cut off her heirs, v/e thinV: the subsequent set took a^-jay his power to do so. It vas immaterial vhether tiie record title to the 304. ' , conununity lauds stood in the naiie of tiie husband or of the wife, or of ■both of them, when considered with reference to the po-.ver of the legis- lature to authori2e either or hoth of thsm to coiwey. The legislature could as T/ell have provided that the vrlfe could convey as the hushand, and if it Imd po\/er to say that either could dispose of the coinmunity in- terest of tlB other, it could say that neither could do so. Changing the manner of the conveyance did not alter the statue of ovmorship. It could not make the interest of either spouse in community lands greater or less. Furthermore, prior to the conveyance to Hallett, the community in question had "been dissolved "by the death of the v/ife, and at the time of her death the law of 1671, relating to the descent of conmunity prop- erty, vas in force. Section 22, p. 73 (Abb. Real Prop. Stat.,, p. 478), provided that: "The common property being partnership property, the vdfe's share shall be one -half thereof and sliall be hers and. her heirs forever; and her share of the common property may be increased so as to be more than one-half, by the wife's coinplianco with the provisions of section five of this act." Appellant claims that upon the death of Ilrs. liable an interest in said lands vested in him, and that he became a tenant in conmou v/ith his father and sister. In addition to the claim that Mabie could and did convey the entire title to Kallett, in consequence of havirg that right vhen the land was acquired, which we have above discussed and i^-ich v/ill be further considered on a different ground, it is contended by the re- spondents that liable and vafe held the land in question as joint tenants \/ith the right of survivorship, and, consequently, upon her death, that he became the sole c/mex . The act of 1869 did not fix the stattis of such property, other than to declare it to be ccmmon property, and made no provision for its descent. Eor vss there, at that time, nor for some time thereafter, any expi-ess legislative recognition of estates in joint tenancy. But the claim is fovimed upon the common lav; \.hich vas in force to a greater or less extent in the territory, and upicn the follovdng statute approved in December, 1885; viz.: "Section 1. That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, bat descend, or pass by devise, and shall be subject to debts and other legal charges, or transmissable to e::ecutors or administrators, and be consid- ered, to every intent and purpose, in the same viev; as if such deceased joint-tenants had been tenants in common; provided, that commtmity prop- erty shall not be affected by this act. Sec. 2. That all acts ani parts of, acts in conflict with tliis act be ani are hereby repealed." laws 1885-5, p. 165. '\7e cannot concede the force of tliis indirect regognition of joint tenancy as g^aplied to community lands which the recpoudentc contend it should 1-jave. The reference thereto in this staluce is not the first in- stance of the employment of loose or ina'T'Plicahle e:rpressions '„i':h regard to fornEr or e::iEting laws in our legislation; ncr do we thinl; such de- fective statutes are peculiar to this state and territory, as it is some- thing liable to occur in any legislation, owing to the fact that lav/-mafc- 305. ing "bodies usually do not and cannot well have a fiill appreciation slid underctandiitig; of the various lav.-s iu force or enacted by them, in all ':':•) their ■bearings . It is evident that a holdin;^ that the ri^ht of survivorchip did ob- tain witli reference to coraaunity lands '.ould overturn ard nullify the e:c- presE declarations of the statute ahove set forth, relating to the status, ovmership and descent thereof, passed in 1871 (Sec. 22, supra). The act of 1869 aid this act declared- that all property so acquired should be conraon proijerty. The section referred to declared that the conxaon property \7as partaerdiijiP property. Section 25 provided that, "The rights of all mai-ried persons nov.' living in this territory, and of all v/loo shall hereafter live in this territory, shall he governed by this act." ./e have here the clearly manifested intent of the legislature not only to define v/hat tlis conmunity estate was, najnely, a partnersMp, but providing for descent tliereof and inalcing it appliCcxble to persons then living in tiie territory as Avell cz those thereafter to come; to coiiimunity estates then e::isting"aE •./ell as those to be accuired. The statute of 1871 did not undert£.I:e to divest any riglit -.hich had become vested. Ilabie receiving this conveyance under the act of 1869 thereby became the o\iLer of an un- divided one-lialf interest in the land, and his vdfe thereby became the o-v7ner of the Oder half. Her right v/as as much a vested right as his. Under the v/eight of authority the legislature had pov;er to change the law Of descent and could taJce a\/ay tbs right of survivorship as to estates in joint tenancy, and raalce the zssne applicable to lands already accuired. Cooloy, Const. L im. {5th ed.), 440, -'".41. Freeman, Co-tenajicy and Part., Sec. Ee, aiid cases cited by each; also liiller v. Dennett, 6 H, H. 109. Sec. 22 aforesaid is substantially a statute of descent. It has the tjeclmical and, apt \7ords of such a statute: "Kers and her heirs forever," which ind:|.Gate the legislative intent. There was also a general statute of descent in force -ivhich could more logically be applied to coratiunity estates than could the doctrine of joint tenancy. Lavs 1862, p. 261, .Ibb. Real Prop. Etat., 575»'378. £ubseouently another set \/as passed to regulate the descent of real property. "Laws 1875, p.. 55. Section 2 provided: "Upon the death of hus- band and wife, the whole of the corimunitj' property, subject to the com- munity debts, sloall go to the survivor." Tliis statute continued in force until ITovej-jber, 1879, v.hen an i.ct was passed (Laws 1879, p. 77), Lee. 13 of vhich .'as as follows: "In the case no testament. :y disposition sh^l have been made by the deceased husbanc. or -/ife of his or her half of the corai:aunity property, it Eliall descent ecually to the legitimate issue of his, her or their bodies. If thea-3 be no issue of said deceased living, or none of their represent- atives living, then fee said coantmity property E:r.ll all pass to the sra- vivor subject to t :ie cor.munity debts, and to the e::clusion of collateial heirs, t:;.e fcaily allowance fend the charges and e:.rpenEec of adiiinistration. In neither of these acts v/ere co/iiuunity lands referred to as being held in joint tenancy, and tlie only refei'ence of the land thereto is con- Jy. :^i ,-^ ••''•' Xl^f 306. taiaecL in the act ai'oreSc.ic\, pacsocl iu 1865, Eubsei..uexit to 3II of them. A partnership is not a, joint ten^.ucy. ia-soas on i-artne:.'Ship, at page 2 (3d ec'..), says: "QJhuc partnership has "been coii^sred to tenancy in couvaon, ane also to joint tenancy.: and hi.s "been said to "os one or tho other of these, mod- ified in cert..ia v/^ys. Thiz v/ac the view tal:en in ell the e?rly "bootz. But tliis is no- more true than tl:iat tenancy in co/unon or joint tenancy is a aodified partnership. Txie three thinr:,s are eEsenti.llj'' distinct. Ihey all have the element of joint orjnsrship of property, but in all other re- spects are different and ii^dependent; enC. the la.' of each must be eou^t for in itself. * * * -jid as to joint tenancy, not only aay all of the four unities— title, inte-ett, time aud posoessionr-ever:/' one of vhich is essential to joint tenancy, be absent fron. pai tnei'Slaip, tut, besides this tec'.inical difference, the subst^jitial characteristic of the joint tenancy, which is tiie right of survivoriiip, is wholly -.-antins ia fact in partner- slup, for it e::icts there only in forjia and as a mere trust foi- the purpose of settleaeut.'^ "The fundamental idea of the coiiiaunity system is that marriage ma'^es the man and v/oraan partueis, and Uiafe therefore all pi-operty acquired after marriage is coanunity property." Ste-.:;rt, Husbani and V.'ife, See. 317. See, also: De Slane ▼. Lynch, 23 Te::. 25; In re Buchanan's 3st.-,te, 8 Cal 507; WilMnson v. V/illcinsovi, 20 'fe:;. 237; Cart\wiGht V. Kollis, 5 T©::. 152. "The central idea of the corT.iunity system is that narriage ci-ec.tes a partnership in property betv;een husbard. and v;if e and that' all property re- sulting from the labor of both or either of them, aui all property vesting in ihem or either of them, e.:cept by gift, device, bequest or descent, in- -ures to tho benefit of both of them; and though co.iMunity property has not all the incidents of partnership property, it has many of them, and is com- monly spoken of as partnership property." 3 .'-sa.cc Eng. Enc. Lav;, p. 350. Tlie act of 1871, in addition to declaring such property partnership property, provided for an increase of the -.ife's interest to more than one- half. Tliis v/as incomx^atible ivith the doctrine that such estates '..■ere held. in joint tensncy. But even ii they i-ere, by- providing for Xhe descent of her interest, his right of c^iccescion as the survivor •'.-•as cut off. V/e know of no instance, judicial or otherwise, v/here such doctrine of joint tenancy has been recognized or ^plied in the history of the state a:xL ter- ritory, and. none hrs been called to our attention, ".'e are of fr. e opinion that the unive'.c^l belief aod course of ^ctin^ iis s been contrcj:^' thereto, and that the r ight of tal.ihg by survivor sMp has at no tine e::isted. as to community lands here, e:xcept under the statute of 1875, providing for such descent. ¥ A good many cases hcve been cited by the respondents holding that'"' • a pui'chaser of the legal title to lands -..•ithont notice of any equities • ' ^ therein, v;ill tcte the entire title, 2nd we prosiime this -.ill not be'dis- puted, as a general proposition. But some of them from California and^ lezLas go further, and hold in effect that the life's interest in community 507. IcnC-C is an equitrole iatersst o■i'-l:^, a:ni tiat her lieirc •'ould be cut off Tjy sv.ch a coaveyance. But i;.i both o£ ti^ete ctatss the disposition of cora- munity laac's rected in tlio hus'b^lllc. cud ho could convsy tlie scrrs to satisfy the co;:t:iunity do'otE ai'tei- her death. In cone instjiices the rocoid ti-tle is cpoken of as the le^cl title, but tJais can be true only in a qualified sense. A deed of Isiids under the coiu.itions specified in the statute vest- ed the ownership in the coixiunitj^, no raattei' which spouss v/as nsmed as Srantee in the deed, and tbs title of one spouse therin v/as a le&'al title as •,.'ell as that of Ci3 other. It ms.y be said that the title or inte:.3st of either spouse therein separately \;cs only an equitable one. But hO;.' is this material in tlie face of Gie statute in force Then the deed ■b3r ."jadrew MabiG \/as eriecuted, which declared, voithout regard to the na.t-Lore of the o\flaerEhip of eithiCr spouse, that the husocnd should have no ri^ht to cell or encujnber cor.v.iunity real estate e::cept he be joined in the sale or en- cunibranco "by the wife? It rai:,ht •..■ell be that the le^al title, \hsnc onsidered Ith referenco to innocent purchssers, •or. Id be regarded as resting in tlie one "'ho I-lcsI the recoi'-" or v/ritten evic ence oi" title, a:id that a co'iveysiice fror. such spouse to rM innocent purchaser ^-o a Id transfer the entire estate of the coianunity, and tie senae iv.Ib wA-Jxt be r3C05,'nized under €i6 circumstances of this case, perhaps, after the death of the -/tfe, if it vould obtain be- fore; but it canr.ot obtai;- at all Ithout directly nulliiyins the statute •..Mch said he should have no ■•rix.ht" to sell, and. •'rie;ht'' in the sense used there /neant po\.-er. Dy e^iecutin^ such a tasC. the husbcrx. subjected hiiTiself to no peurlty, ari. tlieri; ■..■'as no vs.y of enforcing the st^.tute, if tlie deed ;as to be reooani-ed as valid. Tliic saae section ( 12, supra), :?rovid3d that he ,ui:;ht sell the cori-iuiiity peisor.al propaty -.Ithout lier participation. A ci.-dlar le : is in force at this tirae, end it has al^'ays been the settled belief tliat the deed of both husband and^;ife is necessai-y to pass t"'J3 title to coaxinity linds under these stctutes. In fact, it could not have '•oqq':! otiier Ise. Eiere is no decision of the LX^.prenie court of the st:t8 or territory to the cantrary, ai:-'. there has bee:- none oy any inferior court that -'e are a-.-T.re of, unless tlie decisio:-'. of Cie c.:xe befoi^e us ■.••as u^^o'a th-at ground. It is true, in Sadler v. ITiesz, 5 "'ash. 182 (CJl iao. 600), ...e in effect held t!:2 wife estopped under tine circ instances of that.Ccse froa aS£e-..tinG' a clc-i.i to corauinity lands deeded by the husb^ia:-. but that in no "./ise co.it avenes the doctriris above stilted. In coniaection \7e c.Il atte-..tion to: I.'olyoVx v. J-;cicson, o ' csh. T. 2D5 (0 lac. t'A]\ u Hill V. yov.ni, 7 -"ash. I.-. (I.i :.,c. 144), and Id.vas v. llach, 6 ' a^.. 528 {.CjGiac. 10?:-), as so;.ie of the c"s3t decide:, in tiis £;t;te .nd territoiy ... l)earin:_; upon the tusstiour. befois us. "."'e cabinet ovortmn the st tp.tes, nor the settled l,-.'.- of the state, to uact the liaitlEhips of & particular case, much as \iq -oui:. lihe to avert thorn. If Andie-.' Kabie could uob conv.e:' this lanC. duiin^ the life ti.ne of his -lie, Tie could conve-r not",.i.-.j -lO'.e tii:n his inte-33t t:-£:.ein aftei her^ doath. IVon lie-., de: -th iTsr intsi est iu these laix'-s vetted in her heirs, and. tie pl>iiitiff -as Oiis oi' the.a. ".hat tlie e .tent of the inte-est --as -^-i^-; the plaiutifx succee ed to, o; -hether the husbtnd tool: a share ox his \afe': estate also ao o^ of ".lev heiis, -..-Q si'c not c .llee. upon llO^/ to detei due, as t:ie ri:s6ti.nhc^ not beoi.. pi-;,oint3d or ar-ued. Fui'tl^ermoi e , as .'oadre^ Ilcbie rccoivo^' a varoable consic-Qi,. tio i for tliis coiivoyancc, hich -.i understood b^- the j-rtics to be for the -vholD ti,.^ct, it :xy be that the -.^'^-^^iSo^^^Z-at.^'r' 308. plaintiff, in case he inherited or received anything from his fatheh's es- tate, can te called upon to accoimt thereon. But these questionn mi-;st av/ait the future disposition of the case, or be disposed of thereiUi It is further contended "by the respondents that the judgment of nc?)- suit vas rightly granted, 'because ejectment cannot "be maintained. But \v& think the lav/ is v^iell settled that a tenant in common can maintain ejet'.t- ment against ^a co-tenant in possession who disputes his right. Preerjvn, "Cotenancy and Partition (2d ed.). Sec. 248, 290; University v. Pieynoldf;' E:c'r., 3 Vt. 542 (25 Am. Dec. 234); GaJ-3 v. Kines, 17 Fla. 773; V7olfe v. Baxter, 86 Ga. 705 (ISS. S. 18); Hancoclc v. Lopez, 53 Cal. 362. And that, if the law rrere otherwise, this action could te maintained under Sec. 529 and 531, Code Exoc . Reversed and remanded for a new trial. V-~o>r-~-. \^\ PuQbar, C. J., and ;in qj: the iiuslDand cvcceeds to"~all the property T/hich v.as purchaBed ty himseif "and v/i fe v/ith comniuniiy funds in this state (then a territory) in 1878,^ orwliG Sier ' one -half of said property descendc to the heirs of tho wife_» It is contended hy the appellant that the property descends to the hus- -^ -^-^^ hand "by ri^ht of survivorship under^ the lav;s of 1875 and 1875 (Laws 1873, -?» p. 450; La.vc 1875, p. 55), and a very painstaking and exhaustive brief ^ has been filed in support of this contention. As an original proposition the brief and argument of appellant \'ould be e::ceedingly interesting, but the unifo r m holding - of t;?..is court for the last, fi^ftesn -years JhaE_ been to t-i W) ttio_contrary. This question vs-s first decided adversely to appellant's contention in Kolyol^E v. Jac!:son, 3 V'ash. T. 235 (3 Pac . 841), in the year 1882. Tine came question has been e::preEsly decided by this court in Hill v. Young, 7 Vv'ash. 33 (34 Pac, 144), ard Mabie v. VZhittalrer, 10 "7ash. 656 (39 Pac. 172), aitl incidentally decided in probably forty other cases, so that the rule announced by these cases has become the establislied rule of lav; and of property in this state. Rights have been established and have grov.-n up under these decisions viiich it would be \vrong to nor; disturb., even if the court should conclude that tho rule as originally announced v;s.s faulty. In consideration, therefore, of this long- settled and well established doctrine v/e do not feel called upon to enter into a discussion of tlae questions involved. The jud,3Kent will be affirmed. p^ « v •C^.^e.C ^ On Petition For riB-Hearing. Per Curiam. — Tliis cause is bo.fjyye us on a petitiQn,i:nr_a_rehBar-ang, appellant aslang' a fu^-ther consideration of the question oefore urged by ^im in"his"b"rief and on the oral argument, tliat the right ox survivorship granted under t!ie la\.- of 1875, siid tlia rights urged under the law of 1873 \ "were vested 7 proprietary and contractual right s,_ one", thrt, thcreforei,-. lator _acts 'of th o legislature could not depriva appellant of them on the grourd tha.t it~^Duid impair the obligation of the contract by wiich the property vas obtained, ard thus be in conflict with the constitution of Big United Ct?.tec. If any of these questions are presented by the record it is sufficient to say that the court vras end is of the opinion that sec- *i^5-^'^J^---§:^>_t2^^^s_1875:_p._53j jrsis. never _ in force to the e::t ent o f t+eVA j conferring a vested right of sui-vivorship in favor of either, spouse-as- to *==^ | c^yauliitj^roper tyT^A^^such^i t '.vourd have -been Jf-Di(l_aP_not b eing embrac ed C iii_ttie~t"ifle~of~the act, and at most it could only be construed as a stat- ute regulating "the "desert of property, aix'i it v.as within the pov,er of the legiSlatttJ'(rtD~change~it,~\.-hich"\,as thereafter done. V,'e were of the opin- r6ar"alg5~ Ola tr even tlioUoli it conferred a right_to_ property Jby survivor- ^i* \^ Mi 310. jShip, it coulcijie la'.sr. avayy r irjl w as, by ;}\\y\r.pirpfmt iRgir.la.t-Sim,, j^ml "that under the Ia\;s of 1873 no vected rij^hts v/ere conferred upon the hus- tand as clnimod, but that the caaic \.'2re virhin tlie pov/er of the legisla- ture to chcuise thereafter, as vas done. Eights, cuch as are clai:oced' "by this appellcint, never v.ere recognised or enforced here either dva-ins territorial days or cincc, under either of said acts; Taut tl:e uniform holding's have Ijeen to the contrary, as stated in the former opinion. Hae petition is denied. -\- fiM."-^ ^ ---li^^^^-OCZ-ti^^^L^^C^^j ■?i" :■: 311. EUCCH3SKM CF LLUL& (170.10,909.) (Supreme Court of Louisiana. Jan. 18, 189^. 44r La. Ann.) (S. Rep. Vol. 10,406) Appeal from civil district court, parisji of Orleans; Hicholas H. Bigbtor, Judge. Suit "by Mary Ann T-laitlow against the succession of Joseph Llula, de- creased, to recover one-half of his estate, "basing her claim on the fact that she~v/as induced "by him to 'believe that she was his v/ife, and as stich lived with him. Judgment for defendant. Plaintiff appeals . A^finned. llcjlnei^, J.— Mary Ann Whitlow bi'onght suit against the Buccessioa, alle ging in her petition that she is the ovaer of one-half of the property in the estate of the late Joseph Llula, together vith other rights and claims in said succession. She alleges as the Dasis of her claims to the i^operty in said successioti that vhen a minor, under the age of 20 years, she was induced tiy the representations of Llula to contract with him, and "^i, tliaTt slie was made to believe and consider that ehe was his wife, and that -' ^e lived -vvith him as stjch, thereafter, for 28 Shears, and as his wife, ^ beariagjto him tuti children, both of v*icrm died in infancy; that she main- tained his household, controlled his personal affairs, an"&, educating her- self,— he being illiterate, — 'She conducted his business affairs to mthin 18 months prior to his death; tiiat duri!:^ said time she vas knovm, recog- nized, and respected as his wife, and Y«as introd.\ced by him as his wife, and Still bears his name, and is looked upon as his late wife, and is re- garded as his widow; that-She-taoJc-c-are-of and educated certain children of ttie deceased, vijo \:er3 illegitimate; that the entire real and personal elTects ndv/ sfahdiag in the n?ime of said Joseph Llula v.-ere talcen posses- s'ion of "by hi^ daxigiiter Louisa ,-T.lfe of I.laauel Suairez-Illranda, the same being tho entire property acquired during the e::istence of the community arising from the effects ■^aSd~l)Usiness and narriage bet\>'een the said Joseph Iilula and hfer self . Slie asserts her rights as the widow in community. In Sadition ^e avers that she, during the existence of the marriage v/ith llula, bought a lottery ticljet in the Havana Lottej-y with her paraphernal funds, vtiich drew a Prise of $10,000, -piiich she delivered to said Llula, and viiich he need for his avm. personal advantage, and for ■cdiich she also makes dencnd.. There were e::ceptions filed, vfcich v.-ere overruled, but re- sulted in an order for the petitioner to aoend her petition so as to make her demands more e::plicit. After conplyinc '.vith the order of court, and perfecting her petition, the defendant filed another eizception, ^lhich \i3.s also overruled, and, in our opinion, correctly. The defendant ansv.'ered, pleading a general denial. The plea of prescription of 3, 5, and 10 years '.as filed by the defendant. Hiere was judgment for the defendant, and the plaintiff has appealed. The facts in ttae case are that t ha p laintifXj^s a married ^Toman vJiea Jlie went tp live with Llula. She was married to one Dunker, and three "■vveeks thereafter took ^Jp with Llula. Her husband was living in Rew Or- leans at the time, and only a £(hort distance frcaa the house vhere she lived vrLth Llula. Her hUeband afterwards joined the Confederate army, and, it i 312. is Tjelieved, was I^illed or died ra tl\Q service of the Confederate govern- ment. He never, aft^er he jojnGd the amy, returned to the city of iTev/ Orleans. Llula lived \7ith the plaintiff imtil three and a half yoarc be- fore he died. After his reparation from her, he paid her regularly five dollars per week. This e:iiouut \vas paid to her regularly until provision was made for her by the universal legatee under the v/ill. She lived v/ith llula as wife, ajid he provided for her as such as liberally as his means vrould permit. She bron'^.hl; no ponsy or property to the establishment, and there is no proof that by her industry she aided and assisted in the acquisition of property. It makes no differerice, hov;ever, in what light he regarded the relations between him and plaintiff. (The law considers marriage in no other view than as a civil contract. Article 86, Rev, Civil Cede; Cole v. lan.^ley, 14 La. Ann. 770. But it is a contract vdiich must be solemnized according to the ru?.es which the Code prescribes. Like all other contracts, it may be proved by any spec- ies of evidence not prohibited by lav;, vhich does not presuppose a higher species of evidence \;ithiu the pov.er of the party; and cohabito.tion, and the reputation of man and- vafe, are presumptive evidence of a preceding marricge. Hobdy v. Jonef5, 2 La. Ann. 944; Succession of Kubee, 20 La. Ann. 97. But pref^amption arising from facts which tend to establish the solem- nization of the contract of marriage is not conclusive, but is subject to be rebutted by testimony negativing the fact of ma.rriage. PhilbriclT: v. Spanglor, 15 La. Inn. 46; Kubbell v. Inlcstein, 7 La. Ann. 252. The.pJlain- tif^_ani5._hax_sl_leged husband entered into an adulterous con.necticc, and t he relation bety/een the parties was such that no marriage could liave be^en c ont racted~bet\^-een then '.iliea they firtst assumed th is r ela t i cu'^^h ip to^each oSier. Hie fact tliat the husband died during this illicit connection cfcn- flo't"give a cli3.racter to it which it did not h^ve when it v.t.s fir?3t fomed. It continued as it had begun. Tlie fact that he treated the plaint ir.'f as his v.lfe, and ixitroduced hor as such in the cotsflunityj couJd net destroy 01 do away with the actual truth of their relationship. IJor could it re- move from the plair.tif f the loiowledgc ttet she was a married v;oxan vhen she deserted her husband, and vrent to live with Llula. ghe was not in — good faith, as she loiov; Giat her hr-.^.band -..as living, £ud that she could not become the v/ife of Llula. It \.ai3 not possible for her to be imposed upon. She \;as his concubine, and can acsert hei rights only in that cap- acity. V/here the relationship of conmi'^ir'agc is irocidoot-.-:!, and i^ not the motive and cause of the parties livi^jg together, the concubine can re- cover from th& estate of tlB deceased, if it has been enriched by her in- dustry. There is a quasi contrccfc on tlio part of the deceased to make compensation. Succession of Pereuiihot, 2*5 La. Ann. 294; Deiamour v. Roger, 7 La. Ann. 152. T-ie relation of concubinage dees not prevent the concubine from de- manding a settlement of the affo.irs dirring its e::i£tence, and a partici- pation in profits derived from capital and l^bor \,hi3h sho contrib'Ated, although the property is immovable, and stands in tlie nprns of the deceased. The Plaintiff did not contribute in capital and labor to the acquisition of the property left by the decreased. The adultaroi^c ccnne'.^tioa va.- the motive and prime cause of tlie cc-icubonage. She \.'as in fa-.t tivo mistress of Llula, althougli he seems to l-3.vc provided liborally for her ai^ ^"'^'f'^* and respected her as such. After the death of IlvJ.a, on July 17, 1&6S, an agi-eement v.as made by plaintiff and Louisa Hai^ez^ the universal ie^.tee 313. and heir of Llula, "by v^ich the plaintiff received certain property of the succession for services rendered the decear>ed, as a gift and gratuity, in full for all claims against the succession. She has "been placed in possession of this property, and has collected the rents. Alleging that the universal legatee and heir has failed to comply vath it, she rejected it, and brought this suit. Iho legatee lias not "been put in default, and no demand has "been made for the execution of the deed to the property. This agreement is a complete estoppel to plaintiff's demand. During the time plaintiff and Llula -.Bre livicg together, Llula purchased and gave to plaintiff a lottery tic last in the Havana Lottery v.hich drew a prize of 010,000, upon which T/»as realized Os.SOO. This ticket Llula collected, and used the money. lie collected the money in September, 1884. The relation "between the parties was not that of husban?. and wife, and prescription v.as not, therefore, suspended. The prescription pleac).ed hy defendant must therefore prevail. Judgment affirmed. :Ji±i^ „^«^ ^ ^ ^.^<^ 314, :.IUR3AY V. rHPJl.\Y et al. {v20959) (Svi:c'reMe Coui-t of Kansas. Jan. 12,1916. Rehear iiiS' Denied Feli. 13,1918.) (170 PaCo 395. ) J^peal froui District Court, Ehermaii County. Suit for partition by Geor:^e B. uurray against Charles I/Iurray and others . Judgirent f or plaintiff , and defendants appeal. Affirmed, ".Vest, J. !5his case involves a husbcud* s rights in land of his de- ceased v.ife at temp ted to bo conveyed by he^- clone during-theix- marria^-e. mae c our t~ He Id ' 1 1 subject to partition at the suit of the surviving hus- ba nd, and t he defendants appeal. In 1906 EaraJ-i Hurray ovaied the lend iji controversy and made a convey- ance thereof without joining her husband with '..horn she then lived in Sher- man county. She died there intestate dui-ing the same year, and an admin- istrator of her estate was appointed. In 1914 this action was begtua. It is ar3uedrth"at"it is barred by the two-year strtute of limitations if the- "deed by the -nife v/as procured b3r_fraud, ^aad by the five-year statute be- cause within that period no application was made to the probate court to allot"to the husband his share of the land. But the main defense is that tiielwife owned the land in her ov/n right; and as it was not the homestead of herself or husband she could convey it '..Ithout his joining in the deed. Section 6 of article 15 of the Constitution of this state directs the Legisli-.ture to provide for the protection of the rights of v/omen in acquiring and possessing ^roperty separ. te and apart fron the !msb..ud. The Descends uid Distributions Act [Gen. Stat. 1215, tec. 5831) provides that one-half in value of all the real estate in v/hich tlie husband at any time during the i^arriage liad an interest './liich has not been sold on e::- ecution or other judicial sale and is not necessairy for tiie payment of debts and of \hich the \dfe los-s a-iade no conveyance si'all under the direct- ion of the probate court be set apart by the e:;ecutors as her property in fee sir.iple upon the deat'i of the :.UEband if she survives him. Section 3855 provides ttiat such allotiiient may bo inade by the commissioners \.'ithin five yeeics after tlie death of the husband. Section 5850 is as follONvs: "All tie provisions hereinbefore tns.C.e in i"el?tion to the wido"' of a decei-'sed husband shall be applicabite to the husband of a deceased v/ife. liJach is entitled to the sarce rights or portion in tlie estate of the other, and lil:e inteiests shall in the sa;ae manner descend to ti:eir respective heirs. Tlie estates of do\/Gr and by curtesy are abolished." It has been difiicidt to find a name for tiie interest flie if e has in her husband's real estate apart fro.n the homestead. In Lucenbarh v. Busen- bajrlc» 55 Kan. 572, 7 Jrao. 245, it was saic. tiiat it is inchoate and uncer- tain, but possesses the eleiiient of property to aich a degree that she coulc! maintain an action during the life of hei husbi.ni to i^revent its wrongful 515. alienation. In Tluas©- v. BaMridse, 41 Ifen. 243, 21 Pac . 159, 13 .1m. St. Rep. 273, this interest was said to be a continsent one, but unqnefliij.ch the Etatut;e gives to the wife in the real estate of her hViBband during his life is not easily classified or defined. Be- cause of this difficulty it has been thou^^t by soite to "be in its nature an inheritance, and cuoh a suggestion may Tje foucd in some of tYo opin- ions of this court. But; practically the entire trend of the decisions of this court is to treat it as a prepent e::iBting interest — one v^iich the ■\afo may protect by an appsDjiriate action during the life of the husband and against his -.Trongful acts — citing authorities. The -..'ife's interest does not dexJend for its inception upon the cLeaih of the husband, as an inhoritarce v/ould, but springs into existence '^y operation of lav/ tipon a concurrence of seisin aod tiie marriage relation." Speaking of the provisions of section 3851, touching the setting apart by tiie probate court, this language vrais used: "ijxd the only control e::ercised by the probate court or the e::ecutof or the administrator over the wife's interest in the real estate ovra.ed by her husband at ths time of his death is to ascertain its value and set it apart to the wido\/ — not as an heir of her deceased husband, but as her separate and absolute property in fee simple. And since this intererjt does not cor^ to lier by inheritance it is not a bar to her recovery that her husband parted ^nth his title in svch a fraudulent manner that neither he nor his heirs can recover it." But it is argued by tl-^e counsel for ths defendants with much plausi- bility and consistency that because goct^.on 6160 provides that the prop- erty vhich a v/oman ov.ns at the time of her marriage or which shall come to her by descent, devise, or bequest or the gift of any person cx.copt her husband "shall remain lier sole anl separate property, not.vithstanding her -i^^-t-cy ^ 316. Kari'iage, and not te cubjoct to the Oispooal of her hur.'band or lia^ble for his deb >•)?," and ■bccaur.e seci:i. on 61^1 pro"ri.do!3 that ehe may, durpn^ marriase, convoy hur leal projoeroy in the firme manner and to the same extent as a marri^'^'i miir. may, that the intention of the Legislature \3.s to enahle the wife to di'-.poye of ter real estate "by deed in V7hich instru- ment it \'vaE not intended to "be necoccary fa" the hushand to join. Their hrief says: "Ue "be] ieve that it v;as the intention of the makers of oi-t Constitu- tion that the v/ife's separate property should he absolutely under her control to do v/ith as she pleased." (1, 3) But ttiis theory, pvircuasive as it maj'' "be, ignores the re- quirement of section 38ol to set apart the u.ndiEpo5ed of property to the survivor in fee simple. V.hile it is trus that no express language is found in the stat"'ite Giat this sliall "be inlieritod hy or "become the prop- erty Qf such Eizrvivor, still the only possible effect to he given to the language used is that \\iiatGver portion of the land the survivor may right- fully he allotted comes to him as a fee-simple ovmer; the allotment man- ifestly being for the rrere ascertainment of its identity and not as a source of title. Tlie title does not come because the allotment is made, but the allotment is made beca'ace tie title has come. Ihere is nothing in section 6160 or 6161 that really goes counter to this provision, and giving all the various sections relating to the matter their proper sig- nificance it must be held in accordance with the fonxer raling-s in the cases already mentioned thxit the plaintiff is entitled to maintain his action' to have parti tior.ed to him. his pai't of the land fcaTnerly ovmod by his deceased v;ife in the conveyance of \hich he did not join. (2) Yiliile he alleges in his petition that she was unduly influenced to malie the deed, that is not material, for she could not by suoh con- veyance whether unduly influenced or not deprive her surviving husband of his fee-simple interest in the land in question. It follows, therefore, that the judgment must be affirmed. All the Justices concurring. 317. In re GlTRTJbllf'E ESTATE. (Sac. 2625) (Supreme Court of California. Jan. 15,1918) (170 Pac. 402.) In Band. Appeal from Superior Court, -Tehajsa County; John F. Ellison, Judge . Proceeding for the collection of an inheritance tax on the estate ^f Willtam H. Givc-n^&eyT^deceased. From an order refisins to_ allow the i-ay-_ ment of the ta::, the State Controller appeals. Affirmed. Shaw, J. The state controller has appealed from an order of the sxrperior court refusing to allow the payment of inheritance tax upon the sum of Ol0»151.97, v/hich he claims v;as subject to such ta:c. On April 11, 1911, the_ decedent, U. H. G ujmsg^— aad Mg,^wi£e._Earriet 4^__Gurnsey,_e:;ecuJted_an^ inB*rufBent -in nrilfcing-v^^eby it was agreed^he- tv/een~them that the deposit account that day opened vath the People's Sav- ""ffigs"3ask~iir"Giei rT joint names, aa3.--aIIjdepo sits thereafter made to said accounb ty either of them, should he held and ov/nesd by said hushand and wife as joilit~tehants, in joint tenancy. The instruinent contained other teims-descrip1;lTe of the nature and legal effect of the joint tenancy, hut thsy did not change the legal character of tlia joint estate thereby crer.t- ed, as defined at coranon lav/ and as declared by certion 683 of the Civil Code and section 16 o£ th& Bank Act of 1909 (Stats. 1909, p. 87), then in force. This agreement was left with the People's Savings Banlt, and at the same tice and in pursuance thereof \7. E. Gurnsey, out of the commxinity property, deposited in said banlc to said account the sum M v3,000. There- after, from time to time, other money v.■a^3 deposited by said V/. . E. Gurn- sey to said account, aod at the date of his death, \.hich occurred on Feb- ruary 9, 1915, the ar£Dunt of said account v;as the sum of $10,151.97. In pursuance of his claim that this money vra.s subject to inlioritance tax, the appellant introduced the oral testimony of the \adow, Harriet A. Gurnsey, detailitig the conversation at the time said agreement v/as e::eout- ed. She stated, in substaace, that the agreement was e::ecuted in the bank, and was delivered to the cashier at the time of the deposit; that her husband stated tliat he wanted to deposit the money so that either he or she could dra^/ it out at any time; that she did not read tlie aGreemeut, and did not understand the effect of it, except that £b.e knew that either one of them could dra\/ the money from the bank by check, and that she did not really know that s.lce \;&s a party to a joint account prior to her hus*- band's death. It is clear, hovever, that she intended to take by the a- greement whatever benefits it conferred upon her. neither she nor her husband drew any money from ttie account during his lifetins. The agreement above set forth is in no respects undertain or ambig- uous. Its meaning is entirely clear, no testimony by either party was admissible to change its terms or its legal effect, in the absence of ^ — ■^i^ si^V\ / , f — ^ •/^*^ ' ^^^ a^^^c^^^^Su^ 318. fraud or mistake. It is doulstful if tlie state authorities could set up such fraud or mistake in order to establish the ri^ht to inheritance tax In such a case, but v/hether this be t.ue or not, uo such claim is made in this case. The effect of the agreernent was to create a joint estate in the i^roperty to which it relates, anC. the evidence introduced could not, under these circuiKistances, be allowed in any way to change the terms or legal effect of the agreement. Hie title to 4he 4oney deposited pas- ged out of th e_communit y at the time of "the deposltv^and it tjjen "became )\f'. field John H. Eyan v»-ere married previous to this tinE, and v/ere irhon living together as hus- band and v/ife; and that I'B paid the piri-chase price of said real estate out of money acquired during the said ma.rriage by their joint labors. That in April, 1378, said Jchn K. Eyan end said plaintiff duly mortgaged said premier;? to one Joremiah S. Driggs,, to secure the pajnnGnt of a cer- tain promissory note of said Jolm H. Eyan to said lOriggs, bearing date of said day, for the sum of 0250, and interest at tie rate of one axd cne- half per cent, per month from date until paid, -.hioh said mortgage and note ',/ere subsecuently assigned to one John. Kennedy. ISat on the 7th day of Hay, 1890, Sben S. Osborne ras, by the probato court of Sing couT^cy, Yfeshington Territory, duly a]?pointed aJ->^iinr.sx.racor of the estate of v'aid Jolm K. Ryan, deceased, and duly qualified and ez:ter8d upon the diktiec; of such administrator. That on tho 26th of July, 1850, said Osborne, as such administrator; presented to said probate court his verified petition, reciting- the o::istence of sadd mortgage and note; the non-pa;/ment thexx-o^, except interest to the amount of $45; the assignment thereof to the said ileunedy; tl3 presentation by said Kennedy cf hi,i claim on said note and mortgage ; anc. allo\;ance thereof by said petitioner and said probate court: that there v.^ere not sufficient personal a^set;: to pay the funeral expenses of said deceased, expenses of his last sJ3lu:-et;s, and other claims again?" t his estate, and that there \.-ere no per'iora'. aBsets v;l:av,roeve_- t'nat could be applied toward the redemption of said real property; that such redercp- tiOD v/oulcL not Tie ■beneficial to the Qr.'r,r.te, and ".■ould. "he very jn;jv.r-!.OT!>? to tlie other ovcclilors, rnl that ruoh rKde.'r.pfc?.on wa*"; \-;';oily iney-pod.i c r." ; ti:a.c it v;ar5 nfioe^s-^i'-'j tc boI.I. -(.I:!:: -,7l\o'.i.f' cjf f^.zyl ro'ij. ettr.te to pay tijci raid cj- maod arji tlw oor^fc azid e-!Ci;i;;. c-:-. P'i of r^'j.e, aii tl© othor lieii--;, end. tact '.t v/as not lito^ly there would Ije mv.^h (if ar.y) s-'jrpl-vs, a;-''.'! that s-'ioh n'a.r?l:AtR (if any) wcuid lie n-quirnd to p^.y th?; cj.ai.raf; of tho ctnpr credicors vhioii. had boeu allpwcirt-s a;a-i pva>j.rg r..'j, ori?r dirscfciix? thra Sfde and conveyaroo of raid rGa;L pr'-P^r'-zy, ajcoiXL5::i^' to the practice of taid court, and the app?.icati.on cf the prc^CfJeds to the paymeut a'cA discharge of said mortgage de'b'';, after pryiDS' e:n?o5o.r.es of cjch «a'.o , aT:d that the rer;idMe (if any) ■fae diP3-xi::;cd of La due coaroe of adminj strati on. That thereafter, and on said 2t>th day of Jidy, 1980, OL^id court, u^pon caid petition, made aoa ordax- directing the r3y..vl adpinittrator, ETjen S. Or-ljort)o, to r^eli the real estate heroiuberore d3,':.'?ri'Le.-'. , Cither iu onp parcel or iu :."'u'b:!.i vis ions, a3 the said adnlr.istrator Kiir^ht ^udge niorst >)enefioial to sard estate, at .pv.tlic auction, to tho higiie.Jit Udder for cash go3d coin of the Ttoited States, in the ma-icer pre-sorifced hy lav/.; that upir.i sich naj-e and payment of the purchase price, Raid adr^iivistrator e:;ecute a oon'.'cya.ric e to the pnrchasnr, Vihich {iliou.ld convey to such parclact.r>or s3.1 the right, title and ir.tiires""; which the deoeaj^ed VvOuld have had in i.iich ?rc"03:c"'/y, had not the mc "occn. mortgaged hy ?iir.; that the prccei.=)c'.s cf svxili sale Tie applied tc the P3:w''ae.T.t and diC3harge of s'-^.on nortg-x-te, and ':hat the residue "be t!:".f-pofi,sd :<" x'-'. dv.a cource of adininit^trat.loi:.; that the said ad.':rn\.^trat.-^r rjaly> dae reiir.ti cf his proceedings to said uoi.irt. That tircreaftor, to v.-i.t, on tjeptc:cu";f?r 11, 1890, «aid administravcr cold said real estato at pahli'c vcn'ue to yaid John Kennedy, in the naaner pr y ■-,.■; rib od in sail (xr-ier of .saZo, mjide clue report of said tale, and the saue waf oy said court duly approved aiid con- firmed on the S-'-d day of n^J^embor, 1^80. That on the IGth day of Deptcm- her, 1880, saidEhcn S. Osborn'^, as admini.-M;rator as aforesaid , executed, acloiowledged and deJivered to said purcha-jer, John Ifenn.<^dy, a deed of "all the rj.:^t, title, interest and estate of the e.^tate of tho said John K. Ryan, deceased,-' at tho tice of his deach, and also all the right, t.;.tle and interest v/iriich the said deceased T.ould liave hail in Said property had not the sar>e bean mortgaged by taid decoassd, v,hioh deed v.as approved by the judge of sa:il probate covjrt on th& EVth day of September, 1860. Thrt thereafter., "by sualry mo^iiie conveyances, the defendant lierein became, ar.d vvas at the time of the comnenceirent of this action, the o\/nor of v;hatever intereist vested in said Kennedy by virtue of the sale last afcre!3aid. That at the time of tl3 cor/UTienf'.ement of this action said defendant, by his tenant, vss in er.clu-j,.ve po'^j.ooLioa of said real estate, claiming to be the OYm.er of the whole thereof in fee. And as conclusions of la'.v the cou..'t found — ■•That, at the time of the death of said Jol-n H. Eyan, the real c?3tp.te described in the ccrr.plaint v/as community property of Fa\d Jchi> H> Rr/a't:. a'A>l this plaintiff; that upo.o the death of said Jolm II. Ryan, the title Lo th.r undivided one-hqlf of sa.id real estate v<-as in tho plaiatiff , and that ?a'.j interest vi/as ur.affected by tins proceeli:Tgs of the probate court an.d admj.n- istrator aforesaid; that by said proce;edings axd sale said Jolm Kennedy became the ov^\er in foe of the und.ivided c-'iP-lial^ of sa.U real property, ■\.hich sail?, estate is now vested in the defendant herein; that piaintif;*" Lucy A. Ryan vss, at the cotffiaear.ement of this transaction, and now i?;, r>-.'-5 ov.iisr in fee of the undivided one-half of all the lots and parcels of ':^Ad. 324 . hereinabove decsribed, and entit?.ed to the immediate i::'Ossessio"ii of tlxj same; thett t>ie defendant im.lawruily witl-JaoIds from the plaintiff the To^- session of said lialf of said pvoperkya" It is not questioned upon the facts found hut that the ta~id afore- said was corranunity propor-ya Ihe. controversy is as to v/hat the estate wafe which the probate court acted upon. Kie position taken by respondent as to -Che coEv.unity j-rrpi^r-^y, which v;a3 siistained by the lov/er court, is that upon tlcv d^iieaso cf vhe husberd only his interest therein cculd be administered itpori, v;Mvh wp-s or.ij-half j and iiiat the other half belonged to the wife and wh's ?.n -r.o wlac affect'.^d by the proceedings in the probate court, and thera is n:.'.:ib. to be said in support of this contention.-. But after a careful oca-f.deration of the question, and from the interminable confusion that would cde^'Wise result, we are forced to the conclusion that upon the death of one Eembev of the community it is the community estsite which is to be a'^'-ministered upon for the pxu-pose of settling tha claims against the cora:'ii''nity, and that in this case the probate court not only acted upon the sepa".Mte property of John H. Syan, if he had any, but also upog lifed community propei-ty of the deceased and of Lucy X. B.ysn. In Holyoke v. Jackson, S \yash. I*. 239, Greenaj, C. J., in speaking of this relationship, says: "In it, the proprietary interests of husband and wife are equal, and those interests do not seem to be united merely, but unified; not mixed or blent 5 but identified. It is, sni generis, a creature of the statute. By virtue of zYb statute this husband and -wife creature acquires property." This property is liable for the debts of the community. Sections 2411 and 2412 of the Code of 1831, upon tliis subject, are as follows; "Sec. 2411, Upon the death of either h".sband or wife, one-half cf the community property shall go tp the survivor, subject to tlie community debts, ard the othor half shall be si.bject to the testamentary disposit- ion of the deceased husband or wife, subject also to the corsnunity debts. "Ssc. 2412, In case no testamentary disposition shall have been made by the deceased hi;.£band or vdfe of his or her half of the community property, it shall descend equally to the legitimate issuo of his, her or their bodies. If there be no issue of said deceased living or none of their representatives living, then the said community property shall all pass to the sur\'-ivor, to tifi exclusioh cf collateral heirs, subfect to the community debts, the family allowance and the charges and e::penseE of administration . " Neither one ovms any specific part o? this property before the dis- solution of the community, and upon its dis';clution by the death of one member no part of it can vest in the survivor e::cept subject to the com- munity debts. In administering upon the estate of tie deceased member, communitj'' debts are proper charges against the same. The interest of the sursriving member in the community property m--ist be subjedted to its just share of this indebtedness in some manner. T.f this whole property was not under the jurisdiction of fiae probate co-iirtj, under the circum«5tances of this case, the interest of the survivor could not be -^3de to respond^ to any part of these claims in the administration proceedings. Can ic b© X' ■5. 325. said tliat it is the inteait or policy of tY£ lav; that creditors muct prove thRir claims agar.n-st tlve ccrarnrr'ity in tho probate court la tho firi^t ro.- stance, in order to reach ti:r> vrc^rest of tho deceased man'ber in the com- munity property, and in, case of a deficisncy be driven to another forum to reach the half interest of the surviving member in that sane Property,. equally liable for tbat same debt? Or toat, -.vhere the interest of r,;;ci 'le- ceased in sucli prci^erty has borne an urduo El:a.re of these debts, tV.=! f.e-i.rs of such raaaber sjiould be compelled to bi-in^ an action against the siiOvL/or for a contribution? The la-' abhors a multiplicity of suits. Buri-^-i; ^-^.b lifetiite of the commusji cy, its property can be reached for the pajir.3ti'.; of a community debt in one pro-.;eediug. Upon tw death of either partj tho community eiods upon the instant, but tte relationship of the partie?^. ii the property as to its liability for flie cof.inunity debts is not alterci. These debts are not postponed until the death of fhe. other member, c^jv?. tliere was no way oC reaching the interest of tlie deceased mctfocr in f'.^rli property for tne payment of thene debts v^r^re the same were not secuiei by mortgage, except by applying to the probate co\irt in the first inst3Z..c<^. and than bringing an action in caae of a disallowance. Othonvise snch claims would be barred after the lapse of time specified by law within which to present tne same — at least co the e::tent of ever afterward 'oro- ceeding against tho ectato of the deceased. Tlie interest of the surviv- ing member in the cojiiTiunity property may be likened to that of a lineal heir of the deceased. It is true the deceased could have devised th" one- hslf thereof to any one, and thus have e::cluded the heir, and that hi could not laave affectoc. the right of tlie survivor to the other half.. Tlie statute e:rpressly provides for this. Sut at no time during his lif?-Mme could he liave alicnatod his interest in the community real estate, or any part of it, by his sols act. The property \ -as treated as an entirety in this respect, and it rec^uirod the act of both parties to alienate any part of it. It stands upon a different footing than th;,t of CJay other proportj'-. And the interest of tie surviving- member therein, so far as the payr-ienc of the debts of the community is concerned, should not be allowed to vest to deprive tho court of jurisdiction over the vvhole property for this p-uposc. Such inter .:st should bo treated the same as that of tha heir or devisee. The statate says one-half shall go th the survivor subject to the commun- ity debts, ::jxC f ro.a Xh.o very nature of iho case it is held in aboyanco or suspended to that c.:tont, aid cannot go until tioso matters arc dotcrpin- od and disposed of, aid that vhich is to go is thus ascertained. Other- wise it waild relegate th3 simple, straightforward proceeding of admini-st- ering upon the whole property to the av.-Icward and involved one, to say tho least, cvjn if there v/as cny authority for it, of administering ijrppn the interest of tlic deceased in such property. Ho way is pointed out in which, to obtain a partition or division of it as a preliminary step, or for obtaining possession thereof, as in the case of a partnership. It seems to us it is the intention of the lav/ that upon the death of cither spouse the vhole couVironity estete is subject to administration proceed •- ings for Qio payment of comrxonity debts, and for distrrbution. As tc what authority an D;:ccutor would have over it v/o do not decide, but the whole community' property \.-ould necessarily be brought under the juri^-diit- ion of the court, and disposed of in some manner. The probate court of King countyj by reason of the location of the property, th- dissolution of the community by tie death of one of its members, snd the due ap.'Ointmont of the administrator, obtained ^urisdict- 326. ioa over the Icndc hoi'o in controversy. Ho question is raisod over the rcsularity of the initiatory proceeding's. But it is clainod that Lucy •A. Ryan liad no notice of the sr.lc of th:.£e lands, or of the pendency of the special procGodin:; under \;hich the same v/as ordered. The administia- tion of an estate is a proceeding- in rcra, and notice was not neCGSsary c.: cept as required "by statute. In (Jriguon'c Lessee v. Astor, 2 Eow. 319^ Baldv/in, J,, says: "In caccs in personam, \hor:; thoro aro adverse Parties, the court must have po\.cr over tha sxt"bJoct matter an?, the parties; Tjut on a proceed- ing to sell the ro£,l estate of an indotted intoctato, there are no adver- sary partioE, the proceeding- is in rem, tlie administrator represents tlie land (11 S. an?- B. 452); they aro analogous to proceedinss in the admir- alty, •..•here the only ciucstion of jurisdiction is the pov/er of the court over the thin^", the suoject-raattor before them, -.Ithout regard to the per- sons v:ho Kay have an interest in it; all the v.xjrld arc parties. In the orphans' court, and all courts v.ho have pov.-or to sell the estates of in- testates, their action operates on th3 estate, not on the heirs of the in- testate; a purchaser claims, not their title, but one paramount . 11 S. and R. 426. The estate passes to him by operation of lav.'. 11 S. and R. 428. The sale is a proceedin-,' in rem, to vhich all claiming under the in- testate are parties (11 S. end R. 429), v,'hich directs tho title of the deceased. 11 E . eand R. 450." And see 'Vymaa v. Campbell, 6 Porter, 219; Freaman on Judgments (3d od.). Sections 608, 509. The lands in question v/ere sold under Sections 1523 and 1524 of tho 1881 Code, which aro ae follows: "Soc. 1523. If any person die, having mortgaged any real or personal estate, and shall not have devised the same or provided for the redempt- ion thereof by will, fi^ probate court, upon the application of any person interested, may order the ericcutor or ac' sinistra tor to redoon tho estate out of the personal assets, if it should appear to the satisfaction of the court that such redemption \/auld be beneficial to the estate and not in- jurious to creditors. "Sec. 1524. If such redemption be not deemed ejrpediont, the court shall order cudi property to b^ sold at public sale, viiich sale shall be with the same notice and conducted in tho same manner as required in othe:- cases of real estate provided for in this act, and tlie o;:ocutor or admin- istrator shall thereupon e::ecutc a conveyance thereof to fho purchaser, which conveyance sIbII be effectual' to convey to the purchaser all the right, title and interest v/hich tha deceased would have had in the prop- erty had not the same been mortgaged by him, and the purchase money, after paying the expenses of tlie sale, shall first be applied to the payment and discharge of such raortge.ge, aid the- residue in due course of adminis- tration. If said sale of the mortgaged premises' shall be insufficient to secure the mortgage debt, the mortgagee shall file a claim for balance, authenticated as other claims, and payable in due course of admins itr at ion, notice of the sale was given, as provided by Sec. 1504, providing for a notice of sale of real estate in probate proceedings , a nd this was 327. the only notice required. The proceedings are admit tod to have teen regular uMcr thccc soctions. How, tlicn, v/liat did the probato court sell? The claim\7r,s a charge upun the v/ho?.e of said real estate. "Dio petition recites "that it v/as noccssary to sell the whole of said real estate." The order of the cot:rt diiontcd it all to "bo sold. The order, following the statute, in spoal'dng of the canvoysmcc, uses the -v/ord "de- ceased" instead of "nor t^asor , " v/hicli was evidently meant. Vi'horo the husband and v/ifc v;crc mortgagors, it should loavc 'been interpreted to mean "both of them, even "before the coEPOTAnity system was oEta"bllchcd, whore the legal title to the laxd was in the doceasod, those statutes "being then in force. Such a proceed j.?.ig would have carried scnc thing itfore than the "bare interest of the deceased; it would liavc cut off the dower right of the wife, and have passed the whole title, which was then unquestiona"bly to "be administered upon- St. Clair v. Ilorrls , 9 Ohio, 16. As no nev; pro- visions v/ore made therefor in this respect when the community system vra,s adopted, it was adopted with reference to the prohate law as it then stood, which must "be construed as emtracirg the new system vathout any unnecessary radical changes wluch were clearly not intended to "be effect- ed. But that the effect now given to the law in c[ueEtion, under the present system, is right, is rendered if anything more certain "by the new system itself. Here there was in effect but one moi-tgagor, Qnd that was tl;e community, although it did talSB t3ie joint act of both parties to create the lien. It may be said that the corcmunity v/as deceased also — it ended with the death of ■Gie husband. Per the salx^ of economy and the convenience of all parties, its entire business relations should be set- tled, and its disposition effected at one time and in the same proceed- ings. Such is the purpose of the lav;, ffliic particular step under Sec. 1523 and 1524 in the administration proceedings was evidently intended as a sort of foreclosure of tte mortgage -vSiere a sale of ttB land was ordered, in lieu of the ordinary foreclosure of the mortgage v/here a sale of the land was ordered, in lieu of the ordinary foreclosure, although any interested party could have instituted it by petitioning for a re- demption. Ihe faot that thi3 mortgagee could "be coerced into that pro- ceeding is a verj' strong reason for holding that it was intended to af- ford him a complete remedy therein. Otl::Drv,'ise, in case of inadequate security'-, if only the interest of one member of the community could be sold, and there were no other assets, the mortgagee \;ould be subjected to the cost of t\7o proceedings, the special one in the probate court to reach the one interest aud then an action to foreclose as against the other half, thereby occasioning delay and additional expense, v,hich could benefit none of the parties, and to the manifest injury of a part or all. The deed \iiich was e::ecuted purported to convey "all the rights title, interest and estate of the estate of Joim H. Ryan, deceased, at the time of his death, and also all the rijit, title and interest vhich the said deceased -./ould have had in said property had not the same been mortgaged by said deceased." Ths rocoid title to this land vra-s in said Johji H. Ryan, and he had tl'C right to manage and c cntrol the land xxnder Code (1881) Sec. 2410, v.hich is as follows: "Sec. 2410. The husbard lias the management and control of the com- munity real proierty, but ho shall not sell, convey or encumber the com- munity real estate unless the vdfe join v-dth him in executing the deed or other instrument of corr/eyance by vJiich the real estate is sold, cwnveyed 328. or encunibered; and such deed or other instrument of conveyance must "be aclaiov/1 edged by him and his w?fe: Provided, however. That all such com- munity real estate sliall be subject to the liens of mechanic, and others for labor arxL materials furnished in erecting structures and improverrents thereon as provided by law in other cases, to liens of judgments recov- ered for community debts, and to sale on execution issued thereon." At all times he had the right to have the community property sub- jected to the payment of the community debts. The "estate of the de- ceased," so far as the payment of the debts against the community was involved, vvas the comrunity estate. As to ho-;.? this debt v.'as originally contracted, or as to the purpose for vhioh it v;as contracted, doss not appear. But as between the mortgagors and the mortgagee it v/as a com- munity debt, at least to the extent of having it paid from the proc-eeds of the land mortgaged. So far the commijnity owed it, and no question of a suretyship between the husbard ani vafe, if one should arise, ccrald come up in that proceeding to prevent the sale or alter its effect. !Ihe debt may in fact have he en a community debt, althoxj^ it was only the note of the husband. The probate court had jurisdiction of the estate, and the presumption is that the proceedings were regular, and that it found all the necessary facts to sustain its decree. See Sheldon v. New- ton, 3 Ohio St. 494; Rorer on Judicial Sales (2d ed.). Sec. 314, 315; Thompson v. Tolmie, 2 Pet. 157; Perkins v. Fairfield; 11 Mass. 227; Flo- rentine V. Barton, 2 T.all. 210; Hurley v. Barnard, 48 Tex. 83; Oriol v. Herndon, 38 La. Ann. 759. At an actoinistrator' s sale of real estate the purchaser buys, and is entitled to a conveyance of whatever title thjsre is in the estate. ITecbitt v. Richardson, 14 Te::. 656. Here it was the community title, find the execution of an imperfect or insufficient deed, if the one in this case could be so held, would not affect or deprive him of his ri^Jit to the entire premises. See M cBe e v. Johnson, 45 Tex. 634. Code, Sec. 1510, directing the proceedings upon the return of sale being rrade, is as follov/s: "Sec. 1510. If it appear to the court that the sale v/as legally made and fairly conducted, and that the sun bidden v/as not disproportion- ate to the value of the property sold, or if disproportionate, that a greater sun, as above specified, cannot be obtained, the court shall make an order confirming the sale, and directing conveyances to be executed; and such sale, from tj;at time, shall be confirmed and valid." The order of confir nation made the sale a settled, confirmed and valid one. Independent of the deed, the proceedings in the probate court to and includii^ the order of confirmation, conferred an equitable title, at least, to the entire land upon the defendant. Ililler v. Alexander, 8 Tex. 36; Bartlett v. Cocke, 15 Tex. 471; Dancy v. S trie Id. Inge, 15 Tex. 557; Roclcv. Heald, 27 Tex. 523; Lalanne v. IJoreau, 13 La. 431; Vincent v. Huff, 4 Serg. L B. 298. Und.er the code, See. 83, subdivision 3, a de- fendant in an sction at lav; may avail himself of both legal and equitable defances, and in tliis case the proceedings had in the probate court as founS. at the til el , exclusive of the deed, constituted a defense to this action. Tlie practice heretofore lias been to administer upon the entire com- munity,' property in such cases. It v/as the evident intention to do so in y^^y S29. this cace. The grantee went into the possession of the entire land u.rier ' the proceedings, and the jiidcjr/;i?.t of the probate coxjrt v;as not appca'.ci from. A^ judgment reversed. ^-^Ci n'— O. Anders, C. J., and Hoyt and Stiles, JJ. , concur. Duntar, J. (diRsenting). — I am unafcle to agree vath the opintcn of the majority. Ic secmr to ixo it is more a forcible ar^ximent of ivha/t the " law ought to te tl^aii T^njat it really is. Before the enaotmsr.t of Sr. i. 1524 it will not 'bo contended that tindor such proceeding ar: was had in r.'i:.z case the purcha'^er v;ould have taten anything. By virtue of tliat enact- ment he ta'KES the ideat.'.cal interest rpecified by the stafrate, arrL ric th- ing more, and no question of economy in the administration of t?ie estate can he taken into conrideration in construing it. In fact it seems to me that the provisions of this statute are rr?>rd propositi on, vis., that the purchaser under the sale obtains the interest of the deceased, and not the interest of the de- ceased end some body else, no matter vhether that some body else chances to be his partner, his v;ife, or some other person. The legislative mind might possibly not have conceived the most larmonious or best system of Settling estates in the :probate court; but vhen the legislative vail is expressed, in language plain and unequivocal, no meaning should be attach- ed to it by the court vhich is not justified by the language, because^ in the opinion of the court, it would maiB a better law and relieve litigants of trouble or o:rpense. In ansvver to the complaint of the respondent, that her property v;as sold away from her \/itliout notice, the appellant asserts, and the majority decide, that because this was a proceedirg in ren no notice except that provided by statute was necessaiy, and that the court had jvirisdic tion of all of the property. And nany cases are cited to show that ■where courts have power to sell the estate of intestates, their action operates on the estate and not on the heirs of the estate, and that the sale is a proceed- ing in rem, to v/nich all claiming um^.er the intestate are parties, etc., I raise no question as to the soundness of the doctrine enunciated in those cases, but I insist that unc'.er the statute the res, or thing which the court iTad control of., \vas not the interest which the respondent had in the mortgaged prenuses, but the interest vhich the decedent had in it; and under tlie decisions cited by appellant, doubtless all persons claim- iHg under that interest are parties and entitled only to the notice pro- vided by the statute. But tte respondent is not claiming uu^.er such in- terest; she is claiming under lier ov/n interest; she gave a mortgage on her interest in the land and that rmrtgage has never been foreclosed. If it l:!as been sold at all, it lias been sold without notice to her; she has hot had her day in court, jind is, therefore, not bound by any action v/ith reference to it. But I maintain that l:er interest in the land never has been sold, and 330. that thero was no attempt to sell it either "by the probate court or "bj the administrator. The record shoiWE that they construed the statute ac- cording to its plain language and import. In the order of sale the coiirt ordered the administrator, upon the payment of the money, to execute a corareyance to the purchaser vJiich should convey to such purchaser, not all the interest vhich tlv3 mortgagors had in the property, hut "all the ri^-ht , title and interest which the deceased v,t)uld have had in said property had not the sane "bGen mortgaged hy him." And, in accordaace -^ith said order, the administrator did, on the 18th day of September, 1880, execute, ac- knowledge and deliver to said purcliaser a deed of "all the right, title, interest and estate of the said John H. Ryan, deceased, at the time of his death, and also all the fight, title aid interest vhich the said de- ceased would have had in said property had not the same been mortgaged by said deceased." I cannot understaad hov; a deed conveying a special in- terest mentioned, as this deed does, founded on such an order of sale as this deed was, and based on a statute equally restrictive, can be con- strued to convey an interest v^iich is not arcpressed. The right, title and interest \/hich the decfedent \,ould liave had in the land, if he had not mortga^-ed it, is corceded to liave been an undivided one-half interest; that undivided one-half interest is what the law authorized tJae court to order sold.; that undivided one-half interest is vhat the court did order sold, and -.vhat the deed shows v/as sold. It seaas to ne that the conclu- sions of lav; as stated by the lovrer court flow irresistibly from the facts found in this case, and that the judgient should be affirmed. 351, DENIS WOSEIiN, Respondent, v. ITAffi.'ilT VORHIHS et Al., Appp.llsnts. (14 Vvach. 152 1B96. ) JMget'Tfi'^S. '""'''" '^""'' '^^^- County.-Hon. Mason Mn. Ihe opinion of the court was delivered by heirs her hMsla^dTThV^^Tr-m.^i. I ' ' ^'^^las as Bxarvl-v^uig ciPal sum secured by said mortLg. It ti. ^'"'^ ''^'"""'' "^"^ *^^ ^^«- after the date of mltv^itv llTi.T if ^*' °^ ^^'^ ^^^ °^^*- ^^^ ^^^^1^, per cent, per month from fhe^ateo' f ''-T '^''"''* ^' ^^^ ^^^^ ^^ ^'^''o' for the sum of $180 i^tead of si^t Tf *^' "' ^ '^^"""^^* <^°^P^^ ^°te at the rate of Lne 'p^rcenMerSiL °"'' '"'^''^^ °" '^^ "^^^^ ^- the ratt S'^ine^per^ce^:' trZ '°"'^'^^' ^ ^^°^^^^- ^^ ^^--t at represented .y coupon Jo ^s'^atta^hS'tr !^' '"'^^^^^ ^^^^ ^^^--^ --= contained this Provision MThx-noLJ' - 1^°'' '' ^'^^ °°^^°^ ^^^^ P5r month after maturitv ' " t?; ^ ^'^ ^^^^^^^^ at two (2) per cent. aonth after maturity." ^^^erest at the rate of one per cent, per ^vith tt''ejp^Vsfp::;i^ons ^f'th" '" ^""''^ ^^^^-^^ in accordance Of the contract and fo; 1. ^'^ ''°^^=- ^^ ^^^ ^i^^ of the making Of rendBri:^. the iTorTj ^J l^^ S'^^^'f^'^' ^' ^^^ - -^ the fime rate <>f interest agreed upon *bv^^;.\'^* " '"^^ in force, viz., ".lay ^B^ in wriung, shall tev^liJ LJi'' ' ^ contract, specifying the counsel for ^p^iiaats ar7 . "^•'- " ^"^ ^^' authorities cited by inapplicable ' ^'^^' ^^ ^^^^ <^-f ^'^i^^ statutory prevision, wholly to ---u;e'f .s^ia^^^^rrJiisJ^tf ^."r^ °' ^^^ ----^ ^-^-^ J!^; .^^ ^""^^ «^-J:-essly fo^S ' ha at tS T"' ^''^^'""' '^ ^^^ ^^--^^- said Eless Vorhies there T.r)rno fill ^'""^ °^ ^^^ ^^^^^ ^f the nor y^Bre there any ind^^iS .ebts e^:?!^" ' ^aid con-^unity Property. Vorhies or Eless Vorhies-" s^d ty.1% /■ ^ against the said l^athan these appellants. ' ^ *^^ ^^""^'"^ ^'a^ «=ade at the request of sec. 1461. G.n. Stat., provides that. "Upon the death of either hue band or v/ife, one-half of the community property shall 30 to the curvivor, siiiject to the connunity debts, and the other half chall be cubject to the tectamentary disposition of the de- ceased husband or v.ife, rubject also to tl:ie con]rr.unity debts. In car.e no testamentary disposition shall ha^/e been made by the deceased husband or vdfe of his or her half of the community property, it shall descend equal- ly to the legi titrate issue of his, her, or tLdir bodies." In this case there b eing n o community debjts nor necessity for admin- is t-ra±i- Qn , ni-R-liAl f -OiL-the p.OTnmijn i.ty- -^:^ftaJ- <»R4vf»tfl -be&ime veii^ad ill . tlie_SUl' - tiyii)-;.Jm5bsad;_Tucl:cr v. Brorrn, 9 Y/ach. 557 (57 Pac . 456); Hill v. Ycung, 7 V/ash. 55 (54 Pac. 144). Kis m ortgage, purporting to embrace the v^iole, ■waa_v.alid_as._ to the undivided one -half interes t vhich he pcscecced, and ^^Jil tlao .decree_pf_ for ec Ipsure Mas r es trie te.d_tJD_tliaJ:_.iiiioi-ec t . ^ (5). It follov/s from vhat has been said upon the last question, that the coiu't did not err in neglecting to set aside a homestead. Hor can the appellants be heard to urge that the rights of their co-defendant Kame (who held a junior mortgage upon a portion of the premises), \7ere not adjusted by the decree. It is sufficient to say that he has not ap- pealed. The decree mil be affirmed. Hoyt, C- J.; and Anders, Dunbar and Scott, JJ., concur. 333. n. C. V/.L'iiry et al., Kecpcnio-QtE, v. VICTCE ViatL'JXT et al., Appellaa'ts. (52 T7ash. 475 1909. ) • Appeal from a judgment of t 1t3 superior court for Kin^ county, lIorri?3.. J., entered Dccemljer 9, 1907, upon findings in I'avor of the plaintiffs, after a trial on tloe poritc before the court ■ Ithout a jury,, iu an action for the spoc -i-fTc perf o - iri rn p f? t ? f n r artynfi t t" pqll i Find. ,,\,ffinjsd. Crov;, J. — This a.ctxon ;.'as conimcnced by J7- 0. '.Viley and Sa'^.lJe F. miey, his v.lie, a:^a.vnst Victor Verhaest, his v;ife, H. A. Karr:i, E A. Harris as adninistrator of the ei^tate of 11. B. Harris, decearel, Zera Harris, a minor, and Iluryl Harris, a minor, to quiet tdtle and to enforce the specific perf o rjiarc e of at-coa tract to sell real estate. On JuZy 13, • 1907, arter the ad^ninistrati on proceedings loereinaftor of^nMcnsd, plain- tiffs entered into a -.vi-itten contract to sell to Victor Verha^st lot 5, in block 51, T. Hanford's addition to the city of Seattle, for v2,475. Tlie defendant Victor. Verhaest paid ^50 cash thereon, a;3d vath the consent of plaintiffs entered into ini:aediate possession. Plaintiffs had acquired title to one undivided one-half of the lot from tha defendant H. A. Harris, individually, and the other undivided one-half from the defendant K. A. Harris as administrator of the estate of E. B. Harris, dGceai>el. V.lien the Plaintiffs tendered a deed to the defendant Victor Verhaest, he refused the came, claimin,^ tiaat thfe title \>ras defective, but retained possession, and refused to accept a return of the $50 vhich he had ther3tof.->re paid. Thereupon the plaintiffs commenced this action, and in substcXice allesed, that on September 26, 1906, the defendant H. A. Harris and one E. B- Har- ris \rere husband and v/ife and ovmed the real estate as their conmunity property; that on said date K. B. Harris died intestate, leaving her hus- band, the defendant H A. Harris, and tv/o minor children, the defendants Zera and Muryl Harris, as her only heirs at law; that on September 29, 1906, H. A. Harris i^s appointed and qualified as ae-ministrator of the es- tate of K. B Karris, deceased: that he filed an inventory in v.hich he in- cluded only the \,'ife's undivided half of the let above described; tliat he mads application to sell the \/ife's undivided half of the lot, to pay her half of coiTinunity debts and the costs of aininiEtration; that such proceed- ings vrere iiad that under an order of court he sold the wife's undivided half to plaintiff 1. 0. ■'iley; tliat the sale was confirmed, and an admin- isteator's deed v.qs executed and delivered; that all the proceedings in tlie natter of the estate pertaining to the sale vrere regular and in ac- cordance with the statute; tliat the plaintiff IT. C. V/iley purchased from the defendant H. :.. Harris the other undivided half of the lot; that tiiereafter plaintiffs entered into a contract v^iereby they agreed to sell tlie entire lot to the defendant Victor Verhaest, viio made a partial Pay- ment thereon, and \.'ith plaintiffs' consent entered into immediate posses- sion; that plaintiffs have tendered a conveyance of the lot to defendant Victor Verhaest; and that he has refused to complete the purchase, to re- ceive a return of his partial payment, or to surrender possession, basing such refusal upon the claim that there is some irregularity in the probate Proceedings under which plaintiffs acquired a portion of their title. 334. By their prayer the plaintiffs, in substance, demand that each and all of the defend:xnts be rcqr.l-ed to cet forth any claim they may h?.ve in or to the lot; that the cor.rj ascertain and adj-.mgs the titis; that if the plais tiffs hold title, a ubJree for specific -performance be entered against th'i defendants Verhaest and v;ife, and th?.t they be required to pay the agreed purchase price; that if, on the other ha;cd, the judsment of the court be that tha pr.aintiffs do not have title, a decree be entered setting aside the probate sale, and directing the administrator to refund the sun of $875 paid by plaintiffs as a consideration therefor. The defendants Verhaest and wife by their answer interposed certain denials, admitted their contract to iJurchase, alleged they wore to make payment \vhen a morchan table title v;as given, but that no such title had been tendered; admitted that they had r^ade a pai'tial payrent and entered into possession, and admitte>'. that th^y had refused to coirplete the pur- chase, but alleged that they did so by reason of the defective title. For affirmative defense they further alloged, that the plaintiffs '..'iley and wife had agreed to give them a good record and merchantable title, £s:oa to furnish an abstract shov.-ing the same; that they had furnished an abstract showing the title to be fatlly defective, aid that they had refused to correct the title, or make the same merchantable. By their prayer they demand, that plaintiffs be required to give them a good, merchantable title, and that in the event of their failure so to do, they be ordered to refund the partial payment made. H. A- Kari'is, personally and as administrator, and the minor defendants, 2era and Muryl Jiarrjs, by their guardian ad liteU', filed ansv/ers the allegations of which need not be stated. The trial court made findings of fact, in substance, as follov/s: 5:hat on September 26, 1906, K. A. Harris and K. B. Karris, husband and v;ife, c.-ned the lot as their community property; that on said date there e::iEted a verbal contract betveen them and the plaintiff N. G. V/iley for the sale of said lot to plaintiffs, for i)lAOO; that on September 26, 1906, K. B. Harris died intest.-.te lac.ving svzviving her K. A* Karris, her hus- band, and tv/o raonor children, Zera and Huryl Karris, as her only heirs at law; that on September 29, 1906, K. A. Harris msde application to be ap- pointed administrator of her estate; that thereuxion, the court having jur- isdiction of the subject-matter, such i-roceedings v/ere had that he v/as ^uly appointed and fjudlified; that he filed his inventory, including there- in the wife's half only of the lot above described; that he made applicat- ion for an order to sell the v;ife''s half of the lot, to Pay her half of the conmunity debts; that his application complied v;ith the statutory re- quirements; that upon such ap^licatior being presented, the court made its regular order f i::ing the time and place of hearing, djj-ecting all persons ^.nterested to sho-v cause why the application should not be granted; that said order to show cause v/as published for fctir successive weeks in a news-* paper designated by the court; that on the day of hearing fixed in the order, and before proceeding to otherwise act upon the petition, the court regularly appointed a guardian ad litem to represent the minor defendants; tha. t no Qbfection to the granting of the application \;as made; that the court finding the allegations of the application sud petition to be true, made and entered its order directing the sale of the wife's undivided half of the lot; that thereupon the administrator, after due publication, sold the sane to IT. C. V/iley for '' 875; that the administrator made rettirn of the sale; that the court (the raonors then and there appearing by their 335. guardian ad. litem) regularly made its order confirming the sale, and dircc ing the £'lmiai.£;trator to ^-ci-voy the v/irr- '5 un>"l iv i.dod ho,lf of ihc "Jot to IT. C. Wiley; t>iao the plaiVo.'-i.i'f IT. C, V/iley 3?a.i.d the purchase price; that on thie IBtli d^y of .'.yir-lr, it-'OY, ti-.o adininlstj'C-tor made the conveyance; that all such prcceodi-iv'.-i 'vsre rn9,xvirl; that a'll del:ts of the er>tcte Mve heen paJ.ci that thereafter th»:j plalncjff-? entered into a contract to sell the entire lot to the defendant Victor \"'-^r:r.pJim; that ho ^.^.-ee'l to pi^rcha'se the -.^aiae i'or ^^'2,475, then makr-ng a pari i;.i?. vi'S^irrs^ixt cf $50; that with plaintiff's ci->n- sent he took iiij.:-.ediala posaenuior.; w-3.v hio ti>r.e for final payment c:cpired on Ang'.-.ct 13, UDOy, an.d that pJavutLffH tlion offered tc oonvmy, 'but that ho refuEed to coropiete tho p\irfliast», to auccpt a refcirn of his paj.- ti a. L pay- ment, or to re-deliver possessi5n, has.i.ne; such refusal upon some defect in the prohate proceedings. Ifpon these findings a jndgtrent was entered hy which, it T7S>.s decreed that the plaintiffs are the ov,ners in fee Ei;nple; that H. A. Harris, H. A. Karris as adi-ainistrator, Stra Harris, a minor, and Har;;;! Harris, a minor, h£.ve not, nor has any of them, any interest, clai.n, or title in or to the lot or any part thereof; that the title of the plaintiffs he quieted as against them; that the contract of f;ale 'bet'.voen the plaintiffs and the de- fendants Victor Verhacst and \7ife be specifically enforced; that the said defendants forthv/ith pay to the plaiatif ft; v25'?.25, mih interest, and the costs of this action, and that the plaintiffs forth'.7ith convey the lot to the defendant Victor Verhaest. Ihe defendants Victor Verhaest and "Wife have appealed, llo appeal has heon tcCien 'oy any ether pa/"ty. The appellants contend, that upon tlic death of one oeohcr of a com- munity, the entire co:ijamily property is .^u'jjsct to odministraticn; that the superior court has no t;roliatc Jx^a-iydiction or po-ver to separately ad- minister t3ic undivided jan.e"ha.i.f of the corC'^n'mSty property assumed to have ■belonged to the decjascd, an-1 that the plaintiffs therefore acqxiired no title under the atoinistrator -s deed for the deceased v;ife's undivided one- ■ lialf of the lot, or under the S2parate deed afterr.tirds executed and deliv- ered hy the hur.hand K. A. Harris for his undivided ono-lvilf . In support of their contention that an administration upon an undivided half of the communiitj- pi-operty only is '.Tithcut jurisdiction sid void, they cite- Ryan r.' Ferguson, 3 Tash. 356, 28 Pac. 9x0; Hill v. Yoijrg, 7 V.'ash. 33, 34 Pac. 144; In re Kill's Estate. 6 T7ash. 2b5, 35 Poxj. b85; Sadler v. Hiesz, 5 T^ash. 182, 31 Pac. 630, 103C; In re Cannon's estate, 18 Tfesh. ICi, 50 Pac. 1021 and other cases from this court. Ihere is no question hut that, upon the death, of one memher of the community, the entire ccrounity properi^y is suhjeot to administration, axd. that such complete adminietratiou is the proper method of procedure. It is conceded in the case before us, that only one-half of the ccmmunity estate was administered. There vss no attempt upon the part of the court to assume jurisdiction for the purpose of administration or probate sale, over any portion of the property other than the deceased wife's undivided half. V/o faij, hcjever, to discover any sotuid reason for now holding in 336. t".:ic collateral procesdiag that the GTjpcrior coui-t vsle \/ithout juriscUc- tiou ta ac'rnir-.-i.ster upon ojid sell tjio midiviclcd half of tin estate, cl- thou^^h its procoediu^ muLt to corcGdod to loavc "beai nro^ular. Tnora is a iTiai-Icad diBt.inotlon lietween judicial proceedia^s that arc irre^'ular or ervoneons, aad -iJ-cse that have ocen conducted -..ithoui jurisdiction.- The r.ourc v,-ou;.d lU^douhrtdly have Eubjected tlie ertiro conmunity estate to its ,i-;4riE;d:,c ticn and orders had proper application tliorcfor heen iTiade. Y!e havo u>:;vcr held th„ snporior court to to -.Ithout prohato jurisdiction to aclnini'Btor upon a dec sac; cd d^ousc's half of comir-oiuitj'' proport;^. Uix;;.ue3- tJouaTjiy it -.Ajidd be the hcttcr end certainly the proper practice midor our la-i7 to ^iiTji^ct the entire iutoi-cst in tho com-.iunity property to ad-nin- xFtyECTiir'a-. tuc. '^f.-isziie to do so, bein^- only an irregularity, does not de- prive tho couit of jurisdiction over that undivided portion U2)6n vhich rJ- tiinistration ic acte^ally had. Luch on acVjiuistration bcjnc -..'itjain the jut'- isdictlon of tnc court cannot, viaon once coijiploted, be after'./ards question- ed. Effi appellar.ts further contend flict fr^ proceedings under v/hich tho £jc'.n.i.ni3tr?.tor'& sale -./as had -..'ore void for v,ant of proper service of pro- cess upon tlx! minor dofenc'.ejats Cora and iruryl Harris; tliat publication of tlje she-?; oau^je ordr^r Tra.s not raad.e for Cie entire period of time remired by th3 statute cr fi-::3d by the order of court; that yio jurisdiction "./as obtaj/oed over the r'^.inors by the mere appointnioi.t of a guardian ad litem \/ho aftev./ardt appeared on their bchaT.f ; thr.t the proceeds of the sale of the deceased -..Ife's undivided one-hailf of the lot, \;3re improperly applied in pajinent of the entire costs of cdninistration and certain debts ; in- stead of bein^'v applied to the payment of only one -half thereof. On all of these cuections the ti-ial court fomid against appellants' contention, and the other defendants liave not e::cepted to or questioned such findings. Appellants strenuously insist that these findings are not sustained bjr the preponderance of the evidence, but under the condition of the rec- ord nov; before us, \;e do not thinh they are in a position to urge such contention. Tho respondents properly made H. A-. Harris, K, A Harris as acVninictrator of the estate of I'. B. Harris, deceased, and Zera and i:uryl Harris, minors, parties defendant in t'.iis action. All of t3:em Iiave been legally ano. personally served -.vith process herein. A guardian ad litem •'./ho -..as regularly appointed for the minor defendants, appeared in this action, 3ns'.,-cred, and defended on their belaalf . aie trial court has made finding's of fact against each and all of these defendants, and has enter- ed a decree adjud^lns the plaintiffs' title to be good, not only against H- A, Harris individually and as administrator of his vafe's estate, but also as against the minor heirs. None of tlien liave appealed. Thc-y have lx?.d their day in coirt, i7ney are the only persons \v3io could possibly question respondent's title- The decree is no-./ binding upon them. The recorc". further shows that the appellants ra.de a. partial payment of purchase .none-' to the respondents; that they tooh l:TriRdiate possession of tho x^ropeitr/; that they refused either to acr.ept p. ret-.yn of the pur- chase money, or t6 yield their possession to reso jvidcntj; .^hat they liave continually objected to the title, but at the ssr:ie t:rnB de-jandftd that it be perfected by the respondents, and they liave Friied ^.n *:l\ri prayer of theii ansv/er that the respondents be rec^iired to give then a good and merchantable title. Under these conditions v/e fail to see how tne respond- / ..<:^ 337. ents could proceed otherwise than "by the coinnencement and prosecution of this action. ATrpellants, "by tl-eir attitu'le,. h?.ve invited the same. The decree of the court froa vhich the ocher d.8-^^r.Aantz have failed to appeal has corai^letely quieted retvondent^'s titi.e, azsii pXsxied *;hem in a prsi'rion to coiiply v,ir;h the demard v/hich the appeliar'.ts, wuiie retaining possescion, have constantly made, and still make, by the prayer of their sns\ver herein. The. judgment of the trial court is right, and is therefore affirmed. Eudkin, C. J., I'ount, DunToar, and (Jose, JJ., concur. ,.•:;.• Fullerton, J., concurs inr'^ihe result. t — - ~^ y. — , v-^i Chad\;ick, J, (disr.entia^r^ — I cannot agree \/ith all th?A is said in the majority opinion of thp court. To hold that an- admjndntratibn of an undivided lia^^f of community property may "be had feo the e::clu5ion of the o otlier half in contrary to the settled law and the accepted p-cactice in. this state. While the coramunity is perforce dissolved by the death of either sp.ouse, the property remains gn. ontHJy • The dissolution of the- •■ community relationship does not operate to divide or partition the estate. Konce th^' court cannot t alee jurisdiction of the .undivided half. It must taJre jurisdiction of the entire interest of the corammity . ■. If it under- tal:es to exercise jurisdiction over less than the whole, its act should he held to 'be void. The reasons for this rule are stated in Eyan v; Fergu- son, 3 V/ash. 356, 28. Pac. ..910,'anQl.'iieed not be repeated here. Pur'tlier, -it seems to me that that' part, of the, foregoing decision vihich; .ass-umes to hold that the adininistration' o-f one-half of the cora.^iun- ity interest is a mere "irregularity is entirely unnecessary to sustain the judgment of the court, and may ' lead 'to'"uatold confusion of titles. The trial court fcas a court of equity exercising general jurisdiction and had all the parties before it. The minors ■v/ere represented by a guardian ad litem. They v/ere bourd by the judgment q^uieting the title in respond- ent. If our judgment was based upon this ground, ho'.vever, no costs should be ta::ed against appellant, for tte burden of furnishing a good title v.as upon respondents, and .this.they could not do in any event until it had ■ . been judicially determined that the heirs of Z. B. Karris liad T;aived their: interest in the property. If the judgment is to be af finned it should i^ot be upon the ground that the probate proceeding was svi^ficient to conclude the interest of tiie heirs, but because tlfe minor heirs, being in court by their guardian ad litem, had allowed their day to pass vdtHout asserting their interest. ' . .mother ground upon which the judgment uf the trial court can proper- ly be affirmed is that appellants- had estopped themselves to question the title offered, as suggested in the concluding part of the majority opin- ion. I conctir in the result ~ - Parker, J. — I concur in what has been said by Judge Chadwick. . Morris, J., took no part. 338. SUB et al. V. EILLINGIOH. (ITo. 12,813.) (Supreme Court of Louisiana. June 21, 1898.) (50 La. Ann. 968) Appeal fran judicial district cairt, parish of Avoyelles; E. North Cullom, Jr., Judge. Accounting; oi lirs. Ella Sims, -./ife of W. H. Jac]:son, v/ith Anna Bil- lin^ton, v/ife of Charles L. Younger. From the judgment, Anna Billington appe als . Rev ersed . Tliis suit involves the settlement of the tutorship of Anna Billing- ton, wife of Charles L. Younger, ty her mother, Ella Sims, nov; vafe of "illiam K. Jaclison; the said Jac'.rson acting- as co- tutor vdth his wife. Incidentally connected -./ith tiis suit is the settlement of the community of acquets and gains v,hich e::isted betv.Ben Ella Sims and her first hus- band, George V.'. Billington. George ",7. B illington and Ella Sims '.^re mar- ried on March 10, 1876. George Billington died in April, leaving one child, Anna Billington, issue of his said marriage. The vddow, Ilrs. Ella Billing- ton, married V/illiam H. Jackson in Febi-^ary, 1881. Up to that date no steps Yhatever had "been talien to-./ards opening the succession of George Billington, the widow having talsn posu-ession of all the property without legal proceedings. On the 28th of September, 1883, she filed a petition, in Y/hich, after reciting her second marriage, and that she had thereby forfeited her right to the natural tutorship (she not having, prior to said marriage, tal:en legal steps to retain the same), phe prayed that a family meeting be convolred, looking to the appointment of a tutor to the minor, Anna. The meeting was held under order of court;, and recommended that the mother be appointed tutrix, and her husband cu-tutor. The court so ordered. On the application of the tutrix an inventory was made in September, 1883, of the property belonging to ard dependent upon the suc- cession of George Billington and the comm-onity between him and his wife, Ella Sims. On this inventory the "home property" was put dov/n as being the separate property of George Billington, no allusion vhatever being made to the residence building upon the same. The property vras valued at $400. An engine was also put upon the inventory as separate property, be- ing valued at ^300. An item of $523.55 was also placed upon the inventory as separate property, that amount of separate funds of the deceased being declared to Imve been received by the widow after her husband's death. On February 10, 1897, the minor. Ella Billington, married Charles L. Younger. On the 13th of April follov/ing, I.Irs. Younger prayed that her mother tod stepfather be cited and ordered to file an account. Before doing so the m5ther and stepfather filed a petition in vihich. they averred that the inventory was incorrect in some particulars. They prayed that a new inventory be talosn, and it was ordered, and a new inventory was talcen. On this inventory fhs engine, \'diich had. figured before as separate property, vias made to appear as community property. Tne home property v;as still put do\Ti as separate property, and valued at $400, but the residence and out -houses upon tliat propertj'- were put do- n as belonging to the com- munity, and valued at $600. A certain store building on that property, valued at $460, which Jacl^son had erected on the home place after his mar- 239. riago, was declared to forei no part of the property either of the succes- sion of Billinston or the c orrniuni by , tiut to belo^ag to the coiimunity ■bet-.veei Jaclcsaa and his wife. Tlie item of i^6?.Z.53 V7as drop:i?ed entirely fron the inventory. Anna Billing':cn's rjrandmother Rachel Billin^ton died, leairing a vdll, \*.ich lap^'ed "by reason of the renunciation of all ri:;hts thereund.ir Tsy the universal legatee. A suit was then hr ought in hchalf of the minor, Anna Billington, hy hGr !tiOther, as tutrix, and hor stepfather, as co-tutor, for the partition of that succession hctween joina Billin^ton and her aunt IJrs . Hardie. A partition in kind was ordered to be, and was, made. No mention of the deqts of that succession was cade at the partition. Tlie mother and stepfather of the minor tooli possession of the property allotted to her, to wit, tv;o traots of land and sons movahles. Mrs. Ella Sims (wife of Jac!:son) and Jaclsion filed an account, under the order of the court, tliro-ogh v/Mch was sou^it to "be finally settled said liquidated all rights which the minor h-ad in ':!•£ separate estate of her father in the cormtaunity l3et\/een him and his wife, anl in the succession of tl-je grandmother Rachel Billinstcn, and to ascertain and terminate the respousihilitiec of Jachson and his wife as tu^ri:: and cp- tutor of Ilrs. Younger. Ijs . Younger opposed the account in various particulars. She specially resisted the claim that either the engine referred to, or the "buildings upon the home place, "be- longed to the community. She insisted that her mother and co- tutor should "be charged \/ith the value of the engine and interest, and with the item of ^^523.55, \ath interest thereon from the date of her mother's second mar- riage; that they should he charged -with rent of the home property at the rate of ^200 per year, and interest thereon, the rent to "begin at the date of the second marriage; that they should he charged witli the value of three horses and three cov;e and calves, with interest thereon. Clie opposed a charge brought against her for "board, tuition, clothing, etc., at the rate of §75 a year from the date of her mother's second marriage, aggregating $975, and^ the claim made as for taj:es paid on the property belonging to her. She opposed all claims advanced as for debtia of her grandmother as havjng been paid by her stepfather; also, all legal costs and charges and commis- sions. She opposed the claim advanced for premiums of insurance paid on the home residence. The court disallowed the charge for O^^S' for board, tuition, etc., and strucl: off from the account an amount of §655 for which accountants Inad charged themselves as for the rent of the home place since the date of tlie seconS. marriage; holding that the use by Jaclcpon and vafe of the part of the home p]ace other than that on \-hich the store had been btiilt was remuneration sufficient for all clains for board, tuition, cloth- ing, etc., but that rent v;as chargeable for the use of the store site. It decreed, however, that, in lieu of rent for that portion of the ground, the store building itself, ^*lich was valued at $4.50, should l:e rade to belong to Llrs. Younger. It decreed that the tutrix should be allowed, as a charge against the minor one-half the value of the residence placed on the prop- erty of 3eorge Billington, and tliat an additional item oi $500 be cliarged on the final account against the minor. It decreed that the item a:?P^^.r- ing on the original inventory, of $523.55, and charged against the tutri::, could not be considered a legal charge against the tutriy; it being cocmun- ity property, and the same heaving been expended for ccrr/avnity debts amount- ing to $360 by the tutrix, and the remairder used for the support of the widow and minor prior to her marriage with Jacltson. It further decreed that the $300 vhich figured on the account as the price of an engine which the widow had sold were community funds, and should be divided equally bs- tvreen llrs. Younger and Ilrs. Jac!ison; the court finding that the engine had S40. "belonged to the coiiamunity. It decreed the homolo:,'ati on of the account as EO amended "by it, decroeiun; the costs to to paid lay the sixjcession- Ac- countants filed in court a conditional acceptance and acquiescence in the jud^.TOeiDit , "in so far as the decree accorded the store "building of \7. K. Jackson, valued at v'3--60, to opponent in lieu of rent"; tlie condition af- fi:ced Tseins that the judgpient as rendered shouM he accepted "by Mrs. Younger, or affirmed on aropeal^ the huilding to he talten as a suhstitute for rent. In case of reversal of the judgment, they reserved all rights to urge ovuership of the store. Mrs. Charles L. Younger appealed. Appel- lees answered the appeal, praying' "that the judgment of the lov/er court, disallowing ite;n 2 of tl-e final account aiaounting to $975, for e::penses of minor, and tlie item of $460, value of the store "building, separate property of 17- H. Jaclison, co-tutor, v;herein the said huilding was decreed to the minor opponent in lieu of rent, be amended hy allov/ing the said itei-as as charged on said final account, and, thus a-aended, said judgment he affirmed in all other particulars." V/illiam Kail and Joffrion u Joffrion, for appellant. J, C, Cappel, for appellee. Hicholls, G. J. (after stating the facts). An examination of the evidence in the case satisfies us that the engine v/hose price, after heing sold hy Llrsc Billington, was placed on the first inventory tal:en, as an asset of the separate estajre of her huslaand CJoorge Billington, was prop- erly placed there. There is some conflict of testimony as to the date of its pin-chase, but v/e think it v.-as bought in 1875, prior to Billington' s marriage. Tlie entry on the inventory remained unquestioned as to its correctness up to the time that the minor called for an account, and dur- ing the intervenirfe- period tte relatives of the minor specially faniliar with the facts of the case liave died^ Jackson and his wife v;ere both present -when the eatiy \/as made, an^. raised no objection when natters '.vere fresh, and disputed claims -.leve susceptible of easy proof. The court err- ed in decreeing the engine to have been community property, and the price thereof (OSOO) to be comiaunity funds, belonging one-half to the opponent, and the other half to her motl-jer. The engine vra-s tlie separate property of George Billington, and the entire price of $500 belonged to opponent, and tutrii: and lier husband W H. Jackson are chargeable with, and must ac- count for, said amount in solido. Y/e are of the opinion, und-er the testimony, as matters stand, that the residence building' upon v/hat is referred to herein tliroughout as the '■"Home Place," v;as erected upon it by Billington in 1878, after his mar- riage. There is considerable doubt as to whether the lianber out of which it was constructed, or a portion tliereof , did not belong to him prior to his narriage. Ilrs. Billington testifies that tloe funds v/ich \*iich payment was made v.Bre sums received by her husband for work done by him as a me- chanic after his i-narriage . Tliere was no attempt made to contradict that statement, and legal presumption supports it. Succession of Boyer, 36 La. Ann. 508. Tliere are several reported cases in our decisions \here the court has felt itself justified in inferring that improvements put up by a husband on his separate property during marriage, or paid for during marriage, and individual or separate de^ts paid for during marriage, v/ere paid tlTTOugh funds belonging to his separate estate; but the facts of cases of that cloaracter must be exceptional, to authorize us to act on such an 341. assumption. An interval elapced "between Billington's marriage and the erection of the house, lon^ enou^i to liave enabled h\n to realize eu:. :•'.•- oient money during the period to liave met the pj^rncntc called for; aud his meg,nc hefore marriase were not shown to have been so large as to al- raOGt uececcarily load uc to impute their uue:rplained disappearance to outlays made for the building. It is possible that the whole sum of $1,150.10, proceeds of bridge, paid at different intei-vals between Hay 19, 1876, and January 10, 1G80, toay have arisen frcm a debt due to Billington before his marriage; but no evidence v/as introduced to show the character of tbe contract under which they were paid, nor the time it -.vas entered into. Of the anount stated, ^^718 were received by Billington himself after his marriage, and the balance by his v/idov;. The facts of the case should h-ive been shown. Comparison of the facts of this case with tho.-.e of Succession of IlcCleiland, M La. Aim. 763, and Succession of Boyer, 56 la. Ann. 509, v;ill show the clear distinction between them, luider the evi- dence found in the record. Buildings and improvements placed by the husband on his separate property during marriage, oinid paid for with community funds, do not be- come the property of the community. Tliey belong to the husband. But payments so made give rise to a charge in favor of the community against his separate estate. This claim is neither for the cost of the improve- ments, nor is it for the value of the buildicgs. In Ouccession of Koth, 33 La. ijin. 541, af finning llercier v. Canonge , 12 Rob. 385, v/e said that it was well settled tha,t the recompense due to the comm\mity is the en- hanced value resulting to the separate property from the estate at the date of the dissolution of the community, and that the result v;as reached by making an average of the valuations placed by all the several vri.tncss- es on the store, and land and store together, and on tine land or store alone. See, also, on this siibject, Dillon v. Dillon, 35 La. Ann. 95. The law governing the case is announced in article 2408 of the Revised Civil Code; as follows: "V.hen the separate property of the husband or ■ the wife has been increased or improved during the narriage the other spouse or his or her heirs slrnll be entitled, to the rev;ard of one half of the value of the increase or amelioration if it be proved that the value or ameliorations be the result of the common labor, e:rp eases or industry, but there shall be no rev/ard due if it be found that the increase is due only to the ordinary course of things, to the rise in the value of prop- erty or the chances of trade." \7e tmderstand that portion of the judgment, v/xiich decrees "that an additional item of three hundred dollars be charged on said final account against said minor," to f i:: 0300 as being the amount chargeable against the minor for and on account of the increased value of the home property on account of the building placed thereon, and appellees to accuiesce in the judgment to that effect; but appellant, having ta'.ren the grouoi that the "building was separate property, paid for out of separate funds, Iv^n not informed us w]-£ther, assuming that lier position be not accepted, acid that she be chargeable -./ith any poa-tion of the price of the imprbve'Ltnts, the amount fi::ed by the court would bo satisfactorjr to Iier or not. "'p therefore fi:: the anount, as ^/e understand it to have been fi:ied by this lower court, at $300. Accountants are entitled to repajTnent for tases paid on the properl'y 342. ■belongins to the succession of Billiu^'ton after Ilrs. Billinston's second marriage, tnt the evidence in the record on that subject is not clear -■-id at all catiGfactory to us. The ta:: liillr are mad'^ out mostly in the irjae of OaclcEon, and the ta::es upon the different properties are so rr-erged to- gether tod confused that we are unable with pn^ciaion to fix how much vas due by the succession. Accountants c;hould, iDofore malting out their ac- count, have separated the taices so as to show beyond question what partic- ular portions of the ta::es were due upon the property of tiie succession, and by proper evidence shown the correctness of the separation as rrade. V/e cannot be e:rpected to make calculations and detail v/orl: of tiiat char- acter. The itans of teases must be held not proved, ard the judgnent sus- taining thera reversed, and the matter is left open for future examination and decision. The legal charges and costs and attorney's fees incurred by account- ant in the matter of the succession of Gecrge Billington cliould be divided betvreen the minor and siccountant equitably, according to the extent of the Interests of the respective parties, as announced in Succession of Webre, 49 La. Ann. 1491, 22 South. 390, as the settlement of the husband's suc- cession carries vith it the settlement of the community in vhich account- ant Ilrs. Jackson is interested; anj?^ cost incurred for the special benefit of one or the other of the parties to be charged to that particular party. The costs and attorney's fees incurred in the matter of the succession of Rachel Billington should have been paid equally by Ilrs. Hardie and the minor, Tlnna Billington. The jiaigment cliould be, and it is hereby, reopen- ed on the subject of costs and attorney's fees in both successions, to be talffin up and disposed of de novo in the district court. The tutor is en- titled to 10 Iter cent, commissions on the amount of the revenues of the minor, not upon the amount of the property or of the property and the rev- enues. A comparison \-ath the revenues as shovm by the account when homol- ogated will fix the amount of the commissions. Under no circumstances could the expenses of ttie minor for board, clothing, tuition, etc., exceed her revenues (Rev. Civ. Code, art. 350), so as to leave a debt hanging over the minor at the termination of the tutorship, which, being enforce- able, would, if she v/ere not prepared to pay it; in all probability sac- rifice her property and ruin her. The lawnalter contemplates that expenses of this character should either be met as they spring up by talcing from the minor's revenues or from his capital, by authorization of a ifiamily meeting, under article 350, Rev. Civ. CodO; or that they be not permitted to spring up at all- The minor's "revenues," under this rule, must be taJcen to be x-fhat remains each year after the payment of taxes of that year. Accountants have cliarged the minor mth $975 on this score. Tlie evidence shows that all the parties are in very moderate circumstances, — the stepfather Seeping a small country store, built by him upon a 10-acre tract of land belonging to the minor; and he and his \afe (opponent's mother), their four children, and opponent herself, all lived together in the residence built upon the place during tloe first marriage. Opponent is Ehovm to have very s el don loft her home, and it is fair to presume that her v.'aats were Email, as were the eirpenses incurred on her account. Liv- ing as an inmate of h^r own home, vath her mother, stepfather, and her half brothers and sisters, younger than herself, she Mac very naturally called upon to perfoim, and the testimony Ehov;s that she did perform, serv- ices of variovTE lands, such as a frraily so circumstanced would be likely to need from a momber of the family. T7ith that factor present, it is e::- 34-3. ceedingly diffictilt to sau^e the propai- e::tent of any clain to bo ■b:xT:'-'':t against hor by her parent n. Eie difricu?.ty in the case is in'^reat.1-?--. \; ■ there beins a conflict in the testimony as to the ft-stent and coiit-itii-,::<:j of the cervices re-xlered by opponent. Ceveral decisions have hcid that no charge whatever should be made against the child, as between her par- ents and herself. It is intimated that a stepfather, standing in lieu of a parent, should govern himself, and be governed, by tte same rule. Cuc- cesEiou of Bojrer, 06 La. /jan. 511; Succession of G-rosc, 23 La. Ann. 106; V/allcer v. Barro-.?, 4S La. Ann . 857, 9 South 4-79; Succession of 3utton, 20 La. Ann. 151. One brother, even, '..ho has boarded and given tuition to another brother, is supposed to have done so from feelings of natural af- fection, in the absence of special circumstances calculated or going to shov; the contrary- Verret v. Belanger, 6 La. Ann. 109. Accountants have made an "estimate" of what they consider proper to be charged to the minor, but have not given the data upon vMch tliat estimate is based. T.hat have been the revenues of the minor? The only amount -..hich had tdien definite shape up to the time that the judgment of the district coui't v/as rendered was the amount received by accountants from rent received from the prop- erty vhich fell to the minor in the partition of the Reichel Billington estate. The only other source of revenue is the' rent of the home place, the e;:tent of vvhich rent is one of the natters in litigation in this suit- On the account filed June 21, 1897, accoxmtaats charge themselves v/ith $455 as rent for that property since 1883, or less than $35 a year. 2he court substantially fi::ed it at about ^?920, or about C}75 a j^ar; compen- satirg all of tl^at rmount for board, etc., e:xept the sum of §460. This would fi:: the e:3>euEes of the minor at about ^30 per year for the corres- ponding time. V/e thinl: tliat a reasonable rate, if that amount should be found to fall vathia the minor's revenues, "'e thinli. hov.Bver, that the rent of tlie home property is filled at too low a rate. It consisted of 10 acres of land, upon part of which Jacl^s oi, after his marriage, constructed a store, v/hich l:ie has used ever since, a fair dv>-elling (with four rooms and a hall down, and t\X) rooms up, stairs), a couple of sta'^les, and out- buildings. V/e think the rent of property of that character in the country should certainly be worth at least $150 a year. Opponent complains that accountants should liave been permitted to have brought into their account, and l:iavG considered by the court, any matters connected v/ith the succession of Rachel Billington, in \,fliich she accuired an interest during the tutorship as heir of her grandmother. The minor being under tutorship v,hen that succession opened, the tutors of the minor, finding a vd.ll of the deceased in existence-, detrimental to oppon- ent's interests, came to an amicable settlement with her aunt (her gTand- mother's legatee), by which the latter renounced all advantages under the will, and consented to talce the succession -..ith the minor, share and share alike, and to have the sarne partitioned. Opponent brought suit for that purpose, and the property of the succession v/as divided in kind, riie tu- tors, as such, took possession for the minor of the property so allotted to her, and irrere boucd to account to her for- it at the termination of the tutorship. They placed the same on their accounts, and ujidertooi: to ac- coimt for their administration of it vhile tutors; charging themselves v/ith certain revenues, and crediting themselves vath various amounts, "hether their account in respect to these ra-tters be correct or not is a different matter from their rigjit to present their gestion as to this par- ticular property as a part of their genai-al account as tutors. V/e think 344. they had the ri^'ht to so present them subject to contest. Opponent complains that the tutors should have paid any portion of the dehts left by Bachel Eillingtou. v/e see no ground for complaint, if the debts were duo, and the tutors paid for the minor no more than v;hat was really her share of the debts. Article 1371, Rev. Civ. Code, declares that in a partition no partition is made of the passive debts of the suc- cession; that each heir remains bound for the share he takes in the suc- cession. The debts of the succession of P.achel Billi3:iG"ton -were small, in respect to the value of the property' received by the heirs. Opponent claims that the tutors paid a larger proportion of those debts than the minor was liable for; that thejf paid in eitirety some debts, instead of paying thjs minor's virile share. There seems to be come ground for tliat complaint. Some of the ta::es paid seem to have covered property othijr than that recc;ived by the minor, and the mortgase note paid by the tutors seems to haye beai Paid in full, instead of by contribution. As this case will have to go back, v.e think it best to reopen the matters connected with the settlement of the r;achel Billingtou succession, and leave them open for future e::araination and decision. Opponent complains that accountants shpuld have been permitted to establish by testimony the anount that r^rs. Billington had during her v/id- owhocd paid out for debts of the community, and for the support of oppo- nent and herself, — the 0^25 v3iich appeared on the first inventory, — as they did not place the aaounts so er^pended on the account, so as to notify her of professed proof on the subject. She insi£|;s, hov/ever, that this amount of $523 was correctly admitted in the first inventory to belong to the separate estate of her father. The amount in question seems to have been received by Ilrs. Billingtdn, after her vadoviiood, from Ilr. Har- die, as part of the "net proceeds of the bridge." They are that part of the proceeds of the bridge v.^iich v.ere turned over after Billington's death to his v.ldow, the other part ]aaving been received by himself during hie lifetime. The fund was that which we have already referred to as hav- ing to be talcen as a community fund, in the absence of evidence to the contrsjry. Y/e must so consider the pa:rt which was turned over to ra-s. Bil- lington. Y/e think the amount v/as erroneously placed on the first inven- tory to the credit of the husband's separate estate. T/e think that the matter of the e:cpenditure of this amount should be reopened, and left open for future e::amination.and adjustment. Opponent vsas not notified that it would be the subject-matter of litigation. Tlae court erred in decreeing that the store building erected upon the home place by XL H. Jackson should be talcen by opponent in place of rent. The ownership of the building v;as in Jackson. Ke could not be made to lose, or opponent be mac'e to accuire, the ownership of the same, vathout their respective consents. If rent should be found to be due by accountants, it will have to be paid by them, unless compensated in some legal vay. V/e think the charge made for repayment of insurance premiums paid on the residence building on the home place a proper one. Accountants should be charged for all movables converted by them. 345. wjtji le^al interest from date of conversion. V/e think the "best method of disposing of this case is to reverse the judgment of the district court, and to remand the cguse to the district court, vath instructions to Ella Sims, v/ife of XI. H. Jackson, and y. H. Jackson, to file a full and final account of their aximini strati on as tutri and CO- tutor of Anna Billington, mfe of Charles L. Yovinger, in conformity with the views herein expressed; and it is hereby so ordered, adjudged, and decreed. Costs of appeal to be paid by appellees. On Application for Rehearing. (June 30, 1898.) Breaus, J.— Plaintiffs and appellees in their application for a -re- hearing set forth that this court erred in allowing in favor of the minor, against the tutor, $2,250 as rent of the home place, in the succession of George Billington, — being $150 per annum for the number of years stated, — and in allowing against the minor only $450 for ST;s?port and care for the same period as just stated. As to the foimer (the .';-;2,250), v/e yield as- sent to plaintiffs' representation to tliis e;;tent only. '7e rescind that part of our decree heretofore rendered allowiQ£- the anount of $2,250, as just stated. Having rescinded that part of our judgment, we leave the question open for future adjustment. All rights of the parties as to that amount are reserved. Evidence of plaintiffs and evidence for defendant may be heard as relates to the amount which should be allowed as rental for the place identified as *'Home Place," occupied as shown by the evi- dence. .Ifter the evidence vvlll have been heard, the matter v;ill be fix^d by judgment, and the plaintiffs and appellees will be charged up mth this rental the sum which may be found due. V/e desire to have it vrell under- stood, upon this point, that it is left to future adjudication, and that it is the only point in regard to \^aich vre make a cliange on this spplica- ti on f r a rehearing . The next grotind of objection (numbered 2 in the application for a rehearing) is that an error vas committed in our decision, in decreeing that the engine and boiler, valued at $300, are the separate property of the minor. "Je have given further consideration to the facts bearing upon this point. T/'e are firmly convinced that as to this item our decision is absolutely correct. It must, in consequence, in this respect, remain un- changed . The Ee::t ground of applicants for a rehearing is numbered 3, and sets forth that our holding that the tutor had paid more than the minor's share of the debts of the succession of Rachel Billington was error. This was only left open for future hearing and determination, so that complainants have on that score no cause to find fault, as the question is left open, a^d ip not affected adversely by our decree. The next ground of the application (nvmibered 4) asserts that there v;a£ error on our part in our having decided that the tutor had not sho\7n, suf- ficiently exact, the amount of taxes paid for the minor. \7e thought, and still think, that an account should be made out of these taxes, showing amount of taxes paid for the minor, and that it should have the support of y r y ^ ^ :> t >-> t^ ^ 346. cufficicnt evic.ancG to renf.er it entirely certain thct tlie tozicz cloarsed './ere paid for the minor Fifth, our reopening t'le quostion, aixL permittinG evidence as to item of $523.53; is conplained of 137 appellees . It is asserted that the vri-dov/ expended this sum for debtc and s-^ipport of liercelf and minor prior to her second n:)arria^G . '.Ve rci^anded tho case, ac relates to the question here, on the groxind that further evidence chould Tdo intra-.iced in cup^^ort of the claim, "e do not thin: that as to tiis item v/e should rescind our judg- ment. A minor is concerned. Ue thinh fvcrther evidence can \Tell "be offer- ed in cupport of this claim. Lastly, as relates to the costs of appeal a question is also raised. Uhere a judgment is reversed, as in this case, they are due hy appellee. ITothius talces the case out of the ordinary rule. After having rescinded our decree only as relates to the item of rent- al ($2,250) as above set forth, v.e refuse the application for a rehearing. The amendment v;e l^ave made could, in our view, te rrade on the application for a reloearing,, and vathout ^'^anting a rehearing. 347. V;OLP et al. v. GiEBBOHS. (Court of Civil Appeals of Texas. June 4, 1902.) (69 S. V/. Reportor, 238) Appeal from district court, Lau Sata county; II. D. £lator. Judge. Action by -Chc-rlec v/olf and others against V/. H. Gibbons. From a ^ ju§gmoat_fiir__de£endant for a portion of the lands in contfroversy, plaintiff appeal. Affirmed Fisher, C. J. This is an action of trespass to try title by Charles ' 'Volf, .'jnelia P. V/ithro,/, and Carrie Chev; a^i^iiist V.'. H. Gibbons, for th« recovery of 246 acres of land in San Saba county, located in the name of Frederick Loci-: (certificate Eo. 434, abstract Ho. 841, survey No. 150). Defendant answered by general denial, plea of not guilty, statute of 10 years' limitation, and cross bill alleging that he was tlio legal and equit- able ovner of the land tued for. Tne case \/aG tried before the court, and judgment rendered for Carrie Che\/ for one-eighth of the remaining eastern portion of 167 acv.iss, and, ac to seven-eighths of this 167 acres, judgment was rendered for defendant against >7olf and T'ithrow undor the plea of 10 years' limitation. The judgment of the court contains this recital: "And the court, liaving heard and considered all the pleadings and evidence and argument of counsel, finds and concludes that plaintiffs have shown and established a chain of title to the land in controversy from the sovereignt" of tl::e soil dov/n to and in themselves, but that the defendant has acquired a part of said land, as hereinafter described, by virtue of the statute of te:i years' limitation." Tlie judgrcent then proceeds to decree to the defendant certain describea lands,. There is evidence in the record which sup:^-orts bo*: facts thus stated as found in the judgment of the trial court; that is, tha^: the plaintiffs have the superior title, and that the defendant has limitat- ion, under Gie 10 year statute, to the land described in the judgment of the court. In disposing of %'lTat appal lants term a "fundaiTiental error," v.e are of the Oj..dnion that the plea of liriitstion %vas sufficient to authorize the ju^g-ment of the court. Cur findings of fact dispose of appellants' first assignment of error. The evidence was sufficient to show a continuous and e::clu£ive adverse poscesLion in appellee, so as to i-rotect hia under the •10-year statute of limitation. We do not think that the appellee's first cross assignment of error is v/ell taten. The follov/ing ststement is taken from the statement of facts: "Deed by Ilaria Lock, surviving wife of Frederick Lock, deceased, to H. F. Fisher, da tec arx' duly acloiowledged in Karris county, Te:;a£, Ilarch 5th, 1853, conveying survey no. 150, district Ho. 2, in Fishor i I!illei's colony, and £t<:te of To::^::, by virtuo of he;-.clright certificate for 640 acres issued to Frederick Lock by coiTinissioner of Fisher tliat the land in question v/as of the community estate of Llaria Lock, and her de- ceased hushard , Froderick Lock. It was patented to Frederic'-: Lock August 28, 1857. The heacright certificate by virtue of -hich it v/as locatea, of course, was acquired prior to t'lis time. The surviving wLfe ha,ving sold th' land, the presumption \all be indulj^ed, in viBT/ of the antiquity of her con- veyance, that the salo was made for the purpose of satisfying cornmunity deb'. ■ Hencol v. Kegans, 79 Te::. 547, 15 S. \7. 275; Auerbach v. V/ylie, 84 Te.:. 619, 620, 19 S. r. 856, 20 C. ' '. 776. The ruliij^ that vc have jus't made also disposes of appellee's second cross asEignment of error. If the sale "as made for the pr.ard." Zach- maun v. Zaclimann, 201 111. 380, 66 K. L. 256, 94 .im. St. 180. "Komestoad is a right secured by statute to every householder h.^viog' a f-.iinily, cjnd by a recent statute it is an estate in the lot or land ov/n- ed or occupied by such party. It is continued, after the death of such householder, f cr the benefit of tho husb nd or v;ife surviving, so long as he or she continues to occupy such hamestead, and of the children until the youngest child becomes fw'enty-one years of age. The e::emption is absolute, e,:cept it is alienated in the mode prescribed in the statute, ;nd no re- lease of homestead is valid unless by the parties intended to be benefited, in coufoimity -.ath the la-w that confers pov.'er to alienate it at all. The policy of the la.- is, aa this court has had frequent occasion to declare, to preserve the homestead for the benefit of the family, as veil as the householder himself. The statute was no doubt enacted fror.i motives of pub- lic concern, anc it is apprehended it is not ±n the po.'er of i^hs fathor and motiior, by an 3nte-nu:,.tii.l agreement, to so provide as to deprive their minor children of its benefits in case of their death. McGee v. McGee, 91 111. 549. See, also, .-chillos v. Achilles, 137 111. 589, 28 H. E. 45; ihelps v. ihelpL, 72 111 545, 22 .Im. Rep. 149. In Hann's Estate, supra, it is said: '•neither can lier covensnt not to claim homestead,, operate as an estop- pel on her tight of homestead. Tlie plant iff is claiming the homestead, -.vhich tlie statute vests in her, Ker covenant not to do so is er.ecutory. -■. party ca-inot bo restrjinec, by v;ay of estoppel, from asserting a statu- tory rijit, because it is in violation of zn e:cecutory covenant, neither 355. CCA such a covenant "be sit up, and given oper-i.t iou by '.'ay of rebutter, to bar the assertion of the homesteau right of tlie "^^laintiff. Gibcon v. Gib- son et al., 15 IlacG. 106; rullin.jS v. Hicliraond et al., 5 Allen 187." This ic tlic rule ^avei-nin^' an ante-nuptial contract. If the contract was mado after- rfarriaj'o the vadov; hac: an interest in the jroijerty, either an absolute fee, if it mcs coranunity property, or a c^ualified estate or rijht of occupancy for a limited time, if it was seijarate property that could pats onljr by deed ercecutcd -.vith the formolities required by statute. Rem. 6 Bal. Code, Sections 8745, 874-6 (P.O. 143 Sections 1, 3); Ilcllaliill V. McIIahill, 105 111 596, -1-4 Jjn. Rep. 819. In principle, our reaconins is sustained by reference to our decisions Holding that the v/aivcr by a debtor in the instrument croatin;:' the debt of his ric;ht of redcuiption is contrary to public policy. Dennis v. I'.osos, 18 V.'ash. 557, 52 lac. 51 j, 1-0 L. R. A. 502. The vitality of Rem i: Bal. Code, Sec. U64 (P. C. 409 £oc. 325), pro- vidin^,• for the j^ettin^- aside of estates of less than vl.OOO has, in vie^7 of the homestead la • of 1895, Ia-..'S of 1895, p. 109 (Rem &, Bal. Code, Sec. 528 et seq.; P. C. 225 £ec. 1), been doubted by many careful and learned. members of the bar, aid has been mooted in at least one case decided by this court, Ete-..ln v. Tlirift, 30 'Vash. 56, 70 Pac. 116. The statute has never been repealed, unlesc by implication. A recort to the rules ^overn- ins repeals by implication, and the ixany decisions of our court that cmh repeals are not favored, aid that la\.T '111 not be held to b-j repea.led by a later act unlets tlu repusnancy is so plain that an intent to cover tlic whole subject-matter of the later act can be attributed to the lesislature. ",7e have e::aniued Sec. 1464 and the act of 1895 \.'ith this thought in viev/, and have d.ecided. that they are not repugnant one to the other. The act of 1895, in so far ac it deals vdth the right to select a homestead af ter cthe death of a spouse, refjrc to real property only, whereas. Sec. 1464 is in- tended to include the whole estate. Lection 1404 seemc to have been in- tended to apply only in cases where it appears that there is no property of sufficient value to satisfy the limitations of the homestead and ei:- ea^Jjion rights. ..t tho ti;io the statute v;at enacted and amended, ihe value of the homestead allov/ed under the se^ei'al lav/s was fixed at ClfOOO. Be- sides the policy v/hich prouipts the public to provid.a for the care of the dependent \/ido"..' cjid children, there is another policy appsTeut in the statute; that is, to clear the records of small estates when no purpose •w-ould be sei-ved by cn-adiMinistration. It is said that the estcte shall be set a^ide "and there shall be no f^irther proceedings in tie administration unless further estate l^o discovered." ;.lthou:;^i doubted by counsel, ^q cato In re ITeff's Estate, 159 C al. 71, 72 lac. 652, seems to be in :,oint. It ic tliere said: "In the case at bar, the court, in malzins the order appealed frcm, v/ac not cottin,]; aside a homestead, nor d-ealin^ \.'ith the subject of homea^ steads. It was a proceedinG' under sectioni.1469, •..'hich specifically deals with the special subject of est; tes less in value than 01,5000, and pro- vides that the -whole of such en estate shall go to the -.ido-..', subject to existing lions and encumbrances. Hie claim to the land in question vhich these appellcats set up ic not a claim to a'lien or encumbrances'; it is a claia of o-.nershi.^j or title. Talcing all the code sections together, and considering the regard -.hich tlie la\/ has for tlie interests of tbe family. ' -^-^Z^^^ZS^^^hc-'^u^ , *-'£^'-t/-<-*!»^CC<-f ^ /^ i 356. it was clearly the intention of fhe legislature that ci-nall estates under $1,500 shall go immediately to the family without further administration." It ic further contended that Sec. 14&4 is atnorcious to the constitut- ion, art. 2 £ec. 19, in that the title of the act of 1891, Page 380, is in- sufficient to sustain it. The title of that act is, "An act in relation to proceeding's in probate, amending sections 1299, etc., of the Code of v/ashiugton of 18S1 and repealing sections 625, etc." Section 23 of the act of 1891 is the sccie as Sec. 1459 of the Code of 1881, v/ith this e::- ception; that the Si-iount of the estate TLo be set apart is changed from ^500 to ^1,000. Other e-.isting stctutec were amended in the same act gen- erallj'' by reference to the particular, sections amBnded, and appellants contend that the title of the act co far as it refers to proceedings in probate must be read in connection with the enumerated sections of the Code of laei. State e;: rel. Arnold v. riitchell, 55 Wash. 513, 104 Bac. 791, is relied on as authority. That case does not, in our opinion, go so far as to hold the title under consideration insufficient. In that case, a Eubject-cQatter \v'as treated that was \;holly foreign to anything suggested in the title, v/hereas, the title in the present case is sufficient to sus- tain any provision germane to the subject "proceedings in probate." Finally, it is contended that no title vested in the widov/, in virtue of the order of ti:ie cairt, to the property set aside only for her use and support. "The whole estate" is set apart. The statute does not arsunie to put a limitation upon the power of sals, and in the absence of legislation, it is clear that \ra cannot. Finding no error in the judgment, it is affirmed, ^ Chadwick, Parker, Gose, and Mount, JJ., concur. ~ y O f ^^—y^ , / J. "r- j 'i 357. lu the Matter of the Estate; of Ellen K. Kill, Ueceaces: STEV.'.JIT E. SIUTH, Administrator, Respondent, v. ELISIL\ P. PERHY et al., E;:ecutors, Appellants. (6 V.'ash. 285, 1893) Appeal from Eupe_ lor Court, KiD£- County. The opinion of the court v/as delivered by Scott, J. — The respondent filed his petition in the probate depart- ment of the court "below, praying- that the appellants, as e::ecutors of the last will and testair.ent of George D. Hill, deceased, bo ordered to render an account of tho community estate of Ellen K. and G-eorge D. Hill, both deceased, am!, to surrender up and deliver the same over unto the said pe- titioner to be administered -by him as the adrainicT;rator de bonis non cum testpraento anne::o of the last v.lll and testa-ment of Ellen K. Kill. To this _etitio5 the appellants demurred, aid the demurrer bein^ overruled and aji order being entered in favor of said petitioner as prayed, appel-* lants elected to stamd thereon and have perfected their appeal from said order to this court. The facts as shoMi by the petition and confessed 6y the demurrer are briefly stated as follo\/E: On th3 14th day of February, 1887, Ellen K. Kill died testate at the city of Seattle, -here she had for irany years re- sided -^.Ith her husband George D. Hill, and \*iom she appointed executor in her will. On the 2d of IIove.->bGr, 1887, upon the petition of her husband, said ■'/ill \;as d.uly admitted to probato and recorded as the last -.all and. testameiat of said deceased, and certificates of such probate and record "./ere granted and lecorded as recuiref. by la./. George D. Hill qualified as such e::ecutor, and letters testamentary were issued to him out of said court on the 12th day of Hovember, 1887, and he thereupon entered upon the discharge of hir. trust as such ei'.ecutor, and so continued until the date of his death, to \.'it, on Decomber 4, 1890. In the meantime the said George D. Kill had proceeded gith the a^jninistration of the said estate, and had Partially adi::iinisterod and settled tho samo, aiil h;id partially administer- ed the community property v/hich belonged to th:; estate of said decedent and her i:a.id. Imsbcind George B. Hill. ITo stops v.-ere talasn to give notice to the creditors of tiie said couinunity, or to bind than in any..lse by the proceedings had in the administration of ttie estate of said Ellon K. Hill. Upon the death of George D. Hill, his ti'ust as e::ecutor of the last will and testament of Ellen K. Hill ./as left incor^^lete and unfinished. He left a /ill no.Tanating the appellents as his e::acutor£, and the said -.All was after^./ards, in the month of Dece.-.-ber , 1890, duly admitted to probate in the tlien prob:.t3 court of King county, and letters testamentary ./ere duly and regularly issued to thess appellants, v.ho, having regularly c ual if ied, ^en- tered upon their trust as such e::ecutors, end have ever siiacs been, and- still are, the daly qualified and actii^- aiecutors of the last -/ill and tcstainent of IItb said George D. Kill, decoased, sad their letters have never been revo".:ed. Said G::ecutorE thereupon entered into tl2B possession of all tha property in tlae hands of their intestate at the time of his docoasG, -..hich embraced a large a;aount of community property of tthe said Ellen IC. and George P. Em, and. tlie s.5parate property of Ellen Z. Kill 558. not disposed of by George D. Kill in the progress of the adniaistration of her estate. They thereuioon, aiid more th£ii a year prioi- to the filing of the petition of res:.Jondent in the court 'below, imbliehed notice to credit- ors; and the creditors of the estate of the said George D. Hill, and of the conjrnuaity estate of the raid George D. and Ellen IC. Kill, have filed claims against Scid estates -..'ith said e::ecutors, amountiiOe to nearly one hund.red thoucauu dollars, the greater portion of vhich are asserted by said claim- ants to be coiTTiJiunity debts and binding ^xjQ^a the community estate. After- v/ards, on June 30, 1891, letters of adminiBtration de boais noa of the es- tate of the caid Dllon K. Hill, '..'ith the vail aane;:ed, ..-eve granted ^y the EUiJorior court of King county, ?Jid duly and regularly issued to the ipeti- tionor Etev/art E. Smith, v/ho gvcv since has been a^ still is the duly ap- pointed ani qualified admiuietrator de bonis non, with the -.111 anne::ed, of said estate. (Tho appell?ntc, as e:cecutors of the said last \/ill ani tect:jnent of George D. Kill, hold the possession of the separate estate and the cowjunity ostats of Georgcj PI and Ellon K. Hill, deceased, and arc pro- cecdiug to acjainister said community estate, snd hr.ve already dis.:'0sed of a large portion thereof in the regular course of administration, claiming tho right so to do under provisions of Ihs will and the direction of the superior court ofiisaid county sitting in probate. Her separate property had been delivered to the petitioner before the instutution of tliis pro- ceeding. On the 16th df t)Qoember, 1692, the petiltioner served upon appel- lants a demand in --Titing requiring them to sm-render up and deliver over to sf-id petitioner all the property azd assets v/hats'oever belonging- or per- taiaii-i- to the raid coaauaity estate, but appellants refused to comply vath the said demand and still refuse so to do. In Ryan v. Fergussoa, 3 ■..'ash. 556 (28 xac. Eep. 910), ..-o held that upon thg de-th of either husbaod or vlfe, v;here an adrninistrstion VTas had of the GOiTSTQUiiity property, ths.t the sane should be of the -.hole thereof, and not merely of the lialf interest of tiie decedent, and ftiat tlie whole conraunity estate is siibject to adi-iiuistration upon tlie death of eitlier of the parties. "ihere the separate property of tiie deceased, 2nd the conmunit;' proper- ty of the deceased and the surviving spouse, is admnistered, the same should be Irept separate, for the separate debts of the deceaced v/ould be primarily a charge upon the separate property, a:nd the community debts v/ould be priaaarily a charge npon the comraunity property. In case there should not be enough of the separate i^roperty to pay the separate debts, the deficiency could bo made good out of the decedent's interest in the community property, sliould there be anythir^ remaining after the pajaent of the community debts, ani the same \.^ould be true ^.ith regard to cs. de- ficiancy of the comtiunity property, as after separate debts had been paid the remainder of the separate property ^70uld be liablS for the community debts so ranaining uapsid. However, where administration has teSnih-'^d of the separate property of the deceased, and the vh.ole of the community prop- erty,' or even only of the half interest of the community property belong- ing to the deceased, and the ssme has not been kept separate, but the prop- erty has been commingle:', indiscriminately, £ind the separate debts of the deceased and the commvinity debts have not been classified or Icept separate, but have been dealt v/itti in common as standing upon an equal footing again- st all of the property, regardless as to whether it was the separate proper- ty of the deceased or the community property, or a part of it, and the same 359. hac been allowed to go through unquestioned by the creditors, or any of •' them, or any of the partiot. interested, such administration at most would only be irregular, and not void, T7e are also of the opinion that administration rcay be had of the separate property only of the deceaced manber, if no more is required by the creditors, or by the parties interested. As to how far creditors of tho community \;ould be estopped tihero the coraraunity property is administer ed upoii the death of the \;ife, for instance, or where only one-half of tho conmunity property has been so administered, from thereafter present ins their claims against the estate of the husband after his decease, there may be some question, acd the solution of it may de:^end upon the notice given vjhero the claims were not presented during the first administration. If they were presented, tho parties v.ould bo bound by a participation and acquiescence in the adninistration. But a claim for a balance unpaid ow- ing to -a deficiency could probably be preserved. Regularly v^iere upon the death of either husband or vdfe administration is had of tho separate property of the deceased, and of iQie community property, a notice should be given to tho separate creditors of the deceased, and also to the credit- ors of the commimity, to produce their claims, etc. In case the debts against the community were contracted by the deceased a notice to his creditors would be sufficient to inclijde sugh creditors of the community. But this would not be true if such community debts were contracted by the surviving member, at least in the absence of actual notice. For instance, if the community debts had been contracted by the husband, as is usually the case, uj?on the death of the v/ife a notice to her creditors -..'ould not be notice to the creditors of the communits', but upon the death of the husbaxid a notice to his creditors would include tho creditors of the com- munity, for they could fairly be said to have had notice, the coranionity debts having been contracted iy the husband; and the rule \^ould hold good of course if the parties \vere changed in cases wliere the community debts were contracted by the v/ife. in this case, upon the death of the \.lfo, her separate property was, of course, subject to foe probate court for the purposes of settlement and distribution; and the same was true v/ith regard to the whole of the com- munity x^roperty of the deceased and her husband George D. Kill. We are of the opinion, however, that a husband or \a.fe cannot appoint an ei:ecutor to talB clx-rge of the community estate to the e:;clusion of the surviving spouse, but the survivor ijould be the only one v/Itd could question the samo. Such an ?ppointment '/ould be good as against all others. Al- thou^ in tlie administration of such ©states a separate account should be Irapt of the Gomaunit;'/ property and of the separate property of the decedent, yet, as a iratter of convenience an-, economy as well, the v.hole should be in the hands of the. same person for the purposes of administration. But this need not be so necessarily ac a matter of la'..', arc!, could not be, at least ordinarily, -.hei-e the appointment of tlie e::ecutor named by the decedent is not consented to by the surviving husband or vdfe, or \^ere the survivor does not \.'aiVG his or her ri::h'ts in the premisos. V/here the person named aa e::ecutor in the v/ill cannot, for tho reasons stated, be appointed to ta??B charge of the community estate, an administrator thereof should be appointed, to v;hich ^;pointment the surviving spouse, or the pert^on he or she might nominate, v.ould have preference. Sec. 900, Code I roc. Such 360, adrainistrator v;auld be ontitlod to the whole of the comiiunity eetate for the purposes of admlaictratiou. But the admiuistration of such separate estate of the deceased and of the conrounity property vould be one proceed- ing in the sense t3i2,t it would only be necesBary for creditors to present their claims onca« The deceased died testate, btrt she appointed her husband o:tecutor, and he entered upon the ddmiuistration of her separate estate, snd tlie Tirtaole of the coraraunity estate. Upon his death the orderly procedure ^/ould have been to have had. a settlement with his representatives, under Sec. 941 Code i'roo. -.hereupon the separate estate of Slleu K. Hill and the whole of the community ©state of said deceased parties should have been turned over to her representatives, as, she having; died first, her representatives were entitled to adininister the comnunity property. Lav/erence v. Belling>- ham Bay, etc., R. R. Co., 4 Wash. 664 (30 Jrac. Rep. 1099.) In this case the creditors, at least all of the coraraunity creditors, v/ould be barred by reason of the notice published, aud their failure to oTjject, from raising any question against administering th© community prop- erty in the settlement of the estate of George D. Hill. VfliethGr the credit" ors of her separate ©state could raise aay question thereover, in case her separate property v/as not sufficient to satisfy their claims, is more dif- ficttlt to determine, but it is sufficient to say that none of the creditors in this instance are complaining, and the claim of the petitioner rests up- on his sol© personal risht to administer the community prcrperty. it seems as thou^i it v/culd be incumbent on her separate creditors to move with dil- igence after receiving notice, to have the community property administered in the settlement of her estate unless they were satisfied to take the rislc of having their claims paid in full out of her separate property, and did not desire to preserve any ri^ht asainst the community estate for any deficiency that might result. It appears that the representatives of George D. Kill entered upon the administration of hia estate in the month of December, 1890, and continued the administration of the community property. Ho one objected to this, but said proceedings v;ere allowed to go unquestioned for some tv«) years, and until, the rponth of December, 1892, v/hen the petitioner instituted this pro- ceeding to recover possession of the caatiunity estate. It does not appear that any creditor of the docoased has aslcec. to liave the possession of this property turned over, or to have the same administered in the estate of Sllen K. Hill, nor does it appear that any of the heirs or devises ever made such a request, nor aay of the parties interested e::cepting the petitioner, and we are of the opinion that, whatever personal right he may have had to administer the community estate he has lost by reason of his laches in the premises. It was incombent on him to have proceeded with diligence to ob- tain possession of this pi-operty; not to sit by and see the same administer. ed in the settlement of the estate of George D. Kill without objection. He v/as appointed in Jtuie, 1691, and for a year anek a half slept ^pon whatever rights he had in the premises. Ue are of the opinion in any event in a oas© like this the ordinary rul©6 relating to the liability of ©::ecutors de son tort would not apply, even in the absence of a statute upon the subject, although we have one v^iich v/ould have some bearing thereon. Sec. 708, Code iroc. And that o^^c^ ^ ^ c ; ^^^"^ .u-4-*c^ JSt:^^T--i't>'*-2-ti , 362. .'JllTRA I>IAa;E et al., Aprellants, ■?» BIG BEHD MUD Cd'i'ilW, Respondents. (51. V/ach. 406. 1S09. ) Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered January 2, 1908, dismissing on the merits anjiction to quie t title, etc., atcer a trial 'berore^ fJie Ho our t without a jurj^. Affirmed '. Duntar, J. — In the year 1883, F rani: Rush o and his vdfe, Ilagdalene Rusho, purchased and mo^/ed upon the land involved in this suit, v/hich was in Douglas county, V/ashic-'ton. Mrs. r.usho died in said Douglas county in the year 1887. Her estate was not probated up to the time of her hus- band's death, to wit, in 1889. A married daughter, v/hoso name •vQ.s llelder, died leaviug 'jurviving her the plaintiff ii.rchie D- Melder, and it is not shovm by the record that a guardian was appointed for said Archie D. Melder during the tines hereinafter spokan of. In the early part of the year 1889, Frank Rusho moved from Douglas county to the county of Stevens, TAiiere he died June 16, 1889. The plaintiffs, cave lielder, who v.-as a grandchild, are all children of the said Franl: Rusho and his wife, and a majority of them were minors Then their parents died. ;\i"ter the death of the father, an administration of his estate took place in Stevens county, out of -./hich an order of sale v;as issued, purporting to sell the real es- tate to the respondent for ^1,400. For the purpose of removing a cloud from the real estate above set out, and to recover the rents and profits and the possession of the land, this action was commenced by tlie plaintiffs against the defendant. An answer \.'as filed and a reply, and on the 11th day of September, 1907, at V/aterville, Douglas county, said action was tried and a decree rendered dismissing the action and refusing the plain- tiffs, the appellants liere, relief of any kind. From this judgment, this appeeil is talren. Several errors are assigned by the appellants, but they all revolve around the question of whetlier the coui-t had jurisdiction to sell the land which is the subject of the controversy. If it did, then the judgment of the lower court should be affirmed; if it did not, it should be reversed. The respondent set up t',.-o affirmative defenses, basing its title to the land, (1) on a sale made by the administrator of the estate of Frank Rusho ; and (2) on an estoppel based on a distribution to the heirs of the money paid by it to tlie administrator- Evidence was introdiaied sho-..lng the facte stated in relation to the residence and death of Frank Rusho and. his wife, and of theii' acquisition of the land mentioned. It is earnestly contended by the sppellants that the real property in controversjr was the com,avinity property of Rusho and vTife, and that the ad- ministration of the estate by Ilagee, v,lio was appointed administrator by the probate court of S tevens county, vas only an administration of the es- tate of Frank Rusho; that he had no authority under the probate proceedings to administer the estate of I'lagdaleue Rusho, and that the proceedings t];ie i^eunder , so far as her estate was corcemed, v.-ere void and of no force anc. effect. In Ryan v. Ferguson, 3 V/ash. 356, 28 Pac. 910, v/e held tliat 563. upon tte death of either hus^baiid or v/Lfe, where an adrainistration was had of the ccii.-;:c!ri:.ty propcrt;/, fho Faue shoald Irio of the vjhole thoreof and not merely of tiie nv.li inheres c of t>t a-'.ce'-.oni;, aiid that the -rfnole com- mxinity estate is sutject to adminis trat-f. en xi.pon the death of either of the parties. To the ror.e effect i^ In re Eix:"c Ssta:;e, 6 Wash. 285, 33 Pac. 565. So that, c.ou.?od:.}:g the conraimioy charticter of the estate, under the authorities iCuove asjitioncid it vas subject to i^rohate under Magee's ad- ministration. The petition furtl^er proceeds to chov; the cord it ion of the estate, and the -oecensioy for selling the land to reet the e::i:nu::es, \/e thinl: the PvStitnon \var, airj:l7 s-'ificient to give the coui't jurisdiction to order a sale of the real estate. 11:6 viev/ we taire of the jurisdictional question renders unnecessary the discussion of the further contention of the respondent that the ap- peliaaf:s are estopped from brineins this action by reason of liavins re- ceived the procefvdr, of the sale of the lend, the appellants at that time all appeaj-ics at the decree of distribution, the minor Archie D, Ilelder appearing by his guardian ad litem. The judgiT-ent will be affirmed. p^ Crov/, Ilount, and Fuller ton, JJ., concur. -k' ^^t^tis TP'luable pgtpers, re- minding her again of tin deed and per prordse to record it. Ivlrc. Johnson could not go on that particular day, but promiKed to go mthin a day or two. To this he arisented, reciuestizig her to go as soon as she could; adding that v^.en sIb \vax; ready to go, to corce by and he would give her the Icevij, Mrs. John-'jon v.'as called av.ny for a couple of v.nolin vdthcut perform- irg the errajid, and v/teu rhe returned she f ot;ni Mr. Stetson in a comatose condition end imable to talk, a condition in \'iiiich he continued until his death a few dcys later. Prior to lirs. Joh_n3on's return, hoi-tever, he call- ed tie attention of his housekeepea- to his :?r -.vith the dixty of recording the ijis trumer'.t after his death; s^ing so far as to attempt to put that person in po::sGSsion of the deed xlhen he felt that Ms death vas near. She tech- nical fai].ur*^ of his effort we thinlc should not 1)6 allowed to defeat his manifest pux'pose. In support of their c&cond contention, the appellaats sought to showf that 'Varren C stetson, at the time of his ^vi.fe's death, had no separate property, and they argue tlxrefroin tl:iat the laad here in qusstion raust have been purchased -uith fuiiLs of the estate, aM. hence was property of the estate vhich could not he conveyed a'.vay hy the administrator vathout the consent of the heirs, cr an order of the prchate court. But this ar- gument overlooks the fact that Stetson did not stand with relation to this estate on the plane of an crdinarj'- adrainistrator whose sole interest in the property is derived from his appointnant as administrator. Upon the death of Catherine Stetson, one-h;:-JJ of the property vjent to him in his ovrn ri^t, su.hjcct only to the coraronity dehts, aud the expenses of tlie administration. V.hen these were satisfied, his title to the one-half became ahsdute, and he -caa tllen entitled to l:a.ve such portion segregated from the portion of the heirs and set apart to him. In this state it is not essential to a valid partition of property of an estate betv/een the persoEs entitled thereto tliat an order of the probate court be had for that purpose. If the heirs are adults, end the claims of creditors be satisfied, a valid partition can be made by agreement. Griffin v. T7arbur- ton, 23 T7ash. 231, 62 Pac. 765. .Ind here T.-e think there was a partition by agreSment as to part of the property of tlE estate. It will be remem- bered that the adninis trator turned over to the heirs money in the sum of $52,000, If tiB estate was intact \-iien. this was done, and there is no sho^7ing to the contrary, the acceptance of this sum by the heirs implied an assent to the taking by the administrator of a lite sum in his own right. And if tliereafter the administrator so managed the balance of the property of the estate as to lose the greater part of it, leavihg- an in- sufficient amount to mal^ goal tlx full proportion of the heirs, the heirs cannot call upon those acquiring rights under the original partial parti- tion to mal'33 good these losses. So in this iustarce, if Stetson purchased this property with moneys accuired by him on the partial partition, the title of the person to \/hogi he conveyed it is good as against the claim of the heirs. There is no direct evidence on this particular question in the record. The circumstantial evidence is in its favor. The property was purchased shortly after the principal advancement vas made to t:-:D heirs, and at a tir:t! before the estate had suffered any serious financial losses as a result of the administrator's mismanagement. V/e conclude, therefore, the.t the judgment of the trial court should bo affirmed, and it will be so ordered. Main, Ellis, and "orris, JJ., concur. ^ '^ ^"^^ ^ \ ^ 567. IN ro BURDIOX'S ESTATE. (Ho. 15,069.) (Supreme Court of California. April 13, 1896.) (112 Cal. 387) la "bank. Appeal from superior court, Alameda county; John EllE\7orth, Judge . In the matter of the estate of Stephen Powell Burdick, deceased. IHie e;:ecutor filed his final account, and a decree was mccred cettling his accounts and ordering a distritution. F rom this decree, or a part there- of, the executor, A, ''*?. Burdick and A. II. Sutton as trustees, and A. V. Burdick in bis ov/n ri^ht, appeal. Dismissed as to trustees, and as to other appellants affirmed. Temple, J — Deocmher 12, 1D9E, the execntor of the ahovo estate filed his final account, and prayed for a sattlernoit thereof and for a distri- ■bution. !Ehe bill of e:cceptions stated "that by said final account it ap- peared that, after payment in full of all clainjs against the said deceased and said estate, the expenses of the last sickiess, aiaf. all funeral charges, and all accrued expenses and charges of the ad;Tijjaistration of said estate, there remained in the hands of said executor a ■balance in money of $1,855,41, from which said executor asked to he allo-.vcd a reasonahle ^^.t- torney's fee, to "be fixed by the court, together with such further ex- penses of administration as miglit thereafter accrue, end that the balance "be distri"buted to the parties entitled thereto." The bill of exceptions then proceeds to give an extract from the pecition accompanying the final account, in v.hich, among other things, it is stated, in su'-jstance, that the executor found a deposit in a certain "baak to the credit of Stephen Pov-'ell Burdick, as attorney. ^'5,000 of which vras claimed "bj Artliur TT. Burdick and A. M. Sutton, as trustees; tliat the "banl-c, upon demand, refused to pay tie same to cho executor; t"hat thereafter tire claimants executed a certain paper, the contents of 77hich are given, and then the executor vvas permitted to tske the money. A decree v.ac entered settling the final ac- co\mtE of the executor, and finditg that he had in his hands, su'bject to distribution, the sum of $1,657.94. A decree vas thereupon entered dis- tributing said money as community 'gvo£eTty, one-lialf to Alice H. Burdick, v/idow of the deceased, and one-half to Arthur 17. Burdick, vho \=vas the sole legatee of deceased, or, rather, at the request of said Arthur ¥. Burdick, to certain trustees for his benefit. Appeals are taloen from V-£ decree "by the executor, "by Burdick snd Sutton as trustees, and "by A. \1. Burdick ia- , dividual ly. But ajspellant contends that tlE claim of the v/ife to a ^are of the fUcds, as community property, is a claim adverse to the estate, and that the probate court has no power to dis tri"bute her share of the community property, since, as Ix claims ; she does not take "by sujcession, "but as . survivor of the cominunity. Counsel argne correctly that the pro"bate court, in tho matter of the administration of estater, has jurisdiction of the estates of dead men, and can dictrrcute only to heirs, devisees, or lega- tees, or to those claiming through them. And the decree of distrihution 368. is conclusive only as to the succession or testamentary rjghtc. Chever V. Ching Hong Poy, 82 Cal. 68, 22 Pac. 1081. The prcbate court, therefore has no jurisdiction or paver to deal with the vrLfe's portion of the com- reunity property at all, unless she tates, upon the death of the husband, as heir. It could not, then, dotermine \*at is community property or what is separate property, am^. could not authorize a valid sale of commun- ity property to pay debts. The fact that the proposition is so novel and so startling raises a very strong presumption against it. To hold v/ith the appellant would upset titles all wer the state. A proposition more destructive of property rights could not "be imagined. Portimately, it has not sufficient plausibility to excite alarm. The estate of the v/ife in the community property is a creature of the statute, and is, of course, just what the statute has made it. It has always been pretty much what it now is, thoi^gh forraErly, upon the dissolution of the cottmimity by the death of the v/ife, one -half cC the property/- descended to her heirs. Even then, however, it was held that the title v.as in the husband, ar£. the vafe's interest in it was a mere expectancy. In Packard v. Arellanos, 17 Cal. 525, it was saidj "It is true the vafe is a member of the community, and entitled to an equal share of the acquests and gains; but, so long as th& community exists, her interest is a mere expectancy, and possesses none of the attributes of an estate either at law or in equity." The legal title to the community property is in the hasband. He has the absolute dominion and control of it, and the vrife has no right or title of any Idnd in any specific property, but a possible interest in T^atever remains upon a dissolution of the community otherwise than by her own death. 13iis cannot be classified as any species of estate kaovm. to the law. Civ. Code Sec. 700. Part 4 of the Civil Code treats of the acquisition of property, and section 1000 defines five modes in \'*iich property is acquired: (1) occupancy; (2) accession; (3) transfer; (4) v/ill; or (5) sixicession. Each of these modes is treated under a title specifically devoted to the subject, laying dova rules for the acquisition of property' in the particu- lar mode treated of. Uie last two relate to the acquisition of property from deceased o;aierG. Title 6 treats of the accjuisition of such property tliroi^Sh testamentary disposition. The ne::t is title 7, \7hich treats of succession* Tlie first section under this title is section 1383: "Suc- cession is the cOiung- in of another to ta!:e the proi^erty of one who dies vdthout disposing of it by v;ill." The learned amici curiae, v5io, by permission, presented an argument upon this subject, argues, from this section, tliat only property -.^hich the deceased o'.ner might liave disposed of by mil con be iulierited. But this is an unav.chorised addition to the statute. Property which belonged to a decedent , ..v.ich he could not dispose of by \7ill, is property not dis- posed of by -..ill, and y.ithin the v.ords of the statute. Suppose the prev- iot-E provicionr in regard to testai:»ntar/ disposition of property had limited the right to one-half of a testator's estate, arx". this section liad remained as it nov; is; v/ould not the moiety, v;hich ho could not dispose of by -will, pass by succession? Infants aad insane people die orming propertjr, and they cannot errercise the testamentary power. The section follows^ tie iDrovisioas in resard to v.llls, and means that the only other made of coming to the ©state of a deceased o\aier is by succession, and must be construed as applying to all cases which the language is broad enough to cover. Section 1400 provides that the preceding soctions as to the inheritance of husband and. \/ife from each other only apply to 369. separate property. This clearly impliec other succeedicg sections uhicih apply to property of husband aiad wife vJiich is not their separate property Otlisrwice, instead of "precedin,';; s6ctior.E," the language would have "been "of this title." The r.e-:t section gives the entire cociotinity property to the husband on the death of the v;ife, "\vithout administration." What was the necessity of this provision, "vdthout administration," if it does not go by ruccessicn? The follovving section (1402) disposes of the community property upon the death of the husband. As to the disposition of one-half of it, no or^e disputes that it is succession; but the language is the sane in regaj-d to the moiety given to the wife. It "goes" to her just as it "goes" to the descendants. CPhis sectiora is referred to in section 1274, Civ. Cede, and it seems to be there expressly determined that both husband and ;nfe talx some interest in the community property by niccession. All property, "to vhioh heirs, husband, widow, or ne:ct of ld.n might succeed, may be disposed of by vdll, e::cept as otherwise pro- vided in sections 1401 and 1402." This is an e:q?resc legislative declara- tion that the disposition of the community property made in sections 1401 and 1402 is succession. Another consideration maltos this ecjaaliy clear so far as the succession of the wife is concerned. In section 1402 it is provided that, upon the death of the husband, her share is equally cxib- ject to his debts, the family allowance, and the charges and ea^'enses of adJninistration. In the Code of Civil Procedure ample provision is made for the payment of all these charges from the estate of the deceased. There is no provision for calling upon the ^;idov/ to contribute. Estates composed of \-^at was community property in whole or in part are certainly comm6n. If it had not been intended that the entire community propetty should be administered as estate of the husband, so important a matter could not be cvorlooked. Yet the probate laws only authorize t]:e aojttiin- istrator to tate charge of tie property of the deceased (sections 1443, 1581), and the final settlement of the accounts of tire administrator is conclusive only upon those interested in the estate, and the decree of distribution only upon heirs, legatees, or devisees. The Codes are in pari materia and must be construed as one. This plain intent that the title 0fl the '.;ife to one-half of the community/ property shall be adminis- tered as part of the estate of the husband,, added to the continuous amd uniform practice of near half a century, raiict place this matter beyond all doubt. Tl:e suggestion that the husband talies from the wife her share of the community property/' upon her death by succession may seem inconsis- tent with the proposition that, during her life, she had no estate of any land in the propert:^'-. That she had no estate in the community property,, vest ad or contingent, was held by this court; v/hen the law \/as that, upon her death, one-half of the c onmuni ty propertjr was iulierited by her next of I:in. Ihe change was made by amendments v/hich are codified in sections 1401 and 1402, Civ. Code, and which merely change the cuccession. It vvas corcopetent for tlB legislature to provide the mode in v.hich the -.•ife's e::pectancy should pass to the husband. I t might have doce this by creat- ing a right by survivorship as an incident to the estate, but it has done this by providing for a succession. Since the v.dfe could not incumber it or contract vdth reference to it, there can be no essential difference. A. 17. Btirdiol: and X, II. Sutton as txT:ctees, and A. T7, Burdic-: in his own right, h^ve talEn appeals from the entire decree. Obviously, the appeal talcen by the trustees must be dismissed. Tliey are not named in the will and claim no rights under it, and have presented no claim against I 370. the estate. They are not, and could not have been, aggrieved persons, Tho order refusing to postpone the decree of firal distribution v/as not appealable. Th3 ajjplication was to "puspend the order of final distribu- tion," because it wa.^ oTaimed that the money belonged to a trust fund. A. W. Burdick, as legatfrie under the will of Steven Po-.vell Burdick, had no interest in such a contention, and, as legatee, was not injured. As trustee he cannot be heard here. Tho court found the money in tie h?.nds of the executor to be coitmunity propcrt^r, end distributed it accord5.r^iy. There is no evidence in the record which tends to show that the f indiug of the court was erroneous, anl the bill does not chow that it contains all the evidence which was before the probate court. The appeal at the tru.stess is dismissed, and as to the other appel- lants- the decree is affirmed. We concur: ItoParland, J.; Van Fleet, J.; Eenshav;, J. Harrison, J. (concurring). The v'ife*s interest in the community property upon the death of the husband has many incidents similar to those of aa heir, but I do not thinlc that, under ihp. language fend spirit of the la .f of this state, she can be said to be his heir to her share of that ■property, or that her interest thijreiu comes to her by virtue of a"euc- cession" to the property of lisr husband. T ha property that is acquired by the labor of Uie vdfe during the marriage, equally \\lth that acquired by the labor of the hUFiband, becomes cmmuuitj'- property; and, although section 172, Civ- €ode, gives to tho husbaixl the manager.ent ard. control of the community property, — tha.t acquired oy her labor as well as that acquired by his, — yet by tho terms of tha sane section he cannot give away, or convey v.ithout valuable consideration, any portion of this prop- erty, unless she gives her \.'rit ten consent thoreto. V/hile a voluntary or fraudulent convejrance is binding upon his heirs, and, in the absence of creditors, cannot be questioned by the administrator of his estate, yet he cannot by such act deprive the vifo of her share of the community prop- erty. Only oneOhalf of the community property is subject to the testa- mentary disposition of the husband, and, if the bonds of their carriage are dissolved by a judicial decree which mates no mention of property, the wife becomes the absojute ovjner of one-half thereof, as co-tenant with the husb. nd. De Gode:/ v. Godey, 39 Cal. 157. it was said in this case: "The theory upon .vhAch the right of the v-.ife is founded is that the common property ^vas acquired, by tli? joint efforts of the husband and VTife, aid. should be divided betv.'een them if the marriage tie is dissolved either by the death of Sae hucbv.rd or by the decree of Ihe court. Her mere ri^t in the corriaunity property is as well defined end ascertained in contemplation of lav, even during the marriage, as is tlia-t of the hus- band. It is true that the lav.- confers upon tie latter the authority to msjiage amd control it during the e::istence of the marriage, and the pow- er to sell it for the benefit of the coramunitty, but not, as mq have seen, so as to defraud the conirLiunity of it. In the case at bar, then, the right of the respondent to share of Gie property in question, if it be proven to be community property, is clear. It accrued to her as having been ac- quired in part by h^r o^n efforts before the decree of divorce wa- ren- dered. That deci-ee, at renc-Grec., did not deprive lier of it." .Although this interest of tiie wife in the community Property may not fall \/ithin the common-lav/ definition of an "'estate,-' it is not to be classes as a 371. "mere possibility," liTce tho exivectancy of aa heir. It is true that, in Van I.lGren v. Jolinnon, 15 Cal. 511, it vra.s, by v/ay of illustration, terrii- ed a "mere eicpectancy," and this illustration was again used in Pacterd V. Arollanes, 17 Cal. 5£5; but, as was said in Do Godey v. Godey, sui^^ra: "V/hile, poi-haps, no other technical designation would so nearly define its character, it is at the same time an interest so vested in her as that the husband caunot deprive her of it by his will, nor voluntarily alienate it for tlis mere purpose of divesting her of her claims to it." That her interest in tiie communitj'' property is more than a mere possibil- ity is p.lso sliovn by section 167, Civ, Code, by v/hich the corenuiiity prop- ertyis exempted from liability from the contracts ofthevife m?de after marriage; but it is not e::empt, by the Code, from liability for her con- tracts made before uerriage. It is a misapplication of terras to sa*/ that the property -.'hich the wife has "acqviired," during the marriage, by her siiill or labor, and of which her husbpoad had not in his lifetime any pov;er of voluntary convey- ance, e;:cept vdth her consent, or of testamentary disposition, is inherit- ed from him; and to refer her rights in the oomraunity property to "succes- sion," undei- the laiguage of section 1565, Civ. Code, begs the entire question. "Succession," by the terms of that section, can. be applied only to a case where the property succeei.ed to "belonged to the decedent, where- as the entire provisions of the Civil Code are at variance with treating the husband as the owner of the C0i:rm\inity property. If he were the ov.xier, he vjould have the absolute dominion over itV ^'Ith the right to M^ it or dispose of it according to his pleasure (Civ. Code, Sec. 679); but, as above seen, these attributes of ovTaership are denied him. Section 682, Civ. Code, specifiss the community interest of husband and -.Ife as nne species of property . hich is owned by several ^.^rsons. The necessary implication therefrom is that the husband and the wife are the "several persons" in whom is vested this O'-Tiership of Gie community property. This ownership is not absolute in either, but in each of them is qualified by reason of its being shared -.ith the other. Civ. Code, Sec. 660. This in- terest of Gie surviving '.4 fe in the coiniuunity property, instead of being adverse to the administrator cf the estate of her husbend, is subordinate thereto for all purposes of adinini strati on, ard is subject to the super- vision and control of the court in ■..'hich the adninistraticu is pending. By section 1452, Code Civ. Proc, tlx er.ecutor or administrator is en- titled to the pOEsessiou of all the reel and personal estate cEf the de- cedent, aid to receive the rents snd profits cf the re^l estate dvjring tj-je administration; and section 14-02, Civ. Code, declares: "In case of the dissolution of ths ccramunity by the death of ttie husband, the entire com- munity property is equally subject to his debts, the fa..u.ly allo-v.'ance, and the charges end expenses of adainistrrtion." Theller v. Such, 57 Cal. 347, ard hindred cases have, therefore, no application, as the proper t:y. involved in those cases -.-as held not to be t-ubject to the adoninistration or to the debts of the decedent. The husband hes the sole manage/.ient and control of the coiBi:iunity property in his lifetime, and alone can render that property chargeable '-dth debts. Upon his d.eath tls entire ccmunity property, as •.;ell as his separ3te property, is subject to the control of the cour^ for the purposes of administration of his estate, and is tal ^;^^*'2S'-<2d:y C7-^ ^ './^^■' y^^^y^ , X/^ 372. sharo of the community :,'roperty, — the one-lialf of the suri'luG after pay- ing- tl?e debts and ei'.jenscs of odmaist.atiou. She rocoivec it, ho->70/er, not as the heir of her husband, but in her o .n ris'nt, ac her half of the property vvhich wat, acquired by herself and her hucbojid during the uarriaG'S but freed from all restrictions in its use and enjoyment, and vdth the sajTie title as if tho marriage had been dissolved by a decroe of divorce. As the court ^.hich had control of the at'ininiGtration, ard of the com- munity property for that purpose, is also authorized to deteriTiine \hc.t charges, debts, and eripensec are to be paid out of this property, and the amount thereof, it must folio,/ that the jud:yiient of that court, detormin- ins tho amount of t he property \/hich she is entitled to receive at the close of the aCjninistration, is biix'.ing upon her, ani may al^o be invoked by her as a deterniUi:-tioii of her ri^ht to the some. V.hetlier this be call- ed a decree of distribution, or a judyrent or order fii:ins the amount or e::tent of her interest in the estate ard her riaJit to redeive the same from the administrator, is immaterial. I t is tiie final determination of the court upon a subject v/ithin its jurisdiction, and is as binding- upon her as if she had been specifically named in section 1666, Code Civ. iroc. If a court has jurisdiction to talce the management aid control of property, ani to determine the amount of charges thereon, and direct their pa:^'nent out of tho property, and return the surplus to the parties entitled there- to, its judgment in determining the amount of such suvpluc, and desi£-nat- ing the persons to v.'hom it is to be given, is necessarily conclusive upon , thou; and they tafe their portions of the surplus under and by virtue of the judgment, amd not adversely thereto. Upon the other qtiestions discussed by Ilr. Justice Temple in his opinion I concur \,ith him, and I al^o concur in the judgment. I concur; Garoutte» J» a-.-h 37^ BOTT "7, NOTT et al . (Ill La. 1028) (36 S. Rei^. 109) Sui^reme Court of Louisiana. Fet. 29, 1904. Appeal from Tweavv-P ifth Judicial District Court, Parish of Tagipahc Rotert R. Re id. Judge. __Action_ty Ilax-y E . Hott a,^a iuEt Samuel Hott and others. Judcnent for pl aintiff, aasd defendants appeal. l leversetT ; Land, J. This is a suit for separation of proi;erty, for the recovery of the sum of 0^,000 alleged paraphernal funds of the \afe received and converted ty her hustand, for recognition of her separate ovmerchip of certain described real estate, and for tine arjiulment, as a fraudulent sim- ulation, of certain sales of ccmmunity property by the husband. An injxmction v.2.s sued out inhibiting and restraining hira fro.Ti dis- posing of the prOi-erty described in the petition until the further orders of the court. The petition alleges that the mp.rriage toolc place at Honolulu, Island of Oaliu, Hawaiian Islands, in December, ISfiS, and that plaintiff's sepa- rate property in said Sslard of Oahu, acquired by purchase and inheritance, was sold in October, 1895, for the sum of ^4,000, which was received acd Used by her husband. The petition further alleges that in December, 1900, Samuel ITott made simulated and fraudulent sales to his son, Robert H. Hott, of certain described real estate belonging to the coinnunity, consisting- of lands and lots situated in the parish of Tangipahoa ani in the state of California. The' petition further alleges that certain described tracts and par- cels of real estate situated in Iho island of Pahu and in the state of California, aAd 50 shares of 1he Pacific Hardware Company of Honolulu, are the separate property of the petitioner. The petition alleges the insolvency of Samuel ITott, to the taiowledge of Robert Hi Nott at the time of said simulated and fraudulent sales. A default was taken against both defendants, and Samuel Hott alone appeared and has ansv/erod, e:ccepting at the same time to the jurisdiction of the court to pass on the rights of property situated in other states and out of the state of Louisiana. His ansv/er is as follov/s: "Defendant for ansver ddmits his marriage with plaintiff, and spg&ial-- iy denies each and every other allegation in plaintiff »s pet ittion. Spec- ially denies that plaintiff ever ovmed any separate property, but, should 374. it be decided that iJlaintiff is the ova.er of the property declared on exhibit "B" to her vjetition, then th.is defendant avers that ho had valuable improvements 'jloc-ed on said la^id, cocting four thousacd dollars, and the saJTie enhanced irhe value thereof to that e:ctent. Specially denies that plaintiff owns separate .property in this parish, and avers, and so the facts are, that v/hilo the title to the property described in plain- tiff* s petition and Echi.tit P is in plaintiffs narae, the same v/as paid for with the defeJidart'^G separate funds, as ;vas also all the property in Tangipahoa parish in eii^her plaintiff's or defendant's name; ane, should it be decided that the property in your parish is community property be- tween the plaijntiff anr?. this defendont, then this defendant ic entitled to be roirabur3ed out of said community the purchase price of imi:>rovements thereon, amounting to Oc-,000 or more." Defendant prayed that plaintiff's suit be dismissed, but should it be decreed that plaintiff is entitled to judgment as claimed ''.j her, and that the property in sc id parish belonged to the coimiujiity, defendant then prayed for judgment against the community in the sum of '^7,000, and such further sums as mcy be found due. On the day fi::ed for the trial of the cause, the case v/as talsn up, and plaintiff offered the dispositions of \7. 0. Smith ard Lorrin A. Biurs- ton, of the ^sland of Oahu, taJcen under commission. These depositions v;ere ruled out on objection of defendant |s counsel that the commission \.'as executed Sfter the return day. Thereupon the case v.-as continued, the defendant urging no objections* The depositions of said vatnesses were taken de novo, and filed in evidence on the trial of the cause. The defendant offered no evidence. The district judge rendered jusgment in favor of plaintiff, decreeing a separation of property, condemning defendant to pa^'' the sum of 0^,000, with legal interest from judicial demr.nd, recognising plaintiff as the ov/ner of certain real estate situated in the parish of Tangipahoa, a:inul- ling as simulated and I'raudulent the sale of certain real estate situated in the parish of Tangipahoa, maintaining end perpetuating the injunction as to the sale of said property, aid recognizing plaintiff's community interest therein. The injunction as to lands and property vathout this state was sissolvedi Defendants appealed, Uo prayer for amendment of judgment has been made in this court by plaintiff ard appellee. On the contrary, her counsel in their brief ask "that the judgment of the district court be affirmed, .'ith costs." Hence the status of Ihe property situated outside of Louisiana, and claimed by plaintiff as sep- arate and community, is eliminated from consideration. Code Prac. art. 888, note A, by Garland. The first contention tS defen?.ants is that the property in Honolulu 375, purchased in tl^e nare of Ilrs, Hott in 1Q70, and sold by her in 1695 for ^000, belonged to the canraunity. Thic contention rests, first, on the proposition that tlie lav/s of Honolulji have not been proved as a fact, and therefore must be presumed to be the seme as the lai7s of Louisiana; aad, secondly, on the assumption tiiat the evidence does not Bho^v that tho said purchase wat made witli the vife*6 paraphema; funds under her separate administration. The depositions of larrin A. Thurston and W. 0. Smith^p two lavyers residing in Honolulu, v/ere taken, as already stated, but they './ere not asked any specific questions as to the lav.'c regulating; the ri.:3hts of married v.omen in force in that place. Both testify, hov/ever, that the property was the •wifo*s separate property. The evidence shows that the 'Property belong-ed to the estate of Larrin Jjodrev/e, the father of plaintiff, v/ho inherited an interest therein, and acquired by purchase the interest of her coheirs, her mother inteiToninG,' ahd releasing her rights of dov/er in ^avor of plaintiff. Hence the property cannot in any event bo consider- ed as community, e::cept as to the interact of the ciiheirs acquired by pur- chase. The price paid them is stated in the deed to have b^en $500. There is no satisfactory evidence in the record showing how plaintiff scquired this money, if, in fact, any money was paid. Smith states in a general way that the; money diid not belong to the husbaiid, but his testimony on this point is vague and not satisfactory. Hie tranaaction v/as in the name of the vafo, made with her coheirs and mother, and the property belonged to the estate of the father. The evidence d-oes not sho\; the e::tont of the interest of tho plaintiff as heir in the property, or of the dower interest of tlae mother. The estate was evidently partitioned in some way among the heirs, as Thurston refers to other property in Honolulu acquired by plaintiff as heir and by conveyance from coheirs and the surviving widov/. In 1874 this property was conveyed by plaintiff aad her husband to one Pillingham in trust for tho sole use and benefit of the ^vife anc. her hoirs. It was reconveyetl by the trustee to plaintiff in 1674, and in 1895 sold by her "in her o.m right" for v4,000, the husband receiving the proceeds. It being apparent that the wife had some interest in the property as heir, and it being probable that the purchase in 1870 v/as connected with the settlement of her fatlier's estate, and the defendant husband having ^■olaed in the trust deed viaich recognized the right of the plaintiff to the i^roperty and its proceeds, we thiulc that justice demands that this cause be remanded -for further evidence and procdodings accorcing to laau TShile there is no direct evidence as to the laws of Honolulu relative to estates, rights of mairied v.r»m6n, effect of trust deeds, et«., the two attorneys at la:.- already mentioned testify that the property \.-as the sep- arate property of the wife. Prom their ansv/ers we deduce the inference that this was their opinion founded on the fact tlvit the deed showed that the plaintiff acquired by purcha se . The status of the property in Honolulu acquired in 1868 must be de- termined bjr the lav/s of the situs. The cornmunitjr laws of Louisiana do not operate on real estate in another state or in a foreign cotuitry. 376. Heirs V. Murdock, 41 La. Ann 496, 6 South, 131. V/a note the state.Ticr h , in the ci:.e:? of counsel for dafeudant, that "the property Sir^jtly dTLoribod in t:ie judsnent and decreed plaintiff's separate property is no": ahov/-a "by any proof to have "belonged 60 eithei* plaintiff or deionda;!^." J,f defendant has no title to the property, he has no right to cciTripr.ain. This, however, ic a matter that can te eluci- dated on another tricvi ^ It ic th£refoj-e ci-^ired, adjnd^^-od, and decreed thgt the jndgment appealed froin "-le c:!..d.n.~.'i!'.f avoided, and reversed, and this case he re- manded to thfe (?i3-L-rint r^.ourt for further ]oroceedinss according to lav./; plaintiff and npp3lie is that all civil disabilities r/hich are not imposed or recognized as existing as to the husb?ud are abolished, and that for any usurpation of her natural or property rights, she shall have the same right to appeal and the seme protection and redress that the husband has. The only object that the statute had was the commendable one of abolishing the tyranhy of sex, and the placing of the husband and v/ife upon an equal footing. It does not go further than this, and when it is conceded that the hu-sband has not the right under this statute, and did not have at common lav.', to sue the -wife for a tort, it is plain that no such right i? conferred upon the wife. There is no case that \:e have been able to find, or any authority, sustaining appellant fs viev/ under statutes similar to the one under con- ■ strudtion. lit v,us decided by the supreme court of the United States in Thompson v. Tiiompson, 213 U. S. 611, that a wife did not have the right to sue a husband for an assault and battery conmitted upon her person by her husband. The cotcrt was construing a statute governing the District of Columbia. Tliat statute -was more favora'ple to appellant^ contention and more sweeping in its provisions than the statute under consideration, and was as follows: "Harried women shall have po^er to engage in any "business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection fif their property, and for tctts committed against them, as fully and freely as if they were unmarried; contracts may also be made With them, and they may also be sued separately upon their contracts, v/hether made before or during marriage, and for v/rongs independent of contract committed by them before or during their marriage, as fully as if they v/ere unmarried, jnd upon judgments recovered against them execut- ion may be issued as if they were xinmarried," etc. So that it v/ill be seen that it especially provided that married women mi^t si:e for torts committed, against the, as fully and freely as if they \fere unmarried, and this vTas the special provision of the statute upon which the dissenting ox^^inion of Judge Harlan, largely quoted by ap- pellant in favor of her view of the lav?, v/as based. An examination erf the dissenting opinion leads us to ccnrlule v.l th certainty that, had it not been for this special provision, the learned judge v/ould not have felt called upon to dissent from the majority opinion* ..^C-i^^.*^ J w^ -^ .^7 r. 579. The apijellant also cites come cases from this court \'!-iich it ic ., thought bear upon this proposition. But an e::cjnination of them chov/s tliat the idea of the stattte was construed to be as v;e have indicated, viz., to place the husband and v;ife upon the same legal footing; and in none of them can it be gathered that liny attempt was jrade to sxve the wife rights against the husband vMch the husbanddid not possess against the wife. In Rosencrantz v. T erritory, 2 'Vash. Ter 267, 274, 5 tac. 305, tiiis idea is plainly announced in the follovdng quotation: "To us it seems that the delation bet'./een husband md vife thereby established TsraB (with certain exceptinns therein stated) one of absolute equality before the lav/. As it not only in oxprese terms gives to her the same rights to hold propertjr as her husbsmd, but in section three of said act e.rpressly abolishes all civil disabilities irrsposed on her by the marriage relation, \.'hich v;ere not imposed or recognized as e::i sting as to the husband} . , ." There may be reasone-vhy a husband or vafe should have the right to sue the other for dcroages for torts of this kind. If so, such rights must be conferred by legislative authority. There is another conclusive reason vhy this demurrer should have been sustained. This damage v;as the result of a tort during coverture. The parties have since been divorced >iy the decree of the court. The presumption must obtain that all their rights were determined in the divorce proceeding, ani if this stafee of facts existed as alleged by tne complaint, it ivas a proper subject of investigation by tlie court in de- termining the distribution of property. .It was said by this court in V/ebster v. V/ebster* 2 V/ash. 417, 26 Pac. 864, that the court had a right to nake a division of all the property, joint end separate, in any way that seemed in its discretion jUst and equitable. The language of the court v.'as: "Sach pcrty must lay dovn before the chancellor all tliat he or she has, and, after an e;-:amlnation into the \,hole case, "he makes an equitable division . . . each case must be adjusted according to its ovn merits and the particular circumstances CUrrounding it, the court investigates all the circumstances— (1) as to v/ho is to blame, or, if neither party is blameless, the degree of blame to be attached to the respective parties; (2) v.tLO is the more properparty for the custody of the mmnor children, if any; (3) if there is a disposition of tl-Ji property to be mide, the manner in viiich it v.'as acquired, whether derived principally from tb3 husband or v/ife, or by their joint eriertions; the conditions of the part- ies as to age and health, and f. great maiy considerations which will necessarily enter into the discretion fif tlie court in itaking the division." So tliat it vlll be seen that the condition of the appellant, flovang from the alleged tort, v/as a matter to be taken into consideration, and the presumption is that it was taken into consideration by the court in the distribution of the property made in the decree of divorce. It v/ould be against i^ublic policy to permit multifarious actions concerning the property rights of the husband and ',lfe after divorce, vhich •.vere in existence during coverture. ^ The judgment is affirraed. ^i 360, V/EBER et al v. VffiBER. (115 .'.r>.i71) (169 S.W. Bep.,318) Supreme Court of ..rlsincas, June 22, 19KL-. Appeal from Circuit Court, lulasla County; G. ■.7. Heudriclrs, Jv.d.se, Action "by, Ida V.'ober against Bnglebert V/eber a nd aj^xofhsr. Fron: a judgmont for plaintiff, def endants a?Pej iX«- Affirmftdl " ' Tills suit v;n.s i npt.it.nf ?r; t-.n yprtfyirgr c] T^ii^ iTPi f^ fl.p-p.in st appellants, f Or the alleged alienation of the a ffedtions of the appellee's husband, Joe \7eber. Tlie appellee married Joe \Veber, the only chlTd of appeTTantsv in -TUF'cIty §£ Little Roc!: on the 22d day of November, 1910, snd they lived ard cohabited together as husb nd and \;ife until the 50th day of August 1911, -./hen there v/as born to them a male child. Thereafter appellee v/as talcen seriously ill, and to such an extent that she lost the control of her mOQtal f .cultics, ard, at the instance and recomir.endation of tho family physician, v/as, by proper order of the Pulaski county court, ad- judged insane aad placed in the State Hospital for Hervous Diseases, for treatment. -\ppellee and her husband, at the time of the $irth of the child, and dviring their married life, lived immediately adjoining appellants, and her husband \;orI:ed for them. Appellee was released from tl:ie hospital as cured, and soon thereafter disagreements arose between appellee and appellants, and the evidence is sharply conflicting as to the causes of these disagree- ments, and is especially so as to the e::tent to which appellants -."ere re- sponsible for the separation of appellee ard her husband. According to appellee's version, appellants, without legal justification or excuse, brought about the separation, as a result of vhich appellee' c husband took away their child, when it v^as only seven weel:s old, tinco .hich time appellee had never been permitted to see the child- She recovered judgment in tho sum of ';2,500, and, a motion for a nev/ trial liaving been overruled, this ^iperllias been duly prosecuted. Smith, J. (aftor stating the facts ac above). A number of e-cept-^- ions were saved at the trial both to the admission of evidence ani the giving of instructions, antf. these ericeptions ha"be been considered by us; but vie do not find any prejudicial error or question of sufficient im- portance to require discussion. A question is raised, however, '.'Mch is one of first impression in this statie, and v/hich has received our earnest consideration. This question is the right of the v/ife to maintai n an act i on for dama ges for the~alienati6a of Ui j affections of her husband Ti Kiere is conf iicr~ainong "the authoritrtes^as to whether this right of action e::isted in favor of ^ the wife, or not, at co.nmon lav/, and, although there are numerous cases which hold that she had no such right, the better view appe:.rs to be ti:at 381. she did, Coraraon-lav/ causes of action for a perconal iSmjury to a marrieu woman belonged to her; but the husband vac uequired to sue vith her to recover ccmijensation because of her disabilitjr to sue. The husband's right of action abated at the death of tlie wife; but the cause of action survived to the v/ifo and could bo maintained by her after the death of her husband. Her rijit of action exictod, brat could not be cot in motion un- less her husband joined, and, by reason of fiie disability of coverture, it remained in abeyance and could not be procecuted in her ovai na.rEe. Bennett V. Dennett, 116 U.Y. 584, 23 17. E. 17, 6 L. H. L. 553; tmith v. Smith, 98 Term. 101, 38 S. U. 439, 60 /jn. St. Rep. 838. The case of Bennett v. Bemiott, supra, is a leading authority on this subject, sud the opinion in that case revie'..i0c. the authorities upon this question, ard, in upholding a judgment in favor of the .ife, it v/as there said: "Ue thinl: the judgment appealed fuom should be affiiroed, upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an, appropriate remedy." In 1 Cooley on Torts (5d Ikl.) p. 475, it was said: "At least 20 states now hold that such an action ra^y be maintained, some basing their conclusion upon common-lay x^rinciplec and cone, more or less, upon the various enabling statutes in favor of married -omen, which have been passes in recent years." A number of cases siflpport the wife's right to recover for the alien- ation of the affections of her husband, 'as an invasion of her personal rights, while other cases regard the wife's right to the consorttiium of her husband as a property right. One of the leading cases talcing this latter view is that of Jaynes v. Jaynes, 39 Ktm (IT.Y.) 40, in vihich case it is there said: "These reciprocal rights may be regarded as the property of the re- spective parties, in the broad sense of the v.ord 'property,' which in- cludes things not tangible or visible, and applies to vh:t6ver is exclusive- ly one's ov.n." .\nd it is there further a:: id: "But as, at common law, tlie husbanc" ajad wife were regaacled as one person, an.d her personal rights were suspendet., or incorporated v/ith his, during coverture, so that if she were injitred in her person or property she could bring no action for redress Avithout her husband's concurrence, and in his name a^ well as her own * ** ♦* she was practically precluded from suing for damages caused by alienating the affections of her husband and enticing him av/ay. * * * Her disability in that respect, we think, has been removed in tthis state by legislation. .'. married \.-oman may nov;, while married, sue end be sued in all matters having relation to 'her sole and separate property,* or for an injury to her person or character, the same ac if she wa,s sole, * * * ai^^ it is not necessary or proper to join her husband \.ith her as a party in any action or special proceeding affecting her separate property. * * * if we are correct in holding 382. that the right, •.."nich the plaintiff alleged v/ac invacod by the defondazit in this action, was her separate property, the case is -./ithin tlE ctai^tos referred to. If it be not property in the cense in which the v/ord 'prop-., erty' is used in the statute cited, it is a personal ri^ht, and as the statute e:cto32ds to all injuries, \.'hether to property, person, or character; it seems to bo sufficiently comprehensive to embrace an injury to fce ri^it in question." In the case of Varrsn v, .arron , 89 ::ich. 123, 50 n. "7. 8^-2, K L. R. A. 545, t'le ;,lf3''3 r-'.rht to suo and recover daina^'ec for the alienation of the affecciois o? Jir::.- husbsad v/as said to e::iEt under tie statute r/iiich was set out ir. the opiuion. it .-as there said: "Under the strtutos of this stfte relative to the rijihts of married ■./omon, aid the decisions of our a.n courts in relation thereto, the ri.^-.t of the wife to bring this action, as ./ell all other suits to redress her personal v/rongG, seems to me to be perfect I7 clear. Hie statutes provide: "That the real au-d personal estate of every female, acquired before mar- rias©, and all property, real and personal, to v;hich she raay afterwards become entitled by gift, grant, inheritance, devise, or in any other man- ner, ^all be and remain the estate aiii proi^erty of such female, snd slir.ll not be liable for the debts, obligations, and engagements of her husb.-.nd, and may be contracted, sold, transfered, mortgaged, conveyed, devised, or bequeathed by her, in the same manner acd with the lilce effect as if eIb v/ere unmarried.* Kow, St:.t, P. 6295, 'Jjctions may be brought by fend a-. gainst a married woman in relation to her sole property, in the saroo msjx- aer as if she -.vere unmarried; and in cases -Jhere the property of the hus- band cannot be sold, mortgaged, or other\7ise incumbenfed v/ithout the con- sent of his v/ife, to be given in the manner prescribed by la"', or \.'hen his property is exempted "bj lev; from s;le on e::ecution or other final process issued from any court against Mm, his wife may bring an action in her own name, with ths lilce effect as in cases of actions in relation to hei- sole property as aforesaid.' Eov;. Stat. 6297. Under these statutes it has been held that a \.lfe is entitled to and may sue for and recover in her o\fa name damages for her personal injuries and siifferiug from assatilt and bat- tery (Berger v. Jacobs, 21 Ilich, 215; Eyatt v. Ad3mE, 16 Id. 180, 198), and for injuries to her psrson through tlae negligence of another ("lich. Cent, R. R. Co. v.ColeCiEn, 28 llich. 4:'l-0), also for slander {Leonard v. Pope, 27 Mich. 145). If the damages in such cases are her individual prop- erty, as expressly held in Berger v. Jacobs, I cannot see \/hy, in reason and on principle, tie damages arising frora the loss of the society snd support of her husband are not alss her individual property, ^-Surely tli© support and maintenance ..hich she is entitled to from her husbjmd, and which she loses by his abandonment, is capable of ready aix". accurate meas- urement in dollars and cents, and can be said to be a property right , v/hich she has lost by the v/rongful interference of the defendaxits. 'The loss of the society of her husbarji, afid her mental anguish axf. suffering, are not BO easily ascertained -.vhen compensation is sought, and to be guaged by a money standard; but damages for such anguish and suffering are given, as best ±he jury can, and are perraissable, in most actions of tort. * * * There has never been any reason urged against the ri^t of the husband to sue for the loss of the consortium of his vdfe. ,lnd if, as sham, tlie wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her c.-n property, to the damages arising fDDm her ■»»-- :n'<-» .•■<&^1^■■i\ S63. personal iujnriQC — the iujui-ies of hor "body or mind — there can 1)0 no good reacon \,hy eIe can.not su3 for and recover damagec for tiie loss of tlio consortium of hor h",;.-o b-'aad tha.j does not oc]tially and az well apply to the f.uit of the hnsTJsnd or account of the loss of hor society. iTho v/ife is onoltled to the i-.ooxet;; , protection, ard raipport of her husTsand as certainly, under tho ?.aWj aixl ty moral ri^lit, as he is to her society and aorvioes in hir. houi^eliold. * * * It ic an old iraxira, and a good one, tliat the law v.'.;.ll never 'suffer an injury aiid a darmge v/ithout re- dress.' Will the ?a,/ c.;d tho husTDancl ard not help tho wife in a like case? Hot Tiud'/r the jJi'r>:;ca.t enlighten/id vic\7s of the marriage relation anl its reciprsnal r'.j^rj.ls -and duties. 71)S rea^oni^j that deprives the mfe of redrofiij v/li'^n hor ha-shand is talijn a\/ay from her "by the "blandish- ments and unla«'.ful iaflur^nocs of others is a relic of the "barharity of the coi;-iraon lav;, vMch ir. sjffect made the vAfe tho mere rervant of her huchand, and deprived her of all right to redress her personal \7rongs except hy his will." In the case of Bennett v. Bennett, supra, the court discussed the nature of tliic action and treated it as of the iiature of a persoial in- jurj' to the v/ifo, and it was there said: "An injurj'' to the parson, within tho meaning- of the law, includes certain acts -.^hich do noi. involve pliyr.ical" or personal injury'. •''Thus criminal c onv^ersati on v.lth the wife has long heeu held to he a personal injury to the huj^hand * * * and tlr^ seduction of a daughter a like in- jury to tlie fatdier." And it v/as there further said: "!2he hasis of tho action is the loss of consortium or the right of the husband to the conjiigal society of his wife. It is not necessary that there shall he proof of any pecuniary loss in order to sustain the action. Eermance v. Joiros, 32 How. Prao. (IT. Y. ) 142; Rinehart v. Bills, 82 Ho. 534 (52 J-m. Rep. 565). Loss of service is not essential, but is merely natter of aggravation and need not be alleged or proved. Bigaou- ette V. Paulet, 134 Ilass. 125 (45 Am. Hep. 30V)." Cooley says that the gist of the action is the loss of consortitun v.liich includes the husband's societjv, affections and aid. 1 Cooley on Torts, p. 478. In the case of Anna Kolin v. Ilarion Pearson, 191 llass . 283, 77 H- E. 890, 4 L. H. A. (U. S.) 643. 114 Am. Sv. Rep. 605, 6 Ann. Cas. 658, which was a suit "by the -./ife for the alienation of the affections of her hus- band, the ri^ht of the wife to maintain the aiit v.as upheld, and many cases ai-e cited in the Oi>inion of the court and in the briefs of counsel; other cases are collected in tho footnote, and, after a reviev/ of the ^^erican cases, tlii following Etatej::cnt is r.?ade by the editor of the foot- note: "In the United States, Wisconsin, Maine, ard Hov.' Jersey seem to stand alone in denying to the v.lfe tlie right to sue for ^e alienation of her husband's affections and enticing him away from her, thus depriving her of his support, vinder statutes giving her the ri<^t to sue and be sued in 4 324. her o\a. name." But Hew -Terncy can no lorcor lie c7Lar3sed smong tlie statec v/hich deny the right of tlio v;ift: to r.nintain this cause of action. In the case of Sim;i v. Sins, 79 1. J. Law, 577, 76 Atl. 1063, 29 L. R. A. (IT. S.) 642, an appeal v/as talun from tho order of the trial coia-t sue tailing a denu.rror vjhioh v/as intorooscd upon the general grourd t]:iat a suit v/ou3.d not lis, v,hich was instituted to recover dcmageE for raalic- iously enticiiXi av.ay fxj plaintiff c li.-isliffpd, and thereby alienating hie affections. 1J^-.s oplniT^ in that case recitcsd that plaintiff baced her ri^iit to sue upon an £'.;-c entitled "/.n act for the protection and enforce- ment of th3 rights of irarried Y.-Droen." (P. L- 1906, p. 525). Ihis §,ct provided that rjiy irarrisd v/oman iray iraintain an action in her o\m name and without joiniiig he-:- hosbani therein, for all torts coimiitted a.:;ainst her or her separate property, in the caite ranner as sis lawfully might if a feme sole, provided, however, that this act sloall not be so con- strued ac to interfere \irith or tal© av-aj' any right of action at law or in equity nov/ provided for the torts above mentioned. The second section provided that: "Any action broi^ght in. accordaice with the provisions cf this act may be prorecuted by such married worr.an separately in her ovrn naras ; and the nonjoinder of her husband shall not be pleaded in any such action." The Court of Appeals of Tie -.7 Jersey reversed tho action of the trial court in sustaining the deip.urrer, and in doing so used the following lan- guags in construing the act above quoted: '"Sie question therefore presented in this case, in the light of the act of 1906, is res nova, and th5 conclusion v.-e have reached is supported by the great weight of authority. Eiat this act was intended to confer ■ the paver upon a marrievi v;oraan to protect and enforce her ri^^ts is the specific announcement contained in its title. Tlio body of the act de- clares that she may narntain an action, as a feme sole might lawfully do, and vdthout joining her hij.sband tl-£rein, for all torts committed against her or 'riir property. ITecpiug in mind the old law and the existing' mis- chief, it becomes rijanifest that the legislative intent vMch inspired this remedial' itessurc could have been only a desire to confer upon tho rarried woman tloat ecuality of remedy as an indepandent suitor, which v,-ould enable her to vindicate her rigi-it in personam for a tort committed against her, and thus remedy the inscjuality to vhich she was subjected by the common law.'' It 'Till be seen that our statute giving irarried women the right to cue, v.mch \-.ill later be set out, is brcadcr an?, more comprehensive than tlie He-' Jersey statute -;Ia.ch the Court of .^VPpeals oi that state said v.as sufficient to authorize the maintenance of a suit by the \;ife, such as v.-e have liQre. In the case of C-orxierd v. ?-emerd, 165 isPa- 256, 39 .^tl. 884, 40 L. P.. ^. 549, 64 Am. Lt. I^ep. 6-1-6, involving the question here under considera- tion., the £i3preme Court of that state said: 285. "V/here th2 wife hac been frcod frora her common-law disabilities, and may sue in her o^m naiie and rigjit for tortD done her, wo see no reason to dcu'ot lier rijht to iroiiitain on actioa agaiost one v-ho has ^7rongfully induced hor hiisband to le;,ve her. Generall:/ this ris^it has been recog- nized and sustained in jUi'iEdictions where she has the capacity to sue." One of the earliest A merioan cases holding the wife has the right to sue for the lo^s cf consortium of her husband is the case of yestlake V. ".'estlalK, M Ohi-j S-. . 627-633 (32 Am. Rop. 397), a-id this has becoEB one of tha ilosdiu^ cayr-;-, , and is cited in ir.gny of the subsequent cases on this Etibject, I'z mv.s there said: "If, in this state, the coinmon-la\'.' dominion of the husband over the property and. personal rights of the wife has been talsn away from him and conferred upon l:ier, and remedies in accordance with the spirit of tSie civil law hs,ve been e::pressly given to the wife for the redress of injur- ies to her person, x>roperty, and personal rights, all of vhich I hope to show has been done, then it must follow that she may maintain an action in her own nsme for die loss of the consortium of her husband against one v/ho xa-ongfully deprives lier of it, unless the consortium of her husband is not one of her personal rights. * * * is tie right of the wife to the consortium of the husband one of hor personal rights? If it is, then tlie statute males tte right of action, growing out of an injury to the right, the separate property of the wife, for T*iich tlie Code gives her a right to sue in her own name . Before marriage the man and v.oman are endowed vdth the same personal rights. If under no disability'', each is competent to contract. V.'hon the agreement to marry is entered into, but before its consummation, each has the same interest in it, and either may sue for a breach of it by the other, m this state neither the husband nor v;ifo unconditionally surrenders their personal rights by consummating the con- tract of marriage. On the contrary, each acquires a personal as well as legal right to the conj.ugal society of the other, for the loss of vfnich either may sue separately." In the third edition of Cooley on Torts, vol. 1, p. 477, the case of Foot v. Card, 58 Conn, 1, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Eep. 258, is quoted from at length vd.th approval, and -.78 find there the follow- ing quotation from that case: "Y^hatever inequalities of right as to property may result from the marriage contract, husband ard vafe are equal * -■' * in one respect, namely, each owes to the other tlE fullest possible measure of conjugal affection ard society; the husband to the vafe all that the v.-ife owes to him. Dpion principle tliis right in the v.rLfe is equally valuable to her, as property, as is that of the husband to him. Her right being the same as his in kind, degree, and value, there would seem to be no valid reason v*^ the law should deny to her the redress which it affords to him. But from time to time courts, not denying the right of tie wife in this re- gard, not denying that it could be injin-ed, have nevertheless declared that the law neither v»uld nor could devise and enforce any form of action by wlxich she might obtain damages. In 3 Blaclcstone's Commentaries, 143, the reason for such denial is thus stated: "Tae inferior hath no "kind of property in the companj'-, care, or assistance of the superior, as the sup- erior is held to have in those of the inferior; therefore the inferior can 886. suffer no loss or injury.' Inafsmuch as "by universal consent it is of the essence of ever^^ rns.rriasG contract that the parties thereto shall, in regard to this partr'.ciilar matter cf conjiugal society and affection, stand upon ao. '^.c^j.rAxt'j , \r; are unable to find any siipport for tlie denial in this roa&on, 3.ni, the rri^ht, the injury, and the consequent dsjrage teia^' admitted, there co.njs into operation another rule, nanely, that the lav; v/ill •per/irt no n-aa to obtain redress for v/rorig e::cept hy its in- strumentality, avid it will furnish a mode for Obtaining adeqi:ate redress for every wro^ig. 7h:".£ ■'i.ile, lying at the f'^andation of all law, is more potent thPTx, '^:^d. -la'cF trooedence of,, the rodcon that the v/ife is in this regard witlauc.'; trio pal. cf the lav/,, "because of her inferiority." In this 0^,36 oz Foot v. Card, Eupra, a recovery -./as permitted \n.th- out reference to ajy e-.ii^-.t'liAg- act authorizing; the v;:.fe to sne alone. Tlie con^plaint had heeu dem.-:T.red to upon the grouii^. that the v/ife could not alono maintain this action, but th^t loer hu^o^rr.d v/as a necessary party to the action, if any cau-^ri of action eiicis'ted. Tiiat contention, v/as disposed of in tiie follov/ing 3auf.u.a^e! "V.Jherever there is a valuahle rijht snd an injury to it., "/ith con- sequent damage, the o"bl?.3ation is upon the law to devise and enforce such form and mode of redress aa v/ill maLo the most complete reparation. A technicality must not be permitted to \.'0rlc a denial of justice. The de- fendaat has no possible interest in requiring the husband to "be coplain- tiff, other than that she should lia-'re security for her costs in the suit, and he protected from a second judgrs'jt upon the same ca^'ise of action in his name. As she is in no danger of a ceooni juigrrent. and can compel the plaintiff to give sccnrit^r for coses, J.t is simply an empty teclmi- cality which she here intorpor.5es. TJtere ar3 good reasons for the rule that the husband should join in a corpiaint for dans-ges resulting from an injury to the pemc?., property, reputation, or feelings of the v/ife in every case other thai3 tloat before us. v;iiena"^er in aay of these she suffers, prGsumabJy he suffers; he has a direct pecuniary interest in thfi result; ard the defendant is rightfully entitled to protection from a second judgment. But, in the case before us, it is the pith and marrov/ of the complaint that i.M alienating tht h'.r-"bfmd'E conjugal affection from the wife, in inducing him to deny his conjugal fiooiety to her, in per- suading him to give hiJ adulterous affections and society to the defend- ant, the latter has inflicted upon the plaintiff an injury "by vhioh from the nature of the case, it is impossilila for the h'jsbard to suffer injury, for •'Jiich it is impo3si"bIe for him to ask redress either for himself or for his ;/ife. * * * i'n a ca?:e of this kiru the v/ifc can only asl: for damages by acd for hsrself ; the law cinnob mala3 redress otherv.lse than to her solely, apart from all others, especially apart from her husband. For no theory of thje lav/ as to the merger of the rights of the wife in those of the husb.and could include her .vights to his conjugal affection and society. Althou^ all other debts and rights to her might go to him, there yet remained this particular debt from him to her a"b50lutely alone and "beyoEd the reach of the lav; of merger." V;e are not called upon to sp^rovc all that v/c have here quoted from this Connecticut case; but the sig-nif icance of that opinion is that a recovery v.as peimitted v/ithout reference to any enabling act permitting the v/ife to sue alone . z^^^-^fc^*^. 387. Hany other caces are cited in the cases \7e have quoted from; hut those quoted from shov/ upon vdiat thooriec and ucder what circumctaaces recoveries have been permitted. Tlie absurdity and cruel injustice of the common- law fiction of th3 identity of husbarcl and v/ife has long been rec- ognized, and the tendency of all modern legislation has been towards the emancipation of the wife. But this amelioration of the wife's conc.ition must come throu^ the legislative function, and her disabilities at the common law exist, except in so far as th^y have been removed by consti- tutional couventiojos or legislative enactments. Some of tlE disabilities under vhich the wife still labors, as the result of the common-lav; fic- tion of the legal unity cf the hucbaro. and vrife, are pointed out in the opinion in the case of Kies v. Young, 64 ;a*lc. 381 i 42 S. V/. 669, 62 Jkm. St. Rep. 198. But, while she still labors unc^er the disabilities there recited, we thin'c the Legislature has clearlj^ manifested its ptirpose to manumit her, so far as maintaining an action to enforce any legal right she may have, or to secure redress for any actionable wraog inflicted upon her, \^ere the recovejrj' would inure to her benefit. "Where a married vvtjman is a pai-ty, her husbamd must be joined -.vith her except in the following cases: First, She may be sued alone upon contracts made by her in respect to her sole and separate property, or in respect to any trade or business carried on by loer under any statute of this state. SecorxL. She may maintain an action in her ovm name for or on account of her sole or separate estate or property, or for damages against any person or body corporate for any injury to her person, char- acter, or property. * * * Ihird. V/here the action is between harself and ter husband, she may sue ard be sued alone." Section 6017, Kirby's Digest. These v/ords "person, character, or property" are of tlie broadest signification and import, and vould appear to include any cause of action vihich could arise in favor of a married v.cman, out of any relation which she can legally occupy. Although she still labors under some disabili- ties, she is given by this statute the right to enforo6 in ter own name any right which she legally possesses. 'Tiiile it appears from a study of the cases, which hold that a wife may sue for the alienation of the af- fections of her husband, that in some of the states, where the courts so hold, the statutes liavo entirely manumitted the wife from her common-law disability vath reference to suing in her own name, it v/ill also appear, from cases which we liave cited, and from other cases therein cited, that the right of action has been upheld in the wife's favor where the enabling acts VvBre not as broad as those of this state. So that, vhether tiiis cause of action be denominated a personal right or a property right, the wife, under the laws of this state, may sue if it is either; ard the judgment of the court below is therefore affirmed. 388. LILLrsriKUIP V. RIPPETOE. (Supreme Coiirt of Tennessee. Oct. 26, 1915.) (133 Tern. 57) (179 S- \T. 620. ) Certiorari to Court of Civil Appeals. Action ty Sara A. Lillienkarap asainst \7. T. Eippetoe . A judgcent of dismissal was affirmed by the C ourt of Civil Appeals, and plaintiff brings certiorari. Affiircied. « Buchanan, J. — The onlj- question necessary to be decided is v^iether a divorced woman can maintain against her formec husband an action for damages resulting from an assault and battery commit t6d by him upon her person after the passage of chapter 26 of the Acts of 1913, and while they sustained toward each other the relation of husband and wife; the action 1-a.ving been instituted after the divorce, and vathin one year after the date of the battery. The case is before us on plaintiff's petition for certiorari, seek- ing to reverse the judgment of the Court of Civil Appeals, vhich affirmed the judgment of the circuit court by v,hich plaintifi"'s suit was dismissed at the point of a demurrer interposed by defendant. Beyond all question, under the common law as it was in force in this state prior to the passage of the act of 1913, supra, such an action as this could not have been maintained. It was a fundamental principle of tlie common lav? that by marriage husband and wife became one. Her e:i:ist'- ence as a legal unit became merged into that of tlB husband, and during the continuance of the c overture she was capable of suing or defending an action only v.lth his concta-rence, and in his name as well as her ovm. It has been held in this state that neither spouse could maintain an ac- tion against the other for torts committed by one against the other dur- ing coverture. The holding was said to rest in part upon their unity by virtue of the marriage, vMch v;as said to preclude one from suing the other at law, and in part it was said to rest upon the respective rights and duties involved in the marriage relation. IIcKelvey v. IIcKelvey, 111 Tenn. (3 Cates ) 388, 77 £. U- 664, 64 L. R. A. 991, 102 Mix. St. Rep. 787, 1 Ann. Cas. 130. This holding is supported by a practically unanimous current of authority. Abbott v. Abbott, 67 He. 304, 24 .to. Sep. 27; Schouler'c Domestic Relations, Sec. 52 (4th Sd.); Cooley on Torts {2d.Zd.) Seo. 223-235; 21 C;-c. 1519, 1520; Thompsoav. ThOE3?son, 218 U. S. 611, 31 Sup. Ct. Ill, 54 L, Ed. 1180, 30 L. R. A, (R. S. 1153, 21 Ann. Cas. 921; Strom V. Strom, 98 Ilinn. 427, 107 IT. \7. 1047, 6 L. R. A. (N. S.) 191, 116 /jh. St. Rep. 387, and note; Freethy v. Freethy, 42 Barb. (IT.Y.j 641; Schultz V. Christopher 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (IT.S . ) 780; Gchultz v. Scliultz, 89 H. Y. 644; Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. (IT.S.) 699; Bandfield v. Bandfield, 117 Ilich. 60, 75 H. U. 287, 40 L. R. A. 757, 72 Am. St. Rep. 550; Libby V. Berry, 74 lie. 286, 43 /jn. Rep. 589; Phillips v. Barnett, 1 Q. B. D. 436 (E nglish) . 389. In some of the cases cited atove the insistence •vas made that, the marriase relation having been terminated by the divorce, the ri,-^ht of ac- tion revived, having t'^or r:ere3y snipsaided during coverture; but in reply it was said: "That the error in this jnsictence was in supposing that a right of action ever e::isted; thai there was no civil remedy either during or af- ter ca/ertare, "b^caars tlicre was no civil right to "be redressed." Phil- lips V. Baniert and Abbott v. Abbott, sy.pra. See, al3-i, ll-;TColv^y v. IlcZelvay,, supra. We do net u-idsrsta.:.-! plaintiff's brief to question the rule of the common law, a^ a'-w-e se'; or.t. Her itisistence is that the rule of the conmon law was abrogated by the follov.'ing; statutes of this state: "If xi^Y person ccnmits an assault and battery upon his wife, for any cause vhatcoever, ho is guilty of a misdemeanor, and punishable ac- cordingly." Shan. Code 1396, Sec. 6470. . Chapter 26 of the Public Acts of the year 1913: "A bill for an act to be entitled 'An act to remove disabilities of cover- ture from married wonen, and to repeal all acts and parts of acts in conflict vo.th the provisions of this act,' "Section 1. Bu it eiiacted by the General Assembly of the state of •Tennessee, that married women be, and are, hereby fully emancipated from all disability on account of coverture, and the cOi^^ion law as to the dis- abilities of irarried wo:aen and its effects on the rights of property of the wife, is totally abrogated, ani?. mai-riags £]:!all not impose any disabil- ity or incapacity on a waiian as to the o\^norship, aciguiEition, or disposi- tion of property of any sort, or as to her capacity to maJce contracts and do all acts in reference to propertj'^ v.hich sle could lawfully do if she were not married; bvit evory \xnan now married, or hereafter to be marrieO., shall have the same capa-^-ity to acquire, hold, manage, control, use, en- joy, and dispose of, all property, real and personal, in possession, and to malce any contract in reference to it., and to bind herself personally, and to cue and be sued \d'ch all the rights and incidents thereof, as if she were not married. "Sec. 2. Be it further enacted, that all acts aad parts of acts in conflict with the provisions of tiiis act be, and the saire are, hereby re- pealed. "£ec. 3. Be iffurther enacted, that this act talra effect from and after January 1, 1914, the public welfare requiring it. "Passed February 20th, 1913." The constitutionality of the act of 1913 was assailed in Parlow v. Turner, 178 S. V/. 766, and on that point this court, speaking through its Chief Justice, said: S90. "It is saM the act is urc onctitutional because it violates so much, of article 2, Sec. 17, of the Constitution as provides that no bill shall becono a law which omlsraoos rnoro thaa one subjoct, that subject to be e?;- prossed in the title. Ihore is but a singje subject, and that appears fully in the title, vir,, the relief of married -vjomon from the disabili- ties of coverture. T.'aat subject fully covers CYory eleneut that is writ- ten into the body of the act. Ths first clause, standing alone, 'tliat married women b^- a-?d are, hereby fully emancipated from all disability on account of co^e.i.'''.u?o, ' would have rade thoroughly effective the purpose expressed in fbo tJ. J;.-.9. All that follo^TOd rr.f;rely amplified the thought, but each tona cf pa-- tlcniariracion lay implioit within the clause coiotod." It is clear thi.t seocion 6470, Shan. Code 1896, quoted supra, does not accomplish •iC'-.v abvcgition of the coraincn-iav; i-ule in respect of actions for tort by either jipouce against the other. That section merely denoxmces any perscm v;ho ccmnits an assault and battoi-y upon his vdfe, for any caise whatsoever, as guilty of a misdemeanor, and punishable accordingly. In connection with the stat^ite last referred to, and ch£j>ter 26 of the Acts of ISir?, plaintiff 'a brief relies upon the following of our cases: Queen V. Dayton Coal & Iron Co., 95 Tenn. (11 Pick.) 458, 32 S. V/. 460, 30 L. B. A. 82, 49 Am. St. Rep. 935; Adams v. Insurance Co., 117 Tenn. (9 Caties) 470, 101 E. \'I. 423; V/eelcs v. IIcHulty, 101 Tenn. (17 Pick.) 495, 48 S. VI. 809, 45 L. R,. A. 185, 70 Am. St. Rep. 693; Railway v. Haynes, 112 Tenn. (4 Caterj) 712, 81 3. V/. 374. But we do not ujx"-er5tand the brief to insist that sectioru 5470, Shan. Code, and the princi?3es on which he re- lies as eEtal)lished by the cases last cited, would avail to change the common- law doctrine that ona spouse cannot naaintain suit against the other for a tort coramittad during the e::iEtei:ce of the ms-rriago relation. At all events, in our opinion, there would be no merit in such an insistence, if made. Examination of the cases cited to sustain the existence of the com- mon-law i-vile first laid dovn herein vail disclose a practically unanimous concrarvonce of judicial opinion to the effect that an abrogation of the common-law rule v;ill only be held to have been accomplished by a statute viion Eich purpose is clearly expressed therein. It has been held in this state: "That a statute v/ill not be construed to alter the common law, fur- ther than the act expressly declares or than is necessarily implied from the fact that it covers the whole subject-iaatter." State v. Cooper, 120 Tenn. (12 Cp,tes) 549, 113 S. XK 1048, 15 Ann. Cas. 1115. V.'o must assume that the legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and v/ife under the common lav;, and the correlative duties of husband and wife to each other, and to the -.iBll-being of the social order grov/ing out of the ©ar- riage relation, and that, if it had been the pxirpose of the Legislature to alter these further than as indicated in tlie act, that purpose \vould have been clearly expressed, or v;ould have appeared by necessary implica- tion. Vte are not warranted in ascribing to the Legislature by anything 391. appearing in this act a purpose to eiBpo-.ver a v/ife to "brins sji action a£,'aiiDst her hucTaand for rlujuriec to her person occurring during the cov- erture, thereby mUcj^s public ccandal of far.ily diccord, to Cie hurt of the reputation of husbaud aixl \,-ife, their fcrniliec and comiGCtionc, unless such pui'pose clearijr appears ty the e:.pross terms of the act. It results that, in cur opinion, there is uo error in the jud:^.ont of the Coui-t of Civil Appeals, and the saae is therefore affirmed. 392. "IlLLlJJ.l D. LSGG et al.. Appellants, v. IffilETLl LEGG et al., Respondents. (34 V'ash. 132) 1904. Appeal from a judgment of the superior court for Blcagit county, net~ erer, J,, entered flctofeer 28, 1902, after a trial on tiie merits before the court v/ithout a Jury.-graatlng a joartition and o rdering a sale of re al estate T sub, iec t to certain liens in. favor of the defendant Malena Less* Medified. Per Curiam.— This -/.■as an action for the partition et real estate, commenced in the superior court of Skagit county by appellants, ■.;illiain D. 1 egg, Hattie Legg, Cassie legg, II ary Legg, Lydia Staples, Arthur L. Hey- wood, Edgar A. Hey\vood, and V'illiam LI. Lyden, against respondents, I'^lera Legg, Milo J. i-egg, JolmSteen, and James Y/hite. Joseph B. Legg, on the 8th day o£ March, 1873, made final proof, under the pre-eiqption laws of the United States, on the northv/est quarter of the southv/est quarter of section 22, tovmship 36 north, range 3 east, in Skagit county, V/ashington. Pat^t issued for this land to said Legg on February 25, 1874. Cn the 22nd day of September, 1874, in Whatcom county, this state, Joseph B. Legg and respondent llalena Legg intermarried, c.ni, firom that date continuously till on or about June 1st, 1899, they occupied this property as their home. After their marriage, on Juno 20, 1884, Joseph B. Legg acquired title by patent to lot 3, section 21, in toimship 36 north, range 3 east, T/. l'», pursuant to the homestead laws of tie Uhited States, On or about June 1st, 1899, Joseph B. Legg died, intestate, leavii^g as his heirs at lav.-, his v/idow, llalena Legg; Lydia Staples, c sister; C assie, Mary, ani Hattie Legg, children q£ Charles H; Legg, a deceased brother; Williaam M. Lyndeu, v;hose name was fonnerly V/illiam II. Legg, gn only child of Sdwin Legg, a deceased brother, whose name was changed by a decree of the probate court in Massachusetts fron V/illiam 11. Legg to William U. Lynden; Arthur F. and Edgar A- Heywood, only children of 31iza p. Legg-Hey.;ood, a deceased sister; and '.7illiam B. and llilo J. Legg, only children of William Legg, a deceased brother. The trial court found that, since June 1st, 1899, the date of the de- cease at Joseph B, I'QSgt respondent llalena Legg has ^een in the sole and exclusive occupation of the north%vest quarter of the southv/est quarter of section 22, above deecribed; that the reasonable rental value thereof is $225 per annum; that, at the tin© of the marriage of Joseph B. Legg with respondent lialena Leggt this land was of no other or greater value than 0500; that since their marriage said husband and v/1 f e resided upon, in- proved, and enhanced the value of said land by their joint efforts to the extent of 0900; that the present value thereof is 02,000; that thj rental value of such property, during the time it was occupied by intestate ar.d Malena Legg, in excess of ta;:es paid, was OlOO per annum; that Llalena Legg, at the tioe of the death of her husband, had no property of any kind or character except her community interests in the property above nair.ed; that she Yra.E not indebted to the community in aiy sum whatever; that, since the 393. decease of Josoi^h B. Legs, Malena legg has paid the exi'-ences of the last sicten.esE ard funeral of her dccoasod hucband and coctc of adminictration of the estate amount ja^ to vl50, the sum of ')lll general ta::es, and ■JAZ in labor for road proporty ta:: acsessod against caid northv;ect quarter of the couthv/est quarter of section 22; tliat in 1901 the Seattle and iTontan^, Railroad Gonipany instituted proceedings to cocdomn a right of v/ay throu^i the real estate first atove deccrilDed, making LTalena Legg, T?;""i"r.ran D. Legg James Y.hite.and John Stocu defendants therein; tlT3.t all of said x^artios de- faulted in such proceediiags, eccept Salens, Legg, v/ho received from said railroad company, a.o c.TTO.^nsation for her land, "by virtue of said proceed- ings, the sum cf O^-iO; tljat in such condecnation proceedin:,E Zlalena Legg neoesaarily incurred e::p9nses anountiug to C;158; that in such proceedings appellants Hattio Legg, Cassie Legg, Llary Legg, Lydia Staples, /jrthur P. Heywood, and ' illiaiTi l.i, Lynden, ^.'e^e not made parties therein; thc'.t, after the decease of Joseph B. iQZ&t Malena was duly appointed by the superior court of Slragit ca;nty as ac'^inistratrix of said decedent's estate; that she thereafter duly qualified in that behalf, and has since been discharg- ed;- that, at the time of the decease of Joseph B . Legg, he loft sufficient personal property belonging to the community to have paid the expense of his last Eicloaess and funeral ^ n^" the costs of administration, The trial court further found: "That, so far as the public records show at the time said condemnation proceedings v/ere pending, E^id lialena Legg Was the ovner of said property. That an order was made in said pro- ceedings directing said ■jQ'iO to be paid to said r^lena JjQSSi ^z.V- ov'.ev v;as made v/ithout notice to any of the plaintiffs (appellants)," The court also found, that OlOO is a reasonable fee to be allov;ed appellants' attor- neys in case the same is a proper allowance as a part of the costs herein; that said property is so situated that a partition thereof cannot be made without great preji;dice to the owners. On these findings of fact the trial court ma:.e its conclusions of law, that respondent Ilalena Legg is the S'ole o-w-ner of said lot 3 in section 21 as the survivor of the community (Joseph B. and I/Ialena Legg); tliat the ap«i pellants and respondent Ililo J. Legg arc the owners of an uix.ivided one- half of the northwest quarter of the southvrest quarter of section 22, to'.vn- ship 36 north, range 3 east, and that Ilalena Legg is the ovner of 'aie re- maining undivided one-half thereof; that this tract of land v/as the sepa- rate property of deceased Joseph B. l^ess in his lifetime, which is the only land and property affected b}/ these proceedings; that respondents Steen and V.hito have no interest in "he merits of this action; that no attorney fees on either side are chargeable against the common estate; that appellants and respondent Ililo J, Legg have no interest, nor right to participate, in the money paid by the railroad company to lialena 'Les:^', that she is entitled to a cliarge and prior lien upon this land, on account of improvements, in the sum of v900, 'Ith interest added, aggregating vl,165, with accruing interest ■ thereon at seven per cent, per annum, and an additional charge of ^'77, one-half of the total amount paid for ta:ces and betterments placed ooi.the land; and that she is to be charged v/ith 0337.50, one-half of the rental value of said lauds for three years. On October 26, 1902, the superior court rendered a decree ordering this tract to be sold. Out of the proceeds of such sale, llalens Legg "./as 394. first to receive 0904.05, v/ith interest at seven per cent, from date of de> cree; oue-lmlf of the residue of such, proceeds '.vas to be x^aid to Malena Legg, and the other half thereof to "be paid to appellants and Milo J. Legg. lialena Logs '''as charged vi th one-half of the costs, and appellants and llilc J. Legg, \7ith the otlier half. The court refused to ta:i any attorney fees as a part of the costs on either side. Plaintiffs allege exceptions, and appeal to this court. /ippellants contend that the trial court erred: (1) in not alla7ing them an attorney fee of OlOO as a part of the costs; (2) in refusing' to allov/ them their share of the money received by respondents for the right of v;ay frora the railroad company; snd (3) in allovsing llalona Legg's charges against this tract of 3and on account of iirQprovements and tenies. (1) Bal Code, Sec. 5604, provides: ••The costs of partition, including ffies of referee acd other disburse- ments, shall be paid by the parties resi^ectively entitled to share in the lands divided, in proportion to their respective interests therein, ad may be included and specified in the decree. In that case there shall be a lien on the several shares, an?, the decree mi:y fee enforced by execution against the parties separately, '..hen, however, a litigation arises be- tween some of the ptrties only, the court m^ require the e::pense of such litigation to be paid by the parties tliereto, or any of them." The question presented by appellants* councel is whether the above pro- vision authorizes the ta::ation of attorneyls fees as a part of the costs in partition suits. Some of the authorities cited by ax^pellcJits from other states hold that. Under the general term "'costs," attorney!s fees may be tczie:. in partition cases; vAiile the vast najor.ity of courts treat this subject-matter as regulated v;holly Ijy statutory provisions, refusing to ta:s such fee:: unless specially named therein. Tlie recovery of costs, by that nome, -."as uiumo.-ii to the common' la"..' till regiilc.ted by statute, in the courts of la"\/. T".ie alla;'L-:nce of costs in any case depended entirely on fiae tenrs of thS statute. 6 line. Plead, a Prac. p 110. This court, in Truiiible V. Truvnble, 26 ' esh. 135, 66 Pac. 124, decided, in accordance with this rule— in enforcing'.- jud:,ment lien for alimony in a divorce suit against certain propei ty— th^at, -.-Isn there wcs no provision for an attor- ney fee by the ten-ns of the original decreo, it was error to allow more than the statutory compensation as provided in EalJ Code, Lee. 5165. '.'e thiiil: the rule enunciated in that case on this subject is correct, and, \/Aen applied to the case at b^jr, ould not authorize us in allowing the attorney fee -hich appellants no./ contend should be cha-rged against the common estate of tiie parties to this controversy; more especisll" in view of tlie statute 'hich proni^ides that canponsation of attorneys shill be left to the agieement of the parties. (2) On the seconc. contention, we are of the opinion that Lialena Legg should account, under th3 fixf-iugs of the trial court, to the appellants (excepting 'illiam I-. I'Osa) * as heirs st la' of decedent, Jose^:h 3. Legg, above aanied, -.fr.o \.'ere not parties to the condemnation proceedings in- stituted by the Seattle aix. liontana Railroad Company, for their interests, respectively, as such heirs, in the money received by her from the rail- road company, after dedujoting tlie expenses necessarily incurred in connect- I y^ ^^ -;;^^^^' 395. ion with sucli condemnation proceedings. The public records showed tliat, at the time of taae condemnation li-oceedings, Ilalena Legg \7as the c.mer of tho land talsn as a risht of ■v-'ay, and. she received, the money as the value of the real estate condemned, and not sin^ply as payment for her interest therein. This seems to be the correct interpretation of the find.ings of the trial court in that "behalf. If this be true, it is tjgit fair sad equitable tliat Ilalena iegg should be treated as a trustee for these heirs, with reference to thetr respective interests in that fund, '■'.'hether these appellants are coucluc.ed by the judgnent of the superior court in the con- demnation proceedings instituted by tlji. railroad compapy, is not a material question in the controversy, as presented by tliis record. These appellant;; have the undoubted right to treat the proceedings as valid, s.tS. call upon Ilalena I'es:;^ foi- an accounting cs tlieir trustee. Appellant l^illism D. Legg is not entitled to sloaro in this fund, as he -.as a party to the condemnat* ion proceedii2gs,arid defaulted therfeaa. (3) /ippellants' counsel concede i.. their argume'.it that respondent Ilalena Legg is entitled to a credit of one-Iialf of the (.IS-i paid for tccres, which inuved to the benefit of the other 1-jsirs of deceased Jos3i:3h B. Legg, so no discussion of that cuestion is necessary. We are of tire opinion, h however, th.a.t the trial court ccsxiitted no error in allo\7ing Ilalena legg the sum of O^OO and interest, as a lien snd charge against the land to be^ deducted from the proceeds' of the sale, for betterments placed on the laad datring the e:ciste;xe of the community. The decedsnt and Malena Legg had by fceir joint efforts and labors, added tliat sum to the value of this property. The sppellsnts v;ere not co-tenants of the- land vdth Ilalena Legg at the time \/l«2n these inTprovementc -/ere placed thereon by the commxinity. They had no estate or interest in this property at that tirce. Their in- terests as heirs did not attach to the estate of Joseph B. Legg before the time of his death. In ecuity and fairness to li^leua Legg, as the sur- vivor of the Gora.:iunity, slis slaould be reimbursed for betterments placed on the land by the coraaunity, a^ agrinst parties who contri'buted nothing to- wards improving th-e e^mc or eahancing' the value thereof. In S-urr'-i v. Vinston, 66 Te-. 525, 1 £. V;. 527, the court uses tJie folla\'ii:!g lEiiguage: "I t is well settled that separate estate of one member of the community must reimbiu'se the xmrnunity for s.ny proper im- provements mau6 in good faith -cQan the separate estate ■,.lt'.-i ccmmunity fundts." Citiug Pace v. "^.ice, 21 Te::. 66; Bond vl Kill, 37 Te::, 626. See furtlier, Glift, v. Glift, 72 Te::. 144, 10 5. V;. 558. Applyiu.3 this rule of la'- to the facts in tiie case at bar, iialena Legg, as survivor of the comiTiuuity, is entitled to reimbuisement from fiie sapai-ate ettate of Jos- eph B. Legg, decedent, as decided by the trial court. The judg-.ieut of the superior court s'.iould be modified aS in-.icated in this opinion, ? n". the case is therefore rer.i£jided ^vith directions to the trial court to enter tlie i5:oper decree, neither appell?n.ts noi- respond- ents sliall recove- costs on this appeal. 62LAP33ER VI. CITATl ORS. Rights of Survivor. Kohny v. Durbar (1912) 121 Pac. 544 (Idaho) Griffin v. vrarburton (1900) 23 Wash. 231. Nishimoto v. Carlton (1919) ' 107 Tash. 555. (a) Right to convey in payment of debts. Crowe Co. V. AdMnson Construction Co. (1912) 67 Wash. 420. Re Field's Estate (1903) 33 Wash. 63. Lawrence v. Bellingham Bay (1992) 4 Wash. 664. (b) Right to administer. Fort's Estate (1896) 14 Wash. 10. Daniels \f. Spear (1911) 65 Wash. 121. Ferrell v. Lord (1906) 43 Wash. 667. Sawyer v. Vermont Trust Co. (1906) 41 Wash. 524. Morris v. Warwick (1906) 42 ^ash. 480. Brown V. Brown (Conn.) 89 Atl. 889. Cik.-^ . o ■ — . , ]-, t ^ \Te <--«.(( V) ^ C t> v^ t FURRH iViro OTJZHS V. V:iism AUD CGKISE. \ sa- w«.t (Snpreae Court of To"as. Octoter 15, 1886.) (v\ q.v vi»^ (66 Tex. 521.) (S.V/.Rep. 527) Error from Harrison county. Etayton, J. — Tliic j-ction \7as trouslat "by three cMldren of "lary E. \7aslcom, to recover cix acres of land xjhlch was the separate propert;^' o^ their mother, vAio died in Ilarch, 1872. Tlie defendants assert title througi a v/arranty deed rnr-de by S, S. T;^sl:om, Sr., \7liD was the father of the plaintiff. The deed throu^a \7hich they claim v.tis eicecutod in February, 1877. Ajnona: other defenses, the defendants alleged t]iat the father and mother of plaintiff v.ere aarried in the ^'ear 1860, and that during the marriage, about the year 1867, S. E. Uascom, Sr., with community funds, erected on tte land in controversy a storehoi^e, warehoiase, and dwelling, the value of -..hich v/as alle3;ed to be about 01.670, acd that the value of the lands v/ithout tl:e improvements did not e:::ceed $90. They further al- leged that Ilary E. V/asl-om, at the time of her d.eath, ovaaod 2,160 acres of lard in one body, including tte si:: acres in controversy, consisting of six contiguous tracts; that five children, the issuo of the marriase of herself and S. V. Tvasliom, survived her, of whom two liad died -.Tithout issue, CM}, unmarried; that from these ohildi-en Sn E. YJaskom, Sr., inher- >' ited one-fifth of all of these sin tracts of land, of ti:e value of §2,590, as d.id he inlaerit a life-estate in one-third of all the land, from his wife; that the interest thus held by S. E, Uascom, Cr., in the lant^.s ^niiich liad been the separate proper^/ of liis \dfe, far excoedsc. the value of the interest of tlae plaintiffs in the si:: acres of land in controversy; and tlEy as::ed that the interest of S. S. r;as>om, Sr., in the si:: tracts of land, so far as necescai-y to protect their title to the sir: acres, be •:?iven to tl:em by Setting apart to them the land in controversy. S^ E. Was]:om, Sr., was mac-.e a party defendant, and his insolvency v/as alleged. A demurrer was sustained to so much of the answer as cou^t the pro- tection above stated, '.'e are of tlE opinion that this '.--as error; for, upon the death of tre two children of S. E. "^askom and t/ife, he inherited ono-ha3f of the estate -uviicla they derived by inheritaxce from their mother, as v/ell as one-half tie interest viiich tic one child derived from the other, and thus he becane a tenant in coiiraon \;ith the plaintiffs. Vliile a co- toncnt lias no pov;er to divest the title of his co-owners by selling a specific part of the common property, yet it is well establislBd that a court of equit^^ -..111 protect such a purchaser, if this cczi be done v/ithout injur^^ to the other o\uaers, by setting apart to the vendee of the co-ten- ant tl-B particular tract boxjght . The pleading to which the demurrer was Stic tailed malBs a case in wliiCi s^xh relief could properly be granted. 'That tl3 propertj- alleged to be c\vned by fiie f atbsr and the plaintiffs consists of several tracts of lant". furnishes no reason vAiy tl-£ interest of the fatter in all of t::em may not be satisfied by vesting in the defend- ants, his vendees, the six. acres in controversy, if its value shall be shovm to be equal to his interest in all the tracts, or \;liy this should not be vested in then as a part of that -.Mch the father would be entitled •^ '. 5 . 1. TUk- i«"? T '.!i'.i'.i3i vi- T ' " -■•'.•. i 397. to out of the entire property of which Ihey are oo-owners, if his inter- est .in ttie entire property ercoods in value that in controversy; nor doeB the fact that cne, or even "both, of tto children from whom S. E. u'aslcom took "by inheritaace may have died siaco he made the deed throu^ which the defendants claim, affect the right of tlB parties to the protection indicated, if the facts shall appear as pleaded. V/e are further of the opinion that the court erred in sustaining the detnxirrer to sv rjch of '.he answer as set up the fact that the improvements on thB lasd in controv-r.-y T.ere made \7ith corcmxinity funds helonging: to the common estate of n'a '■nai art. his wife; for whatever claim, even though equitable only it may '--'•> which E. E. TJanlccm, Sr., had growing out of that fact, vests in the r'.efM.idants through his v;arraaty deed, and they may novr assert it in the ac. j :i£ t.^sit of equities 'vhich arise bet',7e9n the parties in reference to the setring apart to the defendants of the land in contro- versy, or to cseet the claim made against them for rents, should it be found on the trial that equities exist, but that they are not entitled, from any caise, to have the lazxl set apaT": to them. Vihen the improvements v^ere made, if irade, as alleged, v/ith co^TintaTity funds, this gave no right, title, or interest in or to the lard to the community; and S. E. Waskom, Sr., from the simple fact that the improvements v/ere so made, omild not h%ve acquired title to any part of the lanl oaTvhich they stood; for, as said in E ice v. Rice, 21 lex. 66, such improvements becoite "attached to the soil, and cannot, iu the natiare of things, be divisible in specie vtien one of tire joint ovAi.ers has no in:;ere£t in the lart!. upon \*iich they have been erected. Hence results the rule that the c orafflunity estate must be reimbursed for the cost of tie buildini:^s erected by joint labors or funds upon the separate property of one of the spouses, and, in effect, aais vests tie iraiprovement in that spouse, and entitles the other to one- half of ths cost." V.hen, hov/ever, S. S. T7,askom, Sr., by inheritance from his diildrea, becacB a co-tenant with the plaintiffs in the laaf.s in con- troversy as ^vell as other lanls, and tlius becaae entitled to partition, we see no reason why his vendees', who are entitled to be subrogated to all his riJitE by reason of his v/arranty deed, the covenants of -liiich v/ould be broken if the property, as it stoa'. at the time he sold, did not pass, may not ask that the same rule be applied as mijat be were the suit belo\7 betv/een S. E. TSaskom, Sr», and tloe plaintiffs. It is well settled that separate estate of one member of the corrmunity must reimburse the community for any propsr improvements made in good faith upon the separate estate --.ath community funds. Rice v. Rice, 21 Tex, §6; Boni v. Hill, 37 Tex. 626. The ansu«r of tlie defendants alleged that Jai?.es Turner asserted soise claim to the land in controversy, and aslsd that he be made a party, and that he assert in the action whatever claim he might have. Turner appear- ed, aa. filed a general demurrer, which v,\\r sustained by the court, ar.d jut'.gment entered that the demurrer be sustairBd, and that Turner "go hence vdthout day," and recover costs. The defendEints, by their answer, asserted title to tie laii'., and sou^Jit to establish it against the plain- tiffs, an?, also against Turner; ajxl v;e are of the opinion that it was er- ror to sustain the general demurrer filed by Turner. If he really assert- ed title to the land, or any part of it, it v.as the ri^it of the defend- ants, ia this action, so far as can be seen from the pleadings, to h-ave his claim as vrell as that of the plaintiffs adjudicated. If he really 398. I maxlo no claim to the land, he chould have filed a disclainer- If be thou^t the averments as to the ch.a;.'acter or extent of the claim asserted ■fey them not saffioiently specif i3, ho should have urged this ground hy a special deimrrer. The defendants pleaded that the mother of the plaintiffs died tes- tate, that her v:ill had "bc-^n prclDated, caad tiiat thereby she devised th; land in n jntroversy to hur hushard, S. E. UaRkom, Sr.; "but the ansv/er did not aver that tho will was an instranent in v/riting. This v/as trade a ground of special detrurr-'jrj \Thich was s-uGta.nrsd, ard on tho trial the de- fendants offered to prc=-/r srch inaldnis sr.d probate of a nuncupative vtill by which all the prorerl:y of it'-s. T7askom was devised to lier husband. Oils. evidence the court borjlow rdjected, Y,'e see no reason to doubt the correct- ness of tine rulings of t";,s court on the deratirrer, and aomiscion of evi- dence. Since tl3 case of Lov/is v. Aylott, 45 Te::. 190, it must be held the lav of this state that real estate cannot be devised by nuncupative will. It is urged that the lacd in controversy is situated v/ithin the ri:;;ht of way of the Texas i Pacific Rail-.-ay Company; that the improvements were placed on the land by tho permission anc". license of the railv/ay com- pany; and that they, therefore, did not become a part of t3ie land on which tliey were erected, but remain personal property, and therefore pass- ed to S. E. Uaslrom, Sr., by the nuncupative will of his wife. T/e are of the opinion that this position cainot be maintained. T/hether buildings erected upon the Ian., of another are fixtures or not, must be determined by the relation existing between the ovazer of tho fee and the person who maies ths improvement, an:, upon the fants vhich may cvul once their inten- tions in reference thereto, and not upon the permission or license of one holding only a q-ualified right to use the land for a specific purpose, and embracing that for riiich the improvaitients were made. For tl3 errors in the rulings of tls court below -.Mch have been con- sidered, the judgment will be reversed, arx. tlie cause remanded. It is so ordered . 399. ll'ICVTTi: aad others v. CUIirillTGS aJid Otherc* (68 Te::. 599, 1887) S. V/^ 513. Error from district court, Ilencersoa county. Gaines, J. It v^ould svibserve no useful purpose to discuss the num- erous assignments of error found in the record in this case. V.'b shall tlierefore consider only such points raised by the h. ief of appellants as "./e deam necessary to a disposition the cortifiC::.ts by the decree 6f divorce, it is evident that slie vrc.s entitled to oiie-litrl-r of tho cartifio^'-te. There is no proof in the record that :iV/ard Patterson over clcimed to to have any otlier .Ife vintil his secorr'. Tnarrisge in 1840, lon^ after tlae certi^oate issued. Tlie certificate beirg personal property unc.er the fourteenth section of the act of January 20, 1840, his lv:lf of it beocnie the C0j.MUi.ity pi-operty of himself and his cocoad \.'ife, upon his xnarri?i'e to her. Hart. Di-. 2410; 1 Pasch. Dig'. 776, note, and 1048; Fortis v. Parker, 22 Te:;. 699. Tlae decree of divorce contained this provision: "It is furthar decreed s.nd adjudged that all tha property that the said Kancy brou£ht to her s-rid husband, Sd">''ai-d Patterson, by the raarriaee, be vested in her as her 6sti-.te- and separate estate;" and it seeras to have been con- 400, tended in the court belov/ that the effect of this "viaa to diTost th« di- vorced wife of her interest in the certificate, l)ut v;e do not so regard it. The deci-ee refers to no property, iKccept that iferoufjht ty her i^to marriage, and v/e have no right to infer that her ri;^ts in any other v/ero adjudicated. The court in itc charge left it to the jury to say whether the rights of ITaacy iatterson in the certificate wore settled "by the de- cree or not. This v;as error. It was the provicce of the court to con- strue the decree, and if any question were made as to its effedt upon her rights in the certificate, the court should have instructed the jury that har interest in that property v/as not affected ty that adjudication. It is assigned, in suTsstance, that the court erred in chargii^g the jury that, under a certain state of circumstances, plaintiffs \/ore Taarred of a right of recoverjr ty an adverse holding of the certificate for a per- iod of tv/o years. It is not clear to us that the court so charged, though we infer from the lejaguage of the instructions that the Gourt was of op in* ion that if Alethe-. Brooks got possession of the certificate, and held it as her own, distinctljr repudiating the claiiX of ilancy ?nd ".'illiara Pat» terson, and of Oheir heirs, thea her title to the certificates cB.y have been perfected ty tlie statute of limitations. If so, this -was ex-ror. The cortificatA itself is a more evidence of a ri^^t to land, \*ich right, in contemplation of la"', is personal property, "but the certificate is not the property itself. Shefflet v. llorell, 4 E, 'T. ?,ep. 843. iTo adverse hold- ing, hov.ever lon^j the time, gives title by limitation to the certificate, or the right evidenced by it, as against the true ovaier. Tliis has been ei-i^ressly decided by this court, BarVsr v. ^•.eason, 6^ Te.:. 407. it is due to the learned judge who tried the case in the court below to say that the opinion in the case cited hac- not been delivered when the charge under consideration \.'aE given, Appellants* t-i/ent^r-secoad assignment of error complains of tl:ie action of the court in giving a special chai'ge at the request of defendants. In this charge the jury v^ere instructed, in effect, that if, upon the death of Sdward Patteison, his \7iflflprr paid his funeral expenses and other com- munity debts "out of her o- n means," then his heirs could not recover the certificate in question, or tloe land located thereon, until they had first roimburseu her; cnc. tltat the widow load tlie right to hold the certificate, and lan^v loc;.tec. by it, ^nd to cell the same for her reimbursement. The jui-y are also instructed in the seme charge tlriat "if the plaintiffs, or those ujider -.Lorn the;- claim, fcie.', or might iiave Icnovrn by ordi::£.ry dil- igence, the facts -.rith rei'e-.euce to said certificate, and their interest tliereiu, ;,nd tliat cs a fact the a.ld .aethea (the wider) was claiming to be sole owner t'nereof, and tliat aE^ »uch *Jhe ei:ercised all rxts of orrner- Ehip over i3.iC. certificate for more tiiaii ten years prio:. to its location, then ai3y suit of said pleintiffc after tliat ^--ai iod, against any person claiming said land located under said certificate, is but the assertion of a stale demand, and you -.dll find for defendants against all the plain- tiffs,'* These instructions, as applied to the facts, are misleading, and erroneous as propositions of la".;. Alethe.- 3rooi33 testified that she paid all the debts against Hdward Patterson*s estate, jnd his btuial e:i?enEes, and e::pen£es of last illness, ainounting to rbout '^100. Lhe now!^ere says this was paid from lier separate estate. If paid frorri tu\& community, then she certainly had no claim against the certificate by reason of the pay- ment, if tlie debts --.'ere paid from her a.-u sepai'ate funds, then at most I 401. she vould hivo had a claim for re imtvc: percent from Pattercon's heirs, in any event, for a partition of the proi^orty. A payment of community debts, in 1841, gave her no rij^ht to cell, in 1883, any greater interest in the land located "by virtue of tlie certificate than she acquired in the certi- ficate hy virtue of her jrarriage vath Patterson. The plaintiffs them- selves, ac the heirs of W. F. Patterson, who was the heir of Bdv/ard Pat- terson, were the holders of the legal title, and the doctrine" of stale demand v/as not applicable to their claim. Edwards v. Brc\m, 4 S. U. Rep. 380, and 5 S. Tr. Rep. 87. Appellants also complain that the court erred in instructing ^^ jury tliat because I.Irs. Harvey' £ coverture had not been pleaded, therefore th^y should not consider that fact in deterraining tlB pleas of limitations as against her, and counsel agree that since the fact of her marriage had "been proved v/ithout objection, she \vbs entitled to the benefit of the proof without any allegation in support. But the ruling of this court is otherwise. Banking Co. v. Stone, 49 Teoz. 4. Ihere are rrany other cuertions presented by the acsignments of error, and the brief of counsel, but in our opinion they are not liable to arise upon another trial. They are, therefore, not considered in this opinion. For the reasons pointed out the judgment is reversed, and the cause remanded . 402, CLIFT et al. v, CLIPO? et al. (Supreme Court of Texas. Uoveiribor 27, 1888.) (72 Tex. 144.) (S.V/.Rep. 338) Appeal from district court, Ellic county; Aason Rainey, Juclse. Action ty Ilarvin Clift and others againct Leonora Clift and others, for partition of land of v;hich Stephen A . Clift died seiced, and for the cettletrent of claims "by the plaintiffs for improvementc allegod to liave loeen made with community furdc of tiio second marriage of decedent iipon the separate property of tls first wife ai^d th5 community property of the first vidfe. From the jud^jiient rendered tl:e defendants appeal. Saines, J.-- StephenA. Clift married in the year 1659. In February, 1871, tl-£ v/ife of that marriage died, leaving three children, Viiio are the appellants in this court. In the latter part of the year 1871 he married a second v/ife, the appellee Leonora Clift, and died in 1882, leaving four children of tire second raarriase . At the time of the doath of the first wife there v/ere certain lots in the then tovai of T/axahadrie upon which he resided with his family and did business as a merchant. Ke continued in the occupation axd. use of those lots until his death. Some of the lots v/ere of the s^arate property of tlB first v/ife, and others iwere of tlx) community estate of himself and his second \7ife. Eiis suit v/as brou^t b^ the second v/ife anc. her children against the children of the first marriage, for the purpose of having a partition of the community lots, end for the adjustment of certain equities claimed to have grown out of improvements placed upon the property with the com- munity funds and estate of the second marriage. The main contention of appellants is that the court erred in its decree in refereice to a cer- taiin lot 4, upon -sfliiGh Clift erected a brick stare-house after his sec- ord marriage. I Is lot arc!- store-house front on a square looking vrest. The lot is 40 feet wide, ard. the scxith half, it is conceded, \.a,s the separate estate of t/B first \/ife. The north half had been sold by Clift and the first v/ife dvL-iag their narriege, and a strip thereof 10 feet v/idO; adjoining tls south half, aal e::teiidir:g its entire length, was bouglit bac'.: during -tsi" life-time. It is also conceded that this strip was coranunity property of the first marriage. The brie ir store-house is 23 feet rado, and is situated upon the strip of 10 feet, and extends over 13 feet upon tlie soutji half. The court below found that the house v/ac paid for ty a lot of the value of 0600, vhich was commvinity property of the first marriage; and by goods and money, v.hich belonged in common to Clift and his second v/ife, and that tlie house was v/orth $3,000. Tne ground upon which the house stood on the south half of lot 4 v/as adjudged to be the property of appellants, and th^t on the north v/ac decreed to belong, one undivided half to appellants, and the other undivided half to all the parties, as follows: A thiid interest for life to appellee Leonora Clift, and gtibject to this life-estate, that half to belong to all the children of S . A. Clift, each holding an equal interest. In other words, the court, in effect, adjudged that, as between the parties to thic Ciiit, one undivided half of the strip of land, 10 feet wide, on 403. tlio north half of lot 4, \/as to be treated as tlie separate property of the first Ilrr;. Clift at the time of her death, and the othei' lialf ac the sep- arate property of lier husband at the tiine of his death. So fa£ the con- clusions were cox-rect. But it also adjudged that appellee Leonora Clift had an interest of Cl,200 in the store house; that her children han an in- terest of 0857.15, aid appellants an interest of 09'^-2.85, in the sane. Tliis result was reached "by allowins llrs. Clift one-lialf the value oSf ttho cofflQunity accetc of herself and her deceased husband vhich went into the building; by av/arding to appellants the value of one-half of the assets of tlie community estate of their father cxd nvather, -ahich v/as also used in its construction; and allov/in^i all the children of both marriages the value of the other Irnlf of rll such asEots; that is to say, the val-ue of onorhalf of all tlae propertj'' and money used in erectiEj the house. The decree appointed corainis sioners to divide tlae property in accordance \/ith the respective interesis of the parties as settled lay the court, axxL di- rected them to report at ne;;t term. "/e thin'.: there vas errox in the decree of tiie court. 2ie court prop- erly adjudged that the south half of lot 4 -./as the property of appellants. There is no controversy about this. It v.qe their mother's separate prop- erty, and upon the termination of their father's life-estate in an undi- vided third, they 'jecame the absolute owners. It is too plain for arrjTi- ment that a tens:nt for life of an undivided interest in cominon v.ith other tenants \*.o are entitled to the remainder can have no higher right its. this respect thr.n if he was such tenant of the entire estate; ani it mi:ist be lield, both i^Jon principle ar^d authoritji-, that his legal representatives cannot demand of the relLlo^inder man compensc-tion for improvements v,hich he has put upon the estate. During life ha is entitled to the use ard enjoy- ment of tlB property; but upon his death the remainder-man's right to its enjoyment, free from any imcum"brancec, immediately attaches. This right the latter v/ould not have if the tenant for life v/ere permitted to place improvements upon tiae propert3r at vill, for -.hie h he could he required to pay upon entering into the estate. It is tiien his privilege to appropriate the property to such use as his business convenience or pleasure may dic- tate. His iute;'Oct in rsmr^inder ./ould "bo seriously impaired, if the ten- aJit fa' life >vere permitted to improve in his '-'ay end for his ccvn purposes, and to ma::o such iut^rovements a charge upon the irroperty. That this can- not be done is laid dovn b:;,' an eminent text writer, (1 '.".'ashb. Heal Prop. 110] aad is maintained in-^ n able and elaborate opinion by the supreme court of J.outh Carolina in. the c^se of Corbett v. iaurens, 5 Rich. 2q. SOI. That c:...<:e, lilce this, v/as one in -./hich the father, a tenant for life, made introveosnts upon a lot to r-'hich his children were entitled in remainder. Kno-.aug that rfter his death the estate is to become the absolute property of those for ' •liom it ir his duty to provide, the presumption is strong that tlio father, in such a case, intenc'.s tl~.e improveiiEnts as a gratuity to his children. In proceeding to tho consideration of the improvei:iientc upon that portion of the lot lying north of the dividing line, '.-re note that appel- lants contend tlaat tho evidence did not v/arrant the finding of the court tliat the building v;as paid for in part ••„lth the community property and funds of tlie second mai'ital union. But e thin:: tliis claim is not baseS upon sufficient g-oands. The facts are meage; . But it v/as sho^rn ths.t when Stephen ... Clift -v/as firct married, in 1659, he -..as doing business at a neroiiant, having a stoc'.: of goods valued bj' the ''itness at from . 404, $4,000 to v)6,000, Vlhea hie first \vife died, in 1671, it ceemc that he had on hand, in goods axd money, ahout $4,000. T^tare is no x^roof that at that time he owed any defets, and it must he presumed that he owed none. He con- tinued business until a short time before his death, in 1862, v/ton he be- came insolvent from losses on cotton. From 1874 to 1876 the business was done in the name of Clift u Fraley, from which it v;oulc. apljear that h© then had a partner, tliough the testimony does not mate this clear. The house war built in 1879. Ihe contractor testified that he was paid in a half a lot valued at ^600, vrhich is conceded to have been community of the first marriage, and in ^oo^is from the store, and in money. The amount of goods aixL money v.-as §2,400, but hov; much of each was not shown. If it had been shov/n that th^ identical goods Clift had on hand at the time of his first vdfe*s death went to tho construction, a trust in the property to amount of the value of her comjaunijy interest therein would Biave been shovm. But it is unreasonable to suppose that this was a fact, lifter the lapse of ei^ht years fraj the death of the first vdfe, t.b think the presumption must be indulges, in the abseixe of come other evidence, tkiat the goods v/ere acquired during the secord marriage, and .'ere community property of Clift and the secor:^. wife. This v/ould be the case as to the money which wad paid to the contractor, even if it had been shown, as appellEJuts claim, that the money cane from the store. But we do not so construe the testi- mony, ".'e do not imderstaad the contractor as saying tliat the money came from the business of the store. His language, as cho\aa by the statement of facts, is: "The remainder, 02,400, was paid partly in money and partly in goods from Clift* s store.'* "here tlie money came from there is nothing to sho-;,' and hence hie precui^iption is that it -.-•as coi-.raunity estate of thd then existing marital union, ".'e conclude tloat tlie fiiidiog of the court was correct upon this imtter. But is the second community entitled, upon partition, to be reim- bursed for the money so invested? As to the strip of land now under con- sideration, Stephen .1. Clift, father of appellant, occupies a different position from tliat held by him as to the memainder of tlie lard upon v/luch the builcdHs stands. He was a tenant in comi-non -./ith his vafe*E children of this trip, holding an unc'-ividee half interest by fee-simple title. This property belonged in common to himself and his first v/ife, and he was the suiTiving husbanc.. It me^'- bo conceded that, as a mere tenant in common, he could claim nothing for his improvement, unless it could be set apart to liin by leaving one-half in tiie value of tliis laid tmimproved to hie first v/ife's children. But we may say, as to this small piece of ground, that it did not adait of any partition. The parties, even in the life-time of the father, c ould only have severed their interests, ty a ■ - sole:- A. «ialivelve-thirticthc to lire. Clift, one-h-.lf to rH the other p-.rticc , to bo equr.lly divided betv/eon them, -nd tlx. romr,iniu.2>' one-tenth to aPPol?--:it; , to be cqu .lly divided :j-iiong them. Tho judgm^t v.lll be reformed in accordando \/ith tho vicve e::preccod in thic opinion, end r.ffirmod. But tho cr.uce will be reiii:.nded to the lower' court, -.'ith inctruetionc to access tho vrJue of the l-.nd on the no:-th h:.l£ of lot '1- vithout rog .re. to the improveracntr , nd to d..ti.-nino •.vh .t proportion the valuo of tha lifo-ectato in lire. Clift "bearc to thE Vi^lue of the -.beolute title, _-nd to decree r. er.lc of er.id ctrip, -nd the improvemcntc thcr-on, :nd .. dietribution of" the proceede in r.ccordanco '..'ith thde juc'gment. 406. EPKECIfflLS ot m?. V. SPRECKELS. (S .P. 430) (116 Cal. 539) (Supremo Court of California March 25, 1897) 48 Pac 228. In Taanc, Appeal from superior court, city and county of San Fran- cisco; Charles '.V. Slack, Judge. ^Acti ou "by Glaus Spreckels and /jma G. Spreolsels, his wife, against _Rudo]a:ih Spree ioels. From a judgment entered on a aeraurrer to the complaint, ajjdjgrom an order dissolving an injunction," plaintiffs appeal. Aff irmed . Temple, J. This is an appeal from a judgment entered ui^oa demurrer to the complaint, cud from an order dissolving- en injunction. The plain- tiffs are husband and vafe, and sue to recover certain c or porp t.n p.tnr.ir. It is averred in the >"-Am_-i pi -.it. t-.viat. fh^ p2 g.intiffs inter marrie d July 1 1^. 1852, and that on the 51st day of July, 1695, they o-.med the corporate stock , ac community property, which on that day the plaintiff Glaus Spreck- els yoluntg.rily, and v.l^hout any consideration^ anc. "'v?rttiDt[t "the"^ gonsBgt^ of HTT/ife, the oth er plaintiff, tr g psf erred a.5_n._gij£±-,±c the defgndant . Th9~saic"'. Anna C. Spreckels has never consented, in vTitin-G; or other'.ase, to said transfer or sift. The complaint contains many other .allegations which, however, are not material to this discussion. Tlie complalnt_v^^ s demurred to o n various grounds , and amon^ them that the complaint does~ not state sufficient facts to coirstitute a cause of action, ajxl there is a misjoinder of pcrties plaintiff, in that the dfe is joined wigh her hus- band as plaiutiff in an action to recover coianunit:^ property. The first point made "by the demurrer rests upon the assurAPt^on that the coniplaint shows that the stock ''jQcame the corarnxmity projpei-ty of Sie plaintiffs prior to the passage of the amenojnent to section 172 of tlie Civil CcpLs, vhich was made March SI, 1891. Tlio complaint does not stats \/hen the stock v/as acquired, and, as this is a material question, it is coutea-.ed th.-'.t plainlJiffs must be deemed to liave stated their case as favorably to themselvec as the facts -.."ould v.'arrant, sxxC therefore it must bo lie Id that the stock ^t.s acquired prior to that da,te. As appellants' coiincel seaa to acruiesce in this claim. I shall so consider it. Prior to tho amenCinent, tiie section read as f oIIov.ts: "The husband has the nan- age;.ient aixl control of coirtnunity i:>roperty, \-ith the like po'/er of disposi- tion (other than testcuentary) as he has of his separate eatate." The amendment consisted in adding- the following: "Pro vided, however, tliat he cannot make a gift of such coranuni ty property, o :: convey tne same -.vitliout ' ^ val uable o^ns idera^Ibn, unless the wife, in jv/ritin^', COniiyuL LhtJi-e^ e-r" liR£,,n-r,uM-if.~c^TitBTi^ti .MTP t tiiE ?j-.-^eue,mcnt cp nnot be held to aP,^l^ '^_to__coa^ rai2nit: y property a cc v.ired p ri,or to the nmp'n''"iinftat, Vi'^v tQ—SajTiag es ent'Sr ec'. into pri or to that time. So construed, he contends, it would deprive toe ]iu5baScr'of a^veSXyd j?)»cprietary rivht in the coiziviunity property, to -..It, the pov.'er to dispose tliereof .Ithout the (ionsent of his wife, and v/itheut a valuable consideration; and thr.t it also impairs the obligation of a contract. St is said that the la ■ -was at the time of the marriage that 407. the hustaud load the management an.d control of the community property, -with the lik3 al3S03:nte power of disposition, other thin tescGjr/intary, as of his separr.te estate, arad tint this liocara? a part of th3 co^vLract 'oy vhich the marriage v/ac constituted; and to deprive the hrjc'baxid of this pov/er i* to iinpair the olilisatiou of tl-j-^.t contract « To determine whether the anenu- ment, if applic;a"blG to c oranrji: ty property stiquired prAor to its j/asrra^-e, would deprive the hxistand of a vested ric^it oi property, it ic np.cessary to consider what were the rights of husband ard v;ifo in the co>:nriunity prop- erty at ths date of its par;,va!;e. Tao coirj-citution does not mention co^nvjz?. ty property, tnt dooE dcii.V:\e v/hat cliall coiDstltute the separate property of the spouses. Const, art. 20 Sec. G. The Oivil Code (section 161) provides that the husbani and v'if e may ho Id .'.property as joint touantc, tenants in comn:ion, or as cori^iiunity i^ropertjr. Th-sn., loavins defined separate property, it provides that ell other property acquired after marriage l^y either hus- "band or v;ife or both is community property'- Section 167 enacts that the community property is not lia'^jie for fris ieb-s of the wife contracted after marriage; section 166, that the earnings of the wife are not liable for the de'^ts of fbe hus'jand; anl section 169, that the earnings an.d aocuj'Aula-- tions of the '..ife and of htjr minor children, who are in lior custody, v/liile she is living apart from her husband, are hsr separate property; Section 172 is the SGction nov/ under considerc.tionr Section 662 of this Code is: "The ownership of property by several perccnc is eivhsr: (1) Of joint in- terests; (2) of partnership interests; (3) o.: interests in common; {-".) of commimity interest of husband and vr.fe." 5e-ction 667 ac,ain defines com- munity property. This court hr.s held, after mature consideration, th.?t ijpon the death of the husband the \;ife taiies one-half cf the coiaiTiuni t;^?- pro* pejjty as heir. It has been l:ield that the hv.s''novc. can. -Tiairc a gift of the community property- to the v.'ifp.,ai"£L f:o,;';-al; it into her Bepar?.te estate. To this it ma^ be added that the wife, iE pcsf.ossed oC businfiss capacity, can obtain permission to carr;/ on business in her ov;n name as a sole trader, and that the profits of such business are her sepax-ate property. Prior to the amendjT.entE of 1891 tl^o Code vested in the husbarxl, with refeience to the coKinunity p^cporty, all the elements of ovmership, and in the -/ife none. If the ri?^its of the parties in the co-^v^r.-'nity property are the same, then the law- is partial to the Vvife. Shs can easily luanass that all her earn- ings end accumulations shall be her separate property. Tlie husbr^nd caa in no way abtain a similar advantage. If the wife is living separate and apart from the husband, thrortgh her ov;n fault, her earninj^-s and accumulat- ions are her own. Yet, if the husbaud, durixig the same tine accumulates a fortune, it is coir^nunity pi-operty. There is no mode in v/hich coirmiuiity property can be ccn/erted into his separate property. As to all the world, e::cept the ^"ife, there ^ss, prior to this cmendment, no distinction between the community estr.te and the separate estate of the hu/sband. If suit \'ere brouglat upon a liability incurred in a business, the profits of v,hich v^ould be comnvonity property, and judcment recovered, e::.ecution could be levieo. upon the separate estate of tjie husband, cUC. che debt entirely satisfied therefrom, ilis separate estate, during tlie entire inarriage, is ]iabi'5 to be taken for community- debt;^, and of course fuiniishes a credit in aid of commimity business. Xf the comiaunity looses, the loss ray ^all upon his separate estate, but his separate estate cannot profit by the snccess of the comjunity. The separate property of the wife is e.::eapt from all these liabilities, but, on the other hand, the community property is liable for debts incurred by the husba:id in the management cf his separate estate, 17ov;, all th.ese differences point to the fact tliat the husbarx. is the ab- d 408. solute pwnor of the ooumunity pro^rtjr. Th&XQiorQ xt it> w^-*^ "^^ liabil- ities incurred in tlie mauc.acTT«nt of the separate pctato caa be enforced against the common property, v/hile tiit/oo r,r f->,o *.-irw cannot "be. And there- fore she, imder certain circumstarces , can accunalate property \*Lich shall not belong to the community. If it trent to the community, it would belong to the husband, and under the circuustanoes it is not thought just that he should have it. Ho needs no corresponding privilege, because the commun- ity property is his as absolutely as is liis separate estate. So he can- not convert it into his separate estate, and. if the property belonged to the commxinity, ani tl'^ husband had only an agency, perli^s he could not giTre it to his vafe. How, then, v/e have this state of tte case; The statute provides that the husband and wife may hold property as caiT:!m\Kiity property. Section 161. It defines v/hat sl-all constitute comraunity property. It defines ox-jaership (section 054), and then 2'i'ves to the husband complete legal ovmership of the community property (section 172), and confers upon the v/ife no element of ovnership vJoatever. Courts and counsel have occasion- ally endeavored to find come property right in tlie wife,, or son© respect in which the husband's interest falls short of full property. I think it will bo universally admitted that so far there has been a complete failure in this respect. Iho first attempt shown by our reports of that Icicd is in Goicy v. CrOdey, 39 Cal. 157. In that case it is said that, Tihile no other teclmical term so well defines the wife's interest as the phrase "a mere e:rpectancy, * "■' * it is at the same time * * * so vert- ed in her that (the) husband cannot deprive lier of it by his mil, nor volimtarily alienate it for the mere purpose of c-lvesting iier of her claim to it." 'Hie testamentary po\/or is not an essential incident to property, and depriving the husband of sixh pcr.'er wiHi refereice to the community estate did not tal:c from him any ri^jht of property. It v«is competent for the legislature to deny to the husband the righ.t to dispose of his separ- ate estate by will, and to provide that upon his death all should go to his v/idow, subject to the payiaent of his debts. Should the legislature now so provide, it vrould not deprive tlie husband of any vested right to property, or give the wife son interest in his estate during his life. If the property did not belong to the husband, tliore vjould be no occasion for a law limiting his tostaiTiontary power v.ith reference thereto. The original statute, -.hich practically ac'.opted the Iie::ican system as to gan- ancialos, \7as held to constitute such a limitation. Board v. Qio;c, 5 Cal. 256. tnhat gave the wife a nominal estate during the marriage, v.hioh becstne an actual estate upon its termination. If the husband cannot make a valid transfer of tl:e property for the purpose of depriving the wife of it, that does not show a vested right in her- Ihis is e:• ••,-. 'r • 411. him ofljfc'is po\-/©r ic certainly to divost him of a property right. This ar- gument need not, however, be pursued further, tiecanse counsel admit that, if tlie husband is the ov.:ner of the property, then a statute v/hich makes the exercise of the ri^t to dispose of it suhjoct to the will of another is unconstitutional. Entertaining these views, it is uzinecessary to consider the other contention under this head, that the amendment violates the obligations of a contract. It is clear, I thin]:, that the operation of the amendment must be confined, at least, to community property acquired after its pas- sage. I thial: the _j'uling sxjstaining the demurrer to the complaint on the ground that there is"~a misjoin der ia that the v/ife cannot be joinedT^as"" plai ntiff in an action to reco ver"cgmunity pro'Perty, must also be 6US-^ taine d: and that \/ithout reference to the question as to the nature of the \7ife*l~interest in the community property. If the gift was void, the prop- erty still remained oocsnunity property, and oas as much luader the manage- ment and control of the husband as any other portion of the community prop- erty- !r.o__hold that the wife is a necessary or proper party in this case w ould be to ~h6ld tJiat 5iie~ is suah m e v ery case bi -au ght to recoyg r oufflnua - ity proPe ytyT 'me statute, as' amended, does hot give her a right of ac- tion in this case, but leaves it to the general rule. It has been held for near half a centui-y that slie is not a proper party to such cictions. Che judgment and order are affirmed. V/e concur: Henshavr, J.; Harrison, J.; LtoParland, J. Beatty, C. J. (concurring) « I concur in the Judi^^iaent, but upon a ground somevhat narrower tlian that tauen in the ppinion of Justice Temple. It does not seem to me necessary, in order to sustain the ruling of the superior court upon this doaurrer, to go to the extent of holding the pro- viso added to section 172 of the Civil Code by the act of 1891 an uncon- stitutional attempt to talie away from the husband his vested rights in community property acquired prior to that date. I am not at all clear that it does iiTQpair any vested right. Bi^t, allor/ing the lav/ to be consti- tutional as to all conmunit?/ property, irrespective or the date of its acqiiisition or of the marriage by which the coiiinunity v.as formed, it still does not go far enough to sustain this action. If the husband malces a gift or voluntary transfer of cona.iunity property, the transfer is good against him. Kg has no right of action to recover it back. The only person who, in any case, has a right to cornplain, is the vnfe, and sis cannot maintain £01 action to rovol!3e the gift until she has been injured by it. Upon the dissolution of the community by the death of the husband or by divorce, I think tlaat in estimating her share of the community property she would be entitled to have any property given a\ffi.y by the husband subsequent to the act of 1891 rechoued as a part of the community assets, and that she would be entitled to reclaim from the donee enough to make i^p her half of the v/hole, if less than one-half remained undisposed of. In all ordinary cases this would be the proper and sufficient remedy for any infringement of her rights- It is possible that a case might arise in v;hich the cir- cumstances would v/ai-rant the institution of an action by her before the dissolution of the community, but no such circianstances are Bhavm to exist in this case- It does not appear that the amount of the gift was so dis- proportionate to the amount of the community property as to endanger the right «f the -Afe to her full claare on the dissolution of the ccouvtnity. 412. or to deprive the husband of the means of supportir^ the wife and others dependent upon him. In short, it does not show any present or prospective injury to her, and he, of course, has no ground of coniplaint. If the v/ife survives her husband, she -^/ill get her full share of the conmunity prop- erty out of that which remains. If the husband survives the wife, he will get everything that he has not voluntarily parted with. On this ground I place Day concurrence in the jud^aent. . I—- o v^ V^- ^^- Un^^^^ ^' "^^"-^ ^ ^ ^ ^ ^ ^^ -=? /<^ •r-:i .>>1/' • T "4" (■■■'' ■-'^' ' :;n) C ,1 ■;• ";■: ^,,* ■■■:■ :;ji- -. ■'♦• .rrA"" ' -3-M' 413. BOiniy V. DUTIBIE, Probate Judge. (SuprercG Court of Idaho. Jan. 30, 1912.) (21 Idaiio, 258) (121 Pac.Rep. 544.) Appeal from Dip tract Court, Ada County; John P. IlacLaxie, Judge. Appealj by Edna R. Kohny. admin istratrlg^of the estate of Albert B. KohiayrTrom an order by 'uil liam C. Dunbar, probate judge, refusing to "ggttle^apd alio ;/ cie f inalTaecou nt of the adxainistr'atrix unfil^shs paid aa inheritance ta^~^upou the one -half" interest in the coinmuaity property belon'^r inff to the \afe of"~tHe^.ec e ased. ~~jQdCT:£nt of tis probate court^ reversed by the district coxirt- Judgnent of the district court afrirmed. Ailshie, J. — This appeal involves the constriction of section 1875 of the Rev- Codes, coramonly !aao\m a§ tlie =' lalieri tance Ta;c Law." CBie respondent, Edna K. Zohny, is the v/ido\7 of Albert B' Kohny, deceased, and is the administratri;: of his ©state. On the 9th of Pebx-uary, 1909, the adminietratri:! duly made and returnee, to the prob ate court of l ,C.a. c pun ty an_aSia:aijEement of the estate of her deceased husband, vhich shor.'ed the estaie_:tojbe^]^^S2^al^^ccC:$2a756gz?6i-^^ v25; '^ -•tTag ^the :eep- arate estate of Aibert _B^_j Iohny _ aDd Q' 65 ^77. 70 repreeeated^the oommunity jifitatR^-and property of Albert BT~Zohi^^~iM Edna HT' iDohny, his wife. The a dministratrj:: o ffered to pa y the ia Jaerita nce tag upon one-half of the ^ -^ 'communi ^^ prOPer"^ 3gg-^-3l^-?TlTi^^^^^ rff'^'Kp'r "ft--p.Trfpt.^ on imrTRV "sRCCroiriS?? , cr—? but the_pr obate "^.ge^fused to settle, approve., and allow her f inal _ac- ?" count unHI she fi rst Pa id ,tl^ji_ii']:f^Jigr^^.jLqi- "po" tT-Q -'ghole -a. 414. Supp. 663; 4 V/ordE u Pha-aces, 3732; 23 Cyc. 41, notes 40 and 41. The in- testate lav.'s of this state comprise that Isody of the statutes which pro^ vide a3!u prsscri'be tlie devolution of estates of pe.-eons v/ho die v/ithout disposing of their estates ty last -/ill or testament. In other words in- testate laws deal \4th intostato estates, ani provide for the passing of title to such person or perrons as the la;Mnat:ors in their judsaent anc. . v/isdom have thought best entiltlod to such estates, ITow, then, it "beius ggnceded that Alter :g. Kohny did not dispose of his property and estate ty v/ill and that he therefore died intestate, tlx; question to be determin- ed i8. Did his v7ido\;, Edna R. Kohny, corae into the posiesDion acd enjoy- ment of one-half of the community esta-to imdor and by virtue of the in- testato laws of the state? In order to intelligently determine this question, it is necessary to consider tiie nature axd character cEC the estate Imov/n as "community property." (1) Section 3050 of the Rev. Codes defines community property as fol- lov/s: "Community property is property acquired by husband and /ife, or either, during- marriEge, -v.-heu not acquired as the separate property of either*" Cliaptor 5, title 2, of the Civil Code, comprising sections 2674 to 2693, inclusive, is devoted to the subject "Kusban?. and !7ife." Section 2676 defines the separate pro:,:erty of the v/ife, and 2677 gives her the "management, control and absolute power of disposition of her separate property," botii real and personal, ani authorizes her to sell and convey her separate property '..Itliout procuring the consent or concurrence off her husband. Section 2679 defines the separate property of the husband, and sectioh 2680 is as follov/s: "All other property acquired after marriage by eitiier husbnd or -.Ife, including the rents and profits of the sepa- rate property of tlie husband and \/ife, is community property, unless by the iastTUcent "^^j v/hich any such property is acquired by the \Af In case no testamentary disposition shall have been mcde by th3 deceased husb::nd or \dfe of his or her lialf of the community property, it slr.ll descend equally to the legitimate issue of his, her or th3ir bodies. If there be no issue of said deceased living, or none of their representatives living, then the said coirmunity property diall all pass to the survivor, to the e::clusion of collateral heirs, subject to the community debts, tho fcmily alitov/ance, and the charges and ercpenses of admi ai E trat i on - " (5) The foregoing section of the statute recognizes the husband and wife as equal partners in the community estr.te, and it authorizes each to dispose of his or her half by \.-ill. It also provides that the survivor shall continue to be the oviier of half of such property subject only to the payment of tha community debts. Kiis statute clearly and ■unmistalobl^ provides that the surviving spouse talB s his or her half of the community property, not by succession, descent or ixiheritance, but as survivor of the marital commimity or partnership! The sans section provides, fiarther, that in the event there be no issue of the mari'iage living at the time of the death of one of the spouses and he or she leaves no \all or testament, the half of the community property which belonged to the deceased shall go to the survivor as an heir, cnC, therefore, by descent end under and by virtue of tho "intestate laws of this state." '..laile, therefore, tho survivor in tMs case receives the entire comiTiunity estate by reason of the death of her husband, half of it v/as already hers, and the only additional interest or right she acquires in that half by reason of the death of her husband is the right of managemsiat, control, aad disposition. The death of tha statutory managing agent and trustee leaves the v/ if e '.Ithout svch agent and reduces her to the statui of a feme sole, and the la">.' authorizeB" her to act in her ovm right. Death has v/orlced a dissolution of the cornet munity partnership, and left the surviving partner to act for herself. She also receives the other half of the community property, but by an en- 416. tiroly diffe-ent means. It coraec to her lil:e\7i60 ty reason of the de-'.th of the hiisbnnd, "but throu^ the means of ho-- heirship. The ctatute iiakes her an heir of her husband, and so, in the absence of testamentary dis- position of the husband's share of the community property, she inherits his hrlf, rnd ther-afore talrec his share under the intestate laws of the state. It is clear, ho\/ever, that she does not inherit her share of the common property* Counsel for rj?pellant hr.vo called our attention to the case of Hall V. Johns, 17 Idaho, 224, 105 Pac. 71, v/herein this court said: "The title to community property is in the husband, and during the e::isteDce of the conmuni ty the vife's interest in the community property is a mere expect-. ancy«" That case involved tiie right of the vafe to contract in a matter v/hich did not hcyo reference to her separate i^roperty ard esta.te and to bind the community thereby, caad the above observation v/as mr.de tn the course of a consideration of the power of tha wife to bind herself or sep^ arate estate or the commimity estate by contradt v/hich had no reference to her separate property and estate, it ;;as held that she could not bind the community in such iganner, and in that coanection it vns suggested that her interest during the continuance of the marital relation was a mere e::pect» ancy. Similar language ha^ been frequently used by the courts and es- pecially in California, as \7ill be seen from an e:;amination of In re Bur- dick, 112 Cal. 387, 44 Pac, 734; Sprectels y. Spreclcels, 116 Cal 539, 46 Pac. 228, 56 L. R. A. 497, 58 Am St. Rep. 170; and Estate of lloffitt, 155 C-1, 359, 95 Pac. 653, 1025, 20 1. R. A. (U.S.) 207. The California court in the Estate of lloffitt, supra, hold under a statute almost identical with ours that the interest of the v/ife in the ccsmunity praperty during '-.' the continuance of the community is a mere e:5?ectancy, and that upon the death of the husband the v4fe takes her share of the community property, not as survivor or in her a.:n right, but (in some manner not clearly dis- closed) under the intestate laws of the state or the laws of descent and succession, and that she is liable to pay jin iaheritance tare on her half of the euoh estate. That c~se apparently rests ^^jon the authority of In re Burdicl: and Spreclosls v« Spreclcels. Tlie Burdiclz Case held that the "wife takes her interest in svch property (community property) by way of succession from the husband, axd through distribution of his estate." llr. Justice Harrison dissented from that vie*;.', and \,'rote a. separate opinion d&rjing vfith this phase of the statute, aai lir. Justice Garroutte concur- red in tliis dissent. The opinion by J ustice Harrison is very clear and concise, and, to our minds, e::presses the logical rjid reasonable interpre- tation of the statute, and is better reasoned than the opinion of the coutt. Among other things he cays: "She receives it (half the community property), hov«ver, not as the heir of her husb.nd, but in her a:-:i. right as her half of the property v^iich vss acquired by herself and her husband during the marriage, but freed from all restrictions in its use and anjoy- nie;$t, and vd. th ihe sane title as if tlB marriage htd been dissolved by a decree of divorce," The community property law has been in force in V/ash- ington since about 1869, |t has been changed sli^ttly from time to time with reference to the right of disposition of the property and the manage- ment and control by the husband, but the commtmity propa-ty law in thS main ha.s been in froce continuously in that state. In V.'arburton v. White, 18 XJash. 511, 52 Pac. 233, 552, the question arose as to the necessity of the wife joining the husband in' the disposition c£ coianunity property. The case v;as carried by writ of error to the Supreme Court of the United 417. States, and In V/crliui-tou v. '"'hito 176 U. S. 405, 20 Sup. Ct. 404, 44 L. Ed. 555, the Zujrerm Covst of the United States, speckln^j throu£-h I'x. Jue- ticG (now Chief Justice) V.hite, reviev;ec. the V/ashington decicions on the Subject aM coneidered the matter at some length, era in corarcentin:^ u^^on the Tlciht or interest of the wdfe in the community property said: "prop- erty acquired during marriage ••./ith ccrnTiuuity funds became an acquet cff the community, aai not the sole property of the one in whose name Vae property T./as brought, although by the la^/ eriistia:,- at the time the husband v/as given the manasercont, control, and pov;er cff sale of such property; this ri^ht bsing vested in him, not because he v/as the occlusive owner, but because by law he v;as cceated the agent of the coimunity, the proceeds of the prop- erty bein^- sold by him becoming an acquet of the community, subject to the trust v;hich the statute ijinposed upon the husbard., from the very nature of the property relation engendered by the provision for the community." In iiruett V. Reade, 220 U* S. 311, 21 Su;^^* Ct. 425, 55 L. Bd. 477, the war- burton Case was quoted -..Ith rpproval, ard the court, spealring through LIr. Justice Holmes, eaid: "It is very plain that the '.-'ife hss a greater in- terest thrn the mere possibility of an e:cpectant heir; for it is conceded by the court below and everyv/here, we believe, that in one v/ay or another she has a remedy for an alienation made in fraud of her by her husband." Ilr. IlcXay of the Soattlo bar in his worlr on the La-w' of Community Property, p. 542, says: "In V/ashiugton the question has not been express- ly decided -whether the wife talres her moiety by inheritance from her hus- band, but the decisions defining her right are so clerr and decisive that but one conclusion is possible, viz., tliat she does not. Assuming this conclusion to be true, no inheritance ta:: could be imposed on her moiety . on tlTo death of her husband." In a note to the same section (476) the author says: "The state board of ta;: commissioners oiipressly disclaim any power to impose an inheritance tsx on the eurvivor|E shire of the com- mon property." Since tha interests of both husband and wife are the safflB and. equal in anc. to the communitj'- property, a sd each ta>c s one-lialf upon the death of tlie other ar£. each mry dispose of a cneOhalf interest there- in by v/ill, it is clear to us that, if the -.Tife must pay an inheritance ta:-: on hsr half of the property upon the death of the husband, the husband would like\>rise be obliged to pcy an inheritance ta:: on his half of the property on the death of his v.lfe. The law clerxly placfes them both on sn equality in tMs respect. Hiis illustration, hovever , accentuates tte un- reasonableness of the contention, for no one claims that the husb-nd is required to pay such ta:: on his interests in the community estate. Counsel have called our attention to a number of other authorities v/hich consider and discuss this question, but ve fhall not enter u:^-on an ana.lysis of then here. The follov;ing are some of the cases '..hich deal wit2i tliis question: "/right v. Kays, 10 Te::. 130, 60 Am. Dec. 200; Edv.'ards V. Bra.m, 58 Te;:329, 4 S. '/. 580, 5 S. ■". 87; larclier v. Hurray (C. C.) 54 Pod. 626; Tustin v. Adrjns (C.C.) 87 Fed. 377; Kolyoke v. Jacl:sOn, 3 Uash. T. 235, 3 iac. 841; Adrjno v. Black, 6 V.'ash. 528,51 Pac. 1074; In re' Hill's Estate, 5 Vfr.sh. 285, oZ iac. 585; Starbucks Estate, 137 Afp. DlTe 866, 122 IT. y. Supp. 585; Re Green's Estate, 58 I.5isc. Rep. 1, 124 H. T. Supp. 863; Re V/eiler's Estate, 122 H. Y. Supp 608; Billings v. People, 18a 111. 472, 59 N. E. 798, 59 L. R. A. B07; Estate of Gordon, 186 K. Y. 471, 79 U. 3. 722, 10 L. R . ;.. (E.G.) 1089. r i^^L^a^-^if' c^ -e-^^pCA^ -^ ---<;^ ^-^i^>^ii-^Q> '^vK^l-.-Cf ;^^^.J^ ^^ 4ie. (^J ^e cou clu de^hait ua?oa the death of husbsiul or wife t he survivor p;^s_qne-^?SJX:^QlISlx^--;^im^i^^ in his or her ox^ vy:^ hJiji^_^^ir^J^^i7i^^^-^rrA — - is aot^liable under sedti on 1675 to .^ny n^aJ^hBritPA■^c7^1^^^r7,P^n^rriyr-^^y^,*^ est-iiLj;_h3 coamunitv estate^. ' "^ — _ The judgjieat is affirmead, with costs in favor <£ respondeat , .vS»-p ..-aL^'V-<2-t^--'C*-*'^cc.'C^ 419. ITLETIIT V. AD^IB et al, (Circuit Court, D, Washington, S.D. Llay 17, 1898.) (87 Fed .Hap. 5V^.) ^is Y;as_a suit in equity "by Frances I.I. Tiistin against Phoe"be D. Adams aid Spen cer Jaco'bs to determin e the rights of contesting homeEtead claimants to public landed Kauford, District Judge . This suit is to obtain a judicial deter- . mination of Cie riglits of couterjling hcnioctoad clanmaats under the land laws of the United S tates. On Deg gnoer 15. 1689. the coMolaiprint, I'rs^ France s_T us tin, offered to file in the Lliited States d is tric t agJid of- Iflce^at: ITOTtii Yalciaa her applicat ion to enter as a h oires tead the trac t of land in contrcrsrersy, tut her application was rejectecTliy the regiG^ter ~ihd receiver fo r~aio^reacon that the la nd is part of an ddci-nira gngd^ssar tion, and 7 zas_a-t-jPia^time .giri2P.0Sfi5Zt5ZEe-included-4a— fiio l a rd graat -tO- the Northern Pacific Railroad Company. Tn SLjTr-.fi nuent j ^ceeding? in the land_de2artment tlie claim of the railroad company has teen~set aside. Su'bserv.e nt'to tlie date of complainant's application to enter the land as a home st"ead~ til d"e"?eMaBt~nrs"r~ ida m s cla it igd the-saae— trac-t-as-a . homestead, an.d~in~th5~cxsffre^st^I»dceearings Taetween the'n the ^Tand'^g part'- Tngi^^: ^jr HLllj> uuuKl ed tiia t~nfsTl[d ams~had~tKe^'et"teFrl'g bt ahd a patent - conveyin- the _titlo tos'teenTis's^ d to her. In, the emended TDin~of ~cOHP- plaint filed herein, th© decision of tlB secretary of tl'B interior con- taining a recital of tlie facts and the secretary's conclusions of law is set forth in fiill, and the complainant alleges that the facte as foi-:nd and set forth in the secretary's decision are such as to entitle ?£r leg- ally to a decree declaring ter to "be the real owner of the land, and that llrs. Adams holds the title as trustee, and recjuiring 1:0 r to convey the same to complainant. Bie defendants have demurred to the amended "bill, and the case lias been argued and submitted by counsel for the parties, respectively, upon the demurrer. In tlE arsuEDnt counsel for the c omplainant insists that the only material facts shown "by the decision of tto secretary of the interior are: "First. That on the 13th day of December, 1889, tie plaintiff, • herein, Frances II. Tustin, duly applied to enter the tract of l.'nu in controversy herein as a honEstead under the lard lav/s of tho United States, and thereafter fulfilled all lav/ful requirements in relation . thereto. Second. Ihat a year and ten days afterwards, to mt, December 25, 1890, defendant lie rein Phoebe D. Adams ^plied to enter the same tract as a homestead. Tliird. Ihat defendant's application was at first rejected on twio grounds, one of which was plaintiff's prior application, but that this ruling vss afterwards reversed by the va:.'iou5 officers of the department, and decided in defendant's favor, and a patent to said lEinds issued to her.' Biis statemont of facts is, indeed, quite simple, ard siccess would be easy for the complainant if her counsel could eliminate from the case 420. all otlior facts, end confine tho inquiry to ouoBtionE as to tho rights of thj particG ari.-ius xrom Mp. statement. V/ero the coutrcvoTTsy restrict- ed '.vithin the navioxf linitiJ propoitJcd, I shDvad agree v/ith him that tho only logical and logal noncla^■!ion to be drawn v/ouH bo that hie clisnt is entitled to the land. Tlie prerai'Jos, however, arc false in tv/o par- ticulars, and the argument "buiit thereon is necessarily unsound. Tc the first place, it is not true that the secretary of the interior, in his decision, found as a fact that tho complainant "fulfilled all lav/ful re- quiremonts in relation" to her homestead claim. The law requires as a prerequisite to perfecting a title to land under the homestead lav; that the homestead claimant shall nalco a peaceable entry upon unappropriated public land, and establish a hcrr.3 thereon, by either erecting a dwelling house, or purchasing from the cv.ner a house suitable for habitation, and continued residence upon and c-altivaticn and improvoaent of the ]and. Iho secretary's decision contains no findings of such facts in the com- plainant's favor. In the second place, it is necessary, in order to reach a just deci- sion in accordance \vith tlx legal rights of the parties, to take into consideration tta facts as to the status of each party, — as to the nature and condition of the land, as to the date and nanner of talring pmses^ion, as to the improvements made upon the land, and as to the good faith of each in meeting tlx requirements of the homestead lav/. Ihe facts ?:et forth in the secretary's decision, \^ich I deem important and material, are as follo;.s, viz.: "Ihe tract here involved, viz. the IT. T7. l/4 of Sec. 31, T. 13, H. , R. 19 E., north Yakima, \7ashi;agton, laud district, is v;ithin the primary limits o±" the grant to the Uorthern Pacific Eail\7ay Company, branch line, the v/ithdra'>7al for the benefit of \i'h5oh became' effective July 11, 1679. llap of definite location was filed Ilay 24, 1884. * * * in 1830, J. II. Adams, v/ho '.7as at that time receiver of the lazd office at north Yakima, took possession of tie tract, arf: began fencing, irrigating, and otherwise impra.'ing it. Supposing, under the rulings of the department at that time, that it v/as railroad land, lie filed v.'ith the ITcrthern Pcx;ific Rail- road Company his application to purchase said tract when the company should have acquired title thereto, and on June 22, 1D61, he received from the general land agent of said company a clird aclcnowledging the re- ceipt of his application. In the spring of 1884, Joshua L. Ii^stin built a small house on one corner of the tract, and on March 21, 1884, he filed his homestead application for the land. This application v/as re- jected for the reason that *it does not appear or is not shown that the tract \7aB occupied bona fide at tiie date of v.lthdravval of June 11, 1379, for the benefit of the branch line of the northern Pacific Railroad.' Tost in appealed, aixl a hearing v/as ordered by yovx office to determine ■ tlie status of the tract. At this hearing, v/hich v/as held on Hay 7, 1884, Adams "^/as allov;ed to intervene. Hie record of the evidence sr.bnitted at said hearing remained in the local office unacted upon until September 20, 1886, -..hen it \!z.s sent up "dth the report C:iat the case had been dis- missed at the request of all parties, Tijittin having filed a dismissal of his contest on September 7, 1868. July 50, 1S89, Adams, who had become register of the land office at Spokane, V/ashington, filed his timber- culture ;^plication for said tract. Pnis application vns \7ithdrawn by his attorney on September 21, 1889, and on the same day the tract was listed by the northern Pacific Railroad Company. December 13, 1889, Ilrs. 421. Francos 11. TUstin applied to enter this tract as a honjostead, allesing in an affidavit filed v/ith l:er application that she was the v/ife of Joshua L. Tustin, aoi that she had been deserted ty him on December 6, 1669. Said application \/as rejected on account of the railroad selection., and IlTE. Tustin appealed. * * * About Peccmber 1, 1890, Adarac died, and on Dec ember 23d, follov/ins, his widov/, Ilrs . Phoebe D. Adams, applied to raato horcoctead entry of the tract in question. Said application \/as re- jected on account of the pendency of the railroad company's appeal and the prior application of Iirs. Tustin, and from this action Ilrs , Adams appealed, Sbs also filed motion for leave to intervene in the contest betvreon Ilrs. Itictin and the railroad ooqpany, and this motion, together v/ith all other papers filed by her, \Tas forwarded to the department. * * * Th.e evidence chmvs tl:iat from the time J. II. Adams took posses- sion of this tract, in 1680, up to the date of his death, ho was con- stantly improving it; that lie brou^it v.'ater several miles to irrigate it; that at the time of Ms death practically the v;holo tract was irrigated and under cultivation-, and that ho had tlcreon a socd dv;ol ling house and several outhouses. Since his death his v/ife and children have ccntinued to reside on the land. In 1886, Adams, in order to settle the dicptito betVAsen himself and Joshua L. Tustin, paid Tustin 054:0 to relinquish his contest, abandon all claim he mijht Mve to the tract, and change his residence. * * * About the last of Hay or first of June, 1889, TuGtin aai liis wife moved to the Big Bend country, one hundred and. fifty miles distant, where Tustin filed a pre-emption declaratory statement for a certain tract in Douglas county, Washington. They camped on this pre- enjjtion tract in the Big Bend country for two days, and then went to the home of Ilrs. Tustin' c mother, adjoining the land in controversy, vAiers ttey remained three weeliE. At the expiration of that time they again tooic up t3:eir residence in the house they had foimerly occupied on the tract in dispute, the sane house that Olictin had cold to Adams only a short tiine Before, The testimony is conflicting as to \Thether or not they made a forcible entry on the land at this time. A preponderance of the evidence shows, however, that at the time the "lustins made their orig- inal settlement, in 1884, Adams had all the tract inclosed with a wire fence, e::cep t one coriasr down under a hill; that Tustin built his house on that uniuclosed corcer; that aftervTardc Adams e::tended hie fence en- tirely arourd. the tract, and Tustin made an opening ttiere in for entrance and o::it; that after Tustin and his wife left in the spring of 1889 Adams had. the opening closed; and that \*en the Tustins returned to the land they brolje the fence to get in. December 5, 1889, Joshua L. Tustin left, and three days later Ilrs. Tustin made out her honestead application as a deserted wife, filing the same on December 13, 1889. A decree of div- orce v/as granted Ilrs. Tustin on July 13, 1891. To improverTentshave been placed on the land by Ilrs. Tustin since her return from the Big Bend country, m the fall of 1890 she attcaapted to have some plowing done, but \vas restrained by an injunction. * * * •> ^^n the a rgument counsel for t he complainant takes the" gr ound that on^the~15th d.ay--5£-IIec.^ ber.. 1889, Lir. and Ilrs. Adams Jjadjncrggsatng as homestead claimants because they haci. not thearfile^Ta hom es tead^pplica- TTorriargie land~^fTce, an d on thig^gJgJ^^^^gj^-SJgJ^ialgMg a proper^ap^; -Pi ic_a.tiJgL_^ p enter~ tlie ian"c[~anrho;^¥tead7 an d then a5:d tliereby her rig^t to the land v/as initiated. I n effect this argument is a disclaimer of~ ~ a ayT^it based iipon prior nnf-u pfl-tion, or irf^provement of the land by llrs.H ^"^ r ^ ^*^-'^'C<^ ^ ^ - ^-^^-*^<:^^ P 422. Tusti n or her huctand, and I understand that her vi^ole caso res^ts upon what^he hersoIT i vubi Jung on glrd -l ^j^ l J^:bgu e 7^^^^t^~'gE e" dp.te g:eationed 7~^ Le t it be canceded JXat at ohe timo Its. TiiBtin t^rdered her hemes t3?,d appli- cation for filing in th'3 land office the AdxQ^es had no standing a'^ r.or^- etoad claimants, ar.d that tba defendants' title v.-as initiated s';['b?n<5a'f.:at to DecauDer 13, 1839, still thsy vrare in possession of the land, had it inclosed, and were the ov.ners of th3 ioprovoients whjch they had jK'Ae anl • paid for. Their occtipatiOD., inclosme, and cultivation of the latid was not, in view of the facts recited in the secretary's decifJion, c^la fide. Eo individual ira-s wronged therety, and. only the eoxern'::ent of the United States could legally institnte proceedings to dicpossess them. Ucler the circumstances aentionoa, l!rs. Tustin could not legally initiate any righ; to the land tmder the hcmectead law. "Hie policy of the goverivro^n.t in offering puVlic ia^vls to the heads of families upon tho term^ presorihed in the homestead law, is henevclent, ard the act is to be lilierally con- strued in favor of the class of citizens intended to "be its hmfj^iciarisp, but the heneVGlent spirit of the law 'does not sanction siu-'.h rar.Jc iJijus- tice as the forcitle cseiz-ir© and appropriation "by one individual of houses aM costly improvements owned by others, nor the forcible br'ealcing of inclosiares, even thou^::- as agairst the gcrerrru-ent the incloc-^ires are unlawful. Atherttn v. FJWlsr, SS U.S. 513-520; Eavs V. Ilining Co., 160 y.S. 303-319, IS Sup. C^.. 282. The house occupied oy the corrplainant upon the premises was erected by her huaband au"ter her marriage, a:od be- fore her separation frort hi-^A; therefore it was coffiir:'Wity pr.'P'vrty under the laws of ^achxEgton territoiy in force at that time. By virtcts of her marriage the coraplainant had sn interest in the house as co>rrr.unity property, aM she never acijuiraa any other right to it. The houpe being ■upon public lard, the only title which its ownf^rs coiild claim \vas a chat- tel interest, am the husband being the maniger of the co)ir7.unity property, and expressly authorised 'ffy the statu '.es then in force to sell and dis- pose of the coraianiry personal propcrt-y, the costract v*\ich he max"?;, whereby he sold the houne to J. M. jLdfliiS for a consideration of J;;540, was Via id, and the coin>laina--t was bouxd by it, exr.otly ao she m:ght be bound by any other contract made throvigh a duly au <-:';■. or i zed agent. Ab'^o* lute want of goud faith on the part of the conplainaat in claiming this land under the homestead !?-■«' clesjrly and concluPiToly appears by the taW-Bg possessicn of this houre, \-!hich hisr hrstand had previously Sold to J. M. Ada-nfi, -ra.thout his ccnsenc. I cons ider that fiie demurrer to the amended bi H should be sustained for the~reasons that it is st-.o'o conclusively^y ^^-^ f ladings o£ the secreta ry of t^^/Jfefi ur Ihab the JliM_MiI5ot> on. or saoi.&q^nt-toHl ?eso - jib3r 1 5, -W^t -sa^-jggtrt9zegt?y-by the coiaplairipJlt ^.mder the homestead law, and she has not fulfilled any of the requiremonts of the law as to x-esldecce upoQ and ^raltivatirQa-and impraviaBentof the lasd. 423 . JEWIIB YAKS, Re sp 071-16111;, v. P. II. PUGI-I, 6t al., Appellaiits. (13 TTaeh. 73. 1095.) Appeal from Superior Court, Spolsane County— Hon. Uallace Ilount, Judge. Affirmed. The opinion of tlse court \7aB delivered ty Hoyt, C. J. — This action r;a.s >irfiijght ^ to recover •nos^ esfl.^. Q>i__Qf cert ain persor.al properly, and daaase-^ for i.tn detention. Fr07a defcudont'c 3ia-'3- l!Vor it appeared mst' thfur ciai:ii vifao I'ouniodTupon a lovy unier .-^.ttac'^^ient in a suit against th.3 plaintiff and her htisbard. Tli e plaint raff's rjgi'.t tfi png«;f»r,p|oi-i iff -Prtnynipfl irpn~) her clalii tliat the pi'operty 'bclon'^'el tJ he r ; jtMi-^af the dofen dr ntB upon the claim -cha.: it T.as co-raunitY pro^^rty. And the question p:>'e.seuted ty these adverse claims is the prin(j:-pai one \^ich. v.B are called upon to decide. It ^Dpearod from the testimony that the property ha d teen acquired "by^ the ^7ife_v7it h money vhich she had received from por^ons v/hcm Cie htid kept as boarders, ani for v/ork done hy her as a dro£:-f!0E3<.nr« it also ap- "peared tEat" gefaM'ti -^he conoented to enf^ge in the b^is meso ty mcsiiR of vihich this money was ohta.iiirj.1, her hrsbc-id told her thr.t if fhe did so, whatever money she rado should be hor separate prober 'by. ^nd to fiir-ther establish the fact that as between the husband and mfa it was under- stood to be the business of the wife aiid not of the coLrr.inity, it t.-ss shown that the hutiband pa^d the v/ife for his board the sa;rie os did other boarders. IThat the earnings of the wife a^J v/ell as those of the hn.'band, wh^i they were liV^ios toga-Q-.er, prima facie belong to the corinurity has been held to be t>L3 law in mort, if not a'Q, of the state? v^iic}-. ha.ve statutes similar to c\xc own. !Eiis rule was recognized and applied to ■ the- statutes of feis state in the ca<.e of Abbott v. V.'cthorby, 6 Tash. 507 (56 Am. St. Hep. 1?6). Under it, if th6 w.rfe had done what she did, vdth- out any agreement between herself and her hns'rand as to vho thould have the benefit of her soi'vices, the money received therefor would have been that of the conmunjty . It foj.lown that if the money was hers, it was by reason of the fact that what was yaid and done by the husband amounted to a gift to her of che money received. It is not claimed that this wDUld not have been si^fxicient for the purpc;?e, if the property had been in Qisistence, and had been at the time delivered to, and ninne retained by, the vafe. But tie contention is, that at the time the arrangement was entered into, that which v/as atteiopted to be donated was not in ex- istence and could not be delivered, and tiat for that reason the attempt- ed gift could have no effect. Tne general rule is that a gift, to be effective mi;st be consummated by delivery, but it does not follow that under the circumstances disclosed by the evidence in this case, tTrB norey received by the wife was not legally donated by the husband. The consent on his part tl:iat she should render these seiTAces ard receive pay there- for as her o\m, was a continuing arrangement, and was in force at the time she received the money, hence, when she received each si^m, she re- ceived it as her ovm. by e:3>rcE5 direction of her husband, and the effect ^^=*^^^^ —^ ^^^^<:1^ .-i^iyi^ , -^s;?:^'^^:^^^^ '/^--t^. ^ ,^^*^:3^ ~ -l^^^^^ 424. was the same as though the money liad first been in his hands, and had. "beon then daliverr.rl to 'rsir as a gafb. Bosiden, if the technical, legal title to the moroy la'^y "be seid not to ha.ve pa-red to h^r, yet tir.der the circvunfJtances, when the several articles wore purchasijd, 'brought into tie house acd tala^n po^sessfcu of by her an b3r separate proper!:y v/ith the ooncent of the habljaad, si'.ch consent and talcing poosession amour. tod to a gift from the hnaband to the \vife. Prnprtr^-y anqnivp^^i ijinder circuffistances very similar to thof^e dis- cl osed by this record, have been held by the courts of ot her st at es to iglong to the w.xa. {See JoYuir.oa v. Bur ford, 39 lerc. 242, and Von Glahn vriBrinBaiL~ai'Ca'x. 2C1 (22 ^ac. 597), and no case ho:ii'.:.ng to the con- trary, vhere the circuiris'carces were at all similar, has been brought to our attention. _3hg _effect of sunh an arrgn ytceKt between husbacd find v/ifs. w-.Fin- at-tacted-b y r , rpr'l1 - rr i: who w o r? o uch g. t the — t- iico th o piJiP '-' ^tg- v«ar a'-fQaJre d , -is_nQtJbere_J2i:eseated. It is no\*'.ere shov;3i tliat any 0.7 tl^a proper-';:/ \7as obtained after the'dnbt vas incurred, for whida the ac-'.io'.i \7> Roavis, C. J., and Madley, Mount, Fullerton and Anders, JJ., concur. 428. EVA EI7IIJ5 PCiBTTE, T'.Cr?]? oafisat v. DW.TJ^ UCRTOE [GZ -vV'aEd. -1:2 3. XQll. ) J^>,ppeal from a Judfjcrx^at of tho f.pfrrior corrt far Kiag cous'^, Cil- liam, 0'., enterel April 5C, j.9't0, lyprr. -fi- -n.-ii-n^y! in -Fgxrnr nf thp. p;is.v.i-» tiff, after a orlal on fce merit,3 y.?fOx-e the courl; v;icliout a .1ury. iri. Par3!Er, J. — By this action plaintiff ceste to hove her title to real pi-operty quieted as agaiJjSt a olaJ.ir o:?. IJeti tljrf5-;'eo:i, ni.?.i8 l*y the de/.'^-x'.- ant undor a jL-'d.o-Tjen.t reuciered :L3 its f?.Tor la the sirperior court for IL'.n^ covaity agsi.'i.fit her husha'id vpo.ri a cjnmtTmi':y del):. 1T3 question prcef.e.nted jE whether or x;.ot the prcp^^rty iiivclved r^as her seppjate property, a.o.d as EUGli. free froa the lien of ihtlc. jrd^-i'.eu'; , 5tie dofeji.dnrjt has appesJ.ed from a deoreo adjj-j.igj .tng the p-'operrty .to he plaintiff's separate property and therefore not suh^eot to the li'iMi of the Ju-jgincnt.. In the year "095, roEponie-at entered 5,r.to a contract for the p-urchasc of a lot in Abcrdjc-c, paying a portion of IhJ p-ochane price in cash. She had been engaged in teach ijif 5033 yaors prex'iou^ to that time and had ac- ctaaulated about $1,000. lu June, 19C&, rjhe was marri'Jd to 'D. 1, Pohbinn, and they liave ever since heen h"apl:.aad and '.7ife. A few months after their marriage she made fit*ai payme-.o.': upon tne lot and proc Tired a deed the^-efcr in compliance vath here contract. About this time she horrcwcd some money,, securing it hy a mortgage upon the lot. Thi^ mortgage and the note ac- companying it v.Bre e::ecuted by both herself atd hus'band. The money so borrov.'ed by her s'nc errpended in che c onrtt-nc fcioa of a dwelling upon the lot, aad probably paid a small balance thei'efrom upon the purchase price of the lot. Tnis debt was thereat cei- paid by her in month-'y payments from money earned by her in teaching', covering a period of some four years follo\;iug her marriage. There -.vas p::a'- tic ally nothing furnished by the hur,band in eitiier monej'- or propei-cy towa;rd3 the purchase of the lot or the maJcing of the impro\'emontE thereon. He did furnisn a very snail quantity of lumber, but we regard Giat of no consequence in detert^ining the ques- tion of his community interest in the property- In January, 1906, she sold this property, receiving therefor 01.783.35, after paying errnenses incident to the sale- A short tiirB before she received the- money upon this sale she moved to Seattle and entered into a contract for the pur- chase of a house and lot, v^iich for ccsivenience we will call the 16th avenue place. She was to pay tlierefcr 02,700 and assume a §3,000 mort- gage already on the properly. Eie hucbaxid had nothing whatever to do v/ith this deal. \t'hen she i-eceived the proceeds of the Aberdeen property she completed the purchase of the 18th avcjue pllace by payirog all of the v2,700 in cash, save about $150 for v,hich she ga.'e her personal note. The money then paid by her, in addition to the proceeds of the Aberdeen property, ^vas from her personal earnings acquired either before or after n..'~riage, v.hioh had loaned by her in the riearitime. She Lhen received a deed for the IBth ave- nue place subject to tlie 0^.000 mortgage. Thereafter siie sold the IBth 429. avoBue place, whicih sale netted her alDOut C^5,000, the purchaser asstanins the mortgaso thr-rcon. Thereafter sIb purclia^ed the property here involv- ed, paying therefor Ol,7o6 in crxh and arsf.umin.'? a ^3,000 marigs-^o thereon. Thic mortgage is scill UcT^aid. Her hustani had nothing v/hatever to do with this deal. Tlie e^id^nce canvj.zuoes us that the hushand has never made any material coutri'buoil.or.s towards the ao.;mRitiou of aiay of these F*-op- erties, and that all of tiaem were acquired Tjy respondeat as the prcdT;j?3t of her personal eai'jairigs . Piespondent clairas that there v.-as an acn^eenent between herself a:':d Ijucibtind er.isting at all tiires since their nxirriage, to fhB effect that the personal earr±rj^:' slr)uii be hor separate property. She testified relative to this xmderctanding as follov/s: '"Q. Have you t3:;::rod v/ith your h".'.3't:and sorce thing about this being your separate fu.nrts, this ison.^y -that you received fi'om teachir'g? A. Yes, sir. Q. Yto-t has been sajd by him 5i'. reJ^.L'.ou to taat, that particular matter, of v/hether those fimds should he your separate funds, or otherwise? A. There has never been an:/ dirjagi-ceicent about it, rj liss always been con- ceded by LIr. Do'-.bir'S that it ij mv property: aj^d my nciey is ny o\m to do what I cho'3o with it. Q. That this monay that you got from teaching is youi- separate futds? A. Yes, Fir. . . o Q.. How, as a matter of fact, there has n3ver been ai^y foimal discussio-a betweeu you as to \7ho should control any rconr;yE or aay properties? A. Yes, sir, certainly. 'Ce have jxver had any writtea concrant; but certainl'y I ccatrol my own money. He has never Q. He has never asl:ed for leave, to control it, has he? A. ITever. Q. it has jast gone alorig as a laattet of course, that you re- ceived the inco;re? A. He has frequently said tliat it was mine to do v/liat I pleased vath it . " It would hardly be correct to say that the personal earnings of re- spondent \^re accuuaulated \?hile si's "was living separate from her husband, so as to render them separate property uiidor Rem. c: Bal. Code, Sec 5920; though for the purpose of tln'owing light on tae urderstanding of the par- ties as to each earnings being her separate property, it is worthy of note that the eviderce shows tliat they './ere separated dur i'ag a large part of tlae time she \;as earning the monej' ac^ a teacher, after mai-riage, which was applied in pajnTient of the mortgage upon the Aberdeen property. Biis sep- aration \/as not because of disagreement between then, but evidently for busiccss reasons- Bui'ing this separation als contim^ed to live on the Aberdeen prop^rt^s while he v.as absent at Seattle and employed there. At all tirasE since the zoarriage ste has managed her business affSiirs, so far as her separate earnings aif. the acquisition of these properties is con- cerned, as if she v.'as an unmarried, wormian, all -/ithout any control whatever "by her husb^d. It seems to us that Ihese facts are sufficient to shov; such an agree- ment between respondent aif. her husband as resulted in all of her personal earnings after marriage becoming her separate property. It is true if we lool: in tMs evidence for some stch spacific agreement at sorrs specific time, wo may not be able to find it in clear and fo:mial language; but talc- ing her testimony as te> the general understanding b6t\,-een herself and hus- band, in contradiction of v.'hich there is not a syllable of evidence, and the fact of tl^ management of her earnings aB3. tho property acquired there- by v/itliout the slightest control of a- interference by her husband, v;e can- not escape the conclusion that it v.'as at all times since their marriage .-y-^^y^- 430. well tffiderstood t)y "both of ttem tint Mr earuiugis v/ere to be }r>r ?^Tiarate property, Yate \ . P-ugh, 13 ^a.-li. 73, 42 Pac. £>23, 52 Am. St. 17; Correct V. Eloan, 52 Wanh. 1, 99 Pac. 1025. Thic "belns; true, of coarse the prop- erty acquired through hHT bcparace ef.riiings als c beoa-OB ter separate prop- erty. This is not a ca^e of seDkixif; to e -s vaalifll. an r^^.i-eea^nt be two en a. husband aid. \sife at to f^.e Eta:u3 of r^al propR-.'^y. S'lich an agTCo-j'^zit, of coicse, could not bt; f;staDlis}-£d loy oral evidence. Graves r. G-rat/es, 48 ¥ash. 664, 94 Pao. 401. Tlif.s real proper.'y did not becorce separate property because of ar.y a'crreGrDDat aa to i I;.- statiis, Vat because it is the prcdtct cf tho wife's cepai-ata earnirgs v>iiiCii had become her separate property by agi-'eetueac TOth her hucbafd. It is contended that tlae cxccui-.ion of the note ard reortgase upon the Aberdeen proprir^y by bcth the hnsbaxJ. a'^j.d wife, and the uce of the pro- ceeds of that loan to pay a balrj-ce c'.vc upcn the porchase price of feiat property and to .inprcp-e the same by 'buiriirg £■, dvralling thereon, ren.lered it coirmimi<-y propbi'-Jry. Tlie case of Heinti: v. Erov/n, 46 yasja. 307, 90 Bac, 2^.1, 123 Am. St. &37, may seem to lead support to thic view. "We thinlc, hov.Qver, th.it nacp. i,'3 di s'ijngu.ishaljle frcm chis. In that case the con- tract for the pv:rchc.r.e of the lard vras tnac'.e af cer marriage, v/hilc in this case it vras cna/ie bai'orre marris^e. In that case the contract was made presumably in uie i.ntereiits of the corarr-mity, '.vhile the contract in this case, of cora-se, was not so made, because thera v.as t]ien on community. In that case we are to presume that the commujiity paid the loan which pro- duced the money to pay for the land, ard hence, the community did actually contribute to the purchs-se price; vAiile in this case the community did not 60 dontribute, but tie whole of the loan v.as actually pafd from the sepa- rate funds of the wife. In th&t case the coamuiiity actually assisted in carrying ont a contract for the purchase of land entered into after mar- riage, while in this case the husbfind only Joined in the execution of a note ai2i mortgage, thereby assistin;^ in ihe carrying o\it of th? contract for the purchase of the Aberdeen property, \liich contract had been mcde before marriage, and to the payment of which loan neither the husband nor the community ever c gniribated anything, '^e thinlc it can be said in this case that the v;ixe's separate funds actmily produced all of these prop- erties, notrnthstandiiig there may possibly be a technical senser in which it could be said the loaa, evidenced by the note and mortgage e::ecuted by both husband anL wife, contributed to the acquisition of the Aberdeen property. T;e treat the question as though no ri^Jits \7ere iere involved except those cf ths husba^id ard v/ife, so far as that property is concerned, since appellant's rights did not arise until years afterwards. TTe are of the opinion that the husband acquired no interest in that property. It may be said that the assumption by respondent of the mortgage on the 18th avenue place, and the assumption of the mortgage upon the property here involved, had the effect of creating a corcmunity obligation in the acquisition of those properties. ¥e thinlc such is not the case, in viev/ of the evidence showing that those transactions \\er6 consummated as a part of the management of her separate property. Uhited States Fid. & Guar, Co. V. Lee, 56 ¥ash. 16, 107 Pac. 670. We coDClude that the decree should be affirmed. It is so ordered. Dunbar, C. J., Iloxmt, and I'.orris, JJ., concur. 431. imiCfT SECURITIES CCtPAUT, Re-Tpcndeit, v. R. P. CHITtI et alo. Appellants. {93 ¥a3h. 115. 1916. ) Cross-appeals from a jiadgm^nt of the nupprior court for Adcmo cotmty, Linny J., cnbered Hay 8, 191R, in -r^r-n nF tV,P. vjln-iniif •r^ _rri_nT|^aCt-i on for equitable relief, tried to the court . Modified on plaintiff^' s appeal. Ellis, J. — ^Action to set aside as fradulent certain deeds and a mort- gage of real estate, and to si-'tjecc ai:. of t/ie propsr'r-y to the lien, of a judgtaent held by plaintiff as ascigiiee of the "banlc of Liud. Prior to 1907, R. P, Smith ari his son, Uarren Cmith, v^ith a nimter of other farmers of Adams counly, ha^ "become stocldioldors in the Famers Warehouse Compcny of lind,: a co:aperative company org^Xiized to facilitate the marketing,' of tleir ijrain. In 190/, these tvro ?:ad a member of other stocldioiderc signed a hcnd gtiarpjrSer. I'^o^^; tli.3 indo^tR'^..iecs of the v/arehouse ccmpany to the banJi. On July 2-5, 1913, the haLr.: "'iro-'ijaht snit on this "bona. Summons v.as served on thnt day, and on Jane 10, 191''-, it recovered a joint and several jui?.grreat in tho sum of v5,i74.74 against all of the signers of fiB "bond. On Au-'ust 7, 1913, "ITarren Smith ard rife conveyed to his mother, Janette P. Smith, wife of R. P. Smith, t>e north half of section 6, in township 16 north, range 35, S, \v:. i:>, -./Men is called in the record the "Peasley land.'' iL'arren Smith hcd. acquired title to this lai£- in the spring of 1912. On the same day. UVarren Smth aiid v/.ife eizeouted to Janette P. Smith a mortgage covering the north half o!C section 26, in ta..(Ji::hip 17 north, range 34, E, "W. II., and the nov.iieafcb quarter of section 32, in township 17 north, range 35, S.TVMI., purpovt.lii;' to secare a dctt of (^15,000. Tliis land is laaovm £ls the "Warren Suvlth land." The deed \7as filed for record on June 6, 1914, the mortgage on June 9, 19:. 4. One purpose of this suit was to declare this deed cucl mortgage fradulert as to the plaintiff's jtdgmsnt and to cuhjoct tho lard as belonging to Uiarren Smith to the judg- ment against him, Alout -lugust 7, 1913, T/.arren Smith and \7ife also e::ecuted to Janette P. Smith a chattel mortgage on all of tfce h- stoclc, teams and f arising im- plements, purporting to secure a deljt of 0^,000. aiis was satisfied ty e 1)111 of sale of this property from "Warren Smith and v.-ife to Janette P. Smith, e::ecut.cd Oune 8, 1914. and recorded June 9, 1914. This transaction is not asEai'ied. In 1907, R. P. Smith ani \7arren Smith negotiated the purchase of the northeast miai-ter of oooSion 4, in tov-Tiship 16 north, nange 35, 3. T. II., and the sor.t'ieast qi;.-xTter of section 32, in township 17 north, range 55, E. ^L. n. , Imov.n as the ^'Gartwright land." Title v/as talEn in the name of Janette P. Smith. TkB consideration paid v.'as ahout 012,000, Ihc raoney was raised, 08.00C) at a "ban'.: on joint notes of '.7arren Smith and mfe. Janette P. Smith oM R. P. Snith, Cl»750 ty a nortgase givon by '.Varren Smith and wife oa their hone stead, and 01.75O oy a mortgage given "by R. P. Smith ard Janette P. Smith on their homeBtead. All of these obliga- tiODE v;ere paid in 1908. Plaintiff seeks to ^v© this tract declared oomntmity property of R. P. and Janette P. Smith acd subjected to the lier of its judgn6ut. In 189";* ard prior thereto, Janette P. Smith acquired title to a half section of land laiown as the "Railrcad land," ard anotlaer tract of four hundred acres, Icnovai as the "Boyles land." Plaintiff sou^t to subject these, as community property of R. P. aad Janette Smith, to the lien of its judgment . But the only evidence on the subject shows, and it nov/ seeniB to be conceded, that these t\70 tracts, thoxzgh acquired after her marriage \/ith R. P. Smith sone forty years ago, were paid for with money she inherited froin her father before her marriage and are, therefore, Jan- ette P. Smith's separate property. The court adjudged: (1) that plaintiff's judgaent as against R. P. Smith is a lien on the comatinity property of R. P. and Janette Smith; (E) that an undivided ono-half of the "Cartwright laud" is conaaunity property of H. P. and Janette P. Smith, and as such subject to e:;ecution to satisfy the judgjreat; (3) that the mortgage covering the '"■"Barren Smith land" is a valid mortgage; (4) that the "Peasley land" is Qie separate property of Janette P. Smith azd is not subject to the lien of plaintiff's judgment. Both parties Imvin:^ appealed, ',7e shall designate them throughout as plaintiff and defendants. Me shall consider each branch of the judgment separately. I. Both R. P. a.-^ Janette P. Smith testified that, during all of their married life, they have conducted their business separately; that, at the time of tie marriage, slie Y&d. a considerable aaount of property inherited from her father; that, at or about that time, it v/as agreed be- tween them that 'v^iatever She acquired ^ould be l-jers and upon her death should go to her children, exd that \*.atever he acquired and his personal earnings should be his and upon his death rhould go to his tv/o children by a former marriage. Three disinterested witnesses who had Icncr.m the Smiths for rnauy years and had transacted "business v.'ith both of them testi- fied that tl:£y ?^d always conducted their busiress separately. Their sons, TJarren Smith and Hewell Smith, the former thirty-eight years old, the latter tvrenty-nine, testified that such Ir^-d been the case as long as thej' could remember. Dais evidence fairly establishes the agreement and shows that, in the main, it had been continuo"usly acted upon. Though this Mas an oral agreement, it does not appear that it v/as made before the mar- riage. It is not assailed as a contract made upon consideration of mar- riage,' hence void becai^se verbal, as v/e held in ICoontz v. Zoontz, 83 ^.Tash., 180, 145 Pac. 201. TTts statutR of frauds is neither plianded nor discussed. Such^agreeirents, raade after marriage and mutuallj' observed, ore valid. Sage V. Gage, 76 Uash. 252, 138 Pac. 886; Pobbins v. re:cter H orton u Co., 62 rash. 423, 113 Pac. 1088; YaJre v. Pugh, 13 Wash. 78, 42 Pac. 528, 52 Am. St. 17. R. P. Smith testified that he purchased the stock of the warehouse company, ten shares of ^0 each par value, v.'ith money earned by himself, that his \7ife v.-as in no manner concerned in the purchase, and that he 453. Ei^'pod tlio 1)001 as a Etcxjl-diolder- V.'e are cloar that his cii-^nins the bond did not create a community obli'jation. T/ay r. Lyric Theater Co., 79 V/ach. 275, K-0 Pac. 520. Tho court erred in holdij^g tte judgment a lien on the >>picmnnity property of R. P. and Janette P. Smith. II. The giving of the joint notes of the two communities and. the two mortgages to raise the original purchase price of the Cartwright land strongly supports the vi.ov.- that an unlivided cne-half of this Irxd beio^^-- ed to each of the commuuities ccnposod of Eo P. Smith and Jsnotte P. Smii and ^.'.'arren Smith and wifo. All of th.^sc partiec, hov,ever, testified that the title was talien in the ncme of Janette P. Smith ■because the land \,aE purchased for b3r, and that cho paid off all of these otiligations from her c\m funds. But it fairly appears that tlie money csmo partly from the crop. growing upon the laad v.-^:;ii it was purchased,: parti^y from money in hank in TJarron Smith's name, and ahout ti2,50Q from money iiiherited from her father ty Janetto P. Smith. It also appears that "Warren Smith for many years lied rented his mother's lands for lialf the crops after deducting seed and feed, and that v/hDn from time to time these crops "^/ere disijosed of, th) proceeds, "both of his pai't and hers, were deposited in the Tsanlr to his credit. Ihere was no e'"-idenoe thai: R, P. Smith contributed anything tov/ard discharg- ing the ohligations created on the purohano of this land. On the v*iole, \ie are satisfied that an undivided one-half of ttii s land is the property of the community composed of "(Xarren Smith aiil '.Tife, and the other half the separate property of Janotte P. Smith, and -.vb so hold. Ihere can ho no question that plaintiff's judgiinent as against V/arren Smith hinds the com- nunity praperty of TCTarren Smith ard \;ife. It is therefore a lien on their unc-ivided one -half of this land. III. For convenience in consecutive discussion, v;e shall ne:;t con- sider the "Peasley land." This land was pui'chased for $12,000 at an ad- ministrator's sale in the spring of 1912. Ue are s^isfied that it v/as purchased by barren Smith foi Janette P. Smith; that, throu^^i nistalre, the return of sale v/as irade in Ms name aaT. that soon aftcnvards he at- te;:nptcd to l"jave the mistaJ-e corrected, but was told t>Q,t Ihe easiest way to correct it was to deed the land to her, his wife joining. Both he and Janette P. Smith so testified, as did also txio attorneys \.hose advice they took at tie time. Ihere is no evidence to the contrary 'T7arren Smith had becai farming Janette P. Smith's lands during the years 1908 to 1911, in- clusiye, but had paid her no rent since 1907. Ee borrov.cd money at a banJc and paid for this lard., giving his ov;n check for somethii^g over O^.OOC of the purchase price and tumiyg over t\m certificates of deposit aggre- gating about O1.7OO5 belonging to Ms mother. So far as can be gathered from the evidence, the balance of the purcliase price, consisting of a mortgage assumed on tlie purchase, -..as paid partly by crops then grov/ing on the land and. partly by T/arren from rent money owing by hin to her. V/hile the evidence is much confused, ^.e are convinced that Uarren paid at least 09,000 of the purchase price of tiis land in part payment of his debt to his mother. True, die testified to the effect that at about this time, she does not remember wLethcr bof ere or after the Peasley purchaso, she received a ^jraft for ^^10.000 from a niece in llichigan -..ho has since died; that she cashed this draft at eoedd bank in Spolane, but could not remember v/hat bank or \/here in the citj' it \.'as located; that she ■was iilonLlfiod by a "Dtitch' -.voman namjd ''Ella' or "Lena," sh>: ic not certain which, "^.ho at one ti;:x -..■orl-xd for her; that this .."Oman na.; lives on ='Eome avenue" in 1 /I. £^l^---^^"^,'-»<-c-*;5i^5-i!*e«-*j<^ j::^ v-^ ^_^ ^i-^^UL.^ y*^^^ ' --^^^^^^ -^_ — ^;-:ac':TiGss, aud that since th?n. she had a settlement ;7ith V.'ar- ren Sraitli in v/hicli it mtist have been di-^cnssed. liai-eover, every item of this testimony is of si:ch natiire as to bo easily cciroborated and rend- ered certain in ma.ny ria^^s which at ouce sn^gest themss'.'.ves. On the other harrl, cortiiin it is that barren f^mith did not pay for the Peasley land vdth this money, c-rl certain it is that Ms banlc accotint shovrs no such deposit, or any uun^'arl deposit at or near this time. Ihough he testi- fied that she -ave him cash from time to time, he could not remember -.7hen nor the amount, and "supposed" he Icept some of it arouixL the raach an/?, put some in the banlr. "fherx aslEd if she save hira 0^,500 in cash at any time, he said: "I don't remember. Those things pass on in the common ways of daily life, ajid I don't remember." Clear and convincrog- proof of tJ-iese things lay easily v.lthin their power. Th3 evidence adduced seems to us too vague axid doubtful to furnish the basis for a legal ri^t. T/e find that she oivrcfj the Peasley land as her separate property, but that at least ^9,000 of the purchase price v^-as paid by Uarren Smith and should be credited upon his debt to her. IV. 'The evidence as to the settlement bet-./eai Janette P. and V/arren Smith as the basis of the mortgages is also lamentably vague and indef- inite. Both of them testified, in substance, that they discussed their busiuess matters and corcluded that he owed her, for rents and borrowed money, over -^20, 000. V/hen the loa33s were made and what their amount, neither could tell. Ti/hat the amoun'; of grain raised by higi on her lands during tlie five years for i:*iich it is claimed she liad received nothing, neither could tell. He could not remcaibe:.' whether he had been served lith summons in the Bani: of Lind suit -..hen the mortgages ",;ere given or not, but tlae evidence shajs that Ix had in fact been served just fourteen days before. She could not remember -..hether at that tine she knew of that suit, but admitted that she Imew "a {itoi-m \7as brewing." The attorney in v;hose office the settlercent '.vas made ajf. -/ho witnessed the mortgage and the deed to Yer of the Peasley land, thougli he testified as to other mat- ters, did not testify as to this settlement. T^/o things, however, are reasonably certain. Of this ^20,000 debt, $5,000 v.'as paid by tho bill of sale of the stcch ans?. implements coyered by the chattel mortgage, and the v9,500 vhich Ilrs. Smith claims to have given to T/arren Gmit"^ about the time of the Peasley purclaase -..'as included in the 015,000 secured by the real estate mortgage. But the proof, as './e have seen, was wholly insuf- ficient to show that she ever turned over to him this $9,500. Defendants assert that this mortgege was a valid preference. It is settled lav; in this state tlaat a debtor, though insolvent, may prefer one or more of Ms bona fide creditors even if it e^diaust his -raiole property to do so. IIcAvoy v. Jennings, 41- T/ash . 79, 87 Pac. 55; Victor v. (Jlover, 17 rash. 57, 48 Pac . 788, 40 L- R. A, 297. Hers Imowledge on the prefer- red 01 editor's part that his preference will hinder or defeat other cred- y / >-"^^ y , -.^t:^.^^^. 435. itors will not alone render hie preference fraudulent* Kelt l.ifs» Co. v. Bonninston. 73 V/ash. 467, 132 Pac. 50. But the preferred de^bt must tie real. It must not be used ac a colora"b3:& consideration to shield the debtor's property from other claims, national Surety Co. v. Udd, 65 V.'asho 471, 118 Pac. 547; Bvanp, Fraudulent Conveyances (4th ed.) Sec. 172, "The law loolcs with great jealousy \rpon tho oanner of giving prefer- ences, and denounces ail departures from good faith, and requires that tho parties shall not secure any covert aLlvantage to the debton in prejudice of his creditors," Btimp, Fraudulent Conveyarces (4th ed.). Sec. 174, Thou^ it is psually held that the property trajisf erred must bear a reasonable proportion to tho preferred debt, BurzC', Fraudulent Conveyances, Sec. 174, e::cessive security by mortgage raises no conclusive presumption of fratd. It is evidence to be considered -.vith other circimstances in determining fraud. Grand .^sland Banl^iiig Co, V. Costello, 45'"ITeb. 119, 65 N. "/. 576. But there is an obvious and marl:ed distinction betv;een an e::^ cessive security anl aa e::a^gorated debt. Any Gecuritj?' for a sum ICQO.ti to be in e::cess of vhat is actually duo is presiinntively fraudulent. Ilellogg V. Clyne, 54 Fed, 6S6; State e:i rel. Redmon v. Durant, 53 IIo ipp. 495, This results as a corollary from the universal rule that the preferred detl must "be real to furnish the essential element of good faith. There are some authorities -.hich hold that such a mortgago is only void as to tho fictitious part of the ostensible debt, but the better rule is the other v,-ay. If a creditor Icnovangly takes a mortgage for more than his duo, the fraud corrupts tlie vhole. Bump, Fraudulent Conveyances (1-th ed.) Sections 485, 486,. 487; Holt v. Creairer, 34 H. J. Sq. 161; Heintze V, Bentley, 34 IT. J. Eq. 562; hi ting v. Jolinson, llSer^j. & Eav.'le 528, 14 JjnUoc. 653; Kail, Hoses Ci Roberts, v. Eeydon, 41 Ala 242; Russell v. V.lnne, 57 F. Y. 591, 97 Am. Dec. 755. •r.Tien plaintiff showed by the parties to this mortgage that it must have included this 09,500 and brought out circumstances casting the gravest doubt on the e::iEteEce of so much of the ostensible debt secured, -,/hich doubt \^- unfounded, in the very nature of the case, defendants easily could have dispelled, lut did not, they made their case as against this mortgage. V/e have no option btit to hold it void in toto as to plaintiff^s judgr-^nt. Tl3 'r/arren Smith land is subject to the lien of that judgment I But the triad court overlooked the fact that plaintiff's assignor liad released Gio lien of this judgnent on certain Ir.nds of one Offut, another of the judgnent debtors, in consideration of an acl3i0'>;l edged payment of ( 1,250. Y/e Can conceive of no reasoli ^;hy this sum, hO'v7ever it ".vas paifi, should not be credited on tho judgment, aai no reason has been suggested. Cause re;iianded for modification of the judgment in accordance hei e- ViTith. Plaintiff may recover its costs on this appeal. llorris, C. J., Ilount, ard Bausman, JJ., concvu?-.- ^ 436. BPu'.CIZiTT, J.ppallar.t. {57 Easli -1-60, 1910) Appeal fro 112 a jx<-;rT>.e:Tt. of t3ae sui>e.i'3 0r cxotrt fifir Enohoms'h couaty, SteiEcr, J;, entored Ucv/roer iG, 190S, r^-oa fia clin^-s in favor of th3 plsa .-a- tiff^ _in aa action to q.v.iot tit le. lloC.ittstT' ^ "~ Morris, J.— aoci-ondciit ■brou:iht this action to quicrj her title to three- lots in SdacndE, allGSi.rkS', tlut on Jvie 2, 1305, tho parties liereto, fben tocbcncl aix". v/ife, -^.^.v^fiCL to live aTiPart, sxil inaue a division of their prep-- erty interests; t^.it, in pui-c-uance of &uii a:;^reeirent , 3,jpell:nt caiised to be conveyed to respondent certain reel property, iucluc.ins 6ie tliree lots, as Tber role ard sepi.rate estate, aid sh3 conveyed certain other _.roperty to appellarit as his sole ard LSparzte ectrte; tli^t subcec^uently a divorce •-as decreed, in • -hich decree her tittle to tlaese three lots .-as cmfinned; that the teeC.f having been i-aade prior to the divorce decree, vas presraia-ol^ a coraaimity ^roixxt, aixl thac her title bein- clouded by appellant*c presimpti-i coa-.Tunity interest, she praj'^sd for a decree renovin^- sucli cloudi Ihe aiis-./e, deniet". thes-e facts, alle^^ed •Qae ;ppelloj-ts to b. tho sole o\Jner of tlD lots xmder the divorce decree, piid asted to have the title decreed to be in hara. Tho court Hade finding's in fa-.or of respondent, ;nd froij judgment entered ihereon tliis appeal ..'as ta':en Ihe title to these three lots -./ac, prior to February 25, 1905, in J^ames II. Gephart, .ho it is admitted .--as only a trustee for the parties hereto. On th2.t day lie made a deed to the lots to respondent at appe'ulant'i. rec^uect, and delivered tli© same to appellarit v/ho retained poGsession of the same until June 2 follovlii^, Fron this point on the evidence is in conflict, Kavins determined to end their r.iar ital infelicity, husbcnd and '.vife on tlaat day ./ent to 3verett where au asreeaient ..'as entered into re- citing' a division of the property'' "ao^iordini^ to the various C.eec.o this d:y executed and exchan^'ed," iospondent e::ecufcin^' a deed to appellant 65 a piece of land called the hones tead, szc. appsll:.nt e::ecutin:j a deed to re- spondent bf five-acre ^jiecs. p.espondsnt then testifies that, at the sarj» tiiae aif- as a part of the agreecent, appellant ioaudec. her the deed to these tlaree lots, •..hich Gapha^'t li;. . executed on February 25th. Tliis stPP-ellant denies, zxf. contends thst the only ree.l propertjr discussed or affected at that ticie .'as the honestead ant', tlio five-rcie piece, and th^.t he never de- livered tiie deed to the tiii-ee lots to respondent, or to anj'' other person, until he filed the same for reooxd on February 7, 1906. Tlie deed appears to have been, in the poscessiou of C. ?:. Crouch, attorney for respond.ent in the dtvorco ivoceediu^-, fox sovjq time prior to February 5, 1903; for on that dsy Croucli, upon "frhe- written recuest of res..ondent, delivered the deed to C-ep:'s:rt, ciid, as it .as filed for record FebiUc-.ry 7 at the rec^uect of aadJellrnt, it is fair to assume it "as by Gephart delivered to appellant Crouch testifie:;, as does Caipenter, the present husb ixl of respondent, th?. .., subsequent to June 2, appellrjit pointed out these three lots to them as the pi op erty of respondent. It also appears that respondent su.bseruent- l3^ sold one of the lots, and that upon another she has erected a d^^rellinj, all of \.hich uas laia/n to appell.nt. She also offered to prove that she 437. had paid all subGocmeat ta::©E, tut this offer \/aE Tdjt tlie trial court re- juctGd. It doec, ho-./ei^er, zj^esc: tloat appellant paid no ta::es on thece lots subssouent to O'wif^ 2. We thinl:, therefore, the lo^.•er court was just- ified in its firdinss of -fact. But assuming the facts to be as found, v.'e cannot concur i/ith the court that respondent »vas entitled to the relief prayed fori "hen tlie deed passed froa ."ephar-; to apPGlTan-r, the coin;T:iunity thereby becairB in- vested •./ith the title s a)xl jt could r'cJ.v become divested of such title by a proper coix/eyance. Conceding,, as ■'rhe co^jt'c below fofjid, tiiat on 3\m.e 2 it was the purpose cxyI li.'.tenticn of sppellant to convey these lots to re- spondent and iiTvest her with the title as hor separate estate, he could not do so by handing the deed o-rsr to hev. The only way his interest in those lots conld be vested in lespo'adent v/as by deed from hira to her. It could not be do7i? by intention, purpose, or desire, ho-..'Over strongly he j may have e^^pressed hiir.self. T'e have heretofore hjeld that, -vliile a title taken in the -oame of either spouse is presumptively co-jmunity property, it is proper to robur, such presu;nption b, evidence that the purchase price was the separate fund of tie one in -.hom the title ■..as talan, or by sub- sequent oral declexations aid admissions of the separate cha-acter of the pui'chase, or by the act. of the parties in the tree.titent of the l?Jad with reference to voluntary liens, or "by the e::presEec'. intention of the spouses at the time of the conveyance, as in thecases of G-uye v. PliiUpton, -'-O 7,as.:. 254., 82 i-ac. 595, and Ballr.rd v. Elyfield, 47 T/ash. 174, 91 tac 642. So that, if the deed -iroa Gephart had been e-:ecuted on June 2, in accordance \dth the j^i-eement tlicn rarde and as a part consideration therefor, there mi|;ht be some r-ra-sind. for holdiug (although such a question not being beforo us, -/e do not -;ish to be understood as so holding), aided by the subser^ueL', facte as found by the cou.rt, that the precur^^tion har. been overcome and fha deed held to past sole title to respondent. The Ge,^!-art deed \.'as, ho-..ever , ^ade the previous February, acd no in- tention of its purpose and efSect in June could alter, change, or charact- eriaio the title 'hich vestM by its then c elivery to the community. There is no evidence shff.-'ing ar^.y intention of malirog any property settlement in February in \/hich t'tiAt deed ould play a part. It is prcbalily true tliat the parties vers then living unhapilly togetlier, and a divorce -ora^.- contem- plated, but it is nob contended that any arriJigement s had then been inade loolung to an amicabili/^adoustment of tl-^ir proi-erty rights, nor is it sho .-n that tespondont liac. any laiov/ledge of the e;:iEtence of this Gephart deed until Juiie 2. "e c;;iinot, thei-efore, hold there is any relation bct- v/oen the deed of Februar;- 25 and the agreer-isnt of Juno 2. It -..•ould also appocJ from the cvidcnccj of both parties that tha agrceri^ent of June 2 did not dispose of all their property rj^hos, but that there is still other property, not mentioned in the agroeiixant nor referred to in the divorce proceedings. neither did tho divorce decree arard this property to cither party* Bespondent was the plaintiff in that action, and in lier comrld-nt she men- tions mag:;: descriptions of real property, but cahes no mention of tMs property. 'Ib.Gse lots not being referred to in the divcarce action, the court therein Imd no jurisdictiun over them, and could male no decree affecting them. V/e regret, in viev of the facts as found by the l0'..'er_ _ court, which -.e believe justified by tlie evidence, that -.ve are constrainec. .-t? - xi^tA^^t:^ "^ C^^^f.^-^'-t-*^ \ 458* to hold that our statute requiriug all conveyancec of any interest in lane to "be fey deed, the interoct of appellant in the property in controversy could only bo cUvestec;. by deecl, aai did not pass by the delivery by him oi the Gephart deed, Jt does not follow;/; however, that the respondent is not entitled to relief as, under the facts sho\.n and found, v/e have this situation; An agreement to convey so as to vest tf.tlu in her as hrr separate estate; an attempt and. iliientiou to carry out thi.-i agreercent by delivery of a deed previously e::ecutec"'., in v/hich she is n^inod as grantee; a surrender of possession to he-.-, end a f^ubseruent acruiescenco in the recognition of her title. By tho plead?.ngs 5oth parties sub.nit the title to tho decree of the court and ask for geaeri.l ©qviitable relief, to that respondent can here be av/ai"dei. cuih er-aj. table relief as the facts sho-v/ her entitled to,- and that is to have the e^ree-iieut of O'une 2, made partially in consider- ation of a conveyEjice of this property to her and in consideration of v;hich sho in her tii-n conveyed to appellant, specifically enforced and a decree entercc^ in her b3l:ialf . TIae cause ..•ill tharofor^ be rerarndod to thi lower court, vJith in- structions to nialify tix; decree so as to direct axi-l order that Eppell?nt, within thirty days fro^:; the filing of tho rcmtt^itur in the lov/ei- court, e.'zecute and deliver to i-espondeut hie deed to tlic lots in question, in v/hich deed he shall divest hinself of all right, title, interest, ard estate in and to xhe lots in controversy, jind if for eny reason the ap- pellant shall fail or neglect so to do, ftie decree Eh?.ll provide for the appointment of a co/aniscioner, v;ho shall be duly authorised and ccraiT.issioD- ed to carry out the provisions of the decree, ffeither party \nll be awarded costs in' this court. . .^^ \ EW-lcin, C. J., Sclle ton, ChacVvJiclz, aid-G-osa, JJ., cuucoi'. 439. 37.1BCY E. CLAKZ, .appellant, v. lUKIOT B.VZSR et al. Respondents , (76 Wash. 110,1913) Cross-appeals from a jud^itent of tho c^t'e^ior cotirt for Spokane county, Kuneke, J. entered July 14, 1911, iu an action for ©quita"ble re- lief, after a trial on the raoritc. Ilodified. G05Q, J.— Tba. olaiutiff filod a Mil in eouity for ^ t^-ie purpose _Qf_ e stab lishing a coamnity interest in the estate ofj her deceased ]ii7r-^=^ •■•"•" i g eOTgelT* u laric. iJO th tiio pisintiiT erx!. the defendants have appealed frQia- tli o ~fincr~ fe» c i-e,?. ^i:.uc-. they^:;ill be t '.'i'i^i'y^jn f . :. f^ , « ->1 ;-i ij ^Lirf n ndr-^ - fenda^ts, Geor:,-e IT. Clark died testate on the 17th day of April, 1910. He left a nonintervention vill. Kis estate v/at adjudged solvent snd the will is being aESCuted by the deferdants as Iiis executors. The only men- tion of the plaintiff iu the -.111 appears in the follov/ini' lant,xiase: "Taiereas ray -./ife, iTancy S. Clark, and I prior to ottr marriase en- tered into a marrir^^e contract rffectin:;,' the property v.hich viq severally o-vmed at the time, cuL .'hereas her property so affected by said contract and the natui'al increase tliereof is anjlQ to support he. in coafort dur- ing her lifetime, it is i.^y -ill and desire and I hereby direct that my e::ecutors or the siTvivor of thej shell e::ecute to her a quit clain deed oe oil .roper ty that the o rned at the tima oc lier said iTErriage and all that has been a natural outgi-o.-th of tLi2 ssj-ne (in case there is any not heretofore quit-claimed by me to her), so that lier title thereto •.ill not be clouded on account of our said marriaie and tiiat my enti- e estate pass as hereinbefore provided,'" Tho testatot left all of his estate to the children and grand-Child- ren the issue of hiJiiself and. a former vAfe. The plaintiff axid George IT. Clrr': ■-ere ra rried in the state of Ore- gon on the 21st da;^r of Iie.y, 18S0. CI?: k then resided at Oadesdale, in this state. J.t the tino of the laarrijge, they Mutually inteixLed to malre this state the family domicile. In obsdieuco to that intention, they \Tent of Oal^sdale a fev; days after tl:e ii* marriage, end resxLed there until sometiiae in llarch, 1891, vhen tliey i:ioved upon a f ;rm belorging to the hus- band, near £t. Jolm, in ".r.;itut.n countjs '■■•iiere they resided until lloveraber 1899, \*en they moved to tpolzane, ■.•.■l-jsre they resided until tte decease of the husband.. The plaintiff h:.s sence continued to live upon the home- stead in Spokaae, v^iic-h had been the family home for eleven years before her husbdxid*s death. Both tie plaintiff and Clark had been married before, and each had Children by the for.;ier ;.:r.rriage. ThQ plaintiff, at the time of her mar- riage to Clark, oaned real estate in the state of Oregon. Clark at that time o-.Tned about CSO acres of land in that state. !!e also o\Tncd 480 acres of lair, in "iliitman county, this state, and had a contract v/ith the Horth 440. em I-acif ic Bc.ir..'?-y Corr(pany for tho purchase of 320 acres of lard in "Whitman countj''. This contract '..'as taade in 1887. Ke had mido at least one payr.ient on tlds contract at the time of his marriage. He acquirec' the legal title to the railroad land in 1897. At tlio time of the aarriage he owned perronallproioerty in V/hitnian ca:nty, this state, consisting of about 250 head of mi::ed cattle, 26 v/orl: horsec, 9 colts, aid aTsout OQCO in money. The plaintiff and the deceased lived upon the V,hitraan county land fron Ilarch, 1891, until EoveiAor, 189?, ad farmed tne land from 1891 to 1896 inclijsive. Bet\.'een the harvest of 1896 and tthe death of tho deceas- ed the 1-snd -./as rented upon a cash rental for two years, an?, for Either one-third or one-half the cro^. che Eieiaaining time. The farining operations of 1891 aud 1892 v/oj-e confiii^d to ler.r. than 100 acres a year, find M'.^le or no profit vas made. In 1893, about; 500 acres v;ere cropped and hai*ver$- ed, but owing to t?js unpiecedented rains of the year, v£iile tlie crop "vas large, it \/as so d2,_ia^od tliat it did not pay harvesting eripenses. In 1894 XG^j^t ::i'»d 1096, ai3 crop was li^Jit and the prices vBre so lov; that no profit '.VEi£ rnaC.e. Tlie record shov/s c'^nnculusivly that no profit resulted froui the far..iin-- opsrr.ticns of the plaintiff a ad her huEbj:iid during the period that they acitaally conducvted fche farm. The testimony accords './ith the experience snd obseryctiou of those •.7h.o v/ere in touch ■.d.th the farm- ing conditions in Eastern V/asIiington at that tirae. ImiJ3di:tely pa ior to the marriage, iiie plaintiff :::d Clarl: e:cecut3d the follo'..-ing antenuptial coutLact: "Agroomeiit arde this 21rt day of Ilay, 1090, at I/auo county, state of Oregon, by end bet./een George H. Clr.r, p^rty of the first part, .nd ITciicy 3. iemon, party of tho second part, '."''iunesseth, tia::.t './heroas the said parties cf Gi^ first aid socond part contemplaae lajxriage, end v/tereas the party of the. irst i^art is the ov.ner of real property situated in the states of Oregon and '7a£"..ington and has a family of sons and dau^ters by a former aarrir^-e, and 'Whereas the party of the second iiai't is the o\aaer of real pi-operty situated in the state of Oregon rnd has a family of child- ren by a forjuer ;nri-risge, ITo-; therefore it is autually conven^nted by and bet -een the- partiei, of the- first and second part that, in c qi3S id.era- tion of the marriage of the one to the other, Tliat the psrty of the first part doth hereby and by these presents rsijiise and relinquish no-.; and for- ever all light, title, intoz-est or claim in or to any and all of t>j3 roal ■property audipersoiv;! property which .-nay belong to tho party of the sec- ond :^.art at tlria ti;js of tho ^xX7i:.:^e of the parties hereto, end if the said party of th; second p„',rt slr.ll die prior to tlie party of the first part, all of her lands ond personal property cued by hjer in her o'-.-n right sliall belong to and be the property of tho children of the pai'ty of the second ^art, and the psr-ty of the first p-;rt sliall not claim or have an estate by courtesy in any part of the lands or iporsonal property of the party of tho second Pcjrt, anc". tho party of tho first part doth hereby a- greo to sign de2d or deeds at ;:iy tijne during said marriage for the sal3 Of said property slic.ll tl^e party of tho second part so desire. And the party of the second part in consideration of said marriage hereafter to be solemnised bet.rcen the vi^.i-tieG liereto doth hereby and by these pres'ents renounce and relinquish no-.; end forever all riglit, title, interest or cljim in or to any siid all of tlie re-l ..property ;.nd personal property \/hich 441. may Taelong to the party of the firct part at the tirae of the marraage of the paiHxGG horoto, aixl if the pai'ty of the first part sliill die prior to the party of tiie seoonl part all of tto land czd persaual property ovflied lay him iu his o\,ii i^-i^ht .ohall all belong to and "be the property of the children of tiao pai';y of the fi:c3*- part, and the party of the secor.-L part shall not claim or liave any oFtuta of do\.er in ant part of Sac ir^jc-. or personal property of the party of the firct part. .Ind the party of th3 Eecoxxl part doth lxi-e"by agree to Rise deed or deeds at any time dxw- ing said marriage for the sale of said property shall the party of the fir&t part so desire. "It is fnrtl-£r mutually covenanted hy and ■bet\veeu the parties lioreto that all property acc^uired after rearrjage hy the ciutaal endeavor aor'., ja- boi- .q court, ho\/ever, v.-as \7rotj^- in hit; concli-Tsion that Sie ra:iroid Irnd \7ar-: CGErn'.u.uty property. There -rao no comEurdty funlr., hence ^here could "br-, no coiniiiirtslitifc. In 1892, Cla-'lc had tlB cod ;.rci^c>n on the railroad l-xcH, atid paid for the t.rea^.-xiig, T/ith horses which h3 ovned tefore rccLrriagP. The scmo year lie sold cattle to the amount of 0l,9CC, axd. in 1694 lie sold cattle to the amount oi over $1,100. Tliese cattle v/erc his separate property. The court, in pasclns on the case, said thxt the partiec in enterl:^ into the cortract did not intend "to huild a \cl2 arouni each xaeb oun property." V/e thinl: thi3 is precisely That t:i.vy did intdid to y the death of the husband. Ouy© v. Guye, 6S T7ash. 340, 113"Pao. 751, 37 L. B- A. (U.S.) 186; Dobbins v. Le:;ter Horton c"; Co. 62 T;a:3h-. 425, 115 Pac. 1.038; T7orth- in^'ton V. Crapser, 63 Tash 360, 115 Pac. 849; liiited States Fidelity C: Guaranty Co. v. loe, 58 T7ash. 16. 107 PaC 8Y0. On the 10th day of JUne , 1910, after the death of her husband, the plaintiff duly executed a declaration of honestead and filed it for^rnc- ord the sane day. It embraces lot 2 in bloo'.t 10, in \7adsv.-orth Cc EcDcn- ald's addition to Spo:xLne, '.7hich -./as the separate property of her hur-oand. The plaintiff and her husband had resiled upon this property from tha fal- of 1899 xmtil his decease, and she has since rerio.ed thereon. The has- band. did not mal:e a declaration of ho.:^ stead diving his lifetime. 'Hiere vas no issue of the marriage betwen the plaintiff and t.tie deceased, ana the record does not show tliat there is any one living on tlie prcmxses -145. with her and under her care and maintenance. Thff covcct refused to give the plaintiff a homestead mjon tliic property, presumalj]^ upon the theory that her rights, if any, in this recpect should be talcen care of in the probate court. Couroel for the e;:ocator3 Ray in their brief that they do not concede her right to a honBfJtead. \7e entertain no doubt upon this question. She is entibled to a hortS3i;eed in the separate property of hcsi- husband for "a limiced periods" La.',;'^ 7.6-55, p. 109, Cec. 2, and p. 114, Sec. 3:5; Rem. c"; Bal, Cclo , Sec. 1465, I'^^^.S (ip. C. 409 Sec. 525; 327); ' Fairfaic'v. Walters, 66 yash.. 533, 120 Pao. Bi'} In re Lloyd's Estate, 54 yash. C4, 74 Pac , 1061; Austin v. CliTfovd, 24 Wash. 172, 64 Pac . 155. The ri^^ht to a hoitestead accrues to "a v;itlo-.7" as ccch, ■men there are no minor children. Rem. u Bal. Code, £ec. 1465 (P. C. 409 Leo.. 325). After a r)onii:tnrvention ..lil has tew p-r-oven; tlzs estate ad^ivilged solvent aad the errGOiitors noned in, the -.riil have accepted the trist, the estate is removed from tlie juxir;diction of the probate court. e;:cept as othervdce provided .in the statute in reference to nonintervention '..alls; and courts of equity are, therefore, the proper forum for tlie determJJia- tion of such is'5t;es as are here tendered. In re Guye's Estate 63 T7ash. 167, 114 Pac. 1041. The plaintiff filed her cost bill ncre than ten daj'S after the entry of the jud^r.ent. Tbe cost bill ./as strioriju upon the motion of the defend- ants. Hiic is a?! signed as orroi' . Eiare v/as no error iu the ruling of the court. Rem. c. Bal. Code, Sec, 482 (? C. CI Gee. 12S1) . The court ca-rectly fouml that lot 1, blcclc 4, of Chion Pari: ac.ditior. to Spolane, vas the separate property of the plaintiff. It v.as pixrchased vath the jXinds arisiijg from the sale of land in the state of a-cgon ./hich she evaded at the ticE of her marriage- Chere is no controversy cr/er this property. Ohe case \all bo rcnardcd v;ith directions to enter a decree in favor Of the defendants upon fell tho issues e::cept the homefstead end lot 1, blocl: 4, Uaion Pari; acTdition to Gpotone . She plaintiff is seventy- 1-.70 years of age. She has a life 9:5)00 tarcy of about seven and one -half years. The court is directed to assign to her lot 2, bloc".: 10, in Uads-./orth c; i:cDon- ald's addition to GpoV^ane, as a homectead for ard during IzBx i3atnral life, the legal title to vest in the devisees of Clca'!: subject to this ri:jlit. neither party v.lll rccovor costs in this court. Chadiv.lcl:, Ellis, I'.orris, 'Iain, llount, aad Fullerton, JJ., concur. Crow, C. J. (disiiontins) — 1 dissent, bein;:; of the opinion that in all respects the judgitent of the trial court should be affirmed. Having read the entire record, I -.all, before e::presEing ny viev/s,, mal^ a stateii^ent of material facts and issues -v.'hich I -ather therefrom. In Hay, 1D90, tlx) plaintiff ITcncy E Clarl-, formerly Uancy S- lemon, and George IT. Ciarlr, nov; deceased, '.;ere int3?iT.aiTied in the state of Qre- gon. Prior to their imrriage, the plaintiff -.vaf- a v/idor;, the mother of several children by a former hucband, an', o.apel real escate in the state of Oregon. Seorge H. Glarl:, prim- to said itarriago -^as a •.'ido^rer, father i 444. of several childroa ty a former vdfc, rJid ov.necl real estate in Oregon, and real estate, horses, cattle, and other property in T/ashiagton. His Y/ashiugton land, to vhich he hold the fee simple title, consisted of 480 acres in V/hitman county, J 60 thereof being mortgaged for O^OO. He then had a contract \,-ith the Horthem Pacific Railroad Company for the purchase-^ of an adjoiniiDg tract, tte north half of section 25, in tovjnship 19, noil'.* of range 41, east W. !I. , in Whitman cowaoy. Qa this contract he had made one small pa2,nT'.ent, the amount of r/hich has not been sho-.7n. Immediately prior to their marriage, ITaacy E. Lemon and George N. Clark e::ecuted the vJTitten agreement set forth in the ma.iority opinion. T/ithin a f e.? days after their narriago, the plaintiff and lier husband proceeded to V/hitman county, at first raal:ing their home in C&lcesdale , but siiortly thereafter they settled on the ^litman county land, not more than 80 acres of '.±iich was tiion in cultivation. Thoy contin-aed to reside on this land, improving and cultivating it, until about the yoar 1899, .hon they moved to Spclsine, v,here they lived until the death of George 11. Clarl: \Aiich occurred on April 17, 1910. There \;as no iscue of their marriage. V/hile they lived together as husband and vnfe, payments \-Bre completed on the north half of section twenty-five in \7hitman county, and on Octobez) 19, 1897, the same was conveyed to George IT. Clark by warranty deed. During their residence in \f^itman county and in Spoliane , George H. Clark acquired title to a num- ber of Spokane city lots, sonE of them improved. He also acquired title to a certain tract of improved real estate inSpo'.3ne, xiiich he and plain- tiff occupied as their home until the date of his death. This property is still occupied by plaintiff. Vfliile living in Bpolcane, George H. Clark sold the Oregon land vhich he ov,ned prior to his marriage, and v/ith a por- tion of the proceeds of tliat sale, piu'chased real estate in the city of Spolane.crMoh he later traded for a tract of land in Spokane county, laao\m and designated in tie recoid as the Cheney farm. This farm was purchased subject to a mortgage lien for about ^900. During their residence in Spo- kane, the plaintiff, Hancy E. Clark, sold her Oregon land ^ihich she ovaied prior to her marriage, and invested the proceeds of that sale in an im- proved lot in l2iion Park, an addition to the city of Spokane. This place has a rental value of about §12.50 per month, and is conceded to be plain- tiff's separate property. George N. Clark died testate, having e::ecuted a nonintervention \7ill about si:: v/eete prior to his death. His estate was adjudged solvent and is beirg administered by the defendants, IJarion Balcer and George Kenry Clark, whom he nsmed as executors, "The only mention of Uancy 2. Clark in ttvis \7ill is quoted in the majority opinion. All of the decedent's prop- erty was devised to the children and grandchildren of himself and his ^rst wife. The errecutors took possession, and ass^^rDd the exclusive manage- ment, of the entire estate, {e;ccept the homsstead) including all property real or personal, v-hether acquired before or after carriage, claiming the same to be tie separate property of the deceased, ard insisting that the plaintiff had no community or other interest therein. Although the plain- tiff still occupies the hone, and, since the death of her husband has filed a declaration of homestead thereon, the executors insist that it also \ms tie decedent's separate property, deny her right to a homestead therein, and only concede the Uhion Park property to her as her separate estate. In other v;ords, they insist that all the- property', v/ith the ex- ception of the Union Park place, -v.as the separate property of George IT. Clark; that the v/idow has no interest therein, and that it has all been 445. dovised to the legateoG naned in tlie v;ill. After Kalcing T.ritten deitard for en allor;ance of her claim, and a recognition of her rights, the plaintiff conmenced this action agajj^.^t the executors and legatees, to have her rights ascertained and adjudi- cated, claiming her corjuiinity interest in and to all property of the cc- tate acquired su'bsecue'iL to tho marriage. The defendants denied that she held any ';itlc or interest, legaJ. ac equitable, in or to any of the property, real or personal, save and e-^cept the Union Pari: place, and alleged that all property acquired after the marriage \7as either purchased v.lth proceeds of sales of the stoclc and its iixrease -.hiCh the decedent OTmed prior to hie marriage, or vath the procGeds of crops and rentals from the Vi/hitman county laad, end that all of the property thus acquired v/as the separate propor-cy of George IT. Clark at the date of his death. Trial vsls had upon those issues, Tne evidence, vhich is conflicting, is presented in a record of such interminable length that it cannot he v/ell (juoted, analyzed, and discussed in an opinion of moderate length. The trial judge held that a considerable pTcion of the property to vhich George H. Clarl: held record title at the date of Ms death, vas the com- munity property of himself and -..Ife. Some contention v-as made, in the pleadings c and dm-ing the trial, to the effect that the antenuptial con- tract was ambigr^Jor-E . Upon this question, the trial judge announced his conclusion in tlji follov/ing language: "I thinlc tliis contract is no t ambiguous; I think it sets forth the intention of the parties A/ith siifficient clearness to determine vhat they meant to do. They first dispose of ell property that they ov,ned at that tine, and then this last clause provides for the property that \;ill be ac- quired in the futi:re, and it provides tlaat all property to be acquired Us: the mutual endeavor of both parties, over and above v,hat is required for their support, shall be the joint property of both parties in equal parts. Nov;, I do not think tbey intended by' that agreement to set aside y-ie prop- erty that each had at that time and do nothing v/i th it, but their intenticn was that the property might be used, and that vhatever they acquired after that time should be the joint property of the t\-vo of them; that is to say, vhatever remained after the money had been ei^pended necessary for their support. It seems to me that is the only reasonable construction that can be put on this contract." After making this announcenent and hearing the evidence, he in sub- stance found, that all incomes of the plaintiff and decedent from every source were placed in a common fund; that all their fucds v.'cre commingled, no accounts being tept; tliat it was their intention to equally own all property acquired after narriage; that one psyment only, the amount of v.hich was not shovm, had been made by the decedent prior to his marriage, on the north lialf of section twenty-five, in Vhitman cotrnty; that all 3the. payments vrere made from funds belongirg eqtmlly to the plaintiff and the decedent; that the north half of section twenty-five thus became joint, common, and community' property; that the community paid $2,400 upon sepa- rate debts of the decedent; that there v.-as no evidence of the ezctent of the income, if any, from the decedent's separate property in the state of Oregon; that the Cheney farm v.'as purchased v/ith the separate funds of the deceased; that the O^OO mortgage on the Chenej'- farm -i^as paid v;ith commun- ity funds; that specified real property, described in the findings, con- 446. eistino; of a number of improved and unimproved lots in the city of Spokane ani the north half of section twenty-five in Vifhitraan county, was acquired after rnarriage in coafnrmitj'' wirh the antenuptial contract and hecame com- munity property; tLo.t fha pln.ini;iff was the ovuer of an undivided half ir-- terest in all personal property; that all the property in v^aich plaintiff ovmc an undivided hslf interest -.vas r>oqu:-.red after marriage, hy tlis mubu^,l efforts ani labor cd? tho huchand and. -.alo over and abcc/e vAiat was neces- sary for the5r yuppoxi; that the trial judgo did not under talse to f i::. the character, or aoouut of ihe persoiiAl '^ro'i^erty; that he declined to coja'^Jdo- the amount of rents received cubEsqua-.'i to the date of the hus-^and's death> acd that he also declined to consider in this action plaintiff's honestead rights . 2. decree was entered in accordance -,dth these findings, which adjudg- ed plaintiff's iatt^resi; in the comavcj.ty propej-ty, protected her right to a further accou.nriag from the eiecatyri, av/arded costs to "be paid from the decedent's estate, hut declined to pass itpcn the validity of the honcestead declaration, cr require aii accounfciijg in thj.s action. After a'at'ijE Qf the decree, plaintiff filed a Eupp.lerr.ental pGtj'-icn to compel an accou'oting. Upon dofendanos' motion, this plead-lng was str'icl:.en, roser^Jng. however, plaintiff's right to a f-ature accounting. Plaintiff filed her cost bill more than ten da;/s after entry of the decree. ¥pon defendants' motion it •>T2.s striciien, and only a portion of the costs claimed were tarted hy the clerk of the court. It seems to me tiaat this statement, ^2iich I feel is justified "by the roca-d, sutstantially disposes of the defendants' appeal. I do not assert that I liave stated in detail all final orders made hy the decree. It is unnecessary to do so. The controlling i;isuGS -./ere (1) ^/hether there v/as any cCEamunity property, {?,) if so, \hat portion of the estate \£.s comiEiTn- ity property, and (5) what charges, if any, should he allowed to the mdo^.v against the decedent's separate estate and his portion of the community'' property, for dishursementc of coaaur,it3' funds vi^hica I'Ad "been metle for the benefit of the decedent's separate estate — such, for instarce, as dishurse- ments to discharge liens on his separate property. Findings \7ere made in suhstance as ahove stated, covering all of these issues, and I conclt-de tlaere ',;as aniple evidence to sustain each an.d every finding thus made^ In ri^ opinion, the antenuptial contract was properly construed hy the trial judge. It'was the undouhted intention of the parties thereto tlrnt all prop- erty acquired after marriage ard not necessary for their support should he- come tlBir joint o". comaunity propertsr. Hie preponderance of the evidence sustains a findii^ that such was the mutual intention of the plaintiff and the decedent. On numerous occasions the testator so e::preEsed himself, and hJLs actions -./ere at all times in harmonj'- with that construction. The ■vvido'.? is ahout sex'-enty years of age. Ker husband was somev.hat older. The estate, is large, valuable, and free from debt. Eiere is no suggestion that differences, \7ant of harmony, or laC'v of mutual affection ever eicisted he- tv7een the plaintiff and lier husband. On the contrary, they -..•ere at all times devoted and affectionate, one to the other. It seems prepocterous that the testator intended to disinherit her, or that ho could l:ave under- stood that he v!a.s leaving her in a position of practical penury, compelling her to rely upon lier Union Park property for support, its rental value be- ing only about §12. 50 per montla. It \/ould rather seem that, -..hen e::ecucing his will, he considered that her separate property, coupled with her in- 447. torost in a large amount of conmunity property v.hicai, he could not devise, vrauld afford hor ample Gupport. Tri:o the v/ill mentions her separate prop- erty and its increase as her means of Eupport. It does not appear that there over v/as any lEcrear.e in her separate prcQperty; but v;hatover the decedent 's vie\/ may liave been v/hen maJcing his vill, I am satisfied that there was a large amoui:.t of carraunity property, as foxud. by the trial court, one-half of jhioh •./as not subject to a testancntary disposition by the decedent. Under the evidence, and the antenuptial contract, v.hich I thinl: tvas properly construed by the trial court, I conclude that the property acquired after marriage, sav^ and oscept the Cheney farm and the Itoiou Parle place, v/as community property. In the absence of controverting evidence, and independent of any con- tract, the presumption of lav/ is that property acquired after marriage is conmunity and not separate property. This prima facie presumption may be rebutted by competent evidence. Ueymouth v. Sav/telle, 14 Wash. 32, 44 Pac. 109; United States Fidelity L Guaranty Co. v. Lee, 56 Wash. 16, 107 Pac. 870.: Such evidence, ho:;©ver, must amount to clear ard connrincing proof that the consideration paid for the property in question came from the grantee's separate estate. In the instant case, I am xjnable to find such proof. The preponderance of the evidence sho;-re that plaintiff and the decedent lEpt but one furd; that all receipts after their marriage were commingled; and that neither separation nor segregation thereof Tvas mad©. This being true, such coruaingling, c cJt5>led v/ith the prima facie presumption of the lav/ above mentioned, I regard as sufficient, in the light of the antenuptial contract, to establish the community character Of tlB property v.hich the trial court has found to lie consaunity property. The plaintiff on her appeal insists, (1) that the trial judge should have decreed the validity of her homestead declaration; (2) that he should not have stricten her supplemental complaint, but should have required an accounting in this action; (3) that he should have alla/ed her Cl.200 as a claim against tlie estate of tlB decedent for one-half of the $2,400 of disbursements above mentioned, which \.'Qvq made in payment of debts her husband contracted prior to his marriage, and vMch disbursements she claims were made from the common funds of the oomaunity estate; (4) that the trial judge should have decreed the Cheney farm to be conmunity prop- erty; and (5) that he erred in strikiag her cost bill. The final decree of the trial court, if permitted to stand, T;t)uld protect the plaintiff's right to have the validity of her homestead declaration adjxsiged in some future action or proceeding. It y/ouIu also protect ter rigjit to a future accounting by the executors and legatees. There is not sufficient evi- dence in the record to enable this oovirt to finally pass upon these issues in a trial de novo, and as plaintiff's rights in these regards vrauld have been protected by the decree of the trial judge, Jiis orders should not be disturbed. Tte conflictii^ evidence disclosed by the record •©ill account for tbe marked discrepancy between the findings of the majority and those which I v/ould mal03 . In my opinion, this evidence preponderates in favor of the findings and conclusions of the trial jvd.ge, which should net be disturbed. He saw the vTitne-sses, heard them testi^, and vras in a much better posi- tion to pass upon their credibility and tlie vveight of this evidence than are the monbers of an ajppellate court. For twenty years plaintiff and her '.<^??!:^<-*-~*Ks»^ -(2^n^ ^,.^^1^ *-^- .^^ "N / >^^c--^i^-^C^^>--7 "^ ^^^c^ 448. husband lived harmoniously. In that time they acquired a, large amount of property in addition to the testator's separate estate. Ihe evidence oun- vinces ns, as it convincod the trial judge, that much of this increrosnt v;as conmunity property, nnd that it v/as so regarded by the testator and his v/ife. V/ith duo renpect for the views of the majority, I camot es- capa the ccnviction tliat a decree adjudging all sich property to have "geen tie testator's separate estate deprives the widov/ of her legal asd equit- able rights, and I most earixestly interpose my protest against the entry of any such decree upon the record now before us. I'y conclusion is that Qie pleadings and evidence sustain all orders made; that the record is free from prejudicial error; aixL that in all respects tiB judgment should "be affirmed. Parker, J. — I concur vath the Chief Justice. i^'MZ Vll . ci5!itTtON3. Character of wife's inibtefli)« Arnette v. Reade Be Burclick^a Estata (Cal.) (l896) (a) Can these rights and powers be altered by contract "between the apouaes? y<^'^. Fisher v. March (1912) Gage V. Gage (1914) Clark V. Baker (1913) Koontz V. Koontz (1915) feSO Ui S» 311. 44 PacJ. 734. 69 Wash. 570. 7i6 v.'ash. 262. 76 T/'ash. 110. 63 Wash. 160. ^- ^. ■~^ M University of California Library Los Angeles This book is DUE on the last Hate stamped below. lir. ^runurp^.pj^-, D 000 898 048