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to resident married persons of the territory. This statute possessed the salient features of the Spanish and Mexican ganancial system, and was probably drafted from the existing laws of California or Texas. or perhaps from the laws of both these states.
The husband possessed under it the entire management and control of the community property, with the like power of disposition as of his own separate estate, and was, also, invested with the management and control of the wife's separate property, but could not alienate or encumber the same without her joining in the act or deed. The wife was required to file inventories of her separate estate from time to time, as the same was acquired, which operated as notice of her title. Her separate property was, however, exempt from seizure on execution for the husband's debts.
Had this act remained in force until the present time we would possess a more simple system and better adapted to the varying affairs and complications of business life.
In November, 1871, an Act was passed which supplanted the laws of 1869. This was subsequently repealed November 5th, 1873, whereupon the laws of 1869 were re-enacted. The Act appears to have been an effort to construct a marital co-partnership, with the articles of association minutely set out in the statute. It is so widely at variance with the fundamental principles of the community doctrines that, were it not for a few of its provisions, its pedigree could hardly be determined. For the first time in the history of jurisprudence on this subject, there appears a restraint upon the husband's powers of alienation or incumbrance of community real estate, except, I may say that at one time such a restraint existed in Gelderland. The wife, under this statute, was permitted to acquire an interest in the community in excess of one-half the common property. They held and managed their separate estates as if unmarried, but each was required to inventory of record such as he or she claimed as separate property. The husband was subject to be called by the wife to an accounting at any time of his trust, on complaint that he had or was
about to waste, squander or mismanage the effects of the community, and the court was given power to decree a separation of property, but not to appoint a new trustee for the subsequently acquired property of the community. It is not surprising that this act was short lived, but that it ever had an existence at all. To a certain extent, however, this statute infected the subsequent act of 1879, which is largely our present law, with some of its heresies. I have reference, more particularly, to the provision relating to the joint alienation and incumbrance of community realty,
The act of November 14th, 1879, appears to be an attempt like that of 1871, to place the husband and wife on about the same footing regarding their proprietary rights and powers, as connected with both their separate and community estates. Neither the wife nor the husband could, under that act, alienate or encumber their separate real property without the assent of the other, and the same restraint was imposed upon the alienation and encumbrance of the community real property.
The Code of 1881, which is, with slight amendments, the present law, emancipated both spouses as to the restraints placed upon the disposition by them of their separate estates, and left them the power to manage, alienate or encumber them as fully and to the same effect as though they were unmarried. Each could, in other words, manage or dispose of his or her separate property as if a single person. As regards the rights, powers and liabilities respecting community property, the law of 1879 was unchanged. The codification of these laws, as appears in the Code of 1881, has been the settled law of the territory and state since its adoption, and has superseded all prior laws on this subject.
I have already shown the general principles upon which the "ganancial" system of Spain and Mexico rested. none of the American states has it retained its purity and original symmetry as in Louisiana and Texas, and under the clear and uniform interpretation of their courts, the
system has developed into a simple and effective body of jurisprudence on the subject of the property rights of husband and wife. The innovations made, however, in our system have deprived us, to a large extent, of the benefit of the learning and precedents established by their courts. For fear of trespassing upon your time, I will refrain from discussing the community laws of our own state, further than as relates to certain special features which appear to be most perplexing to the bench and bar.
We possess, virtually, a dual system; one relating to personalty, the other to realty, and it is necessary to consider them separately. As to personalty, the husband occupies the same status as is accorded him under the Spanish law and that of Louisiana, Texas and California; but, as to realty, section 1400 of our general statutes changes. the general rule, which provides, substantially, that he has the management and control thereof, but cannot sell, convey or encumber it, unless the wife join him in executing the deed or other instrument of conveyance by which it is sold, conveyed or encumbered, and such deed or other instrument of conveyance, must be acknowledged by him and his wife.
In considering this statute, we must regard the rule of construction which is furnished by it, namely, that it must be liberally construed, with a view to effect its object, and not strictly, as other statutes are construed, in derrogation of the common law.
The provision regarding joint alienation of community. realty was unknown to the Spanish law, and will not be found to exist in any other state or territory. In Gelderland, a part of the Netherlands, however, the husband could not, without the wife's consent, alienate any part of the immovable property subject to the community. But in all other countries, where this system has found a lodgment, the husband has had the absolute power of disposition, not only of the personalty, but of the realty. The law, in establishing between the spouses a quasi partnership as to the acquisitions and gains during coverture, re
cognized the necessity of merging the powers usually incident to both members of a commercial partnership in one of them, so that the business management thereof might be simply, speedily and effectively administered. The husband, being the natural head of the family, was recognized as the proper person in whom should be reposed the management, control and disposition of all the common effacts for the joint benefit of the community. He was thus treated as the active partner and sole business agent of the marital establishment. The only restriction placed upon his power of disposition, or even of dissipating the community was that the alienation thereof must not be made in fraud of the rights of the wife.
The rights of the wife as to administration were passive merely, and the law in making them so presupposed the capacity and prudence of the husband as its active agent and designed thereby to preserve domestic harmony.
Under the section of our statute just referred to, the husband is given the management and control of the realty, but shorn of all the rights formerly accorded him as regards its alienation. It becomes, at once, a question of some difficulty to be able to define the limits of his powers and declare the extent of his duties under this statute.
It will be observed that the subtraction from the general powers granted him is simply that he shall not alienate or encumber the realty by deed or other instrument of conveyance, without the wife execute and acknowledge it jointly with him. This is the meaning which it seems to me the language of this section conveys. Such a construction leaves the husband all the powers he would have under the Spanish law, except by written conveyance or instrument of encumbrance, to dispossess the community of such estate. This statute, however, makes the community liable for liens of mechanics and for judgments recovered for community debts; which would have been true, it seems to me, without the proviso, under a proper interpretation of the section. The husband would, consequently, seem to be empowered to enter into any and all contracts relating to
the care, improvement and preservation of community realty without the concurrence of the wife, except where the same involves a contract of encumbrance which is required by the law to be evidenced by deed, or other conveyance, as provided by the statute. Such obligations of the husband should be regarded as a charge upon the common property, both real and personal.
We come now to consider another change which the modification of the Spanish law, by engrafting upon it this requisite of a joint alienation of community realty, produces, which is that the same has given to the wife a vested interest in the community realty to the same extent as possessed by the husband. Under the Spanish law, where the husband possessed the absolute power of administration and alienation of the community property, the wife possessed only a feigned dominion, revocable and fictitious, in the assets, nntil the dissolution of the marriage, when she acquired it equally with her husband. Under the French Commanaute the wife has une simple esperance, a mere hope, to share in such property as may be found at the dissolution of the community undisposed of by the husband. Louisiana has never recognized a title in the wife to onehalf the acquests and gains during coverture, her interest being like that in France, a mere expectancy. In Texas, her interest is more substantial than this. She acquires a real, beneficial interest in the lands by virtue of her community rights, but her title is merely equitable.
As a member of the community, in California, while she is entitled to an equal share in the acquests and gains, yet, so long as the marriage exists her interest is a mere expectancy and possesses none of the attributes of an estate, either at law or in equity.
The considerations which leave the wife a feigned dominion, revocable and fictitious, in the common property during coverture, do not exist in our law under the joint alienation provision thereof, except as to personalty. Besides the wife may give, grant, sell or convey her interest in community lands to her husband, or the husband his to the