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wife; while, under the Spanish law, gifts between the spouses were prohibited for political considerations, and no power was recognized in the spouses to alienate their separate interests in the ganancias to the other. This provision, like that of joint alienation, is an innovation, and, taken together, they clearly demonstrate that the legislature recognized in the wife the same proprietary rights and interests, in at least the community realty, as was possessed by the husband. Such an interest, being coupled with the extensive powers conferred by the statute on the wife, can hardly be said to leave her a mere expectancy during coverture in its assets, but she would seem to possess a vested and absolute interest, equal in every aspect with that of the husband.
Granting that the wife possesses in Washington a vested interest in community realty, a pertinent inquiry arises, as to how her interests therein can be divested, under executions issued on judgments for community debts, when she has never been made the party to litigate the question of whether the debt be the separate debt of the husband or that of the community. She would seem to be entitled to her "day in court," and to "due process of law" in protecting her interests in the common lands, if her rights therein are vested. It has been, perhaps, announced by the courts that she may have her "day in court" by process of injunction in equity, but this does not seem to me to satisfy the law.
If the husband be the sole party to an action on a community liability, a grave question arises, whether by taking judgment against him alone, the common law rule of merger of the joint debt, does not take place. Our joint debtor act does not change the common law rule in this respect, and I do not think we can escape the conclusion, that a proceeding on a community debt, so far as the community realty may be sought to be involved thereafter, is in the nature of a suit against joint debtors. It does not seem to me that mere presumptions of law can have such romantic influence over judgments as will authorize them
to be executed out of the property of parties against whom no proceedings have been had within the guaranties of the constitution.
In order then to get a judgment, which would even presumptively render the wife's interest in community lands liable, it would appear that she must be made a party to any action for a community debt, and if judgment be recovered for a community debt, that it direct the same to be satisfied out of common property. If her interest in the lands could not be sold under a judgment recovered for a community debt, she not having been made a party to the suit, confessedly the husband would not be subject, during coverture, to such execution, so that only community personalty could be sold to satisfy the same.
I am aware of the fact that these views are not in strict accord with those expressed by some of the recent decisions of our courts, and I state my views of these questions. with no intent to derrogate from the views expressed in any reported cases upon this subject, but to aid, so far as I can, in throwing light upon the subject which I think the bench as well as the bar do not hesitate to declare to be in a state of much uncertainty and exceedingly perplexing.
The section of the statute we have been considering has been productive of much litigation arising from conveyances of land by one of the spouses in derrogation of the provisions of the law. Having already consumed more time than was proper for me to occupy, I will but briefly notice this feature of the statute, and conclude with a general statement as to community debts. The case of Holyoke vs. Jackson settled the law in Washington to the effect that a vendee, with notice of the community character of realty, acquires no title by virtue of a deed from either spouse, without the joinder of the other in the deed of conveyance, and the husband's or wife's contracts alone in that behalf are ineffectual for any purpose. But what must be said of such a conveyance where the purchase is bona fide and made by one ignorant of the community character of the property. The presumption of law is that all property
possessed by married persons by onerous title is common. There is also the presumption that a grantor is single, and, prima facie, a conveyance from such person would pass the title, but as against the presumption attendant upon community property, and the laws in relation thereto, the grantor being married, may be disabled by the statute from making any conveyance of the title to the property. But is a purchaser bound to know absolutely whether his grantor be single or married, in order to acquire a good title to the land conveyed?
Manifestly not in all cases. The adjudications upon this subject have, it is believed, substantially settled the general rule to be, that if the purchaser knows the property to be in community, he gets no title by a conveyance from one of the consorts. If he does not know this, but reasonable inquiry would inform him of it, equity will not protect him. If, however, by diligent inquiry he cannot ascertain that a marriage relation exists, or if it had existed, that the other spouse by infidelity or other conduct had renounced it, and that no title had thereby vested in such spouse, equity, on the theory of an estoppel, will protect his title against the assault of either or both members of the community.
In our state the property and pecuniary rights of the husband and of the wife, in their separate capacities, and, in all respects, equal. They are placed on the same footing as regards their separate property, whether acquired before or after marriage, and the separate property of either is exempt from the debts of the other, whether contracted dum sola, or after marriage.
It results, therefore, that the separate debts of either spouse must be acquitted out of that one's separate property and not out of the separate property of the other. But, since the husband has the management, control and disposition of the community personalty as of his separate estate, unquestionably his separate debts, both nuptial and ante-nuptial may, during coverture, be satisfied out of the same. And, it would seem, that the wife's ante-nuptial
debts should also be a charge upon the community personalty.
The statute, however, produces a singular result, when considered in connection with debts chargeable against the community realty, since the only charges authorized to be satisfied out of such property are the debts of the community. A barrier is thus raised to the satisfaction of ante-nuptial debts out of any property, except the community personality, and the separate property of the spouse contracting the same. This feature of the statute amounts to an exemption of community realty from liability for ante-nuptial as well as all separate debts of either of the spouses during the coverture. This makes it possible for a debtor, no matter how heavily involved he may be to shake off his creditors effectually, by entering the bonds of matrimony and covering all future acquisitions with the shield thrown over community realty by the law, so that the bar of the statute of limitations will ultimately fall between him and his creditors. His only concern need be to secure to himself a wife sufficiently sound physically to survive the statutory period of limitations.
This feature of the law would not be so embarassing were it possible for the interests of the spouses in the community realty to be subject to partition and seizure for the separate debts of the spouses during coverture, but the rule is, however to the contrary.
What are and what are not community debts has furnished a field for speculation and doubt, under our statute, which remains to a great extent, unsettled. No distinction was observed in the Spanish law, in treating the liabilities of the common property between realty and personalty. Distinctions exist in the Code Napoleon, but in no wise similar to those created by the innovations of section 1,400. The husband, having the power of administration and alienation of all the common property, unrestrained by his consort, all debts and obligations created by him, whether strictly in conjunction with his office as
head and master of the community or not, may be acquitted out of the community property. This is true only as to personalty in Washington; hence, a delicate question arises as to what debts are community debts and subject to be executed out of community realty. To a certain extent, the disadvantages springing from the restraint on the husband's separate debts being a charge on the community realty, are compensated by the presumption that every debt, ex-contractu, created by the husband during coverture, is prima facie, a community debt. This statemont, however, itself implies that there may be debts created by the husband which are not community debts, and which cannot be satisfied out of community realty. The presumption, of course, is a mere rule of evidence and may be overthrown by showing the debt to be the separate debt of the husband. This leads us to consider when the obligations of the husband may be said to create a community debt and when not. A community debt would suggest itself as one contracted in the ordinary course of the husband's business, as managing agent of the marital partnership, whether the transactions turn out to be of benefit or disadvantage to the pecuniary interests of the community, so long as the husband acts in good faith and not in fraud of the rights of the wife and third persons. To confine community debts to only such contracts as result in a benefit to the community, would impose on the husband and all who deal with him, on the faith of the community property being a security for their debts, the necessity of being certain that the contract would result in a benefit to the community, which, manifestly, could not be ascertained, in advance, in the conduct of the varying business relations of every day life. It would seem that if the husband were acting within the scope of his powers, as the managing agent of the community, all obligations incurred by him in that capacity, should impose a correla tive obligation upon the community to pay the same, and should be a legitimate charge on all community property, both real and personal.