fixed interest and share on her husband's death, the power of testamentary disposition by the husband was impliedly excepted, and his "absolute power of disposition" was necessarily limited to a disposal during their joint lives, thus making the rule exactly the same as it is under the code. In the course of his opinion, Murray, C. J., after some remarks as to the general intent of the community property as a protection for the wife after the husband's death, says: "The husband and wife during the coverture are jointly seized of the property, with a half interest remaining over to the wife, subject only to the husband's disposal during their joint lives. This is a present, definite and certain interest which becomes absolute at his death, * * * and the widow becomes seized of one-half of the property." This whole remark was a mere dictum, entirely unnecessary for the decision of the case; but it would be difficult to include more incorrect conceptions and statements in a shorter sentence. The utter inappropriateness of the word "seized" and of the legal conception involved in it, is evident when we reflect that community property might embrace goods, chattels, things in action and money, as well as land. The term and conception "joint are even more incorrect. If the two spouses were joint owners or "jointly seized" of the community property, it would simply be impossible for the husband to convey away the whole during the marriage as he might do and still may do, or even to convey the complete title to any part of it, or to any specific thing forming a part of it,-not even to a horse, or a bushel of grain, or a yard of cloth, or an acre of land. And when we remember that the wife's interest in the entire community property or in any portion of it may be completely cut off, by a disposition made by her husband during the marriage, that she has no right to control, manage or possess it, that she cannot make it liable for her debts nor contracts, and that she is completely without any power to sell, convey, transfer, or otherwise dispose of it, we must plainly see that it is a misuse or perversion of words to say that her interest in the community property during the marriage is " a present, certain and definite interest, which becomes absolute at his death.' Even at his death the community property is primarily and mainly liable for his debts before her right attaches as a fixed, certain and definite share.

In the latter case of Van Moren v. Johnson,' Mr. Justice Field described the real nature of the ownership of the commnnity property, and of the interest held by each spouse, during the marriage, with perfect accuracy. He said: "The title to the community property vests in the husband. He can dispose of the same absolutely [i. e. by a transfer intervivos] as if it were his own separate property. The interest of the wife is a mere expectancy, like the interest which an heir may possess in the 215 Cal., 308, 311.

property of his living ancestor. Guice v. Lawrence.'" Guice v. Lawrence." This language describes the ownership of the community property during the marriage, under our law, with perfect accuracy. As the husband has the entire possession, control, and management of it, as he may convey it wholly or partially by his own deed or transfer without consent of the wife; as he may incumber it partially or to its full value by mortgages, judgments, debts and the like, and may thus leave none of it whatever at his death, the only limitation upon his power being that he cannot devise or bequeath more than one-half of what he does leave at his death; and, on the other hand, as the wife cannot do any legal act with it during the life of her husband, and has only a right to one-half of what may be left at his death after the payment of all debts and liabilities chargeable upon it, it is plain that during his life she has no interest of any kind in the community property, and a fortiori no present, certain, and definite interest. She has simply an expectancy or a possibility that some portion may be left remaining, undisposed of by her husband during his lifetime; and if such be the case, she becomes at his death, and not before, vested with an absolute interest in one-half of what is thus remaining after all debts, liabilities, and expenses chargeable on the fund, have been subtracted. The fact that upon obtaining a divorce the wife may have a portion of the community property set apart for her absolutely, is not at all opposed to this view, but is in complete harmony with it. Divorce, when the wife is the innocent party, operates in exactly the same manner as the death of the husband, to terminate the community. Like his death, it ends her expectancy or possibility, and entitles her to receive a share of the community property in her own individual and absolute right. It cannot be said, therefore, with any truth, that during the marriage the wife has any interest or the slightest degree of ownership in the community property; indeed her right is less definite and more precarious than the wife's inchoate dower right at the common law. It would seem, in fact, that the term itself "community" property is somewhat of a misnomer.

If the wife has no interest during the marriage, then it necessarily follows, in the language of Judge Field, that all the title or ownership of the community property vests in the husband. Since the nature of community property, and the rules governing it, are exactly the same whether it is acquired by the husband or the wife, this conclusion as to

32 La. An. 226.--The same view was taken by the court in the subsequent case of Fuller v. Ferguson, 26 Cal., 546. The opinion said, in describing the Mexican law as to the community: "By the same system of Spanish-Mexican law, the wife during marriage has a fictitious and revocable dominion and possession of one-half of the community property, which dominion and possession she cannot in any way assert or exercise during the marriage, but after his death she becomes absolute owner of one-half of what he leaves." By the technical terms of the Mexican law here used, is really meant exactly the same sort of an interest which Judge Field describes in the passage quoted in the text,-i. e. a mere expectancy.

its title and ownership must be equally true when the community property is acquired and held in the name of the wife, and when it is acquired and held in the name of the husband. There can be no possible difference between the two situations; in each the only real legal title and ownership are vested in the husband. Even if land is so conveyed to the wife during marriage that is community property, and her legal title is only apparent not real; it is incorrect to say that the legal title is vested in her by such a conveyance. To all persons familiar with common law methods, this must seem to be a most striking anomaly, but it necessarily results from the fundamental doctrines of the system. Land conveyed by deed to Mrs. A., vests the real title and ownership in Mr. A. and vests no present title or ownership in her. Exactly the same is true of a transfer to her of personal property.

3. The power of disposal. That the husband alone has the title and ownership of the community property, and that the wife has no present, real interest in it during the marriage, may be thought by some as a purely speculative proposition, of no practical importance. Be this as it may, it is certain that the husband alone, to the complete exclusion of his wife, has the absolute power of disposal over all the community property during the marriage, as fully as he has of his own separate estate. From this absolute power given to the husband, which of itself is necessarily exclusive, and from the express provisions of the code placing it beyond the effect of her own contracts, it follows that she is completely without any disposing capacity. Even the portion of community property standing in her own name and acquired by her, she cannot convey nor transfer. On the other hand, the husband has the same power to convey or transfer such property by his own deed or assignment, which he has over the community property acquired by himself and standing in his own name. The decisions as to his power are unanimous.' In Ewald v. Corbett, the possibilities of the community property system are strikingly illustrated. In a former divorce suit the decree directed an equal division of the land which was community property, that this land should be sold, and that if either party should purchase at the sale, his or her receipt should be taken for the amount due him or her. The divorced wife married again to one F. before the sale of this land, and at the sale she bought the whole land and turned in as part payment the receipt of the money due her under the decree on the decision, which sum was of course her separate property; and the balance of the purchase price she paid with monies which were community property of her

In addition to the two quotations given in the last preceding article, see In re Buchanan's Estate, 8 Cal., 507; Scott v. Ward, 13 Id., 458, 470; Van Maren v. Johnson, 15 Id., 308, 311; Pixley v. Huggins, 15 Id., 127, 131; Mott v. Smith, 16 Id., 533, 557; Tustin v. Faught, 23 Id., 232, 241; McDonald v. Badger, 23 Id., 393, 398; Landers v. Bolton, 26 Id., 393, 420; Lord v. Hough, 43 Id., 581.

532 Cal., 493.

new husband F. The whole land thus purchased was conveyed to her. Held, that the land thus bought was partly community property of F., and partly the separate property of the wife; and that an undivided portion of it was community property as compared with the whole, in the same proportion which the amount of the community money paid bore to the entire purchase price. Afterwards F. and his wife gave a deed of all this land, but the wife's acknowledgment was so defective that her deed conveyed nothing, as was held, but the husband's deed was oper ative. The wife subsequently died, and her heirs at law claimed to have inherited the land. This action was brought by these heirs of Mrs. F. against the grantee of Mr. and Mrs. F. to recover the land. The court held, that as Mrs. F.'s deed was null and void, the deed of her husband alone conveyed the undivided portion of the land which was community property; and the grantee in that deed, therefore, became owner in common with Mrs. F., she continuing to own the undivided share which was her separate property. Finally, on her death her heirs inherited this undivided separate estate which had been hers. It thus turned out that the plaintiffs and the defendant were co-owners of the entire tract of land. This case is a good illustration of the curious freaks which the system of community property can produce."

The husband has thus full power to sell, convey or dispose of all community property by his own act, and without his wife's consent. He may also give away reasonable portions of it. The only limit upon this power is that he cannot donate or transfer it in whole or in part, merely with the intent and for the purpose of defeating his wife's expectancy to the share which will remain to her after his death in case she survives him; in other words, he cannot transfer it merely with intent to defraud her of her possibility. The utter inability of the wife to assign, convey or transfer any of the community property, even that which she herself has acquired and which stands in her name, is so plain that we must naturally expect few judicial authorities upon the precise question.

6 I will state another curious working of the system, although the case has no direct bearing upon the matter now under discussion. In Althof v. Conheim, 38 Cal., 230, a married woman residing in California without her husband, borrowed from the plaintiff five hundred and twenty dollars to enable her to purchase a lot of land, and she actually used the money for that purpose, and took the conveyance to herself in her own name. Her husband soon after came to join her, and they took possession of the lot, and lived together on it ever afterwards. They sold a part of it and retained the balance. The price for the part sold was about equal to the sum originally paid for the whole; this price was received and appropriated by both the husband and wife; both joined in the conveyance; and both are in the use and occupation of the residue. The plaintiff sued both in this action for the money originally borrowed by the wife. The court held that as there was no evidence that the purchase price over and above the five hundred and twenty dollars borrowed was the wife's separate estate, the presumption was conclusive that it was community property. The lot was, therefore, community property and subject to disposition by the husband alone. No personal judg ment against the wife was possible. But all the acts of the husband, as above stated, showed that he had ratified and adopted his wife's act and made the debt his own, and was therefore liable to a judgment for the amount.

7 Lord v. Hough, 43 Cal., 581.

This conclusion, however, has been directly and expressly sustained by decisions in point. In Tryon v. Sutton, a mortgage which was community property had been executed to a married woman and stood thus in her name. This mortgage she assigned in the ordinary manner by executing a written assignment thereof. The assignment was held to be utterly null and void. The court said that as the control and power of disposition of all community property was given to the husband, the wife had no power whatever to dispose of it. It thus appears that if, during the marriage, land which was community property should be conveyed to Mrs. A., she could not in any manner convey it to a third person, her deed of it would be a nullity. On the other hand her husband could convey it; his sole deed of it would convey a perfect title to the grantee therein. There is nothing in the case of Parry v. Kelly," at all inconsistent with these conclusions; on the contrary they are confirmed by it. As that case was peculiar I will state briefly all of its material facts. Mrs. Kelly during the life of her husband gave her own individual note, and to secure it executed in her own name, without her husband joining, a mortgage on a certain tract of land which was community property. Her husband died intestate leaving Mrs. K. his widow, and leaving this tract of land and also other community property remaining after payment of all debts and liabilities chargeable against his estate. His widow of course became absolute owner of one-half of all the community property thus left remaining; and plainly her half might be so allotted as to embrace the tract of land which she had mortgaged. The mortgagee therefore brought this suit to foreclose his mortgage, the defendant claiming that it was wholly inoperative and void. The court said: "While it is clear that the mortgage executed by Mrs. Kelly created no lien on the community property, it was not void in the extreme sense." Quoting §158 of the civil code, the opinion proceeds: "Mrs. Kelly was therefore as competent in law to execute a mortgage as though she had been at the time a femme sole."

[I remark that this broad proposition must be understood with the limitation necessarily implied. It cannot mean that she was then as competent to execute a mortgage on the community property as though she were unmarried. Its plain meaning is, that she was as competent to enter into the contract of mortgage, without taking into consideration the object upon which the mortgage was to create a lien, as though she was unmarried; or, to speak specifically, she was as competent to enter into a contract of mortgage which should at once accomplish its purpose of creating a lien upon her own property, as though she had been a femme sole. That this is the only meaning of the dictum clearly appears from what the court adds, namely]: "And while she may then have had no title * 13 Cal., 490, 493. 952 Cal., 334.