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There now remains to be considered only the main question in the case, viz.: Were the lots described in the contract the community property of the defendants? To simplify the case, I will now set forth the material facts upon which the decision of this question must be grounded, in chronological order. They are as follows: March 25, 1895, William Laack filed with the commissioner of public lands of the state of Washington an application to purchase the lots in question. and other tide-land lots, claiming a preference right to purchase under the laws of the state, by reason of his ownership of the abutting upland, and ownership of valuable improvements. There appears to have been two conflicting applications affecting the lots in question, or part of the same, and, on September 9, 1896, the board of state land commissioners certified an award of the right to make the purchase to Laack, and rejected both of the conflicting applications. Laack's preference right to make the purchase was a valuable right, which he could lawfully sell and transfer, and in the year 1896 he did sell to the defendant J. D. Davidson his right to purchase part of the lots included in his application, for which Davidson paid him $80. January 11, 1897, the state sold the lots in question to the defendant J. D. Davidson, for the price of $256, payable in 10 installments; and the first installment, amounting to $25.60 was paid on that day. January 19, 1897, the defendants were married. January 27, 1897, Laack gave a quitclaim deed to J. D. Davidson of the lots in question, and other lots included in his application, for an expressed consideration of $1, but he received no actual payment there for other than the $80 which had been paid to him by Davidson in 1896. February 23, 1897, the commissioner of public lands of the state issued to J. D. Davidson a contract for the sale of the lots in question, for the price of $256, and acknowledged payment of the first installment of the purchase price, to wit, $25.60. October 6, 1900, the state, by deed, conveyed to J. D. Davidson its title to all of the lots described in the quitclaim deed given by Laack to Davidson, including the lots in question. The balance of the purchase price for all of said property was paid to the state at different times between February 23, 1897, and October 6, 1900. The money used in making said deferred payments included some of Mrs. Davidson's money which she had earned previous to her marriage, and money which was community property of the defendants. The necessary conclusion to be drawn from these facts is that the defendant J. D. Davidson initiated a right to acquire the property previous to his marriage by his contract with Laack, the payment of $80, his purchase from the state, and the payment of $25.60, as part of the purchase price, which right was never abandoned, but was perfected and developed into a complete title subsequently to his marriage.

By the statutes of this state, "property and pecuniary rights owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of his wife, but he may manage, lease, sell, convey, incumber, or devise by will such property without the wife joining in such management, alienation, or

incumbrance as fully, and to the same effect, as though he were unmarried." And there is a similar provision, respecting the property and pecuniary rights owned by a woman before marriage, and that acquired by her afterwards by gift, bequest, devise or descent, and the rents, issues and profits thereof. It is further provided that property not acquired, or owned as prescribed in the sections referred to defining the separate property rights of married persons, acquired after marriage by either husband or wife or both, is community property; and it is further provided that:

"The husband has the management and control of the community real property, but he shall not sell, convey, or incumber the community real estate unless the wife joins with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed or incumbered." Pierce's Code 1905, §§ 3867, 3875, 3876, 3877 [Ballinger's Ann. Codes & St. §§ 4488, 4489.]

The defendants' argument treats as community property all acquisitions subsequent to marriage, and assumes that payments of installments of the purchase price of property out of community funds. and the conveyance of the title to property paid for in that manner subsequent to marriage, fixes the time of the acquisition, and gives the property a status as community property. Under this theory, the pecuniary rights of a husband or wife owned before marriage, with respect to property partly paid for, would be eliminated by merging into the after acquired title. But the law is different. The words of the statute explicitly exclude the idea of merger of existing rights into titles subsequently transferred. All pecuniary rights which a husband owns before his marriage remain subject to his exclusive power of disposition, and it is a necessary consequence that whatever additions and enlargements pertain to such antenuptial pecuniary rights, instead of extinguishing the original right by absorption, merely enrich the proprietary interest of the owner of the right. The decisions of the Supreme Court of the state of Washington cited in the brief filed in behalf of the complainant have, in construing the community property law of this state, applied the doctrine of relation by which the complete title is deemed to have become fully vested at the time of the initiation of the original right to acquire the title. the title. Forker v. Henry, 21 Wash. 235, 57 Pac. 811; Ahern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. Rep. 912. In those cases the court was called upon to deal with titles acquired from the government of the United States pursuant to the laws of the United States, and there is possible ground for supposing that, on the question as to the application of the community property law of the state to cases involving titles acquired pursuant to the laws of the United States, said decisions are in conflict with the decisions of the federal courts in the case of McCune v. Essig (C. C.) 118 Fed. 273; Id., 122 Fed. 588, 59 C. C. A. 429; Id., 199 U. S. 382, 26 Sup. Ct. 78, 50 L. Ed. 237, and overruled by Cunningham v. Krutz, 41 Wash. 194, 83 Pac. 109. It is unnecessary, however, to enter upon a discussion of that question. The present case involves only a title acquired under statutes of the state, and the decisions of the state Supreme Court referred to give effect to a recognized rule of law as being applicable in the inter

pretation of the statutes of the state, which define the rights of married persons with respect to their property and makes that a rule of property in this state, which the federal courts must observe.

In suits for the specific performance of contracts, courts of equity are required to exercise discretion, and a complainant has not a right to demand the enforcement of a contract where injustice will be done. That rule, however, does not stand in the way of granting the relief prayed for by the complainant in this case. The property has no peculiar value to Davidson. He bought it as a speculation, and has held it without making any use of it. The price for which he sold it made him a profit so large that his avarice was stimulated; and, prompted by avarice and the hope of extorting a more exorbitant price for the property from a party that needs it for immediate use, he has made this attempt to repudiate a fair contract. The price stipulated to be paid was the full market value at the time of the contract, and the complainant has in good faith offered to do complete equity by the payment of the full amount of the stipulated purchase price, including the cost of filling, and interest on the payments made by Davidson on account of that expense; and it is the opinion of the court that, in law and morals, it is fairly entitled to have a decree, granting the relief sued for against both of the defendants.

If there is any dispute between the parties as to the amount of money tendered being the full amount which Davidson is entitled to receive, the case will be referred to the master to make a computation; otherwise, a decree will be immediately entered in accordance with this opinion.

END OF CASES IN VOL. 150.

INDEX.

ABANDONMENT.

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ACCESSION.

Intermixture of goods of same kind, see "Con-
fusion of Goods."

ACCIDENT INSURANCE.

See "Insurance," § 6.

ACCOUNT.

§ 1. Proceedings and relief.

Evidence considered, in a suit for an account-
ing, and held insufficient to sustain a complain-
ant's claim to the ownership of a one-fourth
interest in an electric light company.-Ruthen-
burg v. Hoffman (C. C. A.) 578.

ACKNOWLEDGMENT.

Actions by or against particular classes of

persons.

See "Carriers," § 2; "Corporations," § 2.
Insured, after default, see "Insurance," § 3.
Trustee in bankruptcy, see "Bankruptcy," §§
6, 10.

Particular causes or grounds of action.
See "Collision," § 5; "Conspiracy," § 1; "In-
surance," § 6.

Breach of contract, see "Contracts," § 4;
"Sales," § 2.

Breach of warranty, see "Sales," § 2.
Infringement of copyright, see "Copyrights,'
Infringement of patent, see "Patents," § 4.
§ 1.
Personal injuries, see "Railroads," § 3.

Particular forms of special relief.
See "Account"; "Injunction"; "Marshaling As-
sets and Securities"; "Quieting Title"; "Spe-

cific Performance."

Cancellation of written instrument, see "Can-
cellation of Instruments."

Construction of will, see "Wills," § 1.
Determination of adverse claims to real proper-
ty, see "Quieting Title."

Establishment and enforcement of trust, see
"Trusts," § 1.

Foreclosure of mortgage, see "Railroads," § 2.
Reformation of written instrument, see "Ref-
ormation of Instruments."

Removal of cloud on title, see "Quieting Title."

Particular proceedings in actions.

See "Appearance"; "Costs"; "Damages"; "Dis-
missal and Nonsuit"; "Evidence"; "Judg-
ment"; "Parties"; "Pleading"; "Reference";
"Removal of Causes"; "Trial."

Revival, see "Abatement and Revival," § 1.
Revival of judgment, see "Judgment," § 7.
Particular remedies in or incident to actions.

Operation and effect of admissions as ground of See "Discovery"; "Injunction"; "Receivers."
estoppel, see "Estoppel," § 1.

ACTION.

Abatement, see "Abatement and Revival."
Action by holder of note given by partner
against other partner on dissolution of firm,
see "Partnership," § 1.

Bar by former adjudication, see "Judgment,"
$ 5.

Jurisdiction of courts, see "Courts."

Stay of proceedings, see "Appeal and Error,"
§ 3.

Suit in admiralty, see "Shipping," § 4.

Proceedings in exercise of special or limited
jurisdictions.

Criminal prosecutions, see "Criminal Law."
Suits in admiralty, see "Admiralty"; "Colli-
sion," § 5.
Suits in equity, see "Equity."
Review of proceedings.

Restraining action at law, see "Injunction," See "Appeal and Error"; "Judgment," § 2;

§ 1.

150 F.-54

"New Trial."

*Point annotated. See syllabus.

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