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HUSBAND AND WD7E.
The relation of husband and wife, though having its foundation in nature, as the primary and most important of the domestic relations, is regarded by the law purely as a civil contract, and as such, in order to make it binding, it must be characterized in the main, by the same essentials requisite to the validity of other contracts. Hence the consent of parties legally competent to contract is necessary; a sufficient consideration is found in the mutuality of the contract.
The chief peculiarity which distinguishes this from other contracts is, that it continues during the lives of the parties, and cannot be dissolved by mutual consent, but only for certain specific causes, defined by law.
By the statutes of California, which follow the civil rather than the common law, the right is conferred upon the wife to hold separate property, to carry on business as afemme sole, to make conveyances in certain cases, and to exercise other powers, equally inconsistent with the common law theory of the nature and effect of the marriage relation, as will appear from the following summary of the statutory provisions upon the subject, together with the adjudications of the courts thereon.
The act of April 22d, 1850, regidating marriages,1 provides substantially as follows:
1. Marriage is considered in law as a civil contract, to which the consent of the parties is essential.
2. All marriages between persons within certain degrees of kindred are declared to be incestuous and void.
3. All marriages of white persons with negroes or mulattoes are declared to be illegal and void.
4. Whoever shall contract marriage in fact, contrary to the two foregoing prohibitions, and whoever shall solemnize any such
ment and control of the separate property of the wife during the continuance of the marriage; but no sale or other alienation of any part of such property can he made, nor any lien or incumbrance created thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her, upon an examination separate and apart from her husband, before any judge of a court of record or notary public; or, if executed out of this state, then so acknowledged before some judge of a court of record, or before a commissioner appointed under the authority of this state to take acknowledgments of deeds; or before any minister, secretary of legation, or consul of the United States, appointed for and residing in the foreign country in which the said deed is to be acknowledged.
7. When any sale shall be made by the wife of any of her separate property, for the benefit of her husband, or when he shall have used the proceeds of such sale with her consent in writing, it shall be deemed a gift,'and neither she nor those claiming under her shall have any right to recover the same.
8. If the wife has just cause to apprehend that her husband has mismanaged or wasted, or will mismanage or waste, her separate property, she, or any other person in her behalf, may apply to the District Court for the appointment of a trustee, to take charge of and manage her separate estate; such trustee may, for good cause shown, be from time to time removed by the court, and another appointed in his place. Before entering upon the discharge of his trust, he shall execute a bond, with sufficient surety or sureties, to be approved by the court, for the proper performance of his duties. In case of the appointment of a trustee for the wife, he shall account for and pay over to the husband and wife, or either of them, the income and profits of the wife's estate, in such manner and proportion as the court may direct.
9. The act of May 12, 1853,' amending section 9 of the act defining the rights of husband and wife, provides as follows: The husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate; and the rents and profits of the