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CHAPTER XXI.

HUSBAND AND WIFE.

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 a femme 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, regulating marriages,' 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

1 Wood's Dig. p. 486.

marriage, shall be deemed guilty of a misdemeanor, punishable by fine, imprisonment, or both.

5. All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places within this state. 6. Judges, justices of the peace, clergymen of all denominations, and licensed preachers, may perform the marriage ceremony.

7. But no judge, &c., shall marry any male under twenty or female under eighteen years without the consent of the parent or guardian, or other person under whose care and government such minor may be. The violation of this provision is a misdemeanor punishable by fine not exceeding one thousand dollars.

8. It is provided by statute, that a record of marriages shall be kept by the person solemnizing them, and certificates transmitted to the recorder of the county in which the marriage took place, with a penalty for non-compliance.

9. It is made the duty of the recorder to record all such returns of marriages in a book kept for that purpose, for which he is to be paid a fee of one dollar in each case, by the parties to the marriage.

10. The books of record of marriages are made legal evidence, also copies of the entries therein, certified by the recorder under his official seal.

11. A punishment by fine and imprisonment is provided for making a false return of a marriage, or a return of a pretended marriage, to the recorder, or for a false record by him of any return of a marriage.

12. By the statute of April 26, 1858, as amended March 12, 1859,' it is provided, that the governor be authorized to appoint, by and with the advice and consent of the senate, a state registrar, who shall keep a record of all marriages, births, divorces, and deaths, certified to him by the recorders of the various counties of the state, and shall prepare from said record an annual report, and submit the same to the governor on the 15th December of each year.

13. By section 2 of said law (as amended), it is made the duty of all persons performing the ceremony of marriage, to file in the office of the recorder of the county in which such marriage takes

1 Laws of 1859, p. 103.

place, a certificate of the same, setting forth particulars respecting time, place, and parties. The said section further provides, that all parents, heads of families, keepers, and superintendents of prisons, alms-houses, hospitals, houses of correction, and other public and private institutions, and the commanding officer of every ship or other vessel, shall file, in like manner, in the office of the recorder of the county wherein such birth occurs, a record of every birth taking place in their families, or the institution, or vessel under their charge or supervision, according to a form prescribed in said section.

14. It is further made the duty of the clerks of all courts wherein a divorce is granted, to file in the office of the recorder of the county in which said divorce occurs, a record of the same, in the manner particularly prescribed in said section, for which entry the clerk is entitled to receive two dollars from the party procuring the divorce. The same section provides, likewise, for a similar record of all inquests and burials.

15. It is further made the duty of the clerk of every court of probate in which letters testamentary or of administration may be granted, to file in the office of the recorder of the county wherein such court may be held, the names and residence of all executors and administrators upon the estates of deceased parties, with the title of the court, and the date when such letters testamentary or of administration were issued, and he shall be entitled to tax with the costs of issuing said letters the sum of two dollars for performing such service.

16. Section third of said act as amended, provides for the payment of a fee of one dollar to the recorder on filing the record of any birth, marriage, &c., and makes the neglect to comply with the provisions of the act requiring such record, punishable by fine, imposing upon the district attorney of the county in which the case of neglect may occur, the duty of prosecuting the same to conviction.

17. Section fourth provides for the entry in suitable books of record, to be kept by the county recorder, every registry of a marriage, birth, &c., filed with him as aforesaid, and for the payment to him of a fee of one dollar and a half for each entry. It further provides, that at the end of every month, he shall certify and sign upon the face of the record, that the registrations for that

period are correctly made up; and that at the end of every three months, he shall regularly transmit a duplicate of all registrations made in his office, attested by his certificate and official seal, to the state registrar for record in his office.

18. Section five prescribes the duty of the county treasurer in regard to the moneys paid to him by the county recorder on account of registration.

19. Section six repeals all other acts or parts of acts conflicting with this act.

THE RIGHTS OF HUSBAND AND WIFE RESPECTING PROPERTY.

The act of April 17, 1850, "Defining the Rights of Husband and Wife," provides substantially as follows:

1. All property both real and personal of the wife, owned by her before marriage and that acquired afterwards, by gift, bequest, devise or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property.

2. All property acquired after the marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property.

3. A full and complete inventory, of the separate property of the wife, shall be made out and signed by the wife, acknowledged or proved in the manner required by law for the acknowledg ment or proof of a conveyance of land, and recorded in the office of the recorder of the county in which the parties reside.

4. If there be included in the inventory any real estate lying in other counties, the inventory shall also be recorded in such counties.

5. The filing of the inventory in the recorder's office shall be notice of the title of the wife, and all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.

6. By an act approved February 11, 1858, amending the sixth section of the act "Defining the Rights of Husband and Wife," it is provided as follows: The husband shall have the manage

1 Wood's Dig. p. 487.

Laws of 1858, p. 22.

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 be 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 éxamination 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

1 Wood's Dig. p. 488.

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