we see no reason why it should not be equally applicable to other contracts entered into by her. The wife, if required, would be bound in all cases to establish the reality of the sale to her, dehors the act; and the same proof would be necessary in order to make her acknowledgment in the act binding upon her."1

2147. Conveyance to Wife, Rule in California. The language quoted in the last section clearly indicates that the Court considered that the fact that a conveyance was made to the wife was sufficient to put the purchaser upon inquiry in reference to the true intent and effect of the deed. But as the controversy arose between the wife and her husband's creditors, and not between her and the husband's grantee, the language of the Court has only the force which may be accorded to an emphatic declaration of the opinion of the Court upon a matter considered by way of illustration or argument, but not necessary to the determination of the case. But the question has been put in issue and determined in California, as will sufficiently appear from the following extract from an opinion prepared by Judge Sawyer:

"In this case, it was shown to the satisfaction of the Court, that the premises in question were purchased with funds belonging to the separate estate of the wife. They became, therefore, in fact, her separate property. The conveyance was upon the face to the wife. The apparent record title was in her, and not in her husband, Silas Fuller. The deed is sufficient in law to convey a title to the wife, but whether it did, in fact, convey an estate in common, or a separate estate, manifestly depended upon a fact dehors the deed. Ostensibly, the intent was to vest the title in the grantee named, Jane E. Fuller. It did not appear on the face of the deed that the grantee was a married woman-or that, being a married woman, the consideration was paid out of her separate estate. The deed, then, so far as shown upon its face, might have conveyed a title absolute to a feme sole, a separate estate to a jeme covert, or an estate in common to husband and wife. Upon the best view for the plaintiff, the deed upon its face

Metcalf v. Clark, 8 La. An. 287. See also Gonor v. Gonor, 11 Rob. La. 526.

.

was equivocal. But it afforded to all persons, seeking to acquire title under it, a clue to the title, which they were bound to pursue, or suffer the consequence of their laches. The grantee is a woman. The presumption of law is that she is sole, and prima facie a conveyance from her would pass the title. But she may be married, and her deed may not pass the title. The fact as to whether she is married or single, all parties dealing with the land must ascertain, or omit to do so at their peril. So, also, if a grantee of a conveyance for a money consideration is a married woman at the date of the conveyance, prima facie a conveyance by the husband, in his own name, of the land so conveyed to the wife, will be presumed to pass the title; but in fact it may not, for the reason that the land may still be the separate property of the wife, which he had no power to convey. And in such cases, as in the case last mentioned, all parties claiming title through the husband to lands, the title to which never stood in his name, must ascertain, at their peril, whether he did in fact have the power to convey.

The record title in this case was notice to all the world that the land in dispute might be the separate property of Mrs. Fuller, and every party dealing with it did so at his peril. The plaintiff was, by the record, put upon inquiry as to the true condition of the title. The grantee upon the record was capable of taking the land, and was a different person from the one from whom the plaintiff derives his title. If the plaintiff did not avail himself of the means afforded by the record to ascertain the true state of the title, it is his own fault, and he cannot claim to be an innocent purchaser."1

148. Authority of Husband and Wife respectively.— Under all the forms of community existing in North America, the husband has the exclusive control and management of the common property, with the right to convey or encumber it as he may deem proper. The only limitation upon his power in this respect is, that he shall not employ it for the

Ramsdell v. Fuller, 28 Cal. 43; approved, Peck v. Vandenberg, 30 Cal. 36.

Higgins v. Johnson, 20 Tex. 396; Brewer v. Wall, 23 Tex. 588; Prinn v. Barton, 18 Tex. 206; Wright v. Hays, 10 Tex. 132.

purpose of defrauding his wife of her interest as a member of the community. "A deed of gift of a portion of the common property by the husband is not void per se. If the gift be made with the intent of defeating the claims of the wife in the common property, the transaction would be tainted with fraud. In the absence of such fraudulent intent, a voluntary disposition of a portion of the property, reasonable in reference to the whole amount, is authorized by the statute, which gives to the husband the absolute power of disposition of the common property as of his own separate estate." But in Louisiana, the code prohibits the husband from making any "conveyance inter vivos by a gratuitous title of the immoveables of the community, nor of the whole or of a quota of the moveables, unless it be for the establishment of the children of the marriage. Nevertheless, he may dispose of the moveable effects by a gratuitous title to the benefit of all persons." If a note, made in consideration of community property, or from any cause forming a part of the community assets, is given to and in the name of the wife, the husband, as the head of the community, can sue thereon in his own name. But the authority vested in the husband, as the head of the community, and by virtue of which he is authorized to control and dispose of its assets, may, at least in Texas, be transferred from him to the wife, by his abandonment of his position of head of the community, or by his total incapacity to transact the business affairs of the marital partnership. In the case in which this question was first determined, the husband left his wife in Texas, and sought an asylum on the Rio Grande, beyond the limits of his State. Here he remained for more than five years. During all that time, the wife remained at home, took care of herself and family, and assumed general control over the community effects. About two years after she had been thus left by her husband, she acquired title, in her own name, to a tract of

Lord r. Hough, 43 Cal. 584.

*Civil Code La. Art. 2373; Bister v. Menge, 21 La. An. 216; Glenn r. Elam, 3 La. An. 611.

Crow v. Van Sickle, 6 Nev. 148; Beigel v. Lange, 19 La. An. 112. The law presumes a note made to the wife to be community property. Wells v. Cochrane, 13 Tex. 128; Hemmingway r. Matthews, 10 Tex. 207; Tryon e. Sutton, 13 Cal. 490.

land, and nearly four years after, she made a deed of gift to her son of a portion of this acquisition. The validity of this conveyance was subsequently drawn in question, and was sustained by the Supreme Court. In pronouncing judgment, the Court announced the following views in regard to the respective rights and powers of the husband and wife: "Their rights of property in the effects of the community are perfectly equivalent to each other. The difference is this, that, during coverture, her rights are passive; his are active. He has the free administration and disposition (if untainted by fraud against the wife) of such property; and he is subject to the corresponding duty of maintaining his wife and family, and defraying out of this property the debts contracted during marriage. So long as he discharges his duty as a husband, his superior rights remain, unquestionably, in full vigor. But when he abandons the administration of the common property, deserts his wife and country; when he ceases the discharge of his duties, and contributes in no mode to the support of his wife and family, reducing the wife to the necessity of providing for them, and of taking care of the common property, or, otherwise, suffering it to go to waste; and when this absence is prolonged several years-do not his rights over the effects of the community, from the nature of things, cease? and are not the passive rights of the wife quickened into vigorous activity?

"She is necessarily compelled to assume the position of the husband; to discharge his duties, and incur his responsibilities; and her powers should correspond to the position which, by the default of the husband, she is thus compelled to assume; and especially should the controlling power of the husband, over the goods of the community, be transferred to the wife. Her right in the property is equal to that of the husband. During his presence, he has the administration, subject to the trusts incumbent on the property. This right of control must necessarily cease where he can and will no longer exercise it; and the wife, the other joint owner, must be vested with the authority, or it cannot exist anywhere."

Wright v. Hays, 10 Tex. 133. Where the husband is absent, there is no reason or rule of law prohibiting the wife from making such contracts respecting the commun

as it existed in Spain, and as it

3

2149. Upon the decease of either of the spouses, the community is at once terminated. The survivor, whether husband or wife, cannot alienate any more than his or her moiety, nor make any contracts imposing any liability upon the share of the deceased spouse. By the law of community, still exists in Texas2 and Louisiana, upon the death of either spouse, his or her moiety immediately vested in his or her heirs, subject to its proportion of the community debts. The same rule prevailed in California until the year 1861. At that time, the statute defining the rights of husband and wife was so amended as to provide that upon the dissolution of the community by the death of the wife, the entire common property shall, without administration, vest in the husband; but upon the dissolution by the death of the husband, one-half of the common property vests in the wife, and the other half is subject to the testamentary disposition of the husband; and in default of such disposition, goes to his descendants. The husband cannot, by any testamentary disposition, affect the wife's interest in the community property."

ity property as are necessary for its preservation, or for the support of herself and children. Cheek v. Bellows, 17 Tex. 616; Fullerton v. Doyle, 18 Tex. 12. During the insanity of the husband, the wife becomes the head of the community, and has the same powers as in case of his abandonment of her. Forbes v. Moore, 32 Tcx. 199.

* Broussard v. Bernard, 7 La. 222. This case is in harmony with the two preceding citations; but is opposed by Jones v. Panaud, 1 Cal. *Thompson v. Cragg, 24 Tex. 598.

3 Walker v. Kimbrough, 23 La. An. 637.

'Broad v. Broad, 40 Cal. 496.

5 Conn v. Davis, 33 Tex. 208; Estate of Silvey, 42 Cal. 212.

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