deed so as to make it of different import, offends against the spirit of all those laws made to protect the public against fraud and secret titles, and prevent a change of right to the prejudice of those who deal upon the apparent legal operation of the instrument. * * * It is very clear that honest creditors who are led to give credit to the individual partners on the apparent state of the title in them individually, ought not to be met afterwards by a change of the face in the deed by which it takes a partnership aspect contrary to its terms." In this case, the contest was between a creditor of one of the partners and another partner, the latter claiming that the real estate should be held as partnership assets, and its proceeds applied to the payment of a sum found to be due to him from the firm. If, however, the contest had arisen between the creditors of one partner and the creditors of the firm, the decision would have been the same, for the Courts of this State seem to have uniformly decided that parol evidence is not admissible to show that lands apparently held by a tenancy in common are in fact held in partnership, and therefore pledged to partnership creditors; but for the purpose of establishing the rights of the partners in a litigation between them, such evidence is admissible." But in a very recent English decision, it has been determined that the possession of lands for partnership purposes by the cotenants thereof, is such a notice to third persons that it may be partnership assets, as to place them upon inquiry in reference to the true nature of the title, and that either partner may insist upon the partnership character of the realty as against all persons dealing with his copartner and having notice of the use made of the lands for partnership purposes. 1 Ebbert's Appeal, 70 Pa. St. 81; Abbott's Appeal, 50 Pa. St. 238. "Lefevre's Appeal, 69 Pa. St. 125; Hale v. Henrie, 2 Watts, 144; Ridgway, Budd & Co.'s Appeal, 15 Pa. St. 181; Erwin's Appeal, 39 Pa. St. 537; Overholt's Appeal, 12 Pa. St. 222; Cumming's Appeal, 25 Pa. St. 269. 3 Abbott's Appeal, 50 Pa. St. 238. Cavander v. Bultul, 29 L. T. R. (N. S.) 710. CHAPTER VII. COMMUNITY PROPERTY. No Community at Common Law, ₫ 121. is legal or conventional, § 124. extent of, in Holland and Spain, ◊ 126. 66 46 66 66 66 Lands given by Sovereign are not, § 133. Purchases before marriage, but conveyance afterwards, § 134. Purchases during marriage, but conveyance afterwards, § 135. Gifts to Husband and Wife, § 136. Purchases with funds of the Wife, § 137. Improvements, § 138. Crops, § 139. Increase of Animals, § 140. Rents, increase and profits in California, § 141. Mixed Title, § 142. PRESUMPTION THAT PROPERTY IS COMMUNITY. All Property in name of either presumed to be Community, § 143. Conveyance to Wife, rebutting presumption as to, in Texas, § 145. Conveyance to Wife, rebutting presumption as to, in California, § 147. Dissolution of the Community, § 149. 121. By the common law, no co-ownership resulted from the marriage relation. It is true that the wife, after the decease of her husband, was "endowed of a third part of such lands and tenements as were her husband's at any time during the coverture; to have and to hold to the same wife in severalty, by metes and bounds, for term of her life." But this right of dower never created any undivided interest in the lands of the husband. He held the freehold in severalty. "Upon the death of the husband, the right to dower, which the wife acquired by marriage, becomes consummate; but unless the precise portion of land which she is to have is particularly specified, as was formerly sometimes done, she cannot enter till dower is assigned to her; for she might, in that case, choose whatever part of the lands she pleased, which would be injurious to the heir. The widow has therefore no estate in the lands of her husband till assignment; for the law casts the freehold on the heir, immediately upon the death of the ancestor."2 Tenancy by entireties, it is true, existed at the common law, and was an estate dependent upon the marriage relation for its creation and continuance. But it was not created solely by such relation. It was generally produced by a gift to the husband and wife, or by a purchase made by him, the conveyance for which, by his direction, was taken in the name of both himself and his wife. It did not arise as the inevitable consequence of the marriage relation, nor was it designed or calculated as a means of assuring to each spouse his or her just share of the assets or gains of the matrimonial copartnership. It existed but rarely, and depended for its creation on the generosity of relatives seeking to make some provision for the wife, or on the generosity of the husband, pursuing a like object. The co-ownership of which we are about to treat, like tenancy by entireties, existed in connection with the marital relation, but instead of being a rare and accidental incident, it was, in the absence of stipulations to the contrary, the unavoidable result of that relation. Instead of representing the generosity of husband or relatives, it was a just recognition of the services of the wife, and of her care and fidelity as one of the marital co Litt. sec. 36; 1 Greenl. Cruise, 153. 1 Greenl. Cruise, 168. partners, and it secured to her as a matter of right not a mere life estate in one-third of her husband's lands, but an estate in fee-simple equal to his in quantity, and including all the matrimonial acquisitions, whether real or personal. ? 122. In the civil law, the interests of the husband and wife were more distinct than at common law. The civil law "does not recognize in the husband and wife that union of persons by which the rights of the wife were incorporated and consolidated, during the coverture, with those of the husband. It does not, therefore, subject her to those civil disabilities which must have resulted from that union. The husband and wife are regarded as distinct persons, with separate rights, and capable of holding distinct and separate estates." The community of goods between husband and wife, which has been adopted in different forms in many systems of jurisprudence, if it was ever a part of the Roman law, fell into disuse before the compilation of the Digest, and existed only where the parties adopted it by their nuptial agreement. At their marriage, the wife brought her dos, and the husband his donatio propter nuptias, or antidos. As to all their other property, each retained and exercised the rights of owners in severalty. The wife's property not subject to the dos was called bona extra dotem. The dos, or dotal property, was that contributed at the marriage by or on behalf of the wife. The husband exercised dominion over it during the coverture, received the rents, fruits, and profits thereof; and could alienate such part as was personal, and that only. The interest and authority of the husband over the dotal property ceased at the dissolution of the marriage, and the property, with its accessions, reverted to the wife or some of her relatives, except as to the parts he had lawfully sold, and for these parts he was accountable for the prices realized. The donatio propter nuptias was the gift of property required by the civil law to be made on behalf of the husband ad sustinenda onera matrimonii. It seems to have been treated as a mere security for the wife's dos. The husband was entitled to all profits derived from it during coverture, and to its res 1 Burge Colonial Law, 263. toration on the dissolution of the marriage. The property of the wife which was extra dotem consisted of paraphernalia and receptitia. The former included the property brought by her into the house, or of which the husband had possession, and of which inventory was taken; the latter term indicated the property of which she retained possession wholly separate from her husband.1 123. Community in America.-The States of Louisiana, Texas, California, and Nevada, and the Territories of Arizona, Idaho, and New Mexico, instead of adopting the provisions of either the civil or the common law in regard to the property relations of husband and wife, have made them co-owners or copartners in interest, by creating a community of property between them very similar to that existing under the laws of France and Spain. In the three States first named, this system had been in force, and large and valuable interests had become vested under it, before their attachment to the United States, and before they had become, to any considerable extent, inhabited by people accustomed to the common law. The Province of Lower Canada, owing, no doubt, to the partiality of its citizens of French birth or ancestry to the laws and institutions of their fatherland, has recently adopted a Civil Code containing the chief features of the Code Napoleon, including the law creating, defining, and regulating the community of assets between husband and wife. In the State of Missouri, and probably in other parts of the territory ceded to the United States by France, the French Law, though not now in force, has been, to some considerable extent, the subject of judicial investigation, in connection with claims to real estate the title to which had been acquired while the country and its inhabitants were yet under the dominion of France. It would be as foreign to the object of this work to undertake an exposition in detail of the whole of the law respecting community, as to undertake a like detail of the common law regulating the rights and relations of husband and wife. But as the community is a species of co-ownership,2 Burge Colonial Law, 273. * “The husband and wife, during coverture, are jointly seized of the property, with a half interest remaining over to the wife, subject only to the husband's disposal dur |
