Lemon v. Waterman, 2 Wash. Terr. 485 (Wash.)

Opinion by

Turner, Associate Justice.

This is a suit in equity to remove a cloud from the title to certain real property in the City of Olympia, described in the complaint. It was heard in the Court below upon the pleadings and the evidence, and after hearing, the judgment was that the complaint be dismissed.

The plaintiff prosecutes an appeal to this Court.

The principal question for our determination arises upon the findings of the Court below, and it is unnecessary to notice the pleadings, except in a particular to be hereafter mentioned.

Some question is made by the appellees as to some of the findings of fact, but after a careful scrutiny of the evidence, we ■think the findings substantially correct.

The second and third findings were substantially as follows:

2. That on the 2d day of February, 1867, Philip D. Moore and Phoebe H. Moore were husband and wife; that on said day Phoebe PI. Moore received from William Cook and wife a deed of conveyance to a lot or tract of land, which included the property described in the complaint, which tract of land then became the separate estate of said Phoebe H. Moore.

3. That on the 18th and 27th days of December, 1883, by good and sufficient conveyance, the property described in the complaint was conveyed to the plaintiffs by said Philip D. Moore and said Phoebe H. Moore. The fourth finding, to which the foregoing are but explanatory, and upon which the question in the case arises, was as follows :

“ That said Phoebe H. Moore was on the 24th day of April, 1876, the wife of Philip D. Moore, and had not nor has ever caused to be recorded, as required by law, an inventory of her separate estate, including the lots and lands hereinbefore described, in the office of the Auditor of Thurston County; and on said day the said Sheriff of Thurston County, Washington Territory, sold all the right, title, and interest of Philip D. Moore in said lands to defendants herein, under and by virtue of an execution upon a judgment against said Philip D. Moore, upon a debt contracted by said Philip D. Moore in the year 1874.

That thereafter said sheriff duly executed a deed of said interest to defendants, who had caused the same to be recorded in the office of the County Auditor of said Thurston County, at pages 184 and 185 of Volume 13, Deeds.

That said lands at the commencement of this action were vacant and unoccupied, and the said deed now remains of record in said office, and is regular in form upon its face ; and the defendants are the owners of an estate in the said lands, by virtue of the said sheriff’s sale and deed.

Under the common law, a husband was vested with a freehold estate in the lands of his wife for their joint lives, and upon the birth of a child during coverture, with a freehold estate'for his own life. This estate might be levied on, and sold

on execution at the common law for the husband’s debts. (Schouler on Husband and Wife, Secs. 167, 168, and authorities there cited; Starr v. Hamilton, Deady’s Circuit Court Reports, 268.)

But at the time this property was conveyed to Mrs. Moore, the common law, as stated above, had been modified by statute in this Territory.

In the Civil Practice Act, passed April 28th, 1854, Laws of Washington, 1854^1856, p. 129, it was declared:

“ Sec. 252. All real and personal estate to which any married woman shall hereafter become entitled in her own right, and all which may at the time of her marriage belong to her, and all the issues, rents and profits of such real estate, shall not be liable to attachment for, or execution upon, any liability or judgment against her husband, so long as she or any minor heir of her body shall be living : Provided, ‘ That her separate property shall not be exempt from attachment or execution where the debts were owing by the wife, previous to marriage, or may have been contracted for her benefit.’ ”

This law has been reenacted in each of the séveral revisions of the laws of this Territory, and may now be found as Section 841 of the Code of 1881.

It is insisted by the appellants that this provision of our statutes was intended to make the property of the wife, owned or acquired by her as defined by the statute, her separate property, as that term was understood at common law, and free from the marital rights of her husband. A somewhat similar provision in the Constitution of Oregon has been given this meaning by the Supreme Court of Oregon. (Brummett v. Weaver, *2* Oregon, 168.)

This construction was followed, and its reasoning elaborated, by Deady, District Judge, in Starr v. Hamilton. (Deady’s Reports, U. S. Courts, 1850-1869, p. 268.)

We think, however, the better opinion in the construction of our statute is, that it creates an exemption of the husband’s estate in the wife’s property in favor of the wife.

The provision is found both in the Civil Practice Act of 1854 and in the Code of 1881, in the chapters relating to exemptions, and under the title “ Exemptions.” It does not in terms

do more than create an exemption, and no good reason exist» for extending its import beyond its terms. An exemption of one person’s property in favor of a different person is an anomaly ; but when the peculiar estate of a husband at common law in property acquired-by the wife is considered, and the reasons of the law for creating such estate, the exemption will be seen to be an eminently just one, and one bearing a useful and perfectly consistent part in the scheme of the law.

The modification, then, in the common law made by our statutes at the time of the acquisition of this property by Mrs. Moore, was to exempt the estate of-'the husband therein from seizure and sale on execution for the’ husband’s debts.

Did the fact, as found by the Court, that Mrs. Moore had failed to record an inventory of her separate estate prior to the levy of execution by the sheriff upon this property, divest her of the right to insist upon this exemption ? The lower Court so found, and rendered judgment accordingly.

The law concerning the estate of the husband in the wife’s property remained in this Territory as heretofore stated, until the passage of the -act approved Dec. 2d, 1869, entitled, “ An Act Defining the Eights of Husband and Wife.” (Laws of Washington, 1869, 1871, p. 318.)

This act established the system of community property between husband and wife, tbe incidents of which are well known to the bar and the public.

It is hardly necessary to say that this act, whatever its terms, did not operate to divest the estate of either the husband or the wife in property held by them, or either of them, at the time of its passage. But there are provisions in the act which, it is-claimed, have the effect of requiring the wife to do certain things, if she would insist on the exemption in her favor made by the Act of 1851, and which cuts off said exemption if she fail to do them.

Section 3 of the act requires the wife to make a full and complete inventory of her separate property, and to acknowledge and record said inventory in a manner pointed, out by said section.

Section 5 provides: “The filing of any such inventory in the auditor’s office shall be notice of the title of the wife, and all

property belonging to her included in the inventory, as well as any money in specie not so included, shall be exempt from seizure on execution for the debts of the husband; and she shall be ■deemed to have waived the exemption from such seizure on execution of all property belonging to her not included in any such inventory, other than money in specie.”

We think these provisions must be construed as having reference only to property to be affected by the community system which the act of the Legislature brought into existence, and hence, as having no reference to property held by the wife in her own right before the passage of that act.

The system was not a new or untried one. It had been in existence for many years in California, Texas, and Louisiana. Its weakness and its strength were known. The right of husband and wife under it, and of creditors of one or both, had been discussed and determined by the Courts. We may well conclude that the provisions of the system in question were intended to have a specific application to property to be affected by the system, if we can find a useful purpose in connection with that system to which they may be applied.

It is settled by the Courts in construing the Community Property Law, that property acquired by the wife during coverture, the title to which is taken in her name, is prima facie common property, and therefore subject to the husband’s community debts. This presumption may be rebutted by the wife, who may show the true nature of her title. It will be readily seen that a wide door is thus thrown open for fraud upon creditors, to say nothing of the field left for future litigation between heirs, devisees, and assignees claiming adversely under the husband or wife.

Sections 3, 4 and 5 of this act, we think, were intended to close this door.

It was competent for the Legislature, as to after-acquired property, to give full effect to the presumption that such property, even though title to it were taken in the name of the wife, was community property, unless the wife gave the public notice of her separate title. It was not competent for the Legislature to attach such presumption to property acquired by the wife before the passage of the act, her enjoyment of which, with

all the incidents thereof provided by law at the time of its acquisition, is preserved by constitutional guarantees.

Section 5 of the Act of 1869 cannot be construed, when read in connection with the other provisions of that act, as a mere exemption from sale in favor of the wife, of the estate of the husband in the wife’s property, as in the Act of 1854.

The Act of 1869 destroys that estate. Therefore, if said act has a retroactive effect, it permits the wife’s property to be sold for the husband’s debts. As before stated, this might be permitted as to property acquired by the wife after the passage of the Act of 1869, and not inventoried by her, but it could not be permitted as to property held by her before the passage of that act.

Our conclusion is that full effect must be given in this case to the exemption provided by the Act of' 1854, regardless of the failure of the wife to make and record an inventory of her property; and the failure upon the part of Mrs. Phoebe H. Moore to make and file such inventory, as found by the Court below, did not bar the plaintiffs from the relief prayed in the complaint.

The defendants took no interest in the lands in controversy, by virtue of the conveyance from the sheriff.

The appellees insist, however, that the complaint does not state facts sufficient to constitute a canse of action, and that the judgment of dismissal was correct on that ground.

The complaint sets up the sheriff’s deed to appellees; alleges that the same is a cloud upon the plaintiffs’ title, and prays that the same may be declared void and of no effect. We have seen that the appellees took no interest by virtue of the sheriff’s deed, and that the same was null and void.

This being so, there is no cloud upon the plaintiffs’ title, according to the principles of equity, and the complaint fails to • state a cause of action. ('PomeroyVEquity Jurisprudence, Yol. 3, Sec. 1399, and authorities cited.)

Appellants rely upon Sec. 551 of the Code, as enlarging the equity jurisdiction in such cases. That section provides, among other things, that when “ real property is not in the actual possession of any one, any person, or private or municipal corporation claiming title to any real property under a patent from the

United States, or during his or its claim of title to such real property under a patent from the United States for such real estate, may maintain a civil action against any person or persons,, corporation or association, claiming an interest in said real property or any part thereof, or of any right thereto adverse to him,, them or it, for the purpose of determining such claim, estate or interest.”

We think the statute must be given the effect claimed for it; and that where the property is not in the actual psssession of any one, as in this case, the jurisdiction of the Court can bo maintained, notwithstanding the absolute invalidity of the claim, or estate against which the true owner is moving.

In this case the complaint does not show that the appellees are claiming the property under their void conveyance. The evidence, however, shows that fact, and we think the appellants should now be permitted to amend the complaint to correspond with the evidence in this respect.

The judgment of the lower Court is reversed, and the cause remanded, with directions to permit an amendment of the complaint, and to then proceed to judgment in accordance with this opinion.

We concur: Roger S. Greene, Chief Justice.

S. C. Wingard, Associate Justice.