This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In Louisiana, Texas, California, Arizona, Idaho, New Mexico, Nevada, and Washington, what is known as the "community system of matrimonial gains" prevails. The central idea of this system is that whatever is acquired by the efforts of either the husband or wife constitutes part of a common fund, or, as it is expressed, is community property.50
46. Chandler v. Cheney, 37 Ind. 391; Gray v. Bailey, 117 N. Car. 439, 23 S. E. 318; Jones v. Smith, 149 N. Car. 318, 62 S. E. 1092; Ketchum v. Walsworth, 5 Wis. 95; Hoag v. Hoag, 213 Mass. 50, 90 N. E. 521. In New Jersey, however, it is said that there may be a partition, but not so as to affect the right of survivorship. Riccio v. Riccio. (N. J.) 101 Atl. 426.
47. Donegan v. Donegan, 103 Ala. 488, 49 Am. St. Rep. 53, 15 So. 823; Harrer v. Wallner, 80 111. 197; Lash v. Lash, 58 Ind. 526; Reed v. Reed, 109 Md. 690, 72 Atl. 414; Sharboro v. Sharboro, 88 N. J. 101, 102 Atl. 256; Stelz v. Schreck, 128 N. Y. 263, 13 L. R. A. 325, 26 Am. St. Rep. 475, 28 N. E. 510; McKinnon, Currie & Co.v. Caulk, 167 N.C. 411, L. R.
A. 1915 C. 396, 83 S. E. 559; Hayes v Horton, 46 Ore. 597, 81 Pac. 386; Hopson v. Fowlkes, 92 Tenn. 697, 23 L. R. A. 805, 36 Am. St. Rep. 120. That a divorce a mensa et thoro does not terminate the the tenancy, see Freeman v. Belfer, 173 N. C. 581, 92 S. E. 486 (divided court).
48. Harrer v. Wallner, 80 111. 197; Russell v. Russell, 122 Mo. 235, 43 Am. St. Rep. 581.
49. Lewis' Appeal, 85 Mich. 340, 24 Am. St. Rep. 94, 48 N. W. 580; Alles v. Lyon, 216 Pa. 604, 10 L. R A. (N. S.) 463, 116 Am. St. Rep. 791, Ann. Cas. 137, 66 Atl. 81; Davies v. Johnson, 124 Ark. 390, 187 S. W. 323.
50. Ballinger, Commun. Prop. Sec.Sec. 6, 11; De Blane v. Lynch, 23
This system belongs to the civil law, and first found footing in this country during the Spanish dominion, but it has been developed on diverse lines by statutory provisions and judicial decisions in the different stales, and in this development common-law influences have played some part.51
Either the husband or the wife, or both, may have property other than community property, this being known as "separate property," and being usually defined by statute as including, among other property, that belonging to either at the time of the marriage, and property acquired by either after the marriage through gift, devise, or descent or in exchange for separate property.52 Separate property also includes the rents, issues, and profits of separate property, except in Texas, Louisiana, and Idaho, where the rule is generally otherwise.53
All property which is not separate property is community property, there being an express or implied provision to this effect in the statute of each state where the system prevails.54 Community property therefore includes, among other property, that gained by the-exTex. 25; Myer v. Kinzer, 12 Cal. 247 73 Am. Dec. 539.
51. See an article by George McKay, Esq., 6 Am. & Eng. Enc. Law (2d Ed.) p. 293, where the subject of this section is well treated, and the same writer's separate work on the subject, Sec. 2 et seq. See also Myer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 539; Saul v. His Creditors, 5 Mart. (N. S.; La.) 569, 16 Am. Dec. 212.
52. Ballinger, Commun. Prop. Sec. 53 et seq.; McCay, Commun. Prop. chs. 11-16; 1 Stimson's Am. St. Law, Sec. 6433; 6 Am. & Eng. Enc. Law, pp. 301, 307; Love v. Robertson, 7 Tex. 6, 56 Am. Dec. 41; Myer v. Kinzer, 12 Cal. 247, disposed of by the will of the deceased.66 If there are no descendants and no will, the survivor, in some states, takes the half belonging to the deceased.67 The rights of dower and curtesy are incompatible with the theory of the community system, and have no recognition in the states where that system prevails, there being in some states a statute expressly so providing.68
73 Am. Dec. 538; Worden v. Wor-den, 96 Wash. 592, 165 Pac. 501.
53. 6 Eng Encyc. Law pp. 301-323; Ballinger, Commun. Prop. Sec.Sec. 21-24; McCay, Commun. Prop. Sec.Sec. 21-24; 1 Stimson's Am. St. Rep. Sec. 6434; George v. Ransom, 15 Cal. 322, 76 Am. Dec. 490; Lewis v. Johns, 24 Cal. 98, 85 Am. Dec. 49; Marlow v. Barlew, 53 Cal. 459; Webb v. Peet, 7 La. Ann. 9; Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74; De Blane v. Lynch, 23 Tex. 25; De Garcia v. Galvan, 55 Tex. 56.
54. 6 Am. & Eng. Enc. Law (2d Ed.) p. 307; Ballinger, Commun. Prop. Sec. 51; Ezell v. Dodson, 60 Tex. 331.
R. P.-42 ertions or labor of either husband or wife, and property acquired in exchange for such property.55
Public land which is granted to the husband and wife, or to either of them, is, it seems, to be regarded as community property if the grant is for valuable consideration in pursuance of a contract or legal obligation, but not where it is merely donated.56 Property acquired after marriage by either the husband or wife is presumed to be community property until it is shown to be separate property.57
By the theory of the Spanish law, the husband alone has any proprietary right as regards the community property so long as the community endures, and this view has been in terms adopted in California and Louisiana, while in Texas and Washington the husband and wife are regarded as having equal beneficial interests therein.58 Whichever view is adopted in this regard, the husband has, as a general rule, the sole and absolute control over the community property, with the sole power of disposing of it.59
55. Ballinger, Commun. Prop. Sec. 19; Wren v. Wren, 100 Cal. 276, 38 Am. St. Rep. 287; Pendergast v. Cassidy, 8 La. Ann. 96; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626; Abbott v. Wetberby, 6 Wash. 507, 36 Am. St. Rep. 176.
56. Ballinger, Commun. Prop. Sec.Sec. 25-30; McKay, Commun. Prop. Ch. 12; Cooke v. Bremond, 86 Am. Dec. 630, note.
57. Ballinger, Commun. Prop. Sec.Sec. 17, 46, 67, 159-166; Althof v. Conheim, 38 Cal. 230, 99 Am. Dec. 363; Myer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Chaney v. Gauld Co.. 28 Idaho 76, 152 Pac. 468; Shaw v. Hill, 20 La. Ann. 531, 96 Am. Dec. 420; Labbe's Heirs v. Abat, 2 La. 553, 22 Am. Dec. 151; Cooke v. Bremond, 27 Tex. 457,
86 Am. Dec. 626. and cases cited in note, p. 636; Morris v. Hastings,
70 Tex. 26, 8 Am. St. Rep. 570; Castor v. Peterson, 2 Wash. 204, 26 Am. St. Rep. 854. Except in California, in the case of a conveyance in writing to the wife. Act March 3, 1893 (St. 1893, p. 71); Sventinich v. Sheean, 124 Cal. 216,
71 Am. St. Rep. 50.
58. See McKay, Commun. Prop. ch. 50.
59. Ballinger, Commun. Prop. Sec.Sec. 79-82; 1 Stimson's Am. St. Law, Sec. 6433; Spreckels v. Spreckels. 116 Cal. 339, 58 Am. St. Rep. 170.
In Washington, the husband can convey or incumber the community real estate, or render it liable for his debts, only when his wife joins in making the deed or creThe community property is liable for all of what are called "community debts," which comprise, generally speaking, any debts or liabilities created by the husband during coverture not for his own especial benefit, the presumption being that the debts are such, and not the separate debts of the husband;60 and it is also liable for all the antenuptial debts of the husband,61 and in some states, for those of the wife.62
Upon the death of the wife, the husband has, in Louisiana and Texas, control of all the community property for the purpose of settling the community affairs,63 and in California, Nevada, and Idaho he takes all the community property as absolute owner.64 With these exceptions, the half belonging to either the husband or wife descends to his or her heirs or descendants, subject to the payment of debts,65 except when it has been ating the charge. 1 Hill's Code, Sec. 1400; Ballinger, Commun. Prop. Sec. 95; Holyoke v. Jackson, 3 Wash. T. 235. Likewise in Arizona, Rev. St. 1901 Sec. 3104. In California the wife's consent is necessary in the absence of a valuable consideration. Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. Rep. 170; Dargie v. Patterson (Cal.) 169 Pac. 360.
That the recognized rights and powers of the wife as to community property, together with the rights of the heirs on her death, are absolutely incompatible with the statement, sometimes made, that she has no more than an expectancy during her husband's life, see editorial notes in 11 Columbia Law Rev. 668; 2 Cornell Law Quarterly, 354.
60. Ballinger, Commun. Prop. Sec.Sec. 118, 119, 149.
61. Stewart, Husb. & Wife, Sec. 315; Ballinger, Commun. Prop. Sec.Sec.
132-135; Davis v. Compton, 13 La. Ann. 396; Portis v. Parker, 22 Tex. 699; Van Maren v. Johnson, 15 Cal. 308.
62. Van Maren v. Johnson, 15 Cal. 312; Lee v. Henderson, 75 Tex. 190, 12 S. W. 981; see McKay, Commun. Prop. Sec. 342.
63. Verrer v. Lors, 48 La. Ann 717, 19 So. 677; Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76. In Texas the surviving wife has also such control until her remarriage. Auer-bach v. Wylie, 84 Tex. 615, 19 S. W. 856, 20 S. W. 776.
64. McKay, Commun. Prop. Sec. 433; In re Ingram, 12 Am. St. Rep. 90, note.
65. 1 Stimson's Am. St. Law, Sec.Sec. 3402-3404; Ballinger, Commun. Prop. c. 8; Johnston v. San Francisco Savings Union, 74 Cal. 134, 7 Am. St. Rep. 129; Bennett v. Fuller, 29 La. Ann. 663; Robinson v. McDonald, 11 Tex. 385, 62 Am. Dec. 480.