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where, at the time defendant wrongfully took or encumber real estate except he shall be possession of the land in suit, plaintiff was a joined in the sale or encumbrance by the minor.

wife; but he may sell or encumber any perAppeal from superior court, Thurston coun

sonal common property without being joined ty; W. H. Pritchard, Judge,

by the wife.” One of the contentions of the Action by William A. Mabie against Lem

respondents is that, whatever the nature of uel C. Whittaker and Elmira Whittaker, his

the wife's interest in the land was, the right wife, to recover an interest in land conveyed

of Mabie to convey the entire title could by plaintiff's father, after the death of his

not be taken away by legislation subsequent wife, by deed purporting to convey the whole

to the time it was acquired by him. But, Interest in said land, and which, by mesne

leaving out of consideration all question as conveyances, is in possession of defendants.

to whether he could only exercise such right From a judgment of nonsuit, plaintiff ap

while his wife was living, and could not conpeals. Reversed.

vey the entire title, under the former law, Whitson & Farker and J. F. Van Name, after her death, and cut off her beirs, we for appellant. W. I. Agnew and B. F. Den- think the subsequent act took away bis pow. nisor, for respondents.

er to do so. It was immaterial whether the

record title to the community lands stood in SCOTT, J. In December, 1864, Andrew E. the name of the husband or of the wife, or of Mabie and Emeline Z. Huntington were mar- both of them, when considered with reierried in Washington Territory, and lived to ence to the power of the legislature to augether therein as husband and wife until thorize either or both of them to convey. August 31, 1872, when she died intestate, The legislature could as well have provided and no administration was bad. They were that the wife could convey, as the husband; the parents of the plaintiff, and there was and, if it had power to say that either could one other child, the issue of said marriage, dispose of the community interest of the also living. On the 10th day of August, other, it could say that neither could do so. 1871, one Tilley and his wife, being the own- Changing the manner of the conveyance did ers, conveyed the premises described in the not alter the status of ownership. It could complaint, consisting uf 1,862.60 acres of land not make the interest of either spouse in in Thurston county, to Andrew E. Mabie, community lands greater or less. Furtherwho held the same, with his wife, until her more, prior to the conveyance to Hallett the death. On October 27, 1874, after the death community in question had been dissolved of his wife, Andrew Mabie executed a deed by the death of the wife, and at the time of purporting to convey all of said land to one her death the law of 1871 relating to the deHallett, and the defendants claim by mesne scent of community property was in force. conveyances through him. The plaintiff is Laws 1871, p. 73, § 22 (Abb. Real Prop. St. 25 years old, and instituted this action in p. 478), provided that: “The common propMay, 1892, claiming as an heir of bis mother. erty being partnership property, the wife's The form of the action is ejectment, the share shall be one half thereof and shall be plaintiff demanding to be let into possession bers and her heirs forever; and her share with defendants, as a tenant in common, and of the common property may be increased so for the rents and profits, and damages for as to be more than one-half, by the wife's cutting and removing timber. After the compliance with the provisions of section tive plaintiff had introduced evidence in support of this act.” of his case, and rested, the court granted a Appellant claims that upon the death of motion by the defendants for a nonsuit, on Mrs. Mabie an interest in said lands vested the ground that the deed of Andrew Mabie in him, and that he became a tenant in comconveyed the entire tract, and cut off what- mon with his father and sister. In addition ever interest the plaintiff inherited therein, to the claim that Mabie could and did convey if any, from his mother, and this appeal is the entire title to Hallett, in consequence of prosecuted therefrom.

having that right when the land was acThe deed from Tilley and wife to Andrew quired, which we have above discussed, and Mabie was executed while the statutes of which will be further considered on a differ1869 relating to common property were in ent ground, it is contended by the respondforce, and the land became the common or ents that Mabie and wife held the land in community property of Mabie and wife there- question as joint tenants, with the right of under. Section 9 of this act (Laws 1869, p. survivorship, and consequently, upon her 320; Abb. Real Prop. St. p. 472) empowered death, that he became the sole owner. The the husband to convey the entire title to act of 1869 did not fix the status of such such land by his separate deed; but subse- property, other than to declare it to be comquently the legislature passed another act mon property, and made no provision for its (Laws 1871, p. 70; Abb. Real Prop. St. p. descent. Nor was there at that time, nor 476), which was in force at the time Mrs. for some time thereafter, any express leg. Mabie died, in 1872, and section 12 of islative recognition of estates in joint tenthis act reads as follows: "The husband

ancy. But the claim is founded upon the shall have the management of all the com- common law, which was in force to a greater mon property, but shall have no right to sell or less extent in the territory, and upon the following statute approved in December, stantially a statute of descent. It has the 1885, viz.:

technical and apt words of such a statute, “Section 1. That if partition be not made “hers and her heirs forever," which indicate between joint tenants, the parts of those the legislative intent. There was also a who die first shall not accrue to the sur- general statute of descent in force, which vivors, but descend, or pass by devise, and could more logically be applied to community shall be subject to debts and other legal estates than could the doctrine of joint tencharges, or transmissible to executors or ancy. St. 1862, p. 261; Abb. Real Prop. St. administrators, and be considered, to every 375–378. Subsequently, another act was passintent and purpose, in the same view as if | ed to regulate the descent of real property such deceased joint-tenants had been tenants (Laws 1875, p. 55). Section 2 provided, “Upon in common; provided, that community prop- the death of husband and wife, the whole of erty shall not be affected by this act.

the community property, subject to the com"Sec. 2. That all acts and parts of acts in munity debts, shall go to the survivor.” This conflict with this act be and are hereby re- statute continued in force until November, pealed.” Laws 1885–86, p. 165.

1879, when an act was passed (Laws 1879, p. We cannot concede the force to this indirect 77), section 13 of which was as follows: "In recognition of joint tenancy, as applied to case no testamentary disposition shall have community lands, which the respondents con- been made by the deceased husband or wife tend it should have. The reference thereto in

of his or her half of the community propthis statute is not the first instance of the erty, it shall descend equally to the legitimate employment of loose or inapplicable expres- issue of his, her or their bodies. If there be sions with regard to former or existing laws, no issue of said deceased living, or none of in our legislation; nor do we think such de- their representatives living, then the said fective statutes are peculiar to this state and community property shall all pass to the surterritory, as it is something liable to occur vivor subject to the community debts, and to in any legislation, owing to the fact that law. the exclusion of collateral heirs, the family making bodies usually do not and cannot well allowance and the charges and expenses of have a full appreciation and understanding administration." In neither of these acts of the various laws in force, or enacted by were community lands referred to as being them, in all their bearings. It is evident that held in joint tenancy, and the only reference a holding that the right of survivorship did of the kind thereto is contained in the act obtain with reference to community lands aforesaid, passed in 1885, subsequent to all would overturn and nullify the express dec

of them. A partnership is not a joint tenlarations of the statute above set forth, relat- ancy. T. Pars. Partn. (3d Ed.) at page 2, ing to the status, ownership, and descent says: “Thus, partnership has been compared thereof, passed in 1871. Section 22, supra. to tenancy in common, and also to joint tenThe act of 1869 and this act declared that all ancy, and has been said to be one or the other property so acquired should be common prop- of these, modified in certain ways. This was erty. The section referred to declared that the view taken in all the early books. But the common property was partnership prop- this is no more true than that tenancy in erty. Section 25 provided that “the rights of common or joint tenancy is a modified partall married persons now living in this terri- | nership. The three things are essentially distory, and of all who shall hereafter live in this tinct. They all have the element of joint territory, shall be governed by this act." We ownership of property, but in all other rehave here the clearly manifested intent of the spects are different and independent, and the legislature not only to define what the com- law of each must be sought for in itself. munity estate was, namely, a partnership, but * * * And, as to joint tenancy, not only providing for descent thereof, and making it may all of the four unities,-title, interest, applicable to persons then living in the terri- time, and possession,-every one of which is tory, as well as those thereafter to come; to essential to joint tenancy, be absent from community estates then existing, as well as partnership; but, besides this technical differthose to be acquired. The statute of 1871 did ence, the substantial characteristic of the not undertake to divest any right which had joint tenancy, which is the right of survivorbecome vested. Mabie, receiving this convey. ship, is wholly wanting in fact in partnerance under the act of 1869, thereby became ship, for it exists there only in form, and as the owner of an undivided one-half interest a mere trust for the purpose of settlement." in the land, and his wife thereby became the "The fundamental idea of the community owner of the other half. Her right was as system is that marriage makes the man and much a vested right as his. Under the weight woman partners, and that, therefore, all propof authority, the legislature had power to erty acquired after marriage is community change the law of descent, and could take property.” Stew. Husb. & W. $317. See, away the right of survivorship, as to estates also, De Blane v. Lynch, 23 Tex. 25; In re in joint tenancy, and make the same applica- Buchanan's Estate, 8 Cal. 507; Wilkinson v. ble to lands already acquired. Cooley, Const. Wilkinson, 20 Tex. 237; Cartwright v. Hollis, Lim. (5th Ed.) 440, 441; Freem. Coten. $ 36, 5 Tex. 151. “The central idea of the com--and cases cited by each; also Miller v. Den- munity system is that marriage creates a net, 6 N. H. 109. Section 22, aforesaid, is sub-partnership in property between husband and wife, and that all property resulting from the recognized, under the circumstances of this labor of both, or either of them, and all prop- case, perhaps, after the death of the wife, erty vesting in them, or either of them, either if it would obtain before. But it cannot obby gift, devise, bequest, or descent, inures to tain at all without directly nullifying the the benefit of both of them; and, though com- statute, which said he should have no "right" munity property has not all the incidents of to sell; and “right," in the sense used there, partnership property, it has many of them, meant "power.” By executing such a deed and is commonly spoken of as partnership the husband subjected himself to no penproperty." 3 Am. & Eng. Enc. Law, p. 350. alty, and there was no way of enforcing the The act of 1871, in addition to declaring such statute, if the deed was to be recognized as property partnership property, provided for valid. This same section (12, supra) providan increase of the wife's interest to more than ed that he might sell the community perone-half. This was incompatible with the doc- sonal property without her participation. A trine that such estates were held in joint similar law is in force at this time, and it tenancy. But, even if they were, by pro- has always been the settled belief that the viding for the descent of her interest his right deed of both husband and wife is necessary of succession as the survivor was cut off. We to pass the title to community lands under know of no instance, judicial or otherwise, these statutes. In fact, it could not have where such doctrine of joint tenancy has been been otherwise. There is no decision of the recognized or applied, in the history of the supreme court of the state or territory to the state and territory, and none has been called contrary, and there has been none by any into our attention. We are of the opinion that ferior court, that we are aware of, unless the the universal belief and course of acting has decision of the case before us was upon that been contrary thereto, and that the right of ground. It is true, in Sadler v. Niesz, 5 taking by survivorship has at no time existed, Wash. 182, 31 Pac. 630, 1030, we, in effect, as to community lands, here, except under the held the wife estopped, under the circumstatute of 1875, providing for such descent. stances of that case, from asserting a claim

A good many cases have been cited by to community lands deeded by the husband, the respondents, holding that a purchaser of but that in no wise contravenes the doctrine the legal title to lands, without notice of any above stated. In this connection, we call equities therein, will take the entire title; attention to Holyoke v. Jackson, 3 Wash. T. and we presume this will not be disputed, as 235, 3 Pac. 841; Hill v. Young, 7 Wash. 33, a general proposition. But some of them 34 Pac. 144; and Adams v. Black, 6 Wash. from California and Texas go further, and 528, 33 Pac. 1074,-as some of the cases decidhold in effect that the wife's interest in com- ed in this stateand territory bearing upon the munity lands is an equitable interest only, questions before us. We cannot overturn and that her heirs would be cut off by such the statutes or the settled law of the state a conveyance. But in both of these states to meet the hardships of a particular case, the disposition of community lands rested in much as we would like to avert them. If the husband, and he could convey the same, Andrew Mabie could not convey this land to satisfy the community debts, after her during the lifetime of his wife, he could condeath. In some instances the record title is vey nothing more than his interest therein spoken of as the "legal title," but this can after her death. Upon her death her interbe true only in a qualified sense. A deed of est in these lands vested in her heirs, and the lands under the conditions specified in the plaintiff was one of them. What the extent statute vested the ownership in the communi- of the interest was which the plaintiff sucty, no matter which spouse was named as ceeded to, or whether the husband took a grantee in the deed; and the title of one share of his wife's estate, also, as one of her spouse therein was a legal title, as well as heirs, we are not called upon now to deterthat of the other. It may be said that the mine, as the question has not been presented title or interest of either spouse therein sep- or argued. Furthermore, as Andrew Mabie arately was only an equitable one. But how received a valuable consideration for this is this material, in the face of the statute in conveyance, which was understood by the force when the deed by Andrew Mabie was parties to be for the whole tract, it may be executed, which declared, without regard to that the plaintiff, in case he inherited or rethe nature of the ownership of either spouse, ceived anything from his father's estate, can that the husband should have no right to be called upon to account thereon. But these sell or incumber community real estate, ex- questions must await the future disposition cept he be joined in the sale or incumbrance of the case, or be disposed of therein. by the wife? It might well be that the legal It is further contended by the respondents title, when considered with reference to in- that the judgment of nonsuit was rightly nocent purchasers, would be regarded as granted because ejectment cannot be main. resting in the one who had the record or tained. But we think the law is well settled written evidence of title, and that a convey- that a tenant in common can maintain ejectance from such spouse to an innocent pur- ment against a cotenant in possession, who chaser would transfer the entire estate of disputes his right,-Freem. Coten. (2d Ed.) $$ the community; and the same rule might be 248, 290; University v. Reynolds' Ex’r, 23 Am. Dec. 234; Gale v. Hines, 17 Fla. 773; | spective effect. I find nothing in the act in Wolfe v. Baxter (Ga.) 13 S. E. 18; Hancock question to indicate such intention. On the v. Lopez, 53 Cal. 362,-and that if the law contrary, I find language which, to my mind, were otherwise this action could be main- indicates an intention to give it effect only tained under sections 529 and 531, Code as to property thereafter acquired. If I am Proc. 1

right in thus construing the act of 1871, the A further point raised by appellant is that rights of the parties to the property in questhe court erred in excluding evidence of the tion must be determined under the law of rents and profits, and damages for taking 1869. Under that law the husband alone timber beyond six years from the commence- could dispose of the common property during ment of the action; and we think the point coverture. Such power, in my opinion, caris well taken, as section 534, Code Proc., 2 ried with it the right to dispose of such propshould be considered with section 124, and erty by the husband after the death of the the cause of action was saved by reason of wife. In other states similar statutes have the minority of the plaintifl. Reversed and been held to confer such authority upon the remanded for a new trial.

husband, and, so far as I am advised, the

courts of none of the states having statutes DUNBAR, C. J., and ANDERS, J., concur. like this now hold to a contrary doctrine.

HOYT, J. (dissenting). I dissent. In my opinion the act of 1871 did not affect prop

(54 Kan, 674) erty theretofore acquired. There is no lan

GILPEN V. LEKSELL. guage used in the act which, to my mind,

(Supreme Court of Kansas. Feb. 9, 1895.) discloses any such intention on the part of the legislature. In that respect it is entire

PLEDGE OF GROWING CROP-PAYMENT-LIEN. ly different from the other statutes in re

Where a part of a growing crop is lation to community property. A statute which

reserved or pledged in a written contract with

a creditor as collateral security to him for the introduces a rule as to real property radical- payment of an existing debt, and subsequently ly different from the one theretofore exist- the debt, with the voluntary consent of the ing should not be construed to apply to prop

parties, is canceled and satisfied, such former

creditor has thereafter no claim or lien upon erty acquired before its passage, unless the the crop under his written contract, as his language makes clear the intention of the debt is extinguished. legislature that it should so apply. Before (Syllabus by the Court.) the passage of the act of 1871, the element

Error from district court, McPherson counof common property had been introduced in

ty; Frank Doster, Judge. to our statute law, but not to such an extent as to greatly affect the holding of prop

Action by Stephen Gilpen against E. Lekerty belonging to the husband and wife, by

sell. From a judgment for defendant, plain

tiff brings error. Atfirmed. either of them. But this act sought to introduce an entirely new condition of things,

On April 13, 1887, Stephen Gilpen filed his and to constitute a kind of partnership be

ai ed petition, complaining of E. Leksell tween the husband and wife in the holding

substantially as follows: That on November of such property. Hence, under the rule

11, 1885, he, Gilpen, entered into a written above suggested, it should be held not to

agreement with one P. J. Johnson, agreeing apply to property theretofore acquired, un

to sell certain lands described therein; Johnless the language clearly indicates the inten

son agreeing to reserve or pledge to Gilpen tion of the legislature to give it such retro

as collateral security one-half of the crops

raised on said land, or the proceeds of the 12 Hill's Code, $ 529, provides that “any per- sale of one-half of the crops, for the payment son having a valid subsisting interest in real of the notes given by Johnson to Gilpen in property, and a right to possession thereof, may recover the same by action in the superior court

payment of the land. This controversy arises of the proper county to be brought against the over the crops raised on this land during the tenant in possession. *

* " Section 531 pro- season of 1886, which was 40 acres of broom vides that “the plaintiff in such action shall set

corn. The written agreement between Johnforth in his complaint the nature of his estate, claim or title to the property, and the defendant

son and Gilpen was never recorded. During may set up a legal or equitable defense to plain- | the spring season of 1886, Johnson, who was tiff's claims; and the superior title, whether le

a farmer, and quite poor, arranged with Lekgal or equitable, shall prevail. 2 2 Hill's Code, 8 124, provides that, "if a per

sell, who was a merchant, by which Leksell son entitled to bring an action

be, at

was to furnish Johnson with groceries, seed, the time the cause of action accrued,

and some money to enable him to plant, sow, under the age of twenty-one years,

and harvest his crop, Leksell requiring Johntime of such disability shall not be a part of the time limited for the commencement of ac

son, however, to give him a chattel mortgage tion.” Section 534 provides that in actions to on the crops, to secure the payment of such recover possession of real property “the plaintiff advances. The chattel mortgage was given shall only be entitled to recover damages for to Leksell by Johnson, and when the 40 acres witholding the property for the term of six years next preceding the commencement of the

of broom corn had been harvested and baled, action.

Leksell took possession of the 40 acres of

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MARTIN 0. BURNS.

177

corn, and sold it for about $400. Gilpen de

(54 Kan, 641) manded of Leksell the payment of one-half

MARTIN et al. v. BURNS et al.
of the proceeds of the sale of the crops under
his written agreement with Johnson. Leksell

(Supreme Court of Kansas. Feb. 9, 1895.)
refused to pay Gilpen any part of the pro-

MECHANIC'S Lien-Sufficiency Of STATEMENT. ceeds of the sale; hence this suit. Gilpen

In order to establish a mechanic's lien, alleged his lien, Leksell's knowledge of it, his

a statement filed for that purpose must fairly appropriation of its value to the amount of

comply with the statute, and should contain

not only a statement of the amount claimed, about $100, and asked judgment for his share but also a list of the items of the materials furthereof. It appeared during the trial by Gil- nished, or of the work done; and where it con

tains no itemized statement of the materials pen's own testimony that "the land is mine

furnished or of the nature or kind of the work [his), and has been all the time.” He remort. done, but there is filed with the statement an gaged it, making the new mortgage enough unverified list of items, which was not incorlarger to pay him $100 out of it. The land porated in the statement, and to which no ref

erence was made, it is insufficient to meet the also advanced in price, so that Gilpen wanted

requirements of the statute, or to establish a it back. Both he and Johnson testified that lien upon the premises therein described. there was an absolute unconditional rescission (Syllabus by the Court.) of the contract. The notes were surrendered to Johnson, and the contract to Gilpen. John

Error from district court, Rice county; Anson moved off, and delivered possession of the

sel R. Clark, Judge pro tem. land to Gilpen. Only two witnesses testified

Action by M. Burns & Co. against A. M. in the case,-Gilpen and Johnson,-and when

Lasley. A. B. Martin & Co. filed an anGilpen rested his case Leksell demurred to the

swer and cross petition. From a judgment evidence, and the court sustained the demur

for plaintiffs and against the cross petitionrer, and directed the jury to render a verdict ers, cross petitioners bring error. Affirmed. for defendant in the following language: “It J. W. Brinckerhoff, for plaintiffs in error. appearing from the testimony of Gilpen and J. B. Larimer, Geo. W. Clark, and Jones & his witness, P. J. Johnson, that since the Jones, for defendants in error. commencement of this action Gilpen and Johnson had effected settlement of the debt due from Johnson to Gilpen on account of

JOHNSTON, J. M. Burns & Co. brought the land sale; that Gilpen had taken the land

an action against A. M. Lasley to recover a back from Johnson, and Johnson had received

personal judgment and to foreclose a meback his notes from Gilpen, with no reserva

chanic's lien upon a building in the town of tion of the claim of indebtedness as against

Lyons, owned by Lasley. A. B. Martin & Leksell; and, as Johnson owed Gilpen noth

Co., who claimed a lien upon the same proping, consequently Leksell owed Gilpen noth

erty, filed an answer and cross petition, seting, and the debt claimed in this case as due

ting up their claim, and praying for a forefrom Leksell to Gilpen was settled and paid.”

closure of their lien. At the close of the This ruling is assigned as error, and Gilpen testimony the trial court refused to recogbrings the case here for review.

nize or allow the lien, upon the ground that

the statement for the lien did not show the Frank G. White, for plaintiff in error.

Mil

kind and amount of materials furnished, as liken & Galle, for defendant in error.

the statute then required. An attempt was

made to perfect the lien in August, 1888, and HORTON, C. J. (after stating the facts). It therefore the sufficiency of the statement filed appears from the written agreement entered must be measured by the mechanic's lien into on the 11th of November, 1885, between law of 1872. The statement then filed was Stephen Gilpen and P. J. Johnson that the to the effect that lumber and building matecrops in controversy were to be regarded and rial had been furnished, to be used in the reserved as collateral security for certain construction of a building upon certain lots, notes executed by Johnson to Gilpen in pay- which were therein described, and for which ment for the land purchased by the former a promissory note was given, a copy of from the latter. Subsequently Gilpen took which was attached to the statement. It is back the land, and returned to Johnson his claimed that at the same time there was filed notes. Thereafter Johnson was not indebted with the statement an itemized account of to Gilpen, and upon the uncontradictory evi- the material furnished, but there is nothing dence in the case it is shown that Johnson in the sworn statement showing that a list owed Gilpen nothing upon the notes or other- of items was included in or made a part of wise. As the debt from Johnson to Gilpen such statement. It was not incorporated in had been canceled and satisfied by the agree- the statement, was not made an exhibit of ment of the parties, the collateral security the same, nor was there any reference therefor the payment thereof cannot be claimed by in to an itemized list of the materials furGilpen. The debt having ceased to exist, nished. We think the statement was insuffi. Gilpen has no lien upon the crops for the cient to create a lien. As was said in Newpayment thereof. The judgment will be af- man v. Brown, 27 Kan. 117: “A mechanic's tirmed. All the justices concurring.

lieñ is a creature of statute, and he who v.39p.no.1-12

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