When Mr. and Mrs. Hargis purchased the Simonds ranch, that tract became their community property. When Miss Simonds repurchased the ranch, and, as part of the consideration, assigned to appellant Pauline E. Hargis the Freeman notes and mortgage, the same became prima facie, at least, and, I believe, actually, the community property of the parties. It is true that Thomas F. Hargis promised appellant that he would assign the notes and mortgage to her, but he never did so, and undoubtedly never intended to do so. In my opinion, the notes and mortgage were, in fact, the community property of the parties, although it is possible that a court of equity might have compelled Thomas to fulfill his promise to appellant. This, however, did not change the situation as to the actual ownership of the notes and mortgage, which remained in the community. The fact that one party may have an equitable right to a conveyance of property from another, and may even, as between the parties, be regarded as the equitable owner, does not, under such circumstances as here appear, affect the rights of third parties who have no actual notice of the situation.
When in May, 1927, Mr. Hargis undertook to buy the Olsen property for over $25,000, he turned over *Page 602 to appellant's father, Judge Eversole, the Freeman notes and mortgage, assigned both by himself and by appellant. Respondent Hargis Bank Trust Company cashed this paper, and the net proceeds thereof, amounting to $12,300, were deposited in the First National Bank of Yakima to the joint account of Mr. and Mrs. Hargis. This money was appropriated to the payment of an overdraft and some short time loans, which had been made by Mr. Hargis for the purpose of raising money to purchase the Olsen ranch. Some portion of the money was also devoted to the personal expenses of Mr. and Mrs. Hargis. As stated in the majority opinion, the credit of the community was undoubtedly pledged for the payment of mortgages and taxes against the Olsen ranch in the sum of almost $25,000.
As I understand the record, the proceeds of the Freeman notes and mortgage were used, not to pay directly obligations which had been assumed by the community in connection with the purchase of the Olsen ranch, but were used, in part at least, to repay money borrowed by the community, which original loans had been made for the purpose of raising funds with which to pay obligations assumed in connection with the purchase of the property. I find no warrant in the testimony for the assumption, indulged in by the majority, that Mr. A.H. Hargis, the president of respondent Hargis Bank Trust Company, when Judge Eversole presented to him the Freeman notes and mortgage, assigned by both Thomas F. and Pauline E. Hargis, must have been advised that it had been the intention of the son Thomas "to create in appellant a separate property and right in and to the notes and the mortgage."
While one cannot but sympathize deeply with appellant, who was shamefully treated by her husband, I *Page 603 cannot find, in the record, evidence which convinces me that, as to respondent Hargis Bank Trust Company, appellant is entitled to a decree that the Olsen ranch is her separate property to the extent of $12,300, or any extent whatever. Mr. and Mrs. Hargis each owned considerable separate property. They commingled this property, and, in my opinion, it must be held that, as to respondent Hargis Bank Trust Company, as well as to the other respondents, the Olsen ranch became and remained the community property of Mr. and Mrs. Hargis, and that the judgment appealed from was correct and should be affirmed.
TOLMAN, C.J., and PARKER, J., concur with BEALS, J.