On the incontestable facts in this case, I can concur neither in the prevailing opinion nor in all the views of Judge Fullerton.
The majority opinion proceeds upon the certitude that the rule is inexorable that the status of the title is immutably fixed asof the time of its acquisition, which is not correct. If that were true, no kind of title could change in form after acquisition by husband or wife under any circumstances; and we have, under many circumstances and in numerous instances, held to the contrary. But even if the rule of inflexibility applies, this property was all acquired by the spouses during coverture. The presumption, always favored *Page 235 in law, as Judge Fullerton says, as to such property, is that it is community property. The evidence to rebut that presumption must be of a clear, certain and convincing character. In reSlocum's Estate, 83 Wash. 158, 145 P. 204, and In re Curtis'Estate, 116 Wash. 237, 199 P. 309.
In this case, all the evidence is that, regardless of the agreement between the spouses, the property became community property by confusion and commingling. In In re Buchanan'sEstate, 89 Wash. 172, 154 P. 129, Judge Parker wrote it into the law that gains which are the product of community individual efforts during coverture become community property. He said:
"These observations, we think, in any event, lead to the conclusion that the gains and profits produced by the personal efforts of appellant, though added to, in a measure, by the original investment, become community property. We agree, however, with the trial court that the funds, though at the beginning separate property of appellant and Sarah A. Buchanan, in the proportion of four-ninths and five-ninths, which purchased the stock in the first instance, have during the ten years of coverture become so intermingled with community property and lost their identity as separate property that all of the stock and interest in the Puget Sound Lumber Company, standing in appellant's name, became the community property of appellant and his deceased wife, Sarah A. Buchanan."
True, that was personalty; but our statutes and precedents apply to realty as well as personalty.
In addition, at a time when no imposition upon creditors could result, or was contemplated, these spouses contributed what each had owned separately to the community, agreeing that it should thenceforth constitute common property. Thereafter, they jointly, not separately, contributed and individually labored, improving and adding to the value of the common property. *Page 236 Whether the added gain be much or little, all of it became community property.
In Union Securities Co. v. Smith, 93 Wash. 115,160 P. 304, Ann. Cas. 1918E 710, an oral agreement between husband and wife after marriage, not made with intent to defraud creditors, and continuously acted upon, that the personal earnings of each of them should be the separate property of the spouse earning it, was upheld. In Volz v. Zang, 113 Wash. 378, 194 P. 409, an agreement between husband and wife that all their separate property should be community property, was upheld, which exactly fits this case.
Under the agreement between these spouses, we should, no doubt, hold that they themselves, or either of them, would be estopped to deny that the property is, and for more than twenty years has been, community property. See In re Deschamps'Estate, 77 Wash. 514, 137 P. 1009; Morse v. Johnson,88 Wash. 57, 152 P. 677; Rawlings v. Heal, 111 Wash. 218,190 P. 237, and In re Sanderson's Estate, 118 Wash. 250,203 P. 75.
What binds them, binds all the world as to the title, in the absence of fraud.
Either upon the theory of the commingling of the property so that it cannot be distinguished as separate property, or upon the agreement made between the spouses when the property was acquired, or both, I am firmly convinced it is community property.
The judgment should be affirmed.
I therefore dissent.