I am obliged to emphatically disagree with the prevailing opinion in this case, which utterly disregards our statutes and ignores our precedents, and they are not discussed. It should never become the law of this state. In one thing only is it correct, and that is that the first deed was not accepted or delivered. Showalter v. Spangle, 93 Wn. 326, 160 P. 1042.
The deed is in our statutory form. Rem. Rev. Stat., § 10552 [P.C. § 1908-29]. It was also authorized by Rem. Rev. Stat., § 10572 [P.C. § 1443], which provides for conveyances from a husband to his wife and from a wife to her husband.
The first cited section, among other things, provides that the grantor warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his *Page 91 heirs and personal representatives, as fully and with like effect as if written at full length in such deed.
The last cited section, so far as material to this question, reads:
"A husband may give, grant, sell, or convey directly to his wife, and a wife may give, grant, sell, or convey directly to her husband his or her community right, title, interest, or estate in all or any portion of their community real property. And every deed made from husband to wife, or from wife to husband, shall operate to divest the real estate therein recited from any or every claim or demand as community property, and shall vest the same in the grantee as separate property."
There was no mutuality in the deeds from Hamilton to Mrs. Hamilton and the second deed from Mrs. Hamilton to Hamilton, as was the case in Bloor v. Bloor, 105 Wn. 110, 177 P. 722, cited by the majority, where the deeds were, in fact, placed in escrow with a third party and were still in the control of the grantor. There, the deeds were patently deposited to be delivered to the survivor on the death of either, which was not the case here. To hold that the two deeds in question here constitute one transaction and must be construed together, is illogical and fallacious.
The second statutory warranty deed conveyed all of the interest of the grantor, unless expressly limited, and the special language used in the deed of Mrs. Hamilton to Hamilton, a day later than the first deed, is not a limitation.
In Shorett v. Signor, 58 Wn. 89, 107 P. 1033, we held, in effect, that, under § 10572, supra, then codified as Rem. Bal. Code, § 8766, since the community is an entity separate and distinct from either spouse, the legal effect of a deed from one member of a marital community to the other is to convey the community property and title to the spouse who is vendee, so that *Page 92 it becomes, or is converted into, his or her separate property, in which the community as such ceases to have any further title or interest, such conveyance being authorized by the statute.
In Brown v. Davis, 98 Wn. 442, 167 P. 1095, the husband, owning separate real estate acquired before marriage, conveyed it to his wife on July 15, 1914. On the next day she reconveyed the property to her husband. That was exactly the same situation as here. No member of this court then thought that the deeds were contemporaneous, or mutual. We there reaffirmed the law as declared in the Shorett case, supra, and that such a deed reconveyed the entire estate, whatever it was, to the grantee.
Those cases ought to be decisive under our statutes, and the matter should be considered settled thereby.
The majority also illogically deduce the inference from a certain course of conduct in dealing with some of the property by the Hamiltons, after the second deed was executed, that it was treated as community property.
There, again, the majority fly in the face of precedents. InChapman v. Edwards, 113 Wn. 224, 193 P. 712, we held that community property became the separate property of the wife by virtue of deeds from her husband, pursuant to the statute, and the separate nature of her estate was not changed by the fact that her husband thereafter joined with her in the execution of a mortgage. In other words, that even so solemn an act as the joinder in a mortgage, which would seem to be one of the highest forms of inconsistency of act or conduct that could be taken, did not change its character as her separate property.
In Rogers v. Joughin, 152 Wn. 448, 277 P. 988, it was again very positively declared that the status of *Page 93 the property, whether separate or community, is to be determined as of the date of its acquisition; that, if the property is once shown to have been separate property, the presumption is that it continues separate property until that presumption is overcome by evidence; that the rents, issues and profits of such property remain separate property; and that the character of property cannot be changed from that of separate property to community property, or community to separate, by the oral agreement of the spouses alone.
The first deed not having been delivered, but in fact rejected by Mrs. Hamilton, as conceded by the majority, the second deed became effective when delivered. It also was recorded about seven months later. The second deed, having been delivered and becoming effective, contained this clause:
"The grantor being the wife of the grantee, it is her intention to convey to her husband all of her community interest in and to the above described property, the same to remain his own and separate property, free from any community interest whatsoever."
It was manifestly intended to reconvey to appellant what had been attempted to be conveyed by him to Mrs. Hamilton. It was as much an independent and separate conveyance as if it had been executed a year or ten years later, instead of one day later, just as in the Brown case, supra. The second deed obviously intended, as it stated, that all of the property was "to remain his own and separate property, free from any community interest whatsoever." No more positive and comprehensive language could have been used.
For the foregoing reasons, I dissent. The judgment should be reversed.
TOLMAN, J., concurs with HOLCOMB, J. *Page 94