(dissenting). — I dissent. It was contended in this case that the “ community debts” mentioned as chargeable upon community real property in the act of 1881 (Code, g 2410) do not include a judgment against a *83husband who was a constable, aad who, while acting as such officer, took property in execution upon which there was a chattel mortgage, and sold the property so that it became scattered and lost to the mortgagees, the judgment being for damages for that wrong. The act in question nowhere undertakes to say what a community debt is; nor does it use any language by which it can be said that a community debt is to be anything different under this act from what it was under the previous community property statutes of 1869, 1871, 1873 and 1879. “Debts’* are spoken of in all these acts as liabilities to pay, without any regard to the technical difference between “debts ” and “torts.” In numerous instances in each of them there are negative provisions like these: “ The earnings of the wife are not liable for the debts of the husband;” “the separate property of the husband (or wife) is not liable for the debts of the wife (or husband) contracted before marriage;” and in 2400 and 2408 of the act in question the separate property of husband and wife is not subject to the “debts or contracts” of the other. Would it be contended that because these terms “debts” and “contracts” are used, and no reference is made to “torts,” therefore, the separate property of the husband and wife would be liable for the torts of the other? In \ 25 of the act of 1879, the term “debts” was used as synonymous with “judgment or decree,” no matter for what cause of action rendered. And so here, while there may possibly be some purely personal wrongs by a married person that should be first compensated out of the separate property of the wrong-doer, where, as in the case at bar, the constable was pursuing his usual avocation for the benefit of the community and not maliciously, but through a mistaken idea of his duty, he incurred a liability to recompense the mortgagee, I see no reason whatever for holding this not to be a liability or debt for which the community real estate is, by the statute, answerable.
*84The fact that the result of the liability has not been to the pecuniary advantage of the community, certainly' can make no difference in a court of justice, where advantages are not material. A good or a bad bargain cannot make the difference between right and wrong, and the community of husband and wife has not yet become so helpless a thing that we need presume in its favor as though it were a minor or an imbecile. Under all former community property acts this judgment could have been made out of community property without any statute provision on the subject. Section 19 of the act of 1871, .which was the least liberal of all these acts, had this provision : “ When real estate, common property, shall be sold for indebtedness of the wife or the husband only, no more shall be sold than shall be necessary to satisfy the indebtedness and cover costs,” etc. Yet under that act the husband could not sell community property without the wife’s joinder. By the act of 1879 no real property, either separate or community, could be sold, encumbered or in any way disposed of without the joinder of the husband and wife in the instrument; but I have never heard or read a suggestion that under that act a separate debt of either husband or wife could not be collected out of the separate real property of either without the consent or deed of the other. Obviously, it was considered by the framers of that act that the matter of the voluntary alienation of lands had nothing to do with the rights of creditors, and while they hampered the husband and wife to an excessive degree, as between themselves, they placed no restrictions against the collection of just debts. Yet if we were to hold in this case, that because the husband cannot sell, convey or voluntarily encumber without the wife’s joinder, no liability incurred by him, as this one was, can be charged against community property, then we should be bound to hold, in any case arising under the act of 1879, that without the wife’s consent, by deed, the husband’s debt incurred before marriage *85could not be collected out of bis real property acquired before marriage; for the language of the two acts is precisely alike.
The only ground urged for the decision of the majority seems to be under the claim that the wife has a veto upon voluntary conveyances and encumbrances of community real estate for her protection against her husband; and that the husband must not be allowed to do that by fraud or indirection which he cannot do directly. The same argument would apply to the incurrence of every debt under the act of 1879, and to the collection of ante-nuptial debts as well. But there is no question of fraud in this case, and there is now no propriety in using that argument. Here the question is simply whether the wife shall, while she is fully protected in the possession of her separate property, and of her earnings, take her share of the risk that her husband will conduct the business of the community without loss; nay, it is not that only, but whether the husband himself shall be allowed to hide behind the ample skirts of his wife, in case of his “ torts,” to the ruin of the victim of his ill-advised action. So far as the proviso at the end of § 2410 is concerned, I fail to see what importance it has there. It is merely declaratory of what would be the law without it, and adds no force to this section of the act. It is a literal copy of a section in the act of 1879, and had all the force in that act which it has in this. It has been argued, however, that since this proviso says that liens for labor and materials and judgments for community debts are chargeable upon community real estate, it is to be taken as an instance of “ expressio unius alterum exeludit,” and therefore no other obligation is to be recognized. But let it be remembered that the maxim quoted is a common-law maxim, and the argument is one for strictness of construction; whereas it is one of the requirements of the act in question that the common-law rules of construction are not to prevail here, *86and that all its provisions are to be construed liberally; but liberality can certainly not be predicted of a ruling that shields property from levy for a debt of the owner-A community debt, within the meaning of the act of 1881, ought to be any liability incurred by either husband or wife during their marriage, and which is not a separate debt by its express terms, or by reason of its being patently for the exclusive benefit of the separate property of the party contracting it. This has been substantially the construction put upon the term ever since the community property laws have existed here, by the business men of the state as well as the legal fraternity. To depart from it now will, in my judgment, greatly disturb the safety of business interests, and unsettle titles to an alarming extent; and to hold with the appellant is not logically necessary under the terms of the statute.
I cannot believe that it was the intention of the legislature of 1881 to withdraw all this community real estate-from liability for accommodation endorsements, guarantees, and especially official bonds, as well as the hundred engagements that married men enter into every day, but which have no relevancy to their community interests, and cannot be said to benefit them. It is said that these obligations can be made good by securing the signature of the wife; but I deny it. If the signature of a husband to the bond of a county treasurer does not make the obligation collectible out of his community real property, because the debt is not one for the benefit of the community, it is idle to say that adding the signature of the wife will change the character of the debt and make it so collectible. And so on. The combinations and confusions are endless, if this doctrine is once announced..
The judgment should be affirmed.