(concurring). — I concur in holding that a husband and wife cannot enter into a partnership with each other to carry on a business. This is the law in most of the states, and all arguments advanced in favor of such a holding elsewhere, in so far as their laws relating to the removal of the disabilities of married women are like our own, derive much greater force in a state where community property laws prevail as here. Our statutes recognize but two kinds of property which can be held or owned by married persons — separate property and community property. The statutes point out how this property may be acquired and define what it is, according to the manner and time in which it is acquired. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof, is her separate property, and the same is true with regard to like property owned by the husband. Section 1399, Gen. Stat. (former § 2409), provides that all property not acquired as prescribed in any one of the ways mentioned, which is acquired after ' *277marriage by either husband or wife, or both, is community property. It has been held that their interests in this community property are indissoluble, during the existence of the community, to the extent that the interests of either therein cannot be reached separately by any third party. The interest of each in the property is equal, and it would not be contended that by any mutual arrangement between themselves they could provide that either should have a lesser interest than the other, in said property without destroying its community character.
Sec. 1401, Gen. Stat., provides that “nothing contained in any of the provisions of this chapter, or in any law of this state, shall prevent the husband and wife from jointly entering into any agreement concerning the status, or disposition of the whole or any portion of the community property then owned by them, or afterwards to be acquired, to take effect upon the death of either.” This seems to me to clearly preclude the idea of their entering into any. such agreement, affecting their property interests, to take effect prior to the dissolution of the community, except as expressly provided otherwise. Sec. 1443, Gen. Stat., authorizes the direct conveyance, by one to the other, of his or her interest in all or any portion of their community real property, which thereby becomes the separate property of the grantee, but it is apparent that such a deed to be effectual must convey the entire interest of the grantor in the property, designated in the deed, from the- one spouse to the other. No lesser or partial interest of the grantor could be conveyed in any event, because this would have the effect of destroying its community character, and leave it neither separate or community, which would effect a result the law does not contemplate. If a husband and wife can become partners in business they can form the same kind of a partnership that other persons can, and enter into an agreement whereby one could take a small interest in the business and the profits thereof, and the *278other the larger one. The property acquired through the pursuance of this business would not come under either head of the two classes recognized; it could not be held to be separate property, for it would not be acquired in any one of the ways specified, and it could not be community property because, as said, in community property their interests must be equal, while, according to the partnership contract, their interests might be very unequal. This would create a third species of property owned by husband and wife which the law does not recognize. It seems to me to be clearly the intention of the law that only the two species of property can belong to the community, or to either of its members; that the law is a limitation in this respect and will not permit the holding or ownership of any other kind of property than that which is designated as separate and that which is designated as community, and the distinguishing features of its acquisition have been clearly pointed out and define its character; especially for these reasons I think that in this state, where community property laws obtain, that it would be contrary to the whole law on this subject to permit the husband and wife to enter into any contract or agreement whereby they might acquire property of a character other or different from that specified, which the law expressly permits them to hold and enjoy. It is true we have some statutes which, construed withut reference to others, would seem to allow the wife to enter into any contract, and which remove all restrictions in this respect; I think our statute law upon this subject goes to a greater extent than that of the states, from which the cases have been cited.
Sec. 1408 of the Gen. Stat. (§ 2396 of the 1881 Code) provides that every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued as if he or she were unmarried, and § 1410 (§ 2406 of the 1881 Code) provides that contracts may be made by a wife *279and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried; yet when considered in connection with our other laws relating to the property rights of married persons, it is apparent that they are considerably restricted thereby, and it would be wholly incompatible and inconsistent with such other provisions to hold that a husband and wife could enter into any joint arrangement or agreement between themselves creating a different kind of ownership in property from the ones specified, to take effect before the death of either, and it would be strongly against public policy to allow them so to do, and thus likely give rise to interminable and unfathomable complications.
Our laws cannot, in accordance with recognized rules of construction, beheld to authorize the husband and wife to enter into a partnership with each other for the purpose of trade or business, although it may be possible they might form some particular kind of an agreement for such a purpose rvhich might not conflict with their rights of property as defined by the statutes. This is very doubtful, however, and when considered in all its bearings with the rights, duties and liabilities of partners to each other and to creditors, it is evident that it is not the intent of the law to confer any such authority upon them. The effect that such an arrangement might have or must necessarily have upon their property rights as classified is the strongest argument that can be advanced against the position of the respondents, as it would destroy the distinction between the classes of property they may own as declared by the statutes.
Beg. 1444, Gen. Stab, provides that a husband or wife may appoint the other attorney in fact with full power to sell, convey and encumber his or her separate estate, both real and personal, and § 1446 makes similar provision with regard to their community property, and with § 1443, *280further assisted by the broad scope of §§ 1408 and 1410, practically subjects the wife to the influence of the husband as to the disposition and control of her property, separate or community, it seems to me as fully as any partnership agreement between them could possibly effect, and I should be- forced to the conclusion that they might become partners in trade with each other were it not for the statutes prescribing and defining the kinds of property a husband and wife may own and acquire. It is a matter of experience that their property rights and relations become complicated at best under the practical, workings of the law as expressed and interpreted, and as a matter of public policy it would be very undesirable to still further allow them to become involved in mercantile partnership relations with all its possible resulting consequences, conflicts and complications.