Floding v. Denholm

Hadley, J.

(dissenting) —-I dissent, particularly on the ground that the wife did not consent to the purchase of the stock, but expressly opposed it. She did not assent to the community ownership of the purchased stock. The majority opinion holds that the community real estate is liable, on the theory that the husband’s surety obligation was for the benefit of the community in protecting the stock, the ownership of which the wife had refused to assume. Such holding, in effect, permits the community real estate to become incumbered without the wife’s consent, and against her express protest. While it is true that in this state the wife is practically helpless, so far as dominion over the community personal property is concerned, yet her interest in the community real estate is protected by statute and may not be incumbered without her consent. The husband should not, therefore, be permitted, without the wife’s consent, to manipiulate the community personal property so as to result in incumbering the real estate. If it be said that such a rule would interfere with commercial and business transactions in that it would permit the wife to urge lack of consent to the prejudice of good faith creditors, the answer is that the consent need not necessarily be expressly given, but may be implied from acquiescence, circumstances, and a course of conduct.