(concurring).—In concurring in the affirmance of the judgment in this case, I desire to add only a few words to what has been said by Judge Stiles in his opinion. I agree with much that has been therein stated, but I am unable to agree with that part of such opinion in which it seems to be held that the spouse in whose name community property is standing can dispose of the same without the other spouse joining in the conveyance, even although the two spouses are living together as husband and wife. To thus hold seems to me to be in direct conflict with the statute upon the subject. Such statute, after providing what property shall be community property, provides that the same shall not be conveyed excepting by the joint deed of the two spouses. Such statute was, in my opinion, passed mainly in the interest of wives and for their protection.
It was the intention of the legislature by such enactment to prevent a husband from disposing of the real estate of the community in fraud of the rights of the wife. If, however, we hold thereunder, as stated in the opinion above referred to, it seems to me that it will open the door which the legislature thus intended to close. If it is held that the husband while living with his wife can alone convey such property standing in his name to any one pur*196chasing the same in good faith, without knowledge of the existence of the wife, there will be nothing to prevent a fraudulent arrangement as between the husband and a purchaser by which. it will be made to appear that such •purchaser acted in good faith, when in fact he had full knowledge of all the circumstances. A designing and unscrupulous husband would thus be enabled to nullify the intention of the legislature.
If, however, it is held that when property is acquired by the husband, not by gift, devise or bequest, it at once becomes the property of the community simply by reason of the fact that he has a wife, regardless of the question as to whether or not he and his wife are living together, then the door is open to such frauds on the part of a designing husband and wife that public policy demands that some other construction of the statute should be found, if possible. Once construe the statute in this way, and it becomes possible for a husband and wife by their fraudulent acts to allow the husband to so represent himself before the community in which he resides that it will be generally believed therein that he is a single man. . And, as a consequence of such belief, be enabled to convey all property standing in his name as such single man, and then by bringing the wife upon the ground and showing that during all this time they were in fact husband and wife, avoid every transfer of real estate made by him. In this way they could, by the investment of a single thousand dollars, in the course of a few years have procured the title to such a large number of pieces of real estate to have been conveyed to the husband that when the conveyances from him came to be set aside, the community would with the investment of such single thousand dollars find themselves in the possession of property worth probably hundreds of thousands.
I cannot believe that the legislature intended to provide machinery for such fraudulent transactions. I think that *197in regard to the holding of property acquired in the way specified by the statute, the legislature intended to create a community as between the husband and wife for the purpose of holding such property; that in the conveyance of •such property to either spouse a bare legal title therein is vested in such spouse, but that the entire beneficial interest is vested in the community, and an absolute prohibition placed upon the spouse in whose name the title chances to stand, which prevents any title whatever being passed by that spouse alone so long as the community exists.
This makes it necessary to investigate the nature of this being which we call a community under the legislation in relation thereto. As between the twro spouses such community exists whenever they occupy the relation of legal husband and wife, regardless of the fact as to whether or not they are living together. But such relation alone does not constitute the husband and wife a community as between them and third persons who have no knowledge of the existence of such relation, or of any facts which should have put them upon inquiry as to what were the relations of the spouses or either of them. There must, in my opinion, be such an assertion of his or her rights by each of the spouses as are ordinarily and reasonably to be expected from the fact of the existence of such relation, or else the community does not exist so far as the public having no knowledge of the legal relation of husband and wife are concerned. If either of the spouses sees fit to allow the other spouse do act and represent him or herself as a single person, under such circumstances and for such a time as would induce persons of reasonable prudence, with whom such spouse associated, to believe that he or she was in fact a single person, then I think that so long as this state of facts exists there is no such community existing between tbe spouses as was contemplated by the legislation upon the subject of the conveyance of community property.
*198It is true that such a construction of the statute will enable an unscrupulous husband, by abandoning a wife and concealing his whereabouts, to acquire and dispose of property, in fraud of her rights, without any fault on her part. But if either a member of the community or a third person, without fault on the part of either, must suffer by reason of the acts of such community, or of either member thereof, I think that good conscience and well established rules require that it should be the member of the community. To a certain extent each member of the community must be held to be an agent of the community, and of the other member, and it could not have been the intention of the legislature to have absolutely protected the innocent member of such community against the acts of the other, and yet left innocent third persons without any protection whatever’. The public have a right to demand that there should be something more than the legal relation of husband and wife before it is bound to recognize a community between the persons occupying such relation. The legal relation of husband and wife may exist and be kept a profound secret, unknown to the nearest.relatives or most intimate associates of both the spouses. Such marriage relation would create a community as between the spouses, so far as their relation to each other was concerned. But so long as it was concealed from the public, it would have the right to deal with each spouse as a single person in relation to the property standing in their respective names.
•In my opinion, so far as the public is concerned, such a relation cannot be held to exist without the concurrence of-two facts: First, The marriage relation between the members of the community; and, second some assertion of the rights incident to such marriage relation. Until there has been some avowal of the relation between them, the community does not exist at all so far as the public is concerned, and whenever either member of the community ceases to *199assert his or her rights under the marriage relation for such a time and under such circumstances as- to induce the public generally to believe that the other spouse is in fact a single person, then, as between the spouse so neglecting the assertion of his or her rights and the public, the community does not exist.
The facts in the case at bar show clearly that there has been such an omission to assert any rights by virtue of the marriage upon the part of the wife as would lead the most prudent person dealing with the husband to believe his assertion that he was in fact a single man. It follows that as to those dealing with the husband as a single person neither the community, nor either member thereof, can assert its existence to the detriment of those thus dealing with the husband.