Concurring. — It seems to me that there can be no doubt but that the two notes aggregating $1,546.65 executed by both husband and wife and delivered as a part of the purchase price for this land became community obligations. They were signed by the two members of the community partnership, and an action might be maintained against both on these obligations. The fact, however, that these notes were secured by mortgage on the land purchased and for which they were given as a part of the purchase price indicates at least a purpose to secure and pay the obligation out of the separate property of the wife, provided that property should be sufficient for such purpose. It should be remembered that there was already a first mortgage on this property, and should that mortgage be foreclosed and exhaust the security in its satisfaction, the creditor would undoubtedly proceed against both husband and wife on the notes secured by the second mortgage. The creditor in such ease *352would be entitled to a judgment against the husband as well as the wife, and such judgment would run against the community property and estate. :
The state of Washington has taken an advanced position in the matter of conferring on the wife absolute and plenary powers in the acquisition of property and in the management and control of her separate estate. The court of the state m the case of Heintz v. Brown, 46 Wash. 387, 123 Am. St. 937, 90 Pac. 211, after commenting on its previous decisions, said: “The funds borrowed by-the wife, even though borrowed on her separate property, or on property in which she had invested her separate funds, was community property, and to that extent at least the property in controversy was paid for with community funds and became community property”; and in United States Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 Pac. 870, the same court said: “Where property is acquired during marriage, the test of its character as community property is whether it was acquired by community funds or community credit, in which case it is community property.”
The court in the present ease devotes some time in an endeavor to distinguish this ease from Northwestern & Pacific Hypotheek Bank v. Rauch, 7 Ida. 152, 61 Pac. 516, but it does not seem to me that the distinction attempted to be pointed out exists. The $745.60 borrowed in that case and which the court there held represented community property or a community interest in land was money borrowed from the bank and for which the identical mortgage then being foreclosed was given. In other words, it was a part of the purchase price paid for the identical piece of land and a part of the mortgage then being foreclosed. Here the only difference is that the controversy arises, not between the mortgagee and the members of the community, but between the members of the community and an attaching creditor. It seems to me that the distinguishing feature, if any, existing between the two cases is that here the action is not one to collect the loan so made or enforce the security, but that, on the contrary, it appears that the community obligation has never been dis*353charged, and that the separate property of the wife is still held as security for that obligation, and until the debt is discharged and it is made to appear that the community has paid or discharged that obligation in whole or in part, it cannot be said that the community owns any interest in the land so purchased. It is conceded that all that has ever been paid on the land so far was paid out of the separate property and estate of the wife. A creditor of the husband or of the community cannot, therefore, pursue this property until such time as he can show that the community has contributed something toward the payment for this land and then only to the extent of such community interest.