Terry, C.J. concurring.
The only question presented by the record for determination _ in the present case is, whether the land granted by the Governor of California to Alviso, was his separate property, or the property of the community existing at the time between himself and wife. Alviso intermarried with Maria Luisa Peralta in 1830; *469the grant was issued in 1838; Alviso died in 1848; his wife survived him, and was living in 1857. There was no issue of this marriage, but by a previous marriage Alviso had several children, among whom wore a son, named Domingo, and a daughter, named Dolores. Domingo married and had children during the lifetime of Alviso. To his daughter, and the children of his son, Alviso devised the land granted to him, with the exception of certain specified portions. The defendant claims title under Dolores; and whatever interest the widow Maria Luisa possessed, by virtue of her marital rights, in the land, was convoyed by her, in 1857, to "Wallace, and by him to the plaintiff.
The ease must be determined by the Mexican law in force at the time. If by that law the land was the separate property of the husband, it passed under his will, and judgment must be rendered for the defendant; if it were the property of the community, one-half interest vested in the wife upon the death of the husband, and was not subject to his testamentary disposition. “The wife,” says Eseriehe, “at the death of the husband, acquires full property in, and control of, one-lialf of the community property of the marriage, and may freely dispose of it, as well by contract inter vivos, as by will, without being compelled to preserve it for the children of the marriage, provided, in her devises, she respects the rights of forced heirs.” (Diccionario, Tit. Bienes Gananciales.)
The same rule prevails as to the rights of the wife, and the power of testamentary disposition of the husband, in reference to common property, under the statute of this State, as was held in Beard v. Knox, (5 Cal. 256.) In that case the Court said :
“ The husband and wife, during coverture, are jointly seized of the property, with a half interest remaining over to the wife, subject only to the husband’s disposal during their joint lives. This is a present definite and certain interest, which becomes absolute at his death, so that a disposition by devise, which can only attach after the death of the testator, cannot affect it, for such a conveyance can only operate after death, upon the very happening of which the law of this State determines the estate, and the widow becomes seized of one-half of the property.”
The rule of the Mexican law, as we have stated it, was recognized by this Court in the matter of the estate of Buchanan, de*470cided at the October Term of 1858, (8 Cal. 507.) Buchanan died in June, 1855, leaving property, real and personal; some of the real estate having been acquired previous to the passage of the Act concerning the rights of husband and wife—April 17,1850— and a portion afterwards; and this Court held that the property—that acquired previously, as well as that acquired subsequently—belonged to the community, (excepting only a portion set apart as a homestead,) and that the same did not pass under the will of the deceased. “ The law of Mexico,” said the Court, “ in force hero until our statute took effect, was the same, so far as relates to the merits of this question. The property belonged to the community, and upon the death of the husband the widow took one-half. The husband had the power of disposition while living, but not by will, which could only take effect after his death. (Schmidt’s Civil Law of Spain and Mexico, 12, 14, Arts. 48, 44, 51, 52; 1 Cal. 513; 5 Id. 111, 257.)”
It may be observed, that the property in relation to which the decision in the matter of the estate of Buchanan was made, was acquired bjpurchase, although the fact is not stated in the report of the case. It was not essential to the decision that it should have been stated, for the presumption attendant upon the possession of property during the marriage, under the Mexican law, was that it belonged to the community, and exceptions to the rule were required to be proved. (See Meyer v. Kinzer, 12 Cal. 248, and Smith v. Smith, Id. 217.)
It is proper to observe, also, that the decision in the Buchanan matter, which we affirm in the present case, does not conflict with the views expressed by Mr. Justice Bennett, in Panaud v. Jones, (1 Cal. 512,) as to the control of the husband over the common property after the death of the wife, and his power of testamentary disposition of the same. Indeed, in that case, the Court cite the authority of Febrero, to the effect that, upon the death of the husband, the wife becomes the absolute owner of the one-half of the common property; and then proceeds to show, that, upon the death of the wife, the husband still retained the control and right of disposition of the entire common property; that no estate in such property vested in the children on the decease of the mother; that they had only a contingent and defeasible interest in it, which never became perfect until the *471death of the father, and then only after the payment of his debts! There is no conflict in the two decisions.
The question then recurs, whether the land granted to Alviso in 1888 was his separate property, or the property of the community. Under the Spanish and Mexican law, property acquired by the husband and wife during the marriage, and whilst living together, whether by onerous or lucrative title, and that acquired by either of them by onerous title, belonged to the community; whilst property acquired by either of them, by lucrative title solely, constituted the separate property of the party making the acquisition. The fruits, and profits, and increase, of the separate property, also, belonged to the community. By onerous title was meant that which was created by a valuable consideration, as the payment of money, the rendition of services,, and the like, or by the performance of conditions, or payment of charges to which the property was subject. (Escriehe, Tit. Oneroso.) Lucrative title was- created by donation, devise, or descent. (Escriehe, Tit. Lucrativo.) The Mexican law as to what constituted common property was very similar to the law of this State. Our statute does not seem to provide for property acquired by gift to the husband and wdfe jointly, but, with that exception, there is no substantial difference, unless, perhaps, the meaning of the term donation, under the Spanish and Mexican law, was more comprehensive than the term in our jurisprudence. The inquiry, then, is -whether the property conveyed by the grant was held by Alviso under a lucrative or onerous title; in other words, whether it was a donation or a purchase. The grant purports to convey the land, subject to the approval of the Departmental Assembly, and contains various clauses which are designated in the instrument as conditions. These conditions, as they are termed, are not in fact such, but simple restrictions upon alienation, reservations of easements, and provisions for judicial possession, and the marking of boundaries of the specific tract granted. The first condition provides that neither the grantee or his heirs shall divide or alienate the premises, or subject them to any mortgage or other charge, even for pious purposes, or convey them in mortmain. The second condition provides that the grantee may inclose the premises, without prejudice to the roads and easements, and enjoy their free and exclu*472give possession, subjecting them to such cultivation and use as he may think proper. The third condition provides that, upon the confirmation of the property, the grantee shall request the proper Judge to give him judicial possession, in virtue of his title, and, for that purpose, the boundaries shall be designated, and landmarks placed around the premises. The fourth condition limits the land included in the grant to that designated in the petition of the grantee, and delineated in the sketch annexed, and provides that the Judge giving possession shall report to the government the quantity embraced in the grant. It is evident, from this statement, that the clauses of the instrument which are termed conditions, are not properly such. The first is a restriction; the second is the expression of the power of the grantee with a reservation of easements; the third is a provision for giving bounds and precision to the grant; and the fourth is a specification of the land intended to be conveyed, with a requisition upon the judicial officer to report to the government. There is nothing in any of these provisions which is onerous or burdensome to the grantee, or which can be regarded as a valuable consideration, moving the government to make the grant. Donations may be absolute, or accompanied with conditions, the performance of which may be essential to the enjoyment of the property donated. Thus, a gift of fruits would not lose its character as a gift because accompanied with the condition that the donee should gather them, nor would a gift of land be less a donation because the beneficiary was required to measure off the specific quantity given and designate it bj" metes and bounds. And it would seem that under the Spanish and Mexican law, a more comprehensive meaning was attached to the term donation than that usually given to it in our jurisprudence. Conditions are sometimes attached to donations which would be regarded at common law as changing the character of the transaction from one of gift to one of purchase. “Donations inter vivos and testaments may be made on conditions, and subject to restrictions imposed either on the person or the thing, and they may contain clauses of substitution and restitution.” (Schmidt’s Civil Law of Spain and Mexico, Art. 966.) “A donation may be made simply and without any condition or incumbrance ; or it may be made for a certain time and as remunera*473tion for benefits received.” (Id. Art. 988.) “That which is made conditionally remains effective until the condition happen.” (Id. Art. 989.) “A donation made on condition that the donee shall do something is revocable, if the donee fail to fulfill the condition.” (Art. 990.)
“Men are sometimes induced to make donations from certain causes or particular reasons, without which they would not have made them ; as where one man gives another a sum of money, or an estate, expressly declaring at the time he make the donation that he gives it in order that the donee may, by that means, be always provided with a horse and arms for his service; or where he makes the donation to any artificer, and declares openly that he makes it for certain work or service which the donee was to render him. Wherefore, we say, that if the person who receives a donation in the manner above mentioned, complies with the agreement or condition, or does that for which it was given, the donation will be valid in every respect; but if ho should not comply therewith or faithfully execute that for which it was given, he may be compelled to comply with what he had promised, or to abandon the donation which had been made to him. We likewise say, that if one man give another a vineyard, or garden, or an estate, or any other thing whatever, declaring expressly at the time he made the donation, that he gave the thing with the intention that a certain portion of the fruits arising from it should be given to another person for his maintenance, or to redeem him from captivity, or for any other like purpose, if the donee comply with the object for which it was given, the donation will be valid; and if he should not, the donor may revoke it. And donations of the kind mentioned in this law are called, in latin, sub modo j which means, in common speech, a donation made for a certain purpose—so otra manera.” (2 Moreau & Car. Partidas, 647, 648.)
In Gayoso de Lemos v. Garcia, (1 Mar. N. S. 333,) the Supreme Court of Louisiana, in speaking of a claim, asserted by the plaintiffs in that case, that the land granted to their father by the King of Spain belonged to the community, said : “ The title of the plaintiffs is founded on a grant made to their father during marriage, and it has boon urged that the land thus acquired, entered into and made a part of the community subsisting between *474husband and wife. Whatever support this argument may derive from the practice which, we believe, has prevailed in some parts of the State, to regard lands granted by the sovereign as property common to both spouses, it is certain that it is not only unsupported by authority, but that the law most positively says it shall nob be common to both, but that it shall belong exclusively to the individual to whom the King grants it. (Novissima Recop. Liv. 10, Tit. 4, Leyes 1, 4, y 5, Febr. p 1.)”
In Frique v. Hopkins et al. (4 Martin’s Rep. N. S. 214,) it was also claimed that land granted to the ancestor of the plaintiffs, by the King of Spain, was common property, and the ruling in Gayoso de Lemos v. Garcia, was referred to and expressly affirmed. The consideration, or moving cause of the grant, was stated in the instrument to be the public good, and in order to increase the population of the -city. After citing the Spanish law, by which it was declared, that whatever might be given by the King, or another, to both husband and wife, should belong to them jointly; but that if given to any one of them, it should be considered as belonging to the individual to whom it was given, and mentioning that the commentators understood the law to apply to all cases coming within its letter, except those where the King gave in remuneration of services rendered by the husband, when he served without pay, and was maintained at the expense of the community, and referring, in support of that view, to a law of the Fuero Real, the Court said : “ The correctness of the application of these laws to a grant of lands by the former sovereign of Louisiana, has been contested on two grounds:
1st. That there is a material difference between a donation and a concession.
2d. That as it appears by all the regulations made here by the Spanish Government, in relation to concessions -for lands, that the quantity conceded was greater or less, according to the circumstance of the grantee being married and having children, or being single; grants made to a man who was maz'riod, must be the common property of both husband and wife.
As to the first of these grounds, we appi’ehend there is nothing in it which requires our particular consideration. We are unable to perceive any material difference between a donation and *475a concession of lands, such as the former government of Louisiana was in the habit of granting. It is true, concessions may be made, on consideration moving from the donee, which would take from them the character of a donation. But lands given by the King, without price paid for them, and not in remuneration of any services rendered, certainly are donations. If they be not, we are ignorant under what denomination they should be classed.
The second ground was most relied on in argument. It did not escape our attention in the case already alluded to, though no notice is taken of it in the opinion delivered. But we were unable then, as we are now, to discover in it a sufficient reason, for taking the case out of the plain and positive provisions of the statute. The consideration which induced the grant or donation, cannot change its character, unless there is a positive provision of law which makes the exception ; as in that given from the fuero real, where the thing granted is in remuneration of services rendered at the expense of the community. Were we to take this as valid ground for evading the positive enactment of the Legislature, it would lead us, wo apprehend, much further than is contemplated by those who press it on our adoption. By the regulations of the Spanish Government, if the individual who applied for land was unmarried, a certain quantity of land was given to him; if he had a wife, this quantity was increased; and if ho had children, an additional number of acres were conceded. Blow if the circumstance of his being married made the thing given become the property of both husband and wife, we must, on the same principle, hold, that where children were the moving cause, they, too, should be considered as owners in common of the land conceded. But that such wrns the effect of the donee having a family, we believe was never even suspected—it certainly is unsupported by law. Many donations are made, in which the donee’s having a wife, and being burdened with a large family, is a great consideration for the beneficence of the donor; but this motive in him does not prevent the person to whom the gift is made, from being considered its owner, nor prevent the thing given from descending to his heirs.
It was, however, said that the object in making these grants was to encourage the settlement of the country; and that to *476carry that object into effect, it was necessary that the lands should be considered as given to both husband and wife. To this it might be answered, and with groat force, that if the government were of that opinion, it is strange they did not at once fay so, and by making the concession in the name of both, place the matter beyond doubt; and not, by granting it to one of the spouses, leave it to the operation of a positive law which repelled the idea. But if we could enter into political considerations, in order to ascertain whether they could repeal statutes, we would, in this case, be led to the examination of a nice and refined question of policy in relation to the effect on national prosperity, of giving to the wife a distinct interest in the property acquired during marriage, one on which men would be found to differ according to their education and particular modes of thinking.”
To these Louisiana cases, and the absence of express onerous conditions in the grant, the plaintiff only answers that the grant in question was issued under the colonization laws of Mexico, and that, by force of them, onerous conditions wore necessarily implied. We do not understand that such conditions were necessarily attached to colonization grants. There may be a mark ed difference between the concessions in the Louisiana cases and the grants made under the decree of 1824, and the regulations of 1828. The object of that decree and those regulations was the settlement of the vacant lauds of the republic, and for that purpose grants were generally made subject to the conditions of cultivation or occupancy. But where, as in the present case, such occupancy already existed, accompanied with the construction of a house, and its habitation, it would have been to no purpose to have inserted the condition. The fact of occupancy may have been, and probably was, the reason both for the issuance of the grant, and the omission of the usual condition. But the reason moving the government constituted no consideration changing the character of the grant from a donation to a purchase. It created no obligation, and conferred no rights.
We are of ojfinion that the grant in question was a simple donation, and that the land it contained constituted the separate property of Alviso, and passed under his last will and testament; and as a conclusion therefrom that the judgment must be affirmed. Ordered accordingly.
*477On rehearing, at a subsequent term, the following opinion was delivered by Field, O. J.—Baldwin, J. and Cope, J. concurring:
Since the rehearing ordered in this case was had, wo have carefully reviewed the opinion delivered at the April Term, and are satitfied that its conclusion as to the character of the grant in question is correct. If it be admitted, as contended by the counsel of the plaintiff, that the usual conditions of cultivation and occupancy were annexed to the grant by force of the decree of 1824, and the regulations of 1828, the result would be the same. These conditions would not change the transaction from that of donation into one of contract or purchase. Their performance constituted no consideration to the government in the nature of a price for the land. They wore annexed to colonization grants, in furtherance of the general policy of the republic in the settlement of the country, and their performance was exacted to prevent that policy from being defeated. They only operated as a requirement that the lands should be appropriated to the purposes for which they were granted.
The recital in the grant that the grantee solicited the land “ for his personal benefit and that of his family,” cannot control the operative words of the grant. In point of fact the recital is untrue. The petition is set forth in the record, and contains no mention of the petitioner’s having any family. In it the petitioner solicits the land “to secure the cattle and horses which he has”—and states no other object for-which the land was desired. The recital was probably taken from the usual forms in which grants were written; it certainly was not inserted or intended to have any influence upon the direction of the title. The grant is made to Alviso individually, and its terms determine the person in whom the property vested.
The term “ family ” is not limited to the husband and wife. Alviso had at the time several children by a previous marriage, and if the use of the term iu the recital can have any effect upon the direction of the title, it is difficult to see why those children might not claim to have received an interest in the property equally with the wife, or the community existing between the husband and wife. Such an effect was never supposed to exist, it is believed, by any one. Judgment affirmed.
See Noe v. Card, decided at the January Term, 1800.