OPINION OP THE COURT.
POPE, J.(After making the foregoing statement of the facts.)
The case turns upon the effect of the deed from ■Adolpho Lea to Eeade. The appellant contends that it conveyed no title because the wife did not join as required by Section 6 of Chapter 62 of the Laws of 1901, which provides that “neither husband nor wife shall convey, mortgage, incumber or dispose of any real estate or legal or equitable interest therein acquired during coverture byoncrous title unless both join in the execution thereof.” The appellee concedes that the property was acquired during coverture by onerous title. Pie admits that if that act is applicable the judgment was wrong. He contends, however, that the act cannot apply to property acquired previous to its date, for the reason that, as to such, vested rights existed in the husband which it was beyond the power of the legislature to take away by requiring the wife to join. Was the trial court right in sustaining’this view? This involves an inquiry as to what were the rights of the husband in the property prior to the act of 1901.
1 This court has in a number of cases dealt with questions of property rights between husband and wife and has uniformly recognized the civil law, in the absence of specific statute, as controlling. A brief review of former decisions of this court upon this point will demonstrate this.
In Chaves v. McKnight, 1 N. M. 148, decided in 185?, opinion by-Judge Brocchus, it was held that the civil law was the rule of practice in this Territory and that by its terms the wife acquires a tacit lien or mortgage upon the property of the husband to the amount of the dotal property of which he became possessed through her. This ease has been referred to in one or two very recent decisions of this court. (Ilfeld v. Baca, 14 N. Mex. 65; In Re Myer, 14 N. Mex. 45. In Martinez v. Lucero, 1 N. M. 208, decided the same year by the same judge, it was held, applying the civil law, that during marriage the administration of the dotal property belongs exclusively to the husband and the wife cannot during- the conjugal association- .recover it from her husband without showing waste or dissipation of it by her husband. In Laird v. Upton, 8 N. M. 409, 415 (opinion in 1897 by Mr. Justice Collier) reference is made to the community system and the presumption inhering in that system that all acquisitions during marriage are community property. In Barnett v. Barnett, 9 N. M. 207, opinion by Chief Justice Smith, it was held that in the absence of any statute ascertaining the rights of husband and wife, after legal separation and'during the lives of each, the civil law of Spain governs and that under this law the wife by adultery forfeits the right which that law gives on dissolution of the community to one half of the community property. In Crary v. Field, 9 N. M. 229, s. c. 10 N. M. 257, the right of the surviving husband under the civil law to sell so much of the community realty as may be necessary to pay the community debts is declared and the validity of such a sale is upheld. In Neher v. Armijo, 9 N. M. 235. opinion by Mr. Justice Crumpacker, it is held, announcing a familiar civil law doctrine, that the legal presumption that property acquired by either husband or wife during the matrimony is community property, may be overcome by clear and conclusive proof to the contrary.' In Gillett v. Warren, 10 N. M. 523, 542 (opinion by Mr. Justice Parker) the community system is recognized as in force and it was there held that the surviving husband not only had the power under the system to sell comnrunity real estate, in payment of community debts, (as ruled in Crary v. Field supra) but community personalty as -well. In Strong v. Eakin, 11 N. M. 107, (opinion by Mr. Justice McFie) ' the Spanish law as to community or acquest property is again held to be in force in so far as not abrogated by statute, and, interpreting that law. it is held that all property acquired and held by husband and wife during coverture, is presumed to be community property and to be subject to' community debts and that every debt contracted during marriage is likewise presumed to be a community debt. In Brown v. Lockhart, 12 N. M. 10 (opinion by Chief Justice Mills) the doctrines announced in Strong v. Eakin, supra, are reiterated. In McAllister v. Hutchinson, 12 N. M. 111, 117, (opinion by Mr. Justice Baker) the civil law community system is recognized as governing the alienation of marital property. From the foregoing we consider it declared-by the harmonious decisions of this court, both before and since the introduction of the common law by the act of January 7, 1876, (C. L. See. 2871) that the civil law controls the present case unless modified by the act of 1901. Indeed, this is not controverted by counsel in their briefs.
It only remains therefore, to determine, first, what was the nature of the community system as to matters of property; second, what were the husband’s rights as to such property, (the marriage still existing), at the date of the act of March 20, 1901; and third, what effect if any that act had upon such rights.
4 The general principles applicable to the community system are declared with great unanimity by the authorities. Upon marriage, the law recognized a partnership between the husband and wife, as to property acquired during such relation, by title not gratuitous. Schmidt, Law of Spain and Mexico, pp. 12-14. The relationship has been variously described as a community of property (Ballinger on Community Property, Section 18), a conjugal partnership (Childers v. Johnson, 6 La. Ann. 634; Mabie v. Whittaker, 10 Wash. 662); a matrimonial co-partnership (Ord v. De La Guerra, 18 Cal. 67) a property partnership (Fuller v. Fergusson, 26 Cal. 569). Of course the word partnership as thus used is a matter of mere analogy, since the marital relation, viewed in its business aspect, differs very evidently from the commercial partnership. Ballinger, Sec. 16. Under the community system the husband has the fullest power of management and disposition of the com-munity property subject only to the condition that he shall not act in fraud of his wife. He has the right to sell community property, real or personal, during her life time without her consent. Suc. of Cason, 32 La. Ann. 792; Brewer v. Wall, 23 Tex. 585, 76 A. D. 76; McAllister v. Hutchinson, 12 N. M. 117; Garrosi v. Dastas, 204 U. S. 64. He might give it away, Smith v. Smith, 12 Cal. 216, 73 A. D. 535; Lord v. Hough, 43 Cal. 581; Spreckles v. Spreckles, 116 Cal. 339; Trahan v. Trahan, 8 La. Ann. 455, at least to relatives, in moderate amount,' Schmidt, Art. 54; 1 Febrero Mejicano, C. 10, Sec. 20, p. 226. In all suits affecting the community property the wife is not a party, but such suits must be brought by the husband, Mott v. Smith, 16 Cal. 534; Spreckles v. Spreckles, 116 Cal. 339; Moseley v. Heney, 66 Cal. 478, Murphy v. Coffey, 33 Tex. 508, or against him. Althof v. Conheim, 38 Cal. 230, 99 A. D. 363. If the community property be stolen, the indictment alleges that he is the owner. State v. Gaffery, 12 La. Ann. 265; and his wife's consent to the taking of the property affords the thief no defense. People v. Swalm, 80 Cal. 46, 13 A. S. R. 96.
While all these characteristics of the community are generally admitted by the law writers a very marked difference of authority is encountered when we come to define the relative estates of the spouses in the community, the precise question here. The “perplexity” of this question is noted by Mr. Ballinger in Section 32 of his very useful work. The divergence of opinion is present here,-for it is contended by the appellants that the wife is the half ■owner of the community estate, that the plenary powers given her husband are purely as an agent or trustee and not of his own right, and that as a corollary from this the legislature may change or limit these provisions without interfering with vested rights, the argument being that there can be no vested right to administer a trust. On the other hand it is urged by appellees that the complete dominion of the husband over the community estate is a property interest held as a present personal right and this vested beyond possibility of legislative interference.
The cases containing expressions upon the relative estates of husband and wife under the community law are quite numerous, but an examination of these will develop that such expressions are usually made arguendo and often without distinguishing between such rights during the marriage relation and after its dissolution. The later decisions also are more or less influenced in their views by statute and by the modern tendency toward greater property rights for the weaker sex. In dealing with the matter we have found, the greatest help in the early authorities from the civil law states, where the courts have dealt with the subject in the very light of the ancient law, aided by a bar-trained under that system and where they have, thus uninfluenced by modern thought, declared what the Spanish law was, not what in the light of advancing civilization it should have been.
Consulting these authorities, it is found that those-from the State of Texas countenance at least the first of the propositions urged on behalf of the appellants and in Washington are found decisions sustaining all three. Thus it was said in the early Texas cases of Wright v. Hayes, 10 Tex. 136, 60 A. D. 200: “The rights of property of husband and wife in the effects of the community are-perfectly equivalent to each other. The difference is this,, that during coverture her rights are passive; his are active.” Proceeding to hold that upon abandonment of the wife by the husband, the wife has the power to manage and sell community p,roPert}b the court observes: “Her right in that property is equal to that of the husband. During his presence he has the administration, subject to the trust encumbered upon the property. This right, of control must necessarily cease when he can and will no longer exercise it; and the wife, the other joint owner, must be vested with the authority or it cannot exist anywhere.”
This right -of the wife to administer the community property upon abandonment by her husband has been repeatedly recognized by the Texas courts. Check v. Bellows, 17 Tex. 613; Veramendi v. Hutchins, 48 Tex. 550; Zimpleman v. Robb, 53 Tex. 274; and has been recognized in the case of the husband be confined to the penitentiary. Slator v. Neal, 64 Tex. 222, and in one case it was held that this applied even in the cáse of his insanity. Forbes v. Moore, 32 Tex. 196. So far however as Wright v. Hayes and the subsequent Texas cases above cited tend to declare that the wife's, and husband's titles are legally equal under the community system they are discountenanced by the later cases-of Edwards v. Brown, 68 Tex. 329, and Patty v. Middleton, 82 Tex. 586, which declare that the spouses have “an equal beneficial interest”. This modification of the original Texas doctrine is pointed out in Sadler v. Neisz, 5 Wash. 182, a case from the other jurisdiction supporting the enlarged view of the wife’s rights under the community system. The extent of the wife’s rights in the Texas community are also discussed by Judge Maxey in Kircher v. Murray, 54 Fed. 626, where, upon a full review of the Texas cases, she is declared to have only “an eqmtable interest and title.”
In Washington the early case of Holyoke v. Jackson, 3 Wash. Ter. 235, went to the full length of the propositions above named. This being the authority principally relied upon by appellant we shall consider it with some detail. In that case it appears that the legislature of 1879 passed an act similar to our act of 1901, requiring the wife to join with the husband in disposing of community property. The husband without joining his wife and subsequent to that law contracted to convey community property. The validity of that act was the question. It was there said: “It (the community) is like a partnership, in that some property coming from or through one or other or both of the individuals forms for both a common stock, which bears the losses and receives the profits of its management, and which is liable for individual debts;- but it is unlike, in that there is no regard paid to proportionate contribution, service, or business fidelity; that each individual, once in it, is incapable of disposing of his or her interest; and that both are powerless to escape from the relationship, to -vary its terms, or to distribute its assets or its profits. In fixity of constitution a community resembles a corporation. It is similar to a corporation in this, also, that the state originates it, and that its powers and liabilities are ordained by statute. In it the proprietary interests of husband and wife are equal, and those interests do not seem to be united merely, but unified; not mixed or blent but identified. It is sui generis, a creature of the statute, and by virtue of the statute this husband and wife creature acquires property. That property must be procurable, mapageable, convertible, and transferable in some way. In somebody must be vested a power in behalf of the community to deal and dispose of it. To somebody it must go in case of death or divorce. Its exemptions and liabilities as to indebtedness must be defined. All this is regulated by statute. Management and disposition may be vested in either one or both of the members. If in one, then that one is not thereby made the holder of larger proprietary rights than the other, but is clothed, in addition to his or her proprietary rights with a bare power in trust for the community. This power the statute of 1873 chose to lay upon the husband, while the statute of 1879 thought proper to take it from the husband, and lay it upon the husband and wife together. As the husband’s ‘like absolute power of disposition as of his own separate estate,’ bestowed by the ninth section of the act of 1873, was a mere trust conferred upon him as a member 'and head of the community, in trust fox the communitjq and not a proprietary right, it was perfectly competent for the legislature of 1897 to take it from him and assign it to himself and his wife jointly. This was done. When, therefore, in 1880, the plaintiff in error, without his wife, entered into an agreement to sell the land in question, he agreed to do what he himself, by himself could not do, and therefore could not agree to do. To make an actual sale or conveyance without his wife, he had no power. The la.w says such a thing shall not be done.’"
There are similar expressions in Mabie v. Whitaker, 10 Wash. 656. It is unnecessary to consider how far the Washington decisions are influenced by the fact that the community system in that state is, as pointed out in Brotton v. Langert, 1 Wash. 79, purely a creature of local statute; nor how far Holyoke v. Jackson is discredited by certain expressions in the later case of Sadler v. Neisz, 5 Wash. 182, from the same court or b3r the fact that Hill v. Young, 7 Wash. 33, another Washington case, seems to consider as an open question the” very point ruled by Holyoke v. Jackson. We forbear the discussion of these questions, for the reason that we believe the case of Holyoke v. Jackson, even conceding to it all that may be claimed upon these matters of detraction, is against the great weight of authority explanatory of the Spanish community system and its assumptions as to the rights of the spouses, are contrary to the spirit of the civil law. These authorities we will proceed to consider in detail.
Among the earliest decisions are those from Louisiana. That court is entitled to peculiar respect because of the high learning of its early judges in civil law matters. Perhaps the first accessible case dealing with these questions is Dixon v. Dixon’s Executors, 4 La. 188, 23 A. D. 478, decided in 1832. In that case there are expressions to the effect that the wife has a present right to a share of the acquest property, arising not as a result of dissolution of the marriage but as originating' out of the very marriage contract. It is recognized in that case, however, that the doctrine thus announced is contrary to authority, for we . find the following language: “We are aware the principles here recognized do not correspond with the doctrines taught by the highest authorities in the French law, by Domonlin, Pothier and Toullier. They hold that the wife has no right whatsoever until the marriage is dissolved or the community otherwise terminates. That she has nothing but a mere hope or expectancy.” The court seeks, however, to distinguish the French law from the law of Louisiana upon the ground that the latter (borrowed from the Spanish law) permits the wife, upon the death of her husband, to bring an action to set aside an alienation made in fraud of her, by him, during coverture. It is argued as follows: ‘“The exercise of such a right , does appear to us utterly opposed to the principle that the wife has ho interest in the property until the community is dissolved; for if she has not, how can she maintain an action to set aside the alienation?” The effect of this case as authority and an answer to the argument it makes is found in the later and leading case oí Guice v. Lawrence, 2 La. Ann. 226, decided in 1847. Tn that case it is distinctly held that the laws of Louisiana, like those of Spain, recognize no title in the wife during marriage to any part of the acquets and that sbe becomes the owner of the one-half only after the dissolution of the marriage. In speaking to this point the court says: “The laws of Louisiana have never recognized a title in the wife during marriage, to one-half of the acquets and gains. The rule of the Spanish law on that subject is laid down by Febrero, with his usual precision. The ownership of the wife, says that author, is revocable and fictitious during marriage. As long as the husband lives and the marriage is not dissolved, the wife must not say that she has gananciales, nor is she to prevent the husband from using them under'the pretext that the law gives her one-half. But, soluto matrimonio, she becomes irrevocably the owner of one undivided half, in the manner provided by law for ordinary joint ownership. The husband is, during the marriage, real y verdadera dueño de todos, y tiene en el efecto de su dominio irrevocable. Febrero Adic, tomo 1 y 4, Part 2d, bk. 1st, chap. 4, parag. 1, Nos. 29 and 30; Pothier Communante, p. 3d and following; T2 Toullier, Chap. 2, Nos. 72 to 31; 14 Duranton, Drbit Franc., p. 281, and foil.; 10 Dalloz, Jurisp. p. 198 and fol. The provisions of our code on the same subject are the embodiment of those of the Spanish law, without any change. The husband is head and master of the community, and has power to alienate the immovables which compose it by an encumbered title, without consent or permission of his wife. Civil Code, art. 2373.”
Referring to the argument above quoted from Dixon v. Dixon supra, it is said: “With the reasoning of the court in 4th La. wc cannot agree, although the conclusions to which they come may have been correct on other grounds. The difference supposed by the court to exist between our code and that of France is imaginary. Under both, cases of fraud are excepted from the general power given to the husband to alienate the acquets and gains. Sec 7th Sierey, 1st Sect., p. 401. The proviso of Art. 2373 cannot be construed as giving or recognizing a title to or in the wife. As well might it bo said that children have a title in the property of their father, because he is prohibited from disposing of it in fraud of their legitime."
We may Interpolate here the observation that the right of the wife, during the husband’s lifetime, to joroceed in equity to set aside a conveyance in fraud even of dower, is well established. Smith v. Smith, 12 Cal. 216, 73 A. D. 533, citing Swaine v. Perrine, 5 Johns. Ch. 482; Stroup v. Stroup, 140 Ind. 179, 27 L. R. A. 527, Petty v. Petty, 4 B. Mon. (Ky.) 215; and yet dower under the common law system is a mere expectancy, constituting during the husband’s lifetime no vested right, and being subject to legislative repeal or limitation at any time before it vests by the husband’s death. Randall v. Kreiger, 23 Wall. 148; Cooley’s Cons. Limit. (7th Edit.) pp. 513-514; McNeer v. McNeer (Ill.) 19 L. R. A. 256 and note; monographic note to Rose v. Rose, 84 A. S. R. 430, 446.
Recurring from this observation upon a common law parallelism, to the Louisiana authorities, we find language similar to Guice v. Lawrence in Succession of Boyer, 36 La. Ann. 506, 511, where it is said: “Under our law the husband is head and master of the community. During its existence he may dispose of its effects as he pleases, subject only to the right of the surviving wife, upon its dissolution, to proceed against his heirs for one half of the same, provided she can prove that the transfer or other disposition was made with the fraudulent intent to injure her. In fact the wife has during the marriage no vested proprietary interest in any property composing the community but only an inchoate right which entitles her to the hope or expectation that if she survives her husband s'he can receive or own half the property that may be left after payment of the community debts.” In Suc. of Cason; 32 La. Ann. 792, it was said: “During the existence of the community the husband is practically the owner of the community property.”
In the more recent Louisiana cases the doctrine of Guice v. Lawrence is consistently followed and that case •also has the sanction of as high authority as the federal Supreme Court. In the recent case of Garrosi v. Dastas, 204 U. S. 64, the appeal was from the United States District Court for Porto Eico. The trial court had held that upon dissolution by divorce of the marriage and the adjustment of the community rights there involved, the' husband was chargeable with unreasonable or extravagant expenditures. In holding this to be error and in upbuilding the very broad powers of the husband during enei:riage it is said by the court speaking through Mr Justice White, himself a Louisiana lawyer and jurist:
“The question, therefore, is this: Is tlic power of the husband as the head and master and administrator of the community, in its nature so restricted that in the absence of express limitation he can, after dissolution of the community be called to account and compelled to return the community money which he has actually expended during the existence of the community, because, in the judgment of the court, such expenses may be deemed to have been not suitable to his situation in life, extravagant, or even reckless? To answer this question in the affirmative would be to destroy the whole fabric of the community system as prevailing, not only under the Spanish and PoKo Rican codes, but as obtaining in those countries of the continent of Europe and here where that system prevails. We need not consider whether the community was derived from the Eoman law, from an express provision of the early Saxon law, or from the ancient customary law of the continent. For, however derived, the very foundation of the community and its efficacious existence depend on the power of the husband, during marriage, over the community, and his right, in the absence of fraud or express legislative restriction, to deal with the community and its assets as the owner thereof. The purpose of the community, as expounded from the earliest times, whilst securing to the wife on the dissolution of the marriage an equal portion of the net results of the common iud i.stry, common economy and common sacrifice, was yet, as a matter of necessity, during the existence of .the community, not to render the community inept and valueless to both parties by weakening the marital power of the husband as to Ms expenditures and contracts, so as to cause Mm to be a mere limited and consequently inefficient agent.”
It is pointed out in the decision that under the law of France prior to the Napoleon Code, “the extent of the power of the husband as to the community property was so great that it was considered in theory that the rights of the wife in or to the community were not merely dormant during marriage but had no existence whatever” and “that the wife during the existence of the community had but a mere hope or expectancy and hence no interest whatever in the property or goods of the community until the community was dissolved” and that from this arose the legal epigram “that the community was a partnership, which only commenced on its termination.”
¡Referring to the power of the husband over the community, the court quotes as follows from the French author Troplong:
“This power of the husband, which effaces the personality of the wife, and which is manifested by the name of lord and master of the community, given to the husband; this power, which seems like unto an absolute sovereignty, exists as well in the relations of the spouses between themselves as in their dealings between third parties. In effect, the husband can dissipate the goods of the community; he can lose, destroy, break and dilapidate. JTaritus potest perdere, dissipare, abuti. This is an elementary axiom of the Palace (of Justice). The wife! has no right to call the husband to account, no damage to obtain for his acts. Hence it is true, indeed, that the husband is more than an administrator; he is an administrator com libera
It is further pointed out by the court that while these principles of the French law were somewhat modified by the Code Napoleon the .power of the husband under the Spanish system was in principle more extensive than it was under the Code Napoleon, and in elucidation of his authority under that system, the quotation which we have made above from Guice v. Lawrence is inserted in full, wherein, following Febrero Mejicano, it is said that the wife must not say during coverture that she has gananciales under the pretext that the law gives her one half.
Next in age to the Louisiana decisions are those from Missouri. While the Spanish law of community was displaced in that state as early as 1807, there are several cases which discuss it.. Thus, in Riddick v. Walsh, 15 Mo. 355, decided in 1852, it was said:
“By the Spanish law of community, the husband and wife became partners in all the estate, real and personal, which they respectively possessed.- All that Vas acquired or purchased during coverture, Whether real or personal estate, went into partnership, as being presumed to have been the fruits of the joint industry and economy of the husband and wife. On the dissolution of the partnership, by death, the surviving party and the representatives of the deceased, each took back what was brought on his or her side into the partnership in value or kind; in value, of personal estate, in kind, of real estate; and what remained being considered as gain or profits, was equally divided as between partners. The husband, being the most suitable person, managed the concerns of the partnership, and might, without the consent of the wife, dispose of any of the partnership effects, purchased during the marriage.”
In Moreau v. Detchemendy, 18 Mo. 522, the question there involved was not dissimilar from that at bar. There, the inquiry was as to whether the introduction of the common law took away from the husband the right which existed in him previously under the community system of disposing of community property without the consent of the wife. In deciding this question in the negative the court uses the following language:—
“The right which the wife had in the property of the community acquired during the marriage was not the estate of a joint -owner, entitled to claim its administration or to call the other owner to account. It is said by Febre-ro that the ownership of the wife is revocable and fictitious during marriage. As long as the husband lives and the marriage is not dissolved,'the wife cannot say that she has acquisitions, nor is she to prevent her husband from using them, under the pretext that the law gives her one-half. But the marriage being dissolved, she becomes irrevocably the owner of one undivided half, in the manner provided by law for the joint ownership. The husband is, during the marriage, the actual and true owner of all. (Febrero, book 1, Ch. 4, paragraph 1, Nos. 29 and 30).”
In Nevada, in dealing with a statute identical with the California Statute (which as we shall presently see, was simply declaratory of the Spanish community law), it was said in Crow v. Van Sickle, 6 Nev. 149:
“The power of management and absolute disposition of the common property thus conferred by the statute clothes the husband with such ownership and authority as to warrant the allegation in a complaint of this kind, that he is the owner of the chose in action. Certainly the wife has 'no interest which will justify any interference on her part, nor has the defendant in such case any ground of complaint, for the plaintiff is the owner of a moiety and so far as the right of prosecuting the action is concerned, he is in effect the absolute .owner of the entirety.”
In California, as early as .1850 an act was passed “giving the husband the management and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate property.” This act has been treated by the courts of California as practically declarator of the civil law. Panaud v. Jones, 1 Cal. 488, Meyer v. Kinzer, 12 Cal. 248; so that the observations of that court on the Spanish community system are peculiarly pertinent. The property’right of husband and wife during the existence of the marriage were considered by the courts of that state as early as 1851, when the Supreme Court in Panaud v. Jones, 1 Cal. 488, 515, cpiotes, as defining the property rights of the spouses, the following from Febrero Mejicano, 225, Secs. 12 and 20 : “The wife is clothed with revocable and feigned dominion and possession of one half of the property acquired by her and her husband during the marriage; but, after his death, it is transferred to her effectively and irrevocably, so that, by his decease, she is constituted the absolute owner in property and possession of the half which he left. The husband needs not the dissolution of the marriage to constitute him the real and veritable owner of all the' ganancialqs, since,_ even during the marriage, he has in effect the irrevocable dominion, and he may administer, exchange, and, although there be neither castrenses nor quasi castrenses, acquired by him, may sell and alienate them at his pleasure, provided there exists no intention to defraud the wife. For this reason, the husband living, and the marriage continuing, the wife cannot say that she has any gananciales, nor interfere with the husband’s free disposition thereof, under pretext that the law concedes the half to her, for this concession is intended for the cases expressed and none other.”
In Van Maren v. Johnson, 15 Cal. 308, it was said, the opinion being by Mr. Justice Field: “The common property is not beyond the reach of the husband’s creditors existing at the date of the marriage and the reason is obvious: the title to that property rests iii the husband. He can dispose of the same absolutely, as if it were his own separate property. The interest of the wife is a mere expectancy like the interest which an heir may possess in the property of his ancestor,” citing Guice v. Lawrence, 2 La. Ann. 226, supra. Likewise in Packard v. Arrellanes, 17 Cal. 539, it was said, the opinion being by Judge Cope and concurred in by Justice Field: “During the marriage .the husband is the head of the community and the law invests him with discretionary power in all matters pertaining to its business or property. In fact, its business is conducted and its property acquired in his name and his authority in the administration of its affairs is exclusive and absolute. The wife has no voice in the management of these affairs nor has she any vested or tangible interest in the community property. The title to such property rests in the husband and for all practical purposes he is regarded by the law as the sole owner. It is true, the wife is a member of the community and entitled to an equal share of the acquests and gains; but so long as the community exists her interest is a mere expectancy and possesses none of the attributes of an estate either at law or in equity.”
This language was adopted verbatim as a part of the opinion of this court in Barnett v. Barnett, 9 N. M. 214, and must be regarded therefore as peculiarly persuasive. In Greiner v. Greiner, 58 Cal. 115, 118, it is reiterated that “the interest of the wife during the coverture was a mere expectancy, like the interest which an heir may possess in the property of his ancestor.”
It is true that there are expressions in Beard v. Knox, 5 Cal. 252, 63 A. D. 125; DeGodey, v. Godey, 39 Cal. 157, and perhaps other California cases tending to support the view that during the existence of the community the wife has a present vested interest rather than a mere expectancy. That this is not the view of the California court, however, is shown not only by the cases first above cited, but also by the recent and well considered case of Spreckles v. Spreckles, 116 Cal. 339, 58 A. S. R. 170-177, 36 L. R. A. 499-502, where these latter cases are noted, reviewed and discredited and the California doctrine of Van Maren v. Johnson, supra, emphatically reiterated.
2 3 5 7 It being thus established by expressions from leading community law states, approved by this court and by the Supreme Court of the United States, that the wife' had under the Spanish law “a mere expectancy” in the community property and that the husband pending the dissolution of the marriage relation was “the real and veritable owner of said property” with full power of alienation by his personal deed, can an act of the legislature requiring that a deed be signed by both his wife and himself be held constitutionally to apply to property previously acquired? We think it cannot. The wife’s interest being merely an expectancy it constituted no vested right. The wife having no vested interest and its being evident that the proprietary right must be vested somewhere, it follows under the rule of exclusion that such right must be found in the husband. Among the incidents of this.property right so vested in him was the right not only to hold but to convey. To detract from this last by statute was to take away a property right. Mandelbaum v. McDonell, 29 Mich. 78, 18 A. R. 61; Bruce v. Strickland, 81 N. C. 267; Gladney v. Sydnor, 172 Mo. 333.
This very question was present in Spreckles v. Spreckles, supra. It was there considered whether the husband's right could be disturbed by a statute passed subsequent to the acquisition of the property involved, requiring the wife to join in gifts of community property. It will be perceived that the only difference between that case and the case at bar is that the California statute required the wife's-signature only in the case of gifts, whereas, our act of 190Í applies to all alienations. It was there held that the statute was without effect as to previously acquired property. A like question was present in the earlier California ease of Ingoldsby v. Juan, 12 Cal. 564, 579, where, in dealing with a similar state of facts it was said: “But the subject of the act of the seventeenth of April was the separate property itself and that statute was passed to define and fix the relations of the parties to it; and by the sixth section the husband is made the manager of the separate property of the wife and then the power of sale by him is denied and the mode of sale fixed; but this only by obvious rules of construction, applies to separate property afterwards acquired or to property held, as separate, by women married after the passage of the act. The legislature had no power to affect marital regulations or rights fixed by law previously; and if they had, we are not to presume, in the absence of an express declaration to the effect, that they so intended.”
A line of North Carolina cases further illustrates the principle. In Sutton v. Askew, 66 N. C. 145, it was held that where the wife had only an inchoate right of dower in her husband's lands, subject to be defeated at any time by the husband's conveyance, subsequent legislation restoring her the common law right of dower could not affect the rights of the husband nor restrict his power of alienation nor confer upon the wife any additional right of dower in lands acquired by the husband before the act was passed, although held to apply to lands acquired subsé-quent to the act notwithstanding the marriage was before. Holliday v. McMillan, 79 N. C. 287; and in Bruce v. Strickland, 81, N. C. 198, it was said: “The marriage took place and the title vested in the defendant previous to‘the restoration by statute of the common law right of dower and before the creation of a homestead in land. It was then in the power of the defendant by his deed to convey a full and complete title in fee to the land. Has this absolute dominion over his property been abridged by an act of subsequent legislation or could it be, under the principles of the constitution, without the owner’s consent or concurrence ? The value of property consists in its use, disposition and conversion into something else and these are the elements constituting a vested right which the legislative body cannot take away except for public use and then only on making compensation to the owner. This security is guaranteed in the constitution of the United States in the clause declaring the obligations of contracts inviolable.”
The Missouri cases of Moreau v. Detchemendy, 18 Mo. 522, cited supra and Gladney v. Sydnor, 172 Mo. 319. are similarly in point. In the latter case, it was held that the right of the husband who acquired his homestead prior to the act of 1905 (requiring the joining of the wife in the conveyance) to sell the homestead without the wife’s joining is a vested right and that he could notwithstanding such act alienate property acquired prior to it without ;]oining his wife in the deed. It is very fully pointed out in that case that the jus disponendi no less than the jus tenendi is an element of property protectéd against'legislative confiscation. The ease of Westervelt v. Gregg, 12 N. Y. 202, is similarly instructive.
í» We are of opinion, therefore, that the facts of this case when read in the light of the authorities bring it within the doctrine announced by this court in Newton v. Thornton, 3 N. M. 287, where, in construing our statute giving the value of improvements in ejectment to the party making them' to be inapplicable to improvements erected prior to the act, it is said: “No legislature can take or destroy private property for private use by statutory enactments and so far as this statute attempts anything of that kind it is clearly void.” We therefore hold that the act of 1901-does not apply to community property previously acquired and that as to such the husband’s rights of disposition is left intact. We may acfd that we find nothing' in Warburton v. White, 176 U. S. 486, opposed to the doctrine here - announced. That case dealt with matters of succession, not the rights of spouses in esse. The court in that case expressly says: “No question is presented on this record-of the nature and scope of his (the husband’s) authority during the existence of the marriage, and we intimate no opinion on that subject”; and the court declined to review or consider Spreckles v. Spreckles, supra (which we have seen decides the very point here in issue), upon the ground that it was without pertinency to the question there involved.
The judgment is accordingly affirmed.