DISSENTING OPINION.
ABBOTT, J.In the judgment and opinion of the court, I do not concur and, as the questions involved are highly important, I state my reasons for dissenting.
That the propérty rights of husband aud wife in this Territory are, except as modified by local statutes, to be judged by the Spanish law in force at the time of its 'acquisition from Mexico, need not be questioned, if, by the Spanish law is meant the law as it existed in modified form in Mexico at that i;ime. But I cannot agree that under the community system as it is here, the wife has, until the termination of the marriage relation, no vested or tangible interest in the community property, but “only a mere expectancy similar to that which an heir possesses in the estate of an ancestor,” and that the husband’s power over the community property is a vested interest in the property itself, and not subject to legislative interference. In my view, the wife, has a present, fixed and definite interest in the community property, determinable as to any particular item of it through alienation by the husband and in other ways and although he has the exclusive power o! managing and selling the common property, that power is not a property right, but the authority necessary to the advantageous use of the property which, as a matter of public policy, may be intrusted to either or both of the parties to the community and changed from time to time as the legislature may determine, and that in consequence, the statute, Chap. 62, Sec. 6, Laws of 1907, by which the legislative assembly attempted to prevent the conveyance of community real estate by the husband without the consent of the wife, was a proper and valid exercise of power, as to real estate acquired before its passage as well a? to that subsequently acquired.
In determining what the law was at the time'of the-acquisition of New Mexico there are doubtless unusual difficulties. Ballinger in his work on Community Property, Sec. 6, p. 26, says; "The absence of an authoritative code of law in Spain leaves all legal subjects open to the varying definitions of the authors on the subject of Spanish legislation, and being devoid of that judicial interpretation found in Anglo Saxon countries leaves the subjects of the law ii: a similar uncertainty to that prevailing in the science o? philosophy and metaphysics.”
There is, besides, the impossibility of finding in the terminology of the common law system, words which exactly represent ideas and things which are peculiar to another system.
It has been said by a noted writer that it is impossible for any one to put in words precisely what he thinks. If he cannot do that in his native language, how much further from accurate expression is he when he attempts to tell in his own language what another thought and inadequately expressed in another language. Especially is this the case when the whole waj^ of thinking for centuries by the people using the one language has been so widely different from that of the people using the other, as that of the Spanish people has been from that of the Anglo Saxons on the subject here in question.
It plainly appears, I think, that some of our courts have forced the thoughts of Spanish law writers into verbal moulds of their own making and that they come to us in that somewhat distorted form.
No instance has been brought to our attention in which prior to the acquisition of Spanish territory by the United States, the right of the sovereign to change the method of administering community property has been denied. Nor is it suggested that any writer on the Spanish law has ever declared* that the husband could not be deprived by law of the power of alienation which he had by the law. The possession of that power by tire husband alone was not a necessary feature of the community system, since, as Bal-linger says (section 3), in Gelderland, “The husband could not, without the wife’s consent, alienate any part of the immovable property subject to the community.” It is. however alleged for the appellee, that shell is the necessary inference from the passages quoted from the writers on Spanish law.
I find no such quotation either in the appellee’s brief or in the majority opinion which seems to me to sustain or even favor that contention as against the doctrine that the husband is only the master of the community with power to alienate its property, with the possible exception of a passage cited from Tapia’s Febrero, title: Bienes Gananciales.-That, directly or indirectly, furnishes the greater part of the material both for the foundation and superstructure of the argument for the appellee’s position. It was cited in Guice v. Lawrence, infra, and practically made-the basis of the opinion in that case, and in Panaud v. Jones, 1 Cal. 488, served a dike purpose. In Van Maren v. Johnson, 15 Cal. 308, Judge Field’s dictum that the interest of the wife during marriage, in the community property “is a mere expectancy like the interest which an heir may possess in the property of his ancestor” adopted by this court in the case at bar, was based, by reference, on Guice v. Lawrence. Let us examine the passage on which so much has been made to depend. The citation is in English as quoted from Panaud v. Jones, supra.
“The wife is clothed with the 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 absclute 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 Gananciales, 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 exist no intention to defraud the wife.55
The Spanish has it thus: “A la mujer casada se comunica y trasfiere en habito y potencia el dominio y poses-ion revocable y ficta de la mitad de los bienes que durante el matrimonio gana y adquiere con su marido; mas después que este fallece, se le trasfiere irrevocable y efectivamente, de suerte que por su fallecimiento se constituye dueña absoluta en posesión y propiedad de la mitad que deje, al modo que en los socios convencinales lo dispone la ley. Por esto a la mujer no solo la esta prohibido donar sus bienes dótales y gananciales durante el matrimonio, sino también dar limosna sin licencia de su marido, excepto en cuatro casos, x x x El marido no necesita la disolución del matrimonio para constituirse real y verdedero dueño de todos los gananciales, pues durante este tiene en el 'efecto su de minio irrevocable asi los puede administrar, trocar, y no siendo castrenses ni cuasi castrenses, vender .y enegenar a su arbitrio, cesante el doloso animo de defraudar a su mujer como se prueba de la ley.55
There is so far as I can learn no authoritative translation of Eebrero’s treatise. It is clear that the translation used in Penaud v. Jones, is, in some important particulars incorrect, and in others the meanings attributed to Spanish words are not necessary ones. Thus "que este fallece", may mean, and according to Escriche, infra, a more reliable authority, should be,'not the death of the husband, but the expiration of the marriage community, a very important difference. The adjective, ficta, which is translated “feigned55 has also the meaning artificial and corresponds fairly to our word nominal. Dueño, translated “owner55 has also the meaning, master. Judging from the fact that Escriche, in his very comprehensive Dictionary or Encyclopedia of Law, does not define or even mention it, the word has no established and recognized meaning in Spanish law and was used loosely in the statement under consideration. The word dominio is here rendered “dominion” and properly so, I think, but in Guice v. Lawrence the word “ownership” is used as its equivalent. In the brief for the appellee the latter meaning is given to it in a citation from Escriche, with the effect of converting the citation into ah authority for the appellee from one against him as it seems really to be. The citation, leaving that word in the original, is as follows: “The husband and wife have the dominio of the acquest property with the difference that the husband has it nominally and in fact and the wife only nominally, the fact becoming effective when the marriage is dissolved.” Escriche Dic. Raz. de Leg. y Jur., Tom. 2, p. 86 : The real meaning of the word dominio becomes therefore a matter of, perhaps, decisive importance. If its meaning is not, in that connection, ownership, but dominion, right of control and disposition, then Febrero and the cases founded on his authority do not aid the appellee’s contention and Escriche is distinctly against it. That the latter rather than the former is its ordinary meaning the dictionaries inform us. Its meaning as used in law is given in the Cyclopedia of Law and Procedure as, “The right or power to dispose freely of a thing, if the .law, the will of the testator, or some agreement does not prevent.” That definition is taken from the remarkable case of United State v. Andres Castillero, which occupies almost half of the second volume of Black’s Reports. The case is remarkable besides, from the fact as asserted in argument, that “In the bulk of the record and the magnitude of the interests at stake” it was probably “the heaviest case ever heard before a judicial tribunal,” from the corresponding eminence of the counsel engaged in it, and the wealth of research and learning lavished upon it, by court and counsel.
Justice Wayne adopted and incórporated entire in his dissenting opinion, the opinion of Judge Ogden Hoffman, the District Judge, from whose judgment the case was appealed “as the best way of expressing my appreciation of the law and the merits of the case and of his judicial learning and research in connection with it.”
Mr. Justice Catron, who with Mr. Justice Grier also dissented, spoke in even higher terms of praise of Judge Hoffman’s learning. In Judge Hoffman’s opinion as adopted by Judge Wayne, on pages 226-7 of the volume named, occurs the definition referred to and in connection with it a discussion of various Spanish terms employed to describe different interests in real property, quoted from Spanish writers. The opinion shows that “dominio" alone has the meaning already adopted by the Ccylopedia. Other words arc added when it is desired to express hill and complete ownership, as "daminio pleno y absoluto" «r “con el dominio y propiedad", meaning “with the right of disposition and property” making the two elements of ownership distinct. While it is true that the opinion of Judge Hoffman did not prevail with the majority of the Supreme' Court, there was nothing in the decision of that tribunal to detract from the enconiums on bjs learning by the dissenting justices, and the definitions he gives are besides cited from Spanish law writers of the highest repute.
It is not claimed that the right of the wife to dominion and possession of half the common property was not revocable and artificial or as we should say, determinable 01 defeasable and nominal during marriage, nor that -the husband was not the real master of the community and its property.
All that might be consistently with her having a proprietary interest in it which other expressions of the Spanish- and Spanish-Mexican treatises abundantly indicate that she had.
Thus it is said in Novísimo Sala, Mexicano, section 2 A, titulo 4, that a feature of marriage is “the acquisition for both spouses, by the halves, of that which each may gain during the marriage, so that all the property which the husband and wife may have belonged to both, one half to each minus that which either may prove to belong to him separately”. Ballinger says -,pp. 384, 395, quoting from Schmidts Civil Law “the law recognizes a partnership between the husband and wife as to the property acquired during marriage.” “Husband and wife are entitled to an equal share in the community although one of them should at the time of marriage have been without any means. At the same time, both are liable in equal proportions for the losses and debts during its -existence.” And of like tenor are all the statements I have found from similar sources as to the effect of marriage in making the gains of the parties to it their common property. Indeed the very expression “community property” is a misnomer, if that is not the case, all the learned treatises on it are little better than waste paper, and the celebrated chapter on the natural history of Iceland “Concerning Snakes”, might have been substituted for them with great gain in brevity and not much loss in substance. All that the decision of the court leaves of the system might have been expressed in a half dozen lines — •that if the wife survives the husband she shall have a certain share of the property of which he dies possessed which they gained during their marriage by onerous title. That it was something substantially more than that is shown by the fact that the wife’s half was subject to confiscation without affecting the half; of the husband. Ballinger Com. Prop., p. 396; Escridie’s Die. Paz. de Leg. y Jur. pp. 86 et -seq. Surely that which is nonexistent, or exists only as a mere expect fancy if at all, cannot be reached by a present act of confiscation. Equally significant is the fact that on the decease of the wife half of the community property, subject to the payment of its debts, etc., went to her heirs. If- up to the moment of her death her husband was the owner of it, how could it thereupon become a portion of her estate subject to the law of descent? And, finally, that the husband’s power of alienation was that of an agent or trustee and not that of an owner, is manifest from the fact that the wife’s interest in the proceeds of a -sale made by him of community property was the same as in the property itself. In that respect her interest differs fundamentally from a wife’s right -of dower, which does not attach to the proceeds of 'the sale of the land in which the inchoate right existed. _ ,
The appellee places great reliance on Guice v. Lawrence, 2 La. Ann. 226: Let us examine^ its title to be considered authority by us. It was decided as far back as 1847, avowedly on the Louisiana Code, in a case in which the right of the husband to convey real estate of the community to pay his separate debts contracted before marriage was involved. The widow claimed that she was entitled to one half of the community property remaining after the payment of the community debts, but the court held that the alienation by the husband was valid for the purposes of that case at least. The right to proceed against the heirs of her husband on the ground that the transfer was made in fraud of her rights was especially reserved to the widow by the court. As to the correctness of the decision itself I make no question, nor do I a firm th.i it would not have been correct if it had been based on the Spanish law. But the court went beyond the requirements of the case to declare that the laws of Louisiana have never recognized any title in the wife during marriage to one half of the acquests, which may have been the case, and that the provisions of the code on the subject are “the embodiments of the laws of Spain, without any changes” which is not admitted. The statement of Febrero already referred to is quoted to sustain that proposition. But that, as before stated, is not equivalent to saying that the husband is the owner of the community property. It declares only that he is the “master” of the community as indeed the court elsewhere states, and adds that he “has power to alienate the immovables which compose it by an encumbered title without the consent or permission of the wife.”
As Ballinger points out (Sec. 6) the Louisiana law on the subject is a hybrid. Louisiana became'a French colony in 1700 with imported French laws. It was transferred by France to Spain in 1763, which led to more or less modification of the existing laws. It was returned to France in 1800 and the Code Napoleon became the law of the land, but it could hardly have taken deep root since'the Territory was ceded to the United States in 1803. In 1806-8 a code was adopted which was revised in 1822-4 and to it presumably reference is made by the court in Guice v. Lawrence, supra. It'should be born in mind in this connection that it was not the Spanish law, as it ivas when Louisiana was a Spanish province, or before, which came with New Mexico, but that law as modified in Mexico, after her independence and very likely before, to some extent. That was the law of California as well as of New Mexico, but in that state it has been changed by statute in essential particulars. The early California cases are so conflicting as to practically neutralize each other. In Panaud v. Jones, supra, as has been said, the doctrine of Guice v. Lawrence was adopted. But in Beard v. Knox, 5 Cal. 252, the court said, “the wife’s .interest in the common property is a present, definite and certain interest”. In Van Maren v. Johnson, the court, through Judge Field, made the declaration which this court now adopts, that the interest of the wife was during marriage “a mere expectancy similar' to that of an heir in the estate of his ancestor,” citing Guice v. Lawrence, supra, as authority for that proposition. That statement was in the nature of a dictum as the question was whether the common property was liable for the debt of the wife contracted before marriage, and it was held in the affirmative. Not many years later it was said in Gody v. Gody, 39 Cal. 157, that although we had perhaps no better word than “expectancy for the wife’s interest, yet her right is as well defined in contemplation of law even during marriage as that of her husband.” “Later radical changes were made, in the statute law of the state and they should bo taken into account in considering cases subsequent to them such as Spreckles v. Spreckles, 116 Cal. 339, on which the appellee lays so much stress. Of the California statutes Ballinger says (Sec. 77.) “The interest of the wife does not ripen into a legal right even upon her death, in California, for want of a statute making her estate entitled to it” and it was so held in Packard v. Aurellanes, 17 Cal. 539, on the ground that the California statute on the subject merely designated the persons to whom half of the community-property should go on the death of the wife, but-did not make it a part of her estate. By statute, in 1861, it was distinctly provided that upon the dissolution of the community by the death of the wife, the entire community property should go to the husband, and it has since beer added that it “shall go” to him “without administration,” “except such portion thereof as may have been set apart to her by judiciál decree for her support and maintenance.” By those provisions the wife’s- interest was indeed “a mere expectancy” depending on her surviving her husband, and the decision in Spreckles v. Spreckles, supra, although not in terms based on the statute, was quite in keeping with it. As Beatty, C. J. said at the close of his opinion, concurring in the result, “if the husband survives the wife, ire will get everything he had not voluntarily parted with.” But no such conditions have ever obtained here, and why should we import conclusions when the premises are lacking? Says Ballinger, (Sec. 6) “The Territory of New Mexico seems to have borrowed the Spanish law of property rights of married persons in its entirety and with slight modifications.” He adds: “The present, condition of the laws of New Mexico and the difficulty of access thereto prevents an accurate statement of their provisions.” This court fortunately is not under that dis-i, ability, and can easily resort to this uncorrupted source of information.
Section 2030, C. L. 1897,the existing statute law of the Territory, provides that “one half of the acquest property which remains after the. payment of the common debts of the marriage, shall be set apart to the surviving husband or wife absolutely.” By Section 2031, it is provided that after the payment of the common debts, the- deduction of the survivor’s separate property, and his or her one half of the acquest property, and subject to. the payment of the debts of the decedent, “the remainder of the acquest property and the separate estate of the decedent shall constitute the body of the estate for descent and distribution, and may be disposed of by will or in the absence of a will shall descend as follows: one-fourth thereof to the surviving husband or wife, and the remainder in equal shares to the children of the decedent.”
The power which the wife has under this statute to dispose of her share of the community property by will to take effect during the life of her husband makes her ownership distinct and certain. The statute even makes her husband one of the distributees assuming to give him, if the view of the appellee is sound, what he already owns. It provides also that her share shall go to her children even though they are not his. No distinction is made between what remains of her separate estate, after deductions, and what remains of her half of the community property, but they are united to make up the “tody of the estate
It is significant that this has been the statute law of the Territory, in essentials, from the beginning, in 18S1. It was probably in the main an adoption of the Spanish-Mexican law, but it was made by those who had lived under that law and knew what it was at the time. From that time, whatever its origin, it became the law of New Mexico to be interpreted by this court in accordance with the fair intent of its own terms and not to meet the views of other courts growing out of departures from the standard to which New Mexico has adhered. It gave the wife an interest widely different freon "thait of an heir in the estate of his ancestor.” Until the interesr of an heir in the estate of an ancestor who survives him will pass by his, the heir’s will or descent to his heirs, the similarity declared in Van Maren v. Johnson, supra, lacks much of complete likeness. Rather is her interest like that of a minor under guardianship, whose ownership is complete although his property is subject to control and alienation, as the law provides, but who has, in general, no power in himself either to manage or sell it, and will never have such power unless he happens to live to the age at which the law admits him to that right.
The statute in question is not the first assertion by the Territorial Assembly of its right to limit the power of the husband to alienate the community property. As far back as 1887 by chapter 37 of the Session Laws of that year, it was provided that the "wife and family” of a mort■gagor should not lose their right to homestead through a mortgage in which she had not joined. Until now the validity of that law has not been questioned, in this court at least. If the wife is the present owner of a like equal interest with the husband in the community property although it is determinable by the exercise of his undoubted although not absolute right of sale, that fact goes far towards proving that the power which the law confers upon him by force of the marriage itself, is that of an agent, manager or trustee only.
The recent case of Garrozi v. Dastas, 204 U. S. 64, is cited for the opposite view, but L am 'unable to perceive how it affords it any support. Says the court, through Mr. Justice White, “the very foundation of thecommimily and its efficacious existence depend on the power of the husband in the absence of fraud, or express legislative restriction, to deal with the community and its assets as its owner x x x and not to render the community inert and valueless to both parties by weakening the -marital power of the husband as to his expenditures and contracts so as to cause him to be a mere limited and consequently inefficient agent.”
No question is made that the husband, with the exceptions above stated has the same power to deal with the community property that he would have if he were “the owner” ox the whole instead of being as to one half the “agent” or tiustee of the owner. That the meaning of the court was not what is claimed for it is put beyond quetsion, as it seems to me, in the o]xinion by the same justice, himself, as the majority opinion suggests, presumably learned in the civil law, in Warburton v. White, 176 U. S. 484, sustaining the decision of the Supreme Court of Washington aixd commenting with full approval on Holyoke v. Jackson. 3 Wash. Ter. 235; Hill v. Young, 7 Wash. St. 33, and Mabie v. Whittaker, 10 Wash. St. 656, the three cases-in which the Washington doctrine is fully and ably set forth. As this ease is, to my mind, conclusive of the question, for this court, I quote from the opinion at length, including here instead of stating them apart, the extracts from the Washington cases referred to, which the learned justice stamped with his approval in the course of his opinion: “The nature of common or community property, within the Territory of Washington, as such property was-constituted by the act of 1873, and the operation of the act of 1879 upon property of that character acquired prior to the passage of the latter act was considered in 1882 in the case of Holyoke v. Jackson, 3 Wash. Ter. 235. The question for decision in that case was whether, while the act of 1879, was in force, a husband could, without his wife joining, make a valid contract to sell community property acquired prior to 1879.. In deciding this question in the negative the court, in the course of the opinion, said (p. 238) ‘By the provisions of the husband and wife acts passed in 1879, and previously, the husband and wife were conceived as constituting together a compound creature of the statute called a community. * * * In it the proprietary interest 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. By virtue of the 'statute this husband and wife creature acquires property. That property must be procurable, manageable, convertible and transferable in some way. In somebody must be vested a power in behalf of the community to deal with and dispose óf it. x x x 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 tc. 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 power conferred upon him as a member and head of the community in trust for the community, and not a proprietary right, it was perfectly competent for the legislature of 1879 to take it from him and assign it to himself' and his wife conjointly. This was done.’
“In Hill v. Young, 7 Wash. St. 33, it was decided that the husband’s power to dispose of the common property was not a vested right which would not be taken away by subsequent statute. In "the subsequent ease of Mabie v. Whit-taker, 10 Wash. St. 656, the provisions of the law of 1869 were again considered. Land had been purchased on August 10, 1871, by one Mabie, witb community funds, during the existence of the act of 1869. While Mabie held the legal title, the legislature repealed the act of 1869, and on November 29, 1871, an act was approved which, in section 12, provided that the husband should have the management of all. the common properly, but should not have the right to sell or incumber real estate without the joinder < f his wife, xxx The court, however, said: 'But, leaving out of consideration all question as to whether he could only exercise such right while his wife was living, and could not convey 'the entire title, under the former law, after her death, and cut off her heirs, we think the subsequent act took away his power to do so. It was immaterial whether the record title of the community lands stood in the name of the husband or of the wife, or both of them, when considered with reference to the power of the legislature to authorize either or both of them to convey. The legislature could as well have provided that the wife could convey, as the husband; and if it had power to say that either could dispose of the community interest of the other, it could say that neither could do so. Changing the manner of the conveyance did not alter the status of ownership. It could not make the interest of either spouse in community lands greater or less.’ xxx
“The statute of 1871 did not undertake to divest any right which had become vested. Mabie, receiving this conveyance under the act of 1869, thereby became the owner of an undivided one half interest in the land, and his wife thereby became the owner of the other half, x x x Her right was as much a vested right as his.”
Following the quotations from the Supreme Court o T Washington of which the foregoing are excerpts, the opinion proceeds as follows:
“The rule announced in the foregoing cases was reiterated in the opinion delivered in the case at bar, it being held that Bacon did not become the sole owner of the property in question by the purchase in 1877, but that it became and continued community property so long as the community existed, and that the descent of such property was subject to regulation at will by the legislature.”
“Now, it cannot in reason be denied that the decisions from which we have just quoted held that the purpose of the legislature of Washington, whether territorial or state, in the creation of community property, was to adopt the features essentially inhering in what is denominated the community system — that is, that property acquired during marriage with community funds became an acquet of the community and not the sole property of the one in whose name the property was bought although by the law existing at the time the husband was given the management. control and power of sale of such property, this right being vested in him, not because he was the exclusive owner, but because by law he was created the agent of the community, the proceeds of the property when sold by him becoming an acquct of the community, subject to the trust which the statute imposed upon the husband, from the very nature of the property relation engendered by the provision for the community.” x x x
“Obviously, the reasoning of the plaintiff in error, upon which the assumption that community propert) bought during the existence of the act of 1873 was solely tlmproperty of the husband, involves not only a contradiction in terms but invokes at the hands of this court, in order to overthrow the rule of property in the State of Washington, an interpretation of the statutes of that state which is not only confusing, hut self-destructive. It cannot be doubted, under the text of the act of 1873, that the property relations of husband and wife were controlled by what is denominated the community system and that in consonance therewith the statute referred to treated property acquired during marriage with community money as community or common property. Although this is patent, the argument is that the provision in the statute giving the administration and disposition of the community property, to the husband operated to destroy the community system and render it impossible, under the statute, for community or common property to exist. In other words, the interpretation relied upon asked us to say that because of a provision which simply pointed out how common property should be administered, it resulted that there was no common property to be administered. This would be but to declare that the statute brought about a result which was contrary to its express language, providing for the existence of the community system. It is a misconception of that system to suppose that because power was vested in the husband to dispose of property acquired by the community during marriage, as if it were his own, therefore by law the community property belonged solely to the husband. The conferring on the husband the legal agency to administer and dispose of the property involved no negation of the community, since the common ownership would attach to the result of the sale of the property.”
How this court’s view of the nature of the rights of husband and wife in the community property, as stated in the majority opinion, is to be reconciled with what Mr. Justice White, speaking for a unanimous court here says, 1 am unable to perceive. When it is said by way of attempted distinction that Warburton v. White rests on a statute of AVashington, it should be added that the statute provided that, the husband should have the entire management and control of the common property “with the like absolute power of disposition as of his own separate estate”, quite as clear and explicit a statement of his dominio as the Spanish law furnishes.
The general principle on which such legislation as that in question is based is well stated in Baker Executors v. Kilgore, 145 U. S. 487-490. “Moreover his (the husband’s) right prior to that enactment did not come from contract - between himself and his wife, or between him and the state, but from a rule of law established by the legislature and resting alone upon public considerations arising out of the marriage relation” x x x “The relation of husband and wife is therefore formed subject to the power of the state to control and regulate both that rela-" tion and the rights directly connected with it by such legislation.”
That it is a wise and beneficient measure of public policy which confers on the wife the power to protect herself and her children, to some extent against the improvidence, caprice or purposely harmful conduct of the husband, by withholding her asáent to the alienation of their homestead, or other real estate, few would question. It is the established policy of nearly, or quite all the states of the Union.
The decision of the court renders ineffective Chapter 62, Sec. 5 of the Acts of 1901, and by necessary inference Chapter 37, See. 16, of the Acts of 1907/ which in part supersedes it but which makes the assent of the wife essential to a valid conveyance of the homestead, so far as either may relate to real estate acquired before its enactment. This is -a result greatly to be deprecated and one which we all, doubtless, agree should not be brought about by this court, unless it is constrained thereto in obedience to plain principles of law. Certainly no law of the Territory, or decision of the Supreme Court of the United States, or previous decision of this court, constrains us to that course. To say the least the decisions of the other courts to which the judgment of this court is now made to conform, are in my opinion, open to such serious doubt that they should not be followed to reverse the express will of the legislative branch of the government.