delivered the following dissenting opinion:
I dissent from the judgment. At the close of this term there was a change in the organization of the court—a newly appointed member of the court was daily expected to arrive. It was not known how soon he would come, nor how soon the opinions of the court could be prepared and filed. It was deemed advisable by the majority of the court to enter the judgments in the last few cases heard, and allow the opinions to be filed afterwards. As I am the judge who is retired, I am obliged to write my opinion without having before me the opinion of the majority of the court. Icannot, therefore, say how far I dissent from the opinion of the court; and not knowing on what reason the majority of the court will ground their decision, I must, at the risk of being prolix, review all *267the grounds of error assigned, and express my opinion on each one separately. I will first notice the preliminary objection made by respondent as to the lack of authentication of the statement.
Bule 12 of this court reads as follows: “ Exceptions to the transcript, statement, the bond or undertaking on appeal, or to the notice of appeal, or to its service or proof of service, or any technical objection to the record affecting the rights of the appellant to be heard on the points of error assigned must be taken at the first term after the transcript is filed, and must be noted in writing, and filed at least one day before the argument, or they will not be regarded. In such case the objection must be presented to the court before the argument on the merits.”
This case was set for argument for January-. On that day court opened, but without calling any case or in any way considering this or any other case, adjourned of its own motion until January -. On January - court opened pursuant to adjournment and called this case for argument. Bespondent, before proceeding to this argument on the merits, produced a preliminary objection to the transcript, noted in writing, filed the day before the argument, and showed proof of service of same on counsel forbappellant the day before the argument. Counsel for'appellant opposed the hearing of the motion, arguing that it ought to have been noted the day before the day set for the argument of the case and not the day before the actual argument; and the majority of the court refused to hear the preliminary objection of respondent, on the ground that it had not been noted in time, to which ruling I dissented. Believing, therefore,^ that the objection ought to have been heard, I will consider it. The objection was that the statement in the transcript was not properly authenticated, and should therefore not be regarded by the court.
The provisions concerning authentication of statements are settled by our statute, Comp. Laws, sec. 343, p. 437, as follows: “ The statement, when settled by the judge, shall be signed by him, with the certificate that the same has been allo-wed and is correct. When the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them and *268is correct. In either case, when settled and agreed upon, it shall be filed with the clerk.”
In this it appears that the signature alone of the judge or the attorneys is not sufficient, but there shall also be a certificate that the statement is allowed or “has been agreed upon by them and is correct.”
The whole case in the appellate court often turns upon ■the facts set up in the statement. It is, in such instance, upon those facts that the whole action of the court is based. The statute explicitly provides that there shall be clear and express proof of the truth of the statement. The mere signature of the judge to the statement is not sufficient. He must formally certify that he has allowed the statement, and that it is correct. So the mere signature of the attorneys is not sufficient. There must also be a certificate stating that they have agreed to the statement, and that it is correct. In this case there is no such certificate, nor any attempt at any certificate whatever. At the foot of the statement appear the names of the attorneys: nothing more. They certify to nothing. If the statute said merely that the statement should be attested by the judge, the parties, or their attorneys, a mere signature would doubtless be sufficient; but where the statute expressly states that there shall be a certificate, and declares what that certificate shall state, I do not think that it is a reasonable compliance with the statute to omit the certificate altogether. I am of opinion, therefore, that a statement so presented is not entitled to the notice of this court, and that this appeal stands upon the judgment roll alone. In that no error appears, and the judgment should therefore be affirmed.
2. Accepting, however, for the purposes of this opinion, that the unauthenticated statement embodied is true, the following appears: This was an action in ejectment. Plaintiff alleged seisin in fee of the premises in controversy on the eleventh of February, 1874; that the defendant entered thereon July -5, 1875, while plaintiff was so seised, and withholds to plaintiff’s damage, in the sum of ten thousand dollars; and that the value of the rents and profits during such withholding is two hundred and fifty dollars per month. Defendant denies that plaintiff was ever seised or entitled to the possession of said premises; denies damages, and *269alleges that he is the legal owner of said premises, and in possession thereof, stating his title; that plaintiff claims title from defendant’s wife by deed, she having no power to sell; that said deed was made to defraud the defendant, and that plaintiff knew thereof and prays cancellation of said deed.
It was established on the trial by plaintiff’s evidence that Anna C. Woffenden, from whom plaintiff claimed to have purchased the lands sued for, was from August, 1872, ever since has been, and now is the wife of the defendant; that the title to these premises stood in her name; that this title consisted of patents from the United States to her grantors and deeds of purchase from them to her for a moneyed consideration, made during her coverture; and that the only-documentary title plaintiff claimed was a conveyance from her alone to plaintiff, made during such coverture. The first error assigned is as to action, shown at folio 40 of transcript. Plaintiff opened his case by taking the stand himself, as the first witness in his own behalf.
The first relevant evidence offered was that plaintiff was asked “to describe the whole property bought by him of Anna 0. Woffenden, lands and all.” Objected to as inadmissible, because: 1. No foundation laid for oral description of lands purchased, no proof of purchase itself having been made; 2. Evidence offered incompetent to prove purchase; should be in writing; no foundation to prove contents of lost writing. Objection sustained. The ruling on this objection was immaterial, as will appear in the consideration of the fifth assignment of error.
The second assignment of error is as to action, at folio 42. Plaintiff offered in evidence deed to himself of premises from Anna 0. Woffenden. Objected to: 1. Defective acknowledgment; 2. That it has not been shown that the person executing said deed had power to convey the premises described therein. Objection sustained.
Here was an objection to the order of proof. Merely proving a conveyance to plaintiff in ejectment is nothing unless plaintiff shows that the person conveying had power to convey the legal title. Otherwise the court might be delayed for days at any time, and the record uselessly incumbered by the introduction of irrelevant conveyances. The court has the right to protect itself against such a practice. *270Therefore the order of testimony has been left to the discretion of the court. No abuse of this discretion is shown.
It is not shown that plaintiff offered any reason for not introducing the requisite preliminary evidence at that time, nor that he assured the court he would subsequently produce it. There was no error, therefore, in excluding the deed at that time, the ruling as to the acknowledgment being immaterial, the deed itself being properly excluded on other grounds. The third assignment of error is for action, commencing at folio 43J-.
Plaintiff, testifying in his own behalf, being asked on direct examination, “To whom was the sale of the ranches communicated when the same was being made ? ” offered to show that defendant, the husband, knew of the sale being made by his wife, and said nothing. Objected to as: 1. Leading; 2. Inadmissible, no proof of negotiations; 3. Incompetent, as oral, to prove agreement of sale; 4. Immaterial, no power in wife to sell having been shown, and this being incompetent evidence to show such power. Sustained. The evidence was immaterial. Granting- it proved all that was claimed—that it proved that the husband stood by and saw his wife agree to sell real estate of common property—the most it would show would be equitable title in plaintiff, not sufficient to recover upon in ejectment against the holder of the legal title in possession. If it was separate property of the wife which she might sell without her husband’s consent, as she could do here if it were separate property, then his knowledge or assent was also immaterial. It must have been either common or separate, and therefore the evidence was immaterial in either case, and was properly excluded.
The fourth assignment of error was in action, declared at folio 47¿. ‘ ‘ Plaintiff’s counsel again offered in evidence the deed of Anna G. Woffenden to the plaintiff for the property in controversy, with an acknowledgment of that date, November 2,1875.” The action was begun September 6,1875. An acknowledgment taken after commencement of the action, taken on the trial of the cause, is immaterial to show title in plaintiff at the commencement of the action. None of the other objections sustained to the deed on its first offer had been cured in the mean time. The only additional reason shown for the introduction of the deed was this sub*271sequent acknowledgment, and that was of no benefit to plaintiff in this action.
Before any other action was had which is assigned as error, the plaintiff introduced without objection patents from the United States for the premises in controversy to the grantors of defendant’s wife, and deeds of purchase from them for a moneyed consideration to defendant’s wife during her coverture. Plaintiff stated the object of this introduction to be as follows: “ These deeds were offered in evidence to show that Mrs. "Woffenden, at the date of the deed to plaintiff, was the absolute owner of the premises in controversy, and also to show her power to convey to the plaintiff.” Polio 52.
The granting clauses in said conveyance to the wife are to her and her heirs and assigns. There is no habendum clause in either of them. In neither of them is there anything said at all in any way as to her having or receiving the premises, or any part thereof, as separate property.
The next and fifth assignment of error is as follows: “In excluding evidence that the plaintiff in this case was in the adverse, prior, and notorious possession of the real property in controversy; that the defendant never questioned the plaintiff’s right of possession, but disavowed any interest of his own in said property, and declared his intention never to return it.”
This evidence was offered after the admission of the documentary title last before described, showing title in the wife of the defendant from the United States by deeds of purchase during coverture, and which, the transcript says, though received, were not admitted by the court as proving power in the wife to convey to the plaintiff. To this offer, now made, to prove that plaintiff was in adverse,, prior, and notorious possession of the premises, defendant objected: 1. That the evidence is inadmissible because title by adverse possession must be specifically pleaded, and must have continued five years in order to give the possessor title against the party holding the legal title, it appearing that the legal title is in the defendant; 2. That the offer does not claim to cover the period of five years, and is, therefore, incompetent to prove title by adverse possession; 3. That under the evidence already admitted in this case, title by adverse possession can not be shown, since plaintiff has already *272shown, by the documentary evidence of title before alluded to, that the legal title is in the defendant from the United States government, than which no title can be prior. Objection sustained.
To that portion of the offer proposing to prove abandonment by acts and declarations of defendant, defendant objected, that the testimony offered was incompetent to prove title in the plaintiff or to prove abandonment by defendant, it having been shown that the legal title was in defendant by patent from the United States. Objection sustained.
The answer to all these points in the fifth assignment of error, as also to the first assignment, is, that the plaintiff himself proved that the legal title was in the defendant, under patents from the United States issued about eighteen months prior to the commencement of the suit. That such was the legal effect of plaintiff’s proof, I will now discuss. But that such being the legal effect of plaintiff’s proof it could be material to permit plaintiff to describe the lands, or to contradict his own testimony by attempting to prove prior or adverse possession to sustain an action in ejectment against such a defendant with such title, I will not discuss.
Plaintiff proved patents from the United States, for the premises in controversy, to the grantors of defendant’s wife, and conveyances from them to her for a moneyed consideration, during her coverture. .What is the legal effect of such a proof ? Did the property become the separate property of the wife by such conveyances ? or does the law presume it to be the common property of both husband and wife? Our statute on the subject is as follows: “Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” Comp. Laws, 306.
Under a similar law in California, the courts have held that all property acquired by either spouse during the marriage by purchase is presumed to be common property, and that this presumption can be overcome only by clear and satisfactory proof that it was acquired by the separate funds of one or the other, and that the burden of proof lies on the party claiming the property as separate. Smith v. Smith, *27312 Cal. 224, opinion by Judge Field, who cites a great many cases in support of that declaration. This doctrine is confirmed and adhered to in California, in Meyer v. Kinzer, 12 Id. 247; Pixley v. Huggins, 15 Id. 127; Mott v. Smith, 16 Id. 533; Burton v. Lies, 21 Id. 87; Adams v. Knowlton, 22 Id. 283; Riley v. Pehl, 23 Id. 71; McDonald v. Budger, Id. 393. I believe that to be the true rule in the matter. ■ „
Plaintiff offered no proof whatever to overcome this presumption, although his attention was specially called to this defect of proof by the objection made as to the order of testimony. The conveyances themselves contain no wor| which shows any intention to pass the property to her as hj separate property. There is no proof in the case that sf ever owned any separate property, or ever had any rents o! profits of any separate property. There was nothing oj which to found any inference that it was in any way jjossi that these premises might be her separate-property, beyond’' the naked fact,oilier taking, the -prop er ty by a deed of purchase; in which case the presumption stands that it is common property until overcome by clear and satisfactory proof to the contrary. In the territory, it is not necessary for the wife to join in a deed for common property. She has no control over it whatever. A conveyance from her alone can in no case pass any legal title. Therefore, as against this defendant in ejectment, the deed was properly excluded. If the deed from defendant’s wife to plaintiff was properly excluded on the ground that she had no power to convey the premises, they being common property, then it is immaterial what other and further objections to it were sustained by the court.
If one good objection was made and sustained, it does not matter whether the other objections were good or not. If only one insuperable objection to the admission of the deed was made, and remained unremoved, the exclusion of the deed can not have been error. Admit, for the argument, that all the other objections to the deed were bad., and that all the rulings in those other objections were wrong, the plaintiff was not injured thereby, because the result would have still been the same, the deed must still have been excluded for lack of power in the wife to convey common property. It is urged, arguendo, that the objection that the *274acknowledgment of tlie deed was defective, having beeh> sustained, it was useless for the plaintiff to prove power in the wife to convoy, as the deed would still have been excluded. The transcript does not show on which of the two grounds of ‘objections urged (viz., 1. Defective acknowledgment; 2. Defect of power to convey) the deed was sxcliuled. But plaintiff afterwards tried to meet the objection as to defective acknowledgment by getting a new acknowledgment of the deed, but he did not try to cure the Mother defect, viz., a failure to show power to convey. It is Inmaterial whether he cured the first defect or not, so long he left the second fatal defect uncured,
lit is true that if the plaintiff had cured the second defect, je court might still have excluded the deed on account of le acknov/ledginent; but had the second been cured, and ilfetiilic^co'aru still excluded the deed because of the aclmowl. ’ edgmeut, then, ~ií-that were error, it would be material: but with that second defect óí-Iack-OÍ. power tin convey left uncured, the ruling of the court, so far as it affected the matter of the acknowledgment, is entirely immaterial.
The sixth and last assignment of error is that the court erred in nonsuiting plaintiff. When plaintiff rested his ease, his proof stood as above described, viz., legal title in the defendant. When a plaintiff shows this in ejectment, under a complaint relying solely on seisin in fee, and no offer to amend having been made, all of which is the case here, he must be nonsuited. I am therefore of opinion that the judgment of nonsuit ought to be affirmed.