delivered the following dissenting opinion:
I dissent. 1. The same condition of facts exists in this case as to the objection to the statement as in the case of Oharauleau v. Woffmden. decided at this term of the court, and for the same reasons there stated I consider there is nothing before this court in this transcript but the judgment roll, in which no error appears, and that the judgment for that reason should be affirmed.
2. Accepting, however, the unauthenticated statement as true, it appears therefrom that plaintiff had obtained judgment against defendant for forcible entry and detainer of certain premises. He then brought his action for damages consequent and attendant upon said entry and detainer, under Comp. Laws, 369, sec. 24.
He alleged three thousand six hundred dollars damages for rents and profits, and one thousand eight hundred and ninety dollars damages for personal property on said premises taken by defendant at the time of entry. There are two crops spoken of in the testimony, the crop of 1874 and the crop of 1875. As to the crop of 1874, defendant admits its value to be as charged in the complaint, but claims he owned one half of it.
The crop of 1875 defendant claims was planted by him during the time he was adjudged to be in unlawful possession of the premises. Defendant undertook to prove the value of the crop of 1875, to show that he had placed articles of value on the premises, of which plaintiff got the benefit, and defendant stated that he offered proof on this point as having a bearing on ’the question of damages. Excluded, wherein appellant assigns error Ho. 1.
We are governed here by the common law in the absence of statutory provisions; at common law a trespasser could not prove value of improvements made by him as a set-off to damages for trespass. By statute here in ejectment, where *356defendant enters in good faith under color of title adverse to plaintiff, he may prove value of improvements made by him as a set-off against damages. But there is no provision for doing it as against damages for forcible entry and unlawful detainer. The exclusion was not error.
Assignment No. 2 is, that the court refused to allow defendant to prove ownership of the premises on which it had been adjudged he had forcibly entered, the value of the crop of 1874, and the animals in contest, in mitigation of damages. It was not error to exclude evidence of title in defendant. Title of the land could not be raised in this action; and concerning the allegation that it was error to exclude evidence of the value of the crop of 1874, there is nothing in the transcript to show that any evidence was offered concerning the value of the crop of 1874; besides, the defendant admitted in his answer the value of the crop of 1874 to be as charged in the complaint. The latter portion of the assignment, that the court excluded evidence of the value of the animals in question, is not warranted even by the unauthenticated statement. The unauthenticated statement shows no such exclusion, but on the contrary, shows that evidence as to the value of the animals, and all about their purchase, and that of other property and its value, was admitted without objection.
Assignment No. 3 was for refusal to permit defendant to ask a certain question at a certain time. Even if that were error, the unauthentieated statement shows it was cured by allowing the same question to be asked later in the examination of the same witness.
The fourth assignment of error is a duplication of assignment No. 2—that the court excluded evidence of title to the land—and is answered in the remarks on that assignment.
The assignments from 5 to 15 inclusive are for error in instructions. The only one of these instructions about which I understand there is serious contest is No. 10, instructing the jury that the rents, issues, and profits of the separate property of either spouse are common property, under the law of this territory It is argued that the adjudications of the supreme court of California are against the doctrine of this instruction. Section 9, page 307, of our compiled laws, declares in express terms that the rents and *357profits of the separate property of either spouse are common property.
Our law on this subject is taken from the California law. Section 9 in the California law is the same as our section 9. In 1860 the supreme court of California construed section 9. We adopted section 9 in 1865, presumptively with notice of the construction given to it in California. • The supreme court of California held that section 9 of the California law was inoperative in its declaration that the rents and profits of the wife’s separate property should be common property. But why?
Because it was, as they say, in conflict.with the constitution of California, and that the legislature had not the power to modify the law of the constitution; that the constitution gave to the wife separate property; that at common law a right to separate property gave the right to the rents and profits thereof as separate property also; and that the legislature had no power to say it should be otherwise. But in this territory the matter is not governed by constitutional provision; all the rights the wife has are fixed by the legislature. Our legislature has power to say the wife shall have no separate estate at all. It has power to say just what estate she may have is separate property. They have said that she shall have what the court in California calls a reversionary interest; one which, the court continues, can “be of no avail to her except in the contingency of her surviving her husband.” The court speaks of it as a “barren right.” But isfit such a great anomaly to allow the head of the family to control the usufruct of his wife’s property, and dispose of it for the maintenance and care of the family, the support and education of the children, and to have some enjoyment of it also himself, perhaps, while the property itself is put safely beyond his control? He can not divest the wife of the property owned by her; that is secured for her children if she so desire. Is there anything against public policy or contra bonos mores in such a law? Have not the legislature of Arizona power to make such a law if they like? If they choose to adopt one feature of the law of California recognizing separate property in the wife, have they no power to say that certain conclusions drawn therefrom by the courts of California shall not obtain, in Arizonia? Five years after *358that decision was rendered in California, declaring that rents and profits followed the separate estate and were separate property in that state, the legislature of Arizona deliberately declared that in Arizona the rents and profits should be common property. What is to hinder their doing so? There is no parity in the legislation on the subject. In Arizona it is all the act of the legislature. In California the law is partly statutory and partly constitutional, and of course nothing in the statute may contravene the constitution. But make the cases similar: Suppose that section 14 of article 11 of the California constitution were followed by a section declaring that though certain property should be the separate estate of the wife, the rents and profits of that estate should be common property, would not the courts give force to both sections? Necessarily they would, because both sections would then be of equal authority, and would be capable of standing together. So they are in this territory. The statutes are all of equal authority, are all in pari materia, must all be taken together, and force given to all.
There is a fourth objection, that the verdict is contrary to the evidence. There was no motion for a new trial. Such an objection is available only on motion for a new trial, so as to give the court an opportunity to submit the case to another jury. The objection can not properly be considered here. But nevertheless, what is the objection? The only controverted facts on which the jury gave a verdict were as to the ownership of three oxen and one horse. The only evidence as to the ownership of this property was that of the plaintiff, from whose wife defendant claimed to have bought this property. He said in substance: “My wife did not own any of this property before marriage; it was all acquired since. My wife bought it with money belonging to both of us. What is hers is mine. I did not furnish any money directly to pay for it. I did not furnish any money.” Plaintiff showed he had used these animals in putting in his crop. On this evidence, in substance, the jury by their verdict practically declared that this was common property. Even if it should be conceded that this was against the evidence, what power did the court below have to correct it ? The court was bound to receive the verdict. The defendant did not ask for a new trial. The court *359was, therefore, compelled to enter judgment. The defendant can not now raise any objection to the verdict on that ground. He had his day incourt on that point, and allowed it to go without objection.
The last objection urged is that the verdict is excessive and ought to be reduced. Plaintiff was entitled to the value of the rents and profits of the premises. He gave evidence that the use of the premises was worth one thousand five hundred dollars for the time they were withheld. The defendant admitted that plaintiff owned one half of the crop of 1874, and that that one half was worth seven hundred and fifty dollars, and owned corn worth sixty dollars, making eight hundred and ten dollars.
That was all the jury gave him, except one hundred and ninety dollars for three yoke of oxen and one horse. I da not think the verdict was excessive, particularly when in an action like this the law says the damages may be trebled. The damages were not trebled in this case, nor raised in any amount beyond that awarded by the jury, and no motion was made for a new trial on the ground that the damages given were excessive. I am therefore of opinion that the judgment should be affirmed.