(dissenting) .
The majority opinion, in paragraph 2 of the syllabus, states, “The above provision (32 O.S.19S1 § 83) constitutes a substantive statute of limitations rather than a remedial statute and a condition which bars all proceedings or actions to recover community property.”
The distinction between these limitations is well established, and may be stated as in 34 Am.Jur. Limitation of Actions § 7 (page 16):
“A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Whether an enactment is of this nature, or whether it is a statute of limitations, should be determined from a proper construction of its terms. Generally, the limitation clause is found in the same statute, if not in the same section, as the one creating the new liability, but the fact that this is the case is material only as bearing on questions of construction; it is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion may be reached if the limitation is in a different statute, provided it is directed to the newly created liability so specifically as to warrant saying that it qualifies the right. On the other hand, as the result of differences in the statutory provisions under consideration, enactments requiring notice of claim prior to the commencement of suit variously have been held to impose conditions upon the existence of a right of action, to impose upon the jurisdiction of the court, or to constitute statutes of limitation merely affecting the remedy.”
The majority opinion relies on only one conclusion for holding that the limitation in the present case is substantive, that is: “but 'the express right of a spouse to ask for a determination of the rights as acquired under the repealed Act was really created by the terms of the Repealing Act.”
To me this reasoning seems erroneous. The real question to be decided in this facet of the present case is whether the “repealing act”, either singly or in conjunction with the Community Property Act, created a new liability or cause of action not previously available to the parties under statutes or general principles of our law.
I believe that this present action could have been maintained even though the “repealing act” had omitted any reference to the filing of any actions.
*306The system or custom of “community property” was derived from French and Spanish jurisprudence through their colonies in America. The exact nature of the interest or estate of each spouse in the community property is unknown to our common law and has no counterpart therein. However, it is not necessary to consider the nature of the estates of each spouse in such property during the existence of the marriage.
We have held that under the Oklahoma Community Property Act, Okl.Sess.Laws 1945, p. 118 §§ 1 to 18, the wife had a present vested interest in one half of community property and not a mere expectancy. Page v. Sherman, Okl., 341 P.2d 270; Davis’ Estate v. Oklahoma Tax Commission, 206 Okl. 644, 246 P.2d 318.
The “repealing act” does not deprive either spouse of his or her interest in the community property. To the contrary, it purports to protect the rights of the party whose interest does not appear of record.
What was the relationship of the joint owners, and the nature of their estates in this property? What was the effect of this dissolution of the “community entity?”
The Community Property Act provides that in event of the dissolution of the “community entity” by divorce (Section 10 of said act) :
“ * * * The husband and wife shall each be vested with an undivided one-half interest in the community property as tenants in common,”; and that upon death of one spouse (Section 15):
“When all debts of the community shall have been fully satisfied the survivor shall transfer and convey to the administrator or executor of the deceased one-half of the community property * * *, and thereafter all the interest of the surviving partner in said community property shall be that of a tenant in common; * * * (emphasis added).
.No other means of dissolution was provided.
A general definition of tenancy in common is stated in 86 C.J.S. Tenancy in Common § 7 p. 364:
“In general, a tenancy in common springs up or exists whenever property is owned concurrently by two or more persons under a conveyance or under circumstances which do not either expressly or by necessary implication call for some other form of cotenancy.”
I believe that the only logical legal conclusion is that upon dissolution of the “community entity” by the “repealing act”, the husband and wife each owned an one-half interest in the community property as tenants in common. 42 C.J.S. Husband and Wife §§ 557-558, p. 63.
The rights acquired under the Community Property Act, as defined in such Act, were those pertaining to and including “an undivided one-half interest in the community property”. The “repealing act” created no new tenancy in lands. Upon dissolution of the “community entity”, the parties became tenants in common. All the remedies and rights of action known to common law and our statutes became available to them. The only determination that could be made would be whether a specific property was acquired as or subject to “community property” interest or as separate property of one of the parties.
It seems that the majority opinion is in error in saying that the limitation contained in the “repealing act” is a limitation of the right of action. The Community Property Act and the “repealing act” do not create a new liability or right of action coupled with a time limitation on the availability of the right of action, but merely recognize a right already existing. The “repealing act” as being interpreted, to m/ notion, then destroys such preexisting rights in an unconstitutional fashion and many a trusting spouse and their heirs are being “un-shirted” by this innovation.
Until today, in Oklahoma, property has been acquired by (1) Occupancy, (2) Accession, (3) Transfer, (4) Will or (5) Sue-*307cession. 60 O.S.19S1 § 331. Now there has been added (6) Legislative and Judicial Fiat.
I respectfully dissent.