In the opinion of this court in In re Carmack's Estate,133 Wash. 374, 233 P. 942, this court held that, under the circumstances disclosed by the record in that proceeding, the community composed of Mr. Carmack and his wife should be adjudged to own an interest in certain real estate because of the employment of community funds in improving the same. It was held that the surviving widow had some interest in the land as her separate property, but that the larger interest therein belonged to the community, and that the whole was subject to administration as community estate. It was suggested that the administrator would probably ultimately be required to account to Mrs. Carmack for her separate interest. As was said by this court in the case of Rawleigh Co. v. McLeod, 151 Wash. 221,275 P. 700, this court, in deciding the issues presented on the appeal in the *Page 638 matter of Carmack's Estate, supra, looked to the equities of the case, and recognized that under the circumstances an equitable lien in favor of the community should be recognized and protected. In the last mentioned case, the rights of the community were also recognized, although not specifically determined, as it was held that the same should properly be adjudicated by the superior court at some later time.
In the case at bar, it appears from the findings that appellant, after the purchase of the real property which is the subject-matter of this action, and the making of a down payment of $1,500 on account of the purchase price thereof out of her separate estate, for which she was awarded a one-fourth interest in the property by the decree from which she appeals, paid a further, certain, specific portion of the mortgage indebtedness created at the time of the purchase, out of her separate funds.
In my opinion, appellant should be awarded as her separate property, in addition to the one-fourth interest decreed to her by the trial court, a further interest in the property by way of an equitable interest therein or lien thereon, for the amount of money which she paid, after the purchase of the property, on account of the mortgage indebtedness against the same, out of her separate estate.
No element of estoppel is presented by the record in this case, and in my opinion, the ruling above suggested is consistent with the two decisions of this court above referred to, and is, I think, in accord with the principles of law, justice, equity and sound logic.
I therefore dissent from the conclusion reached by the majority.