SECTION 172. Power of the husband over community property. 173. Courtesy and dower not allowed.

155.

174. Support of wife.

175. Husband not liable when abandoned by wife.

176. When wife must support husband.

177. Rights of husband and wife governed by what.

178. Marriage settlement contracts, how executed.
179. To be acknowledged and recorded.

180. Effect of recording.

181. Minors may make marriage settlements.

Husband and wife contract towards other obligations of mutual respect, fidelity, and port.

He

husband,

156. The husband is the head of the family. may choose any reasonable place or mode of living, and the wife must conform thereto.

157. Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling.

158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions persons occupying confidential relations with each other, as defined by the Title on Trusts.

of

NOTE.-Jaques vs. Methodist Church, 17 Johns., p. 548; Fry vs. Fry, 7 Paige, p. 461. A wife may sue her husband upon a promissory note executed by him before coverture, and which is her separate property.Wilson vs. Wilson, 36 Cal., p. 447. And the right of wife to sue her husband is not limited to any particular class of actions.-Id.

159. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree to an immediate separation, and may make provision for the

Rights of as head of

family.

Consideration for

of

support of either of them and of their children during such separation.

NOTE.-Beach vs. Beach, 2 Hill, p. 260; 1 Shar. Bl., p. 441 and note.

160. The mutual consent of the parties is a suffi

agreement cient consideration for such an agreement as is menseparation. tioned in the last section.

May be joint ⚫tenants, etc.

Separate property of the wife.

NOTE.-In New York it has been held that a special consideration is necessary to support such an agreement.-Cropsey vs. McKinney, 30 Barb., p. 47.

161. A husband and wife may hold property as joint tenants, tenants in common, or as community property.

162. All property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property.

66

NOTE.-Cal. Const., Art. XI. Sec. 14; Snyder vs. Webb, 3 Cal., p. 83; Bessie vs. Earle, 4 Cal., p. 200; Tryon vs. Sutton, 14 Cal., p. 490; Racouillat vs. Sansevain, 32 Cal., p. 376; Hart vs. Robinson, 21 Cal., p. 346; 26 Cal., p. 546; 11 Cal., p. 71; 30 Cal., p. 511; 25 Cal., p. 367; 20 Cal., p. 175; 12 Cal., p. 564; 14 Cal., p. 576; 21 Cal., p. 47; 15 Cal., p. 483; 36 Cal., p. 447. The term separate property" in the fourteenth section of Article XI of the Constitution is used in its common law sense, and by that law "separate property" means an estate held, both in its use and in its title, for the exclusive benefit of the wife.George vs. Ransom, 15 Cal., p. 322; Spear vs. Ward, 20 Cal., p. 674; Lewis vs. Johns, 24 Cal., p. 101. The word "separate," as applied to a married woman's property in Section 14 of Article XI of the Constitution, neither enlarges nor limits her right to the property mentioned, but merely distinguishes it from her common property.-Dow vs. Gould & Curry S. M. Co., 31 Cal., 629. Property purchased during coverture with funds which constitute a part of the separate estate of the wife, will also be her separate estate.-Ramsdell vs. Fuller, 28 Cal., p. 37; Peck vs.

Brummagim, 31 Cal.. p. 448. If the conveyance was
to the husband, but the consideration was out of the
separate estate of wife, the husband would be a
trustee of the wife, holding the title for her use.-
Ingersoll vs. Truebody, 40 Cal., p. 603. If the hus-
band, at his own instance, expends money which is the
common property in building a house on land the
separate property of the wife, he has no lien on the
house or lot therefor, nor have his creditors after his
decease; the house becomes the separate property of the
wife.-Peck vs. Brummagim, 31 Cal., p. 440. Νο
interest in the use or enjoyment of the wife's separate
property passes by the fact of marriage to the husband;
nor can the husband by any independent act of his
acquire an interest in such property, nor by his super-
vision or labor can he acquire any interest in the in-
crease of the same, nor is there an implied obligation on
the part of the wife to compensate the husband for his
supervision and labor bestowed upon such property.-
Lewis vs. Johns, 24 Cal., p. 98; same vs. same, 34 Cal.,
p. 635. Neither the husband nor his creditors can claim
the proceeds or fruits of the separate estate of the wife.
A law giving them such fruits is unconstitutional.—
George vs. Ransom, 15 Cal., p. 322.

property

husband.

163. All property owned by the husband before Separate marriage, and that acquired afterwards by gift, be- of the quest, devise, or descent, with the rents, issues, and profits thereof, is his separate property.

NOTE.-The purchase of land by the husband after marriage with his separate funds acquired before marriage, and the taking of a conveyance therefor in the name of his minor children by a former wife, is not a fraud upon the rights of his wife.-Smith vs. Smith, 12 Cal., p. 216; McDonald vs. Badger, 23 Cal., p. 398. Under the Spanish and Mexican law, land donated by the Government to the husband became his separate estate, and passed, upon his dying intestate, to his heirs at law. Wilson vs. Castro, 31 Cal., p. 420; Coppinger vs. Rice, 33 Cal., p. 424; Hood vs. Hamilton, 33 Cal., p. 703.

nity

164. All other property acquired after marriage, Commuby either husband or wife, or both, is community property. property.

NOTE.-8 Cal., p. 507; 11 Cal., p. 201; 12 Cal., p. 216; 12 Cal., p. 247; 12 Cal., p. 114; 15 Cal., p. 127; 21

Inventory

of separate
property
of wife.

Cal., p. 87; 22 Cal., p. 283; 23 Cal., p. 70; 23 Cal., p. 393; 26 Cal., p. 546; 31 Cal., p. 440. All property acquired after marriage, by either husband or wife, except such as is acquired by gift, bequest, devise, or descent, is common property.-Meyer vs. Kruger, 12 Cal., p. 247; Scott vs. Ward, 13 Cal., p. 470; Pixley vs. Huggins, 15 Cal., p. 131; Kohner vs. Ashenaur, 17 Cal., p. 581; Burton vs. Lies, 21 Cal., p. 91; Adams vs. Knowlton, 22 Cal., p. 288; Tustin vs. Faught, 23 Cal., p. 241; Landers vs. Bolton, 26 Cal., p. 420. The homestead does not constitute any portion of the common property.-Estate of Tompkins, 12 Cal., p. 114; Gimmy vs. Doane, 22 Cal., p. 638; Estate of James, 23 Cal., p. 418. The law of this State in relation to the rights of husband and wife as to the common property, is similar to the laws of Louisiana and Texas; and in those States it is held by their highest tribunals that all property acquired by either spouse during the existence of the community is presumed to belong to it, and that this presumption can only be overcome 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 upon the party claiming the property as separate.Smith vs. Smith, 12 Cal., p. 216; Meyer vs. Kruger, 12 Cal., p. 247; Adams vs. Knowlton, 22 Cal., p. 283; Riley vs. Pehl, 23 Cal., p. 70; Fuller vs. Furgeson, 26 Cal., p. 546; Althof vs. Conheim, 38 Cal., p. 230. A deed to the wife of real estate, which is upon its face a deed of purchase, and recites a consideration paid, is presumptive evidence that the property' thereby conveyed belongs to the community and is liable as such for the debts of the husband; but this presumption may be rebutted by showing that it was purchased with money belonging to the separate estate of the wife, or was taken as the separate estate of one of the spouses.-McDonald vs. Badger, 23 Cal., p. 393; Ramsdell vs. Fuller, 28 Cal., p. 37; Peck vs. Brummagim, 31 Cal., p. 440; Ingersoll vs. Truebody, 40 Cal., p. 603.

165. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a grant of real property by an unmarried woman, and recorded in the office of the Recorder of the county in which the parties reside.

inventory

166. The filing of the inventory in the Recorder's Filing office is notice and primary evidence of the title of notice of the wife.

wife's title.

167. A wife cannot make a contract for the pay- Wife not

ment of money.

competent to contract for payment

NOTE.-At common law a married woman could not of money. bind herself by contract.-Luning vs. Brady, 10 Cal., p. 265. Where a wife borrows money for purchase of real estate, and took the deed in her own name, the husband, by using and occupying same, selling a portion, etc., he ratifies the act of the wife and is responsible for the repayment of the borrowed money.Althof vs. Conheim, 38 Cal., p. 230. In this State, except in special cases, a married woman cannot, by contract, create a personal liability against herself in any form.-Maclay vs. Love, 25 Cal., p. 367; Shaver vs. Bear River and Auburn W. and M. Co., 10 Cal., p. 396. But if she entered into a contract prior to marriage, specific performance may be enforced, notwithstanding subsequent marriage.-Love vs. Watkins, 40 Cal., p. 547. The promissory note of a married woman is void.-Simpers vs. Sloan, 5 Cal., p. 457; Smith vs. Greer, 31 Cal., p. 476. A promissory note executed by the husband and wife is the note of the husband alone.-Brown vs. Orr, 29 Cal., p. 120; Pfeiffer vs. Riehn, 13 Cal., p. 643; Shartzer vs. Love, 40 Cal., p. 93.

168. The earnings of the wife are not liable for Earnings of the debts of the husband.

NOTE.-Stats. 1870, p. 226.

wife not liable for debts of husband.

Earnings of living

wife, when

separate,

169. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, separate are the separate property of the wife.

NOTE.-Stats. 1870, p. 226.

property.

170. The separate property of the husband is not Liability liable for the debts of the wife contracted before the

marriage.

NOTE.-At common law the husband, during cover

ture, was liable for the debts of his wife contracted

for debts of

wife"

contracted before marriage.