[No. 10388.

Department Two.

August 21, 1912.]

#### Margaret Marsh *et al., Respondents,*v. L. C. Fisher, *Appellant,*and *G.*B. Carter, *as Sheriff, Defendant.**1*

Husband and Wife—Community Property—Personal Earnings of Wife. Where the wife’s personal earnings are community property, Rem. *&*Bal. Code, § 570, exempting them from attachment or execution upon any liability against the husband, does not exempt them from execution upon a judgment against the community.

Same. A wife’s personal earnings are her separate property only where she is living separate and apart from her husband, in the absence of any agreement between husband and wife with respect thereto.

Same—Agreement as to Personal Earnings of Wife. An agreement between husband and wife that the earnings of each while living together shall be the separate property of each cannot affect existing creditors of the community.

Appeal from a judgment of the superior court for Whitman county, Neill, J., entered November 10, 1911, upon findings in favor of the plaintiffs, in an action of claim and delivery, after a trial to the court.

Reversed.

*Samuel P. Weaver,*for appellant.

*Jno. I. Melville*and *J. M. McCroslcey,*for respondents.

1

 Reported in 125 Pac. 951.

Mount, J.

This is an action under the statute, for claim and delivery of personal property levied upon by the sheriff under an execution. Plaintiffs delivered to the sheriff an affidavit, claiming certain horses levied upon, and stating the value of the horses at $750. A bond in the sum of $1,500 was also delivered to the sheriff, conditioned, as required, that the claimants would make good their title to the property, or return the property, or pay the value to the sheriff. On a trial of the case, it appeared that L. C. Fisher, in the year 1911, recovered a judgment against the community consisting of Margaret Marsh and her husband, Wesley Marsh. *571This indebtedness was incurred prior to 1901. In that year Mrs. Marsh and her husband entered into an oral agreement to the effect that Mr. Marsh would operate a threshing machine and receive the proceeds of such business as his separate property; that Mrs. Marsh would run the farm and receive the proceeds thereof as her separate property. About the same time Mrs. Marsh and her two sons entered into an agreement by which they were to run the farm and divide the proceeds, one-third to each. Thereafter, with the proceeds of the farm, Mrs. Marsh and her two sons purchased the five horses levied upon. Mr. Marsh, the husband, resided with his family and did chores around the farm to pay for his board. When he did other work, he was paid wages therefor. Mrs. Marsh and her husband have abided by the contract ever since it was made as above stated. There is no claim that Mr. Fisher, the judgment creditor, had any notice of the contract between the judgment debtors. The trial court concluded that the horses levied upon were the separate property of Mrs. Marsh and her two sons, and were not subject to the community debts of Mr. and Mrs. Marsh. A judgment was accordingly entered in favor of the plaintiffs. Mr. Fisher, the judgment creditor, has appealed.

It appears from the record that the trial judge based his conclusion upon the fact that the wife’s portion of the proceeds of the farm, as conducted by herself and her two sons, was her personal earnings, and that such earnings, under § 570, Rem. & Bal. Code, “shall be exempt from attachment and execution upon any liability or judgment against the husband.” But this property was seized upon a judgment against the community. If the property seized was not the separate property of the wife, but was common property, the statute does not exempt it from execution upon a judgment against the community. In *Abbott v. Wetherby,*6 Wash. 507, 33 Pac. 1070, 36 Am. St. 176, it was held that the personal earnings of the wife became separate property only when she is living separate from her husband. It is conceded *572in this case that Mrs. Marsh and her husband were at all times, and still are, living together. Her personal earnings were, therefore, community property, unless the agreement above referred to made such earnings her separate property. In *Yake v. Pugh,*13 Wash. 78, 42 Pac. 528, 52 Am. St. 17, it was held that, under an agreement between the spouses, the personal earnings of the wife were her separate property, and that such earnings were divested of the community character in so far as subsequent creditors were concerned. That case is not controlling in this case, because here the appellant was a creditor at the time the agreement was made.

In *Sherlock v. Denny,*28 Wash. 170, *68*Pac. 452, we declined to extend the rule in *Yake v. Pugh*to include a general agreement to the effect that whatever the wife earned was her own money. We there said: “But we do not think the rule should be extended further.” In *Dobbins v. Dexter Horton & Co.,*62 Wash. 423, 113 Pac. 1088, we followed the rule in *Yake v. Pugh;*but we have not held' in any case that the spouses may agree that the personal earnings of the wife may be held as her separate property, as against creditors existing at the time of the agreement and where the parties continue to live together, except the case of *Brookmam, v. State Ins. Co., 18*Wash. 308, 51 Pac. 395, where it was said:

“Under our statute there is no question but that Mrs. Hall, although a married woman, had a right to lease a farm and prosecute the business of farming in her separate interests, and her testimony in this case, if the jury believed it to be true, would constitute this business her separate business.”

But that case was expressly overruled upon that point, in *Main*v. *Scholl,*20 Wash. 201, 54 Pac. 1125, where it was held that property acquired after marriage is community property. We are satisfied that this is the rule under our statute, and that the agreement of the parties that the earnings of each should be separate property did not affect exist*573ing creditors. Any other rule would open the way for fraud and render the statutes relating to community property of no effect. The court, therefore, erred in concluding that the interest of Mrs. Marsh in the horses was a separate property interest. The evidence in the case clearly shows that the sons of Mrs. Marsh owned a two-thirds interest in the horses. This interest, of course, was not subject to the execution.

The judgment appealed from is therefore reversed as to Mrs. Marsh, and the cause is remanded with directions to enter a judgment against her and the sureties upon the bond for $350, being her interest in the horses.

Morris, Ellis, and Crow, JJ., concur.