The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-01-23
WIFE TO BE JOINED
Must Be Party Defendant in
Suits on Material Liens.
LAW OF COMMUNITY PROPERTY.
Important Decision Handed Down by
the supreme Court-Comprehensiv
Opinion by Justice Scott.

the Litteli & Smvthe Manufacturing Com
pany vs.. P. b. NJ. Miller, taken up on APP
peal from King county, decision having
an important bearing on the law of ma
Iefiai mems covering community property.
The opinion in full is as follows:
LtleA q smythe Manufacturing Company,
corporation. respondent, vs. P. B. N. Miller,
APPELLANT, No. 80. Flied January Il, 1892
lhls aetlon was brought to foreclose lien
nhder Chapter l3s OF the code of 1881. for ma
terlais furnished by the respondent. which ea-
'ered into tue construction OF u building stu
a'ed upon certain real estate which the respond
eht alleged belonged to the appellant.
Inc appellant answered, denying that he
owned anything more than community inter
est therein, and alleging that said property was
the community property of the appellant and
MS Vile, Eva j. Miller, setting up the necessary
iaets 10 show its community character. A de-
murrer thereto by the respondent that said an
sWer stated no facts TO constitute defense was
sustained by the court. Proof was taken as TO
other issues, and Judgment was entered d.
rectlng sale Of the interest of the appellant in
said real estate
1t is contended that as the husband has no
power to sell the community real estate he can
not accomplish by indirection what the law VIII
not permit him to do directly. That he has no
power TO create any charge or encumbrance
under which community lands can be sold.
That there can be no involuntary alienation
where there is no power TO convey voluntarily,
ana fhatin any event the wife was necessary
party TO the action
1t IS necessary to FIRST consider section 2,410 of
our 1851 code, which reads As follows:
sec. 24l0. The husband has the manage
ment and control OF the community real proper
", but he shall not sell, convey or cucumber
the community real estate unless the wife Join
with him in executing the deed or other inStru-
ment OF conveyance by wh!cA the real estate is
sold, conveyed or encountered, and such deed
or other instrument OF conveyance must be ac-
knowigdged by him and his wife, provides,
however, that al such community real estate
snsH be subject 70 the liens OF mechanics and
Others Tor labor and materials furnished in
erecting structure, and Improvements thereon
as provided by Jaw in other cases. TO liens of
Judgments recovered for community debts, and
To sale On execution issued theron.
III the provision in this section is to be given
any force at all it must mean that the husband
may contract for the erection OF building
upon the community real estate and thus sub
Iect 1t 10 the liens provided for in such cases IL
the husband and wife both contract the debt
she property would clearly be liable therefor
and to the liens without the provision. 1t is
rule OF construction that effect should be given
to every part of q statute when it can be done.
The management and control of the community
real property is given TO the husband, and the
statute speaks as though he is the only member
oil the community who, acting alone, can create
charge against the same for improvements,
and II plainly implies that he may do SO, and
also create debts against the community other
Wise independent OF any action upon the part of
the wife, by virtue of which a judgment lien
may be obtained upon the community lands. 1t
also provides that such lands may be sold on
execution Issued upon a judgment for COM
munty debt, and if it means anything il must
mean that such debts may be created by the hus-
band independent OF any specific appointment
nf hxr Efa har
in community matters and without any par
ticipation by her in the contract To this ex-
tent the Law appoints him the agent of tie COM
munity; for where both members Of the
community contract the community property
would be liable therefor without the provision,
a. also would their separate property far
the credit is concerned, although it might be
as between each other they would under some
circumstances 70 entitled 20 relief aud al
though the court might upon request require
that either the separate property OF one, or the
community property, the might be,
should be first exhausted.
No such powers to be given to the wife
generally in relation 10 the community matters
she il only spoken OF n this section in con-
nection with the limitation upon the husbands
power to sell or convey, or to cucumber other
wise than as is specified in the provision therein.
Doubtless the wife can create charge against
the community for necessary family expenses
and also such as may be necessary for the proper
education OF the children. Section 2407 author
ICES this Section 2,4OS can have effect as to the
separate property or as to comforting additional
powers concerning the community property
sections 1895 anu 2,405 can only relate to sepa-
rate property. ana thus far there Is no conflict
There is conflict to section S9S, which is as
follows:
Sec. 239S. All laws which impose or recognize
civil disabilities upon Il wife, which are not I'M
posed or recognized a. existing To the nus.
oand, are hereby abOiishe J. and Tor any unjust
usurpst.ou OF her natural or property rights she
shall have the same right Ia appeal in her own
individual name, to the courts Of law or equity
Tor redress that her husband has; Provided
always, that nothing in this chapter shall be
construed 70 confer upon the wife any right to
vote or hold Office, excep: as otherwise pro-
vided by Law.
But this section has not been recognized as
having the sweeping force the first part OF il
seems 10 carry. Certainly the scope OF its gen.
eral language is limited by sections 2.IG9 and
2,4l0. on tie ground that general prov. sions
must ieid 10 special ones where there has been
no repeal.
These sections were substantially originally
contained in separate eDaetmeH.s which, how-
ever, were both approved upon the same day,
November Ii, 1873. Section 2S95 is found as
section 81 an act to De found at page 1871 OF the
session laws of 1879. 1t was carried forward
into the code with q slight change referring To
the chapter lS3 OF which it is part Th,s sec
ton 'abo isbed" all prior laws in conflict there.
with.
Tie rart Of section =, 40 referred to is found
as section Of set 10 be found at page =
OF said session laws. aud section lilo appears
As section Of said act This act repealed al
acts IN coafiict herewith or on the subject
mgtJer thereof.
The fact that the act containing what is now
section uses is found a. a later place In the
published laws Of that year would not show
thai it was approved later in the day than the
other set even il parts OF a day could be taken
into consideration, Tor the order OF the different
acts as published in that volume have no reier-
ence 20 dates al approval, later acts preceding
earlier ones in maay Instances, Even WITH re-
gard 10 different DAYS the ordinary rule is ID
consider all acts passed st tie same session as
having Teen passed al the same time, snd that
they should be 80 construed az that Tie whole
may stand where practicable.
The code o. ISL, section 7bl, says:
The provisions OF tbis cole, 80 far as they are
substantially the same as existing statute,
must he construed a. combinations thereof ana
not as new euhctments
However these acts stood with relation 70 each
other IN these particulars prior to the adoption
OF the code, they were carried forward or SUD
stansiagly reapyesr therein ia the same chapter.
the order OF their appearance beng reversed
therein IN the arrangements OF the various Sec
fsous some changes aye also made n ga , Of
thcr1 the more important ones being IN sections
asa and 4iN. es pecaiy IA the last one TeiGIing
- liens o. judgments for community debt and
90 sales on executions Issued thereon. Under
all the circumstances also think these sections
could ba head IN force. on the ground that they
have received later legislative consideration, or
arr later euactnents
otgithstsuiing the fact, however, that the
husband individually can incur the debt, Ia al
stfts 70 foreclose Liens upon community real es-
tats the wife is = necessary party defendant.