The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-11-28

Code, approved March 81, 1891, which pro-
yides that the husband cannot make
gift OF community property, or con-
vey the same without valuable consider
alton, unless the wife consents to the
transfer in writing. The complaint, as
the opinion of the court announces, no.
where stated that the transfer OF stock
ment of the case, the court as
sumes such to be the fact and pro-
ceeds to pass upon it. In doing so the
court announces that had the stock been
acquired after the amendment became in
force gift of the same by the husband
and without the written consent of the
wife would undoubtedly be of no effect
but once more the court proceeds upon
assumption and assumes, in the absence of
evidence TO the contrary, that the stock
was acquired previous to the taking effect
of the amendment. In pursuance OF this
assumption the amendment OF March.
1891. is practically eliminated from the
case.
The court then proceeded to define the
interest of the vile in the community
property as being something III the nature
of an estate in expectancy, and an interest
which during his life made the husband
practically sole owner. Prior to the
amendment of March, 1891, the interest of
the wife was in this state, but commenting
upon the effect of this amendment the
court says:
1t is evident that the interest of the wife in
the community property has been enlarged by
the amendment OF 1891 in so far as the amend
ment extends, since the power OF the husband
to dispose of the property by gift is
subject to the wiie's , written consent, and
is lessened and his vested rights in the
community property acquired before the
amendment became law are impaired.
&c ht-f Lao
for the plaintiffs, is the compound, not only Of
the right 10 possess-the jus possidendi-but
also of the right to dispose-the jus disponendi
and If the vested right OF the husband to
dispose of the community property is inter-
fered with by legislative enactment the law III
that respect is unconstitutional
Continuing further and commenting
upon an earlier act the opinion says:
BY statute OF 1879 it was enacted that the
husband should have no power TO sell convey
or incumber the community real estate unless
the wife joins with him in the instrument
by which the real estate was sold or conveyed
or incumbered. 1t was held that husband
could not after the passage OF the latter statute,
without his wife joining, make valid contract
to sell community real estate acquired before
the statute was passed to one who knew that
the real estate belonged to the community,
and the yender could not, therefore, maintain
an action against the husband to recover
damages for breach of the contract to convey.
1t was urged that the statute interfered with
the husbands vested rights in the land, but the
court decided otherwise, giving as reason that
the proprietary interests of the husband and
wife are equal in community property, and as
the husbands previous disposition was mere
trust conferred upon him as a member and head
OF the community in trust for the community,
and not proprietary right, 1t was perfectly
competent for the Legislature of 1879 to take It
from him and assign it to himself and his wife
CONFORMITY. OF course no other result was pos
sible the ass umption that prior to the statute
the interests OF husband and wife in the COM
munity property were equal, and the husband
a cited as mere trustee of the community in
managing and disposing of the community
property. But, as heretofore seen, the wife in
ity property, to which the term property could
be applied.
1t results, therefore, that the amendment.
If intended to affect the gifts of the community
property already acquired, is invalid as an i'm
proper interference with the vested rights of