Charauleau v. Woffenden

By Court, Tweed, J.: This action was ejectment for three quarter-sections of land being in Pinal county, and contiguous to other lands described in the complaint by their legal subdivision, and as being generally known as the Robledo, Moreno, and Duran ranches. In his complaint the plaintiff alleges that he was seised in fee of the premises on the eleventh day of February, 1874, and while so seised, to wit, on. the fifth day of July, 1875, he was ousted by the defendant. The answer denies that the plaintiff was ever seised,of the premises, or was ever entitled to the possession of the same or any part thereof; denies that the defendant entered into the possession of the premises while the plaintiff was so seined as alleged in the complaint; and denies that he unlawfully withheld, or at any other time has withheld, the possession of the premises from the plaintiff; alleges seisin in himself of one quarter-section of the lands on the first of October, 1878, by virtue of a deed of bargain and sale, for the consideration of five hundred dollars, from Abram Moreno and his wife, Mariana Moreno, to Anna C. Woffenden, the wife of the defendant, bearing the date above mentioned; and alleges seisin of the other two quarter-sections on the tenth day of December, 1873, by deed of bargain and sale of that date, for the consideration of twenty-one hundred dollars, from Tgnacio Robledo and Romula Robledo, his wife, to the said wife of the defendant; alleges that the said Anna C. Woffenden was on the first of October, 1873, and on the tenth day of December, 1873, and still was at the date of the answer, the wife of the defendant. On the trial the plaintiff offered in evidence a deed for the premises from Ana C. Woffenden to the plaintiff, made February 11, 1875, for the consideration of five thousand dollars. Defendant’s counsel objected to the admission of the deed on three grounds: 1. That the acknowledgment was defective, having been taken before a justice of the peace, not a proper officer; 2. That it did not contain the declaration required by the statute as to the person sign — 248 — ing tlie same having been examined separate and apart from and without the hearing of her husb.and, etc.; 3. That it had not been shown that Anna C. Woffenden had power to convey the premises; that it had been admitted in open court, by plaintiff’s counsel, that from August, 1872, the said Anna C. Woffenden had beeir'and then was the wife of the defendant; and that no showing had been made or offered that the premises were her separate property. Those objections were collectively sustained by the court, and the plaintiff excepted to the ruling. Assuming, for the present, that the premises in controversy were the separate property of the grantor, and passing for the present, also, the question whether any acknowledgment on the part of the grantor of the deed was necessary to entitle it to be received in evidence in the case between the parties, was the acknowledgment defective in having been taken before a justice of the peace ? or in that it was not made upon an examination separate and apart from and without the hearing of her husband? In Miller v. Fisher, ante, p. 232, decided at the last term of this court on a hearing had before a full bench, it was held, without dissent on the part of either member of the court, that under the act of 1871 it was not necessary that a contract by a married woman of the age of twenty-one years and upwards, as to her separate property, should be evidenced by a writing signed by her, and acknowledged by her upon an examination separate and apart from her husband, etc. We are now asked to reconsider the ruling, and adopt the theory that the act of 1871 operated to change the law in this regard to this extent only, that the wife may convey without being joined with the husband in the conveyance, but must still acknowledge the execution of the instrument separate and apart, etc., as required by the act of 1865. One year has passed since the decision in Miller v. Fisher was made and published, and important rights have doubtless grown up and vested under the construction which wo then gave to the statutes in question. In such a case, the reasons for overruling a former decision should be very clear and conclusive; besides this, unless it very clearly appears that the former ruling was erroneous, the court may properly — 249 — consider -whether the construction given to the statute by its former decision on the ruling it is now urged to make is most beneficial to the parties whose rights are to be controverted thereby. Conceding, then, for the present, that there may be reasonable doubts as to the former ruling, does the construction thus given to the statute deprive the wife of any substantial rights, or in any manner make such rights less secure? Does it deprive her of any safeguard in the control or disposition of her separate property, or make less simple and safe the rules for its disposal ? In other words, is or was the provision in our statutes requiring this acknowledgment of a contract or conveyance by the wife on an examination separate and apart from her husband, etc., of any practical use whatever? Of course there can be no doubt that under the act of 1871 the wife may convey her separate property by her deed, without being joined by her husband. This she may do without any consultation with or consent from him. To what end, then, having executed a deed for her separate property, should she be required to go before a notary or other officer and make this acknowledgment upon an examination separate and apart from her husband, etc.? If she desires to convey her property, she may do so without his knowledge. If the husband has coerced or overpersuaded her into the execution of the convejmnce, and she has been submissive to his will, is she likely to assert her own wishes and make the acknowledgment when in the presence of a notary ? If this safeguard, so called, for the wife’s interest was ever, under any law for the conveyance of her separate property, of any practical value, which we very much doubt, there can be no doubt that under a law allowing the wife to convey without being joined with her husband, and without his consent or even knowledge, such a provision is a vain thing—a needless, useless requirement, productive of no possible beneficent result. But the statute, in the Howell code of conveyance, Compiled Laws, 362, 363, section 22, which it is insisted should be taken in connection with the act of 1865, provides, ce that upon this examination, separate and apart from the husband, etc., the wife shall be made acquainted with the contents of the conveyance,” etc., and it was gravely and earnestly urged — 250 — by counsel for respondent that this was an important safeguard to the wife, the presumption of law being that the wife would not know the character of the instrument until so informed by the officer taking the acknowledgment; and it is not without some regret that we admit that there were American authorities cited sustaining the counsel in his position'. What is the basis of such a presumption ? It must be found, if anywhere, in the supposed ignorance or stupidity of the wife. Before her marriage, if of the age of twenty-one years, and after her husband’s death, the law presumes her competent to buy and sell and convey property, and supposes she acts in such matters as intelligently as if she were of the opposite sex; but during the existence of the marriage relation somehow this condition of ignorance and stupidity is supposed to settle down upon her, to benumb her faculties, to cast a cloud upon her intelligence, to be lifted only by the death of her spouse or other severance of the marriage bond. We are quite sure that the presumption contended for by the counsel for the respondent, that a woman of mature years, and an American wife, ceases from the day of her marriage to know what she is doing in the execution of a conveyance until advised of the contents of the instrument by a notary or other officer, obtains nowhere else than in a court of justice, and should no longer obtain there; and we are equally certain that the legislature of Arizona in enacting the law of 1871, which gives to the wife the sole and exclusive control of her separate property, enabling her to convey the same without being joined by her husband, “ as fully and perfectly as if unmarried,” did not intend that any such presumption of the wife’s ignorance or stupidity should obtain thereafter. Again, as to the utility of the provision for this acknowledgment of the wife upon an examination separate and apart, etc. It is somewhat remarkable, considering the learning and research which have been bestowed upon the matter, that not' a case has been reported, so far as we can discover, wherein it appears, that this safeguard, so called, even in a single instance, operated to protect the interest of the wife, or save her from coercion or imposition. We do not remember the citation of such a case, nor have we in our — 251 — own experience, nor in our association with the legal profession, known or heard of any case where this provision ever operated as a safeguard to the wife in any respect whatever. Again, while we deem the provision referred to, to be valueless to the wife as a safeguard against the coercion of the husband and impositions from others, the provision is not simply harmless, but has been the occasion of frequent fraud and wrong; for it has often happened that when a wife has joined her husband in a conveyance under laws requiring her to do so, and her acknowledgment has been made to the officer separate and apart as fully and completely in all respects as required by law, and the officer purposely and ignorantly has failed to write the certificate of acknowledgment in the exact form required, the wife, being controlled by the husband, has refused to aid in the correction of the error, and the purchaser is left without a remedy. It is very safe to say that greater frauds and more, injustice have resulted from the requirement of this form of acknowledgment on the part of the wife than would be likely to obtain when the wife’s acknowledgment may be taken as in other cases. Again, the provision if valueless to the wife is not harmless; it treats the wife as an inferior person, especially liable to coercion and imposition, and as being incapable of caring for and guarding her own interests as other sane persons are capable of doing. If our statutes of 1864 and 1865, which counsel for respondent insists are still in force, are so, and not repealed by the act of 1871, the woman who married yesterday and was possessed of a fortune acquired by her own learning, labor, or skill, can not to-day make a valid sale of a dilapidated sewing-machine without putting the contract in writing, and going before a justice of the supreme court or other officer and acknowledging, upon an examination separate and apart from her husband, upon being made acquainted with the contents of the instrument (which she may have written herself), that she executed the same freely and voluntarily, etc. We will now examine the several .acts of our legislature bearing upon the question under consideration, and in the — 252 — light of these enactments revise the decision in the case of Miller v. Fisher; for if that decision was erroneous, if it clearly appears that the law was not what it was declared to be in that case, the construction we then gave to the statute must be overruled, however beneficial that construction may appear to be to those whose rights and interests are involved in the question. Section 1, chapter 32, of the rights of married women, Howell’s code, reads as follows: “The real and personal estate of every female acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her in the same manner and with like effect as if she were unmarried.” Section 2 of chapter 42, Howell’s code of conveyances, reads as follows: “A husband and wife may by their joint deed convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried.” Section 19, same chapter, reads as follows: “A married woman may convey any of her real estate by any conveyance thereof executed and acknowledged by herself and her husband, and certified in the manner hereinafter provided, by the proper officer taking the acknowledgment.” Section 21, same chapter, reads as follows: “Any officer authorized by this chapter to take the proof or acknowledgment of any conveyance whereby any real estate is conveyed, or may be affected, may take and certify the acknowledgment of a married woman to any such conveyance of real estate.” Section 22, same chapter, reads as follows: “No such acknowledgment shall be taken unless such married woman shall be personally known to the officer taking the same to be the person whose name is subscribed to ’ such conveyance as a party thereto, or shall be proved to be such by a credible witness; nor unless such married woman shall be made acquainted with the contents of such conveyance, and shall acknowledge, on an examination apart from and with — 253 — out the bearing of ber busband, tbat sbe executed tbe same freely and voluntarily, without fear or compulsion or undue influence of ber busband, and tbat sbe does not wish to retract tbe execution of tbe same.” Tbe next section prescribes merely tbe form of tbe certificate of acknowledgment, and need not be quoted. Tbe same chapter designates tbe officers who may take acknowledgments of deeds in tbe territory, among whom are notaries public and justices of tbe peace of tbe proper county. In the case of Miller v. Fisher, tbe court overlooked tbe provisions in tbe statutes of conveyances contained in tbe Howell code and quoted above; and regarding tbe first section, “of tbe rights of married women,” Howell’s code, as controlling upon tbe questions as to what tbe law was upon tbe subject in 1864, held tbat it was tbe intention of tbe legislature by tbe act of 1871 to reinstate married women of tbe age of twenty-one years and upwards as to their rights to their separate property to tbe same status in which they stood, as was supposed by tbe court, under tbe provisions referred to in tbe act of 1864, “of tbe rights of married women.” An attempt was made by tbe counsel for tbe respondent to reconcile this section with tbe several sections of tbe chapter on conveyances above quoted, but to us tbe provisions of those two chapters seem irreconcilable. Tbe first section quoted authorizes tbe wife “to contract, sell, transfer, mortgage, convey, devise, or bequeath ber separate property in the same manner and with the like effect as if she were unmarried.” Her conveyance as soon as made would become effectual. Tbe delivering of tbe deed by ber would divest ber of all interest in tbe property without any acknowledgment whatever. Whereas, under tbe section referred to in tbe chapter on conveyances of tbe year 1864, tbe wife’s deed of ber separate property would be a nullity until acknowledged as in tbat statute provided. Standing alone, and uncontrolled by other provisions, there can be no doubt tbat under tbe first section of tbe act of 1864 a married woman, without being joined by ber bus-band, could convey ber separate property in tbe same man — 254 — ner and without other observances as to forms or acknowledgment than would be required if she were unmarried, and it was so considered by the court in deciding the case of Miller v. Fisher, for, as has been already stated, in passing upon that case, the court only looked to this section as controlling the law upon this subject under the original Howell code, overlooking the provisions touching the matter in the chapter on conveyances. But giving effect to the provisions in the last-named chapter, the husband must join in the conveyance, and the manner and form of the conveyance is clogged by the condition of the wife’s acknowledgment separate and apart before the deed can become effectual for any purpose whatever. The Howell code was prepared in great haste immediately after the organization of the territory, and acted upon at the first session of our legislature,, and there was little time for careful consideration of the provisions of the statutes of other states which were incorporated into the. code, and it is not derogating from the just praise to which its author and the legislature are fairly entitled to say there was much that was incongruous and unsystematized in its provisions. We have quoted the statutes bearing upon the subject of the wife’s acknowledgment as they stood at the adjournment of the session of the legislature of 1864. In 1865 an act was passed, the first section of which reads as follows: “All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him after-wards by gift, bequest,* devise, or descent, shall be his separate property.” The second section of the same act provides, “that all property acquired after marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” ' The third, fourth, and fifth sections of the same act provide for inventory and registration of the separate property of the wife; and the sixth section, from the operation of which, in Miller v. Fisher, we held married women of the age of twenty-one years and upwards exempt as to this — 255 — acknowledgment by force of this act of 1871, reads as follows: “The husband shall have the management and control of the separate property of the wife during the continuance of the marriage, but no sale or alienation of any part of such property can be made, nor any lien or incumbrance created thereon, unless by an instrument in writing signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from her husband, before a justice of the supreme court, probate judge, or notary public, or if executed out of the territory, then acknowledged before some judge of a court of record, or before a commissioner appointed under the authority of this territory to take acknowledgment of deeds.” It will be observed that this section does not provide that the wife shall be “made acquainted with the contents of the instrument ” she is executing, nor that she shall acknowledge upon an examination, separate and apart, that she executed the same “freely and voluntarily, without fear or compulsion or undue influence of her husband, and that she does not wish to retract the execution of the same,” as provided in the act of 1864, on conveyances; but the observance of these requirements of the last-mentioned act was probably contemplated by section 6 of the act of 1865, now under consideration. We have set out the several enactments bearing upon the question we are considering up to the time of the passage of the act of 1871. That act is in these words: “ Section 1. Married women of the age of twenty-one years and upward shall have the sole and exclusive control of their separate property, and may convey and transfer lands or any estate or interest therein, vested in or held by them in their own right, and without being joined by the husband in conveyance, as fully and perfectly as they might do if unmarried. “ Section 2. All acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed.” It was under this act, with its repealing clause, that this court held, in the case of Miller v. Fisher, the provisions of the sixth section of the act of 1865, and all former provisions upon the subject under consideration, inoperative as to married women of the age of twenty-one years and upwards. — 256 — It is true that in that case the question before the court was as to the right of a married woman to make a conveyance of her separate personal property without a writing so acknowledged, etc. But the section referred to in the act of 1865 includes “all the separate property of the wife,” and provides that no sale or other alienation of any part of such property shall be made, except by such writing so acknowledged, etc. Upon the argument in that ease, and we think in the brief of the counsel for the respondent therein, the attention of the court was called to some of the loading authorities cited by the counsel for the respondent in this, and the same positions insisted upon which are now urged, that the act of 1871 only operated to repeal the provisions of section 6 of the act of 1865, so far as it required that the wife should be joined by her husband in the conveyance, etc., and yet the court were unanimously of the opinion that the provisions in that section touching the acknowledgment of married women of the age of twenty-one years and upward were swept away by the act of 1871. And as the court then held, the majority of the court now hold, that by the act of 1871 the legislature, in providing that a married woman’s separate property should no longer be left to the management of her husband, but should be under her own sole and exclusive control, and that she might convey and transfer the same as fully and perfectly as if unmarried, intended in all respects to place the wife of the age of twenty-one years in precisely the same attitude, as to the conveyance of her property, as if she were a feme sole; that she should no longer be hampered with conditions and provisions in the transfer and conveyance of her separate property which are not imposed upon unmarried women. Among all the rules for the construction of statutes, so liberally quoted by the respondent’s counsel, no one is more likely to lead to a true interpretation of the intention of the legislature in an enactment than that of giving to its language and scope the meaning it would convey to the common mind. It was upon such a reading of this act of 1871 that this court held that the acknowledgment separate and apart, etc., by the wife as to her separate property, was no longer necessary to her conveyance thereof. The act was certainly — 257 — calculated to mislead those acting under it, if it is to be construed as requiring any other act, or the observance of any other formula, on the part of a married woman than is required of an unmarried one. We think it clear that the legislature intended by the act just what any person of ordinary intelligence would understand by it, and would receive and adopt as its obvious meaning; and we have no doubt that the common understanding of intelligent persons as to the meaning of the act would be in precise accordance with the construction we gave to it in Miller v. Fisher. Again, had the act been intended in this regard only to relieve married women from being joined in a conveyance of their separate property by their husbands, and not to extend further, it seems to us the legislature would have used other terms than those with which the section concludes, and would have said “as fully and perfectly as if so joined,”, rather than the terms, “ as fully and perfectly as they might do if unmarried.” Certainly such a wording of the statute would make the construction given to it by the counsel for the respondent much more plausible than the terms therein used, but the counsel for the respondent insists that the requirement as to the acknowledgment contained in section 6 of the act of 1865 does not operate as a hindrance or obstruction to the perfect freedom of the wife in conveying her property; that the requirement has to do with the mode only, and that not in such a way as to prevent her from conveying as fully and perfectly as if unmarried. Is this so ? Unnecessary machinery impedes and is an obstruction in the prosecution of any work, and every useless formula, the observance of which is required in the transaction of affairs, is a limitation upon the freedom exercised in the performance of the act, and that the requirements of this section of this acknowledgment does not leave the wife to convey as fully and perfectly as if she were unmarried, seems to us very clear. In fact the wife can not convey perfectly where such an acknowledgment is required; without the certificate of the officer, she can not convey at all. “No sale or'other alienation of any part of such property can be made,” etc., without this writing and acknowledgment, is the language — 258 — of the act of 1865. That of 1871 is, that she may convey as fully and perfectly as if unmarried. To illustrate: Jane, a married woman, and Sarah, unmarried, each own a lot in Tucson; they both sell to a purchaser, who waits upon them while they write the deed; each writes the deed for the lot she intends to convey; each signs and seals her deed, and in the same manner; and each delivers her deed .to the purchaser, and demands the contract price for the property. The purchaser hands the price of the property to Sarah, but says to Jane, This is not your deed, nor can it become so until you go before a notary or other officer, get him to inform you of the contents of the deed you have just written, make an acknowledgment on an examination separate and apart from your husband, etc., and then if the certificate of the officer is in proper form your conveyance will be complete, and you will be entitled to the purchase , money. Each has executed and delivered her deed in the same manner, and the act of 1871 provides that the married woman may by herself, without being joined by her husband, convey as fully and perfectly as if unmarried; and yet, while the deed from Sarah has passed the title to the purchaser, that from Jane is wholly without effect until she and an officer have done something not necessary to be done to give effect to Sarah’s deed. Again, the bad uses to which the cumbersome machinery of this requirement is put could hardly be more apparent than in the case before us, where the husband seeks to defeat the wife’s deed—a deed which it is very clear he would never have moved her to make, and one made wholly against his wishes—by setting up that she has not, by any acknowledgment made upon an examination separate and apart from himself, shown that he himself has not coerced or even persuaded her to execute it. We conclude this branch of the ease by adhering to the ruling made in Miller v. Fisher, believing the act of 1871 is and was intended by the legislature to be a complete enfranchisement of the wife in the control or conveyance of her separate property from every badge of infirmity or serfdom, and relieving her from all humiliating conditions in ■ regard thereto not imposed upon other persons. — 259 — This acknowledgment, then, separate and apart, etc., not being regarded in the conveyance of the separate property of the wife, it follows that no acknowledgment of the deed was necessary to entitle it to be received in evidence in this case (the defendant not being a purchaser), if it sufficiently appeared that the property intended to be conveyed was the separate property of Anna 0. Woffenden. What constitutes, then, the separate property of the wife under the act of 1871, taking into consideration the act of 1865? The act of 1865, already quoted, so far as it affects this question, provides, that “all property, real and personal, of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property.” Th. we act provides that the husband shall have the management of the wife’s separate property, and that the rents and profits of the separate estate of either husband or wife shall be common property, and that the husband shall have the entire management and control of the common property, with absolute power to dispose of the same, as of his own separate estate. The act of 1871 gives the sole and exclusive control of her separate estate to her if she be of the age of twenty-one years, with the right of disposing of the same free from any influence of and without the consent of her husband. This sole and exclusive right of control by the wife of her separate property is wholly inconsistent with the rights of the husband to the rents and profits. Of,what value to the wife would be the right to control and convey if upon the lease or conveyance the rent on one hand and the purchase money upon the other became at once community funds under the absolute control of the husband ? By the fourteenth section of article 11 of the constitution of California it is provided, that “all property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property.” By an act of the legislature of that state, regulating the relation of husband and wife, it was enacted: “ The husband shall have the entire management and control of all the com — 260 — mon property with the like absolute powers of disposition as of his own separate estate, and the rents and profits of the separate estate of either husband or wife shall be deemed common property,” etc. Upon a question as to the constitutionality of this enactment, raised in the case of George v. Ransom, 15 Cal. 322, the court uses the following language: “ We think the legislature has not the constitutional power to say that the fruits of the property of the wife shall be taken from her and given to the husband or his creditors. If the constitutional provision be not a protection to the wife against the exercise of this authority, the anomaly would seem to exist of the right of the property in one, divested of all beneficial use—the barren right to hold in the wife, and the beneficial right to enjoy in the husband. One object of the provision was to protect the wife against the improvidence of the husband; but this object would wholly fail in many instances if the estate of the wife were reduced to a mere reversionary interest, to be of no avail to her except in a contingency of her surviving her husband.” The court further says: “The common law recognized no such solecism as a right in the wife to the estate, and a right in some one else to use it as he pleased, and to enjoy all the advantages of its use. It is not perceived that property can be in one, in full and separate ownership, with a right in another to control it and enjoy all of its benefits. The sole value of property is in its use; to dissociate the right of property from the use in this class of cases would be to preserve the name, the mere shadow, and destroy the thing itself, the substance. It would be to make the.wife the trustee for the husband, holding the legal title while he held the fruits of that title. This could no more be done, in consistency with our ideas of property, during the life-time of the wife than for all time.” The act of 1865, as has been seen, which prescribes what property shall be the separate property of the wife, contains also the antagonistic provision that the husband shall have the management thereof, and of the rents and profits of the same. The act of 1871 repeals these antagonistic provisions by giving to the wife the sole and exclusive control of her separate property, which carries with it the right to use and — 261 — invest the fruits thereof. Under the law of 1865, whatever of fortune belonged to the wife at her marriage or came to her in any manner afterwards, either as the fruits of her separate property or otherwise, was taken wholly from her use and control and given to the sole management of the husband; she might have been possessed, before her marriage, of ample means to supply her wants and gratify her tastes free from the control of any one, but on the day of her marriage and by the act of marriage, she is divested of the right to use one dollar’s worth of this property as her oion. It makes no difference what the kind and character of the property may be. If she had a carriage, it is no longer her own; she may not even use it except by leave of her husband; if she have money, the husband may demand and take possession of it, doling it out to her, if at all, in such pittances as to make her keenly sensible of her condition of serfdom. This was the law of 1865, and these the conditions to which every woman in Arizona had to submit in contracting marriage under it. We are advised by recent decisions of the United States courts of the effect of the decree of confiscation of the property of those recently in rebellion against the government, and understand the effect of such a decree of confiscation to be wholly to deprive the offender of all right to use and control or in any manner interfere with the property confiscated in his life-time, though at his death it may pass to his heirs. Under the act of 1865, as it stood before the enactment of 1871, the wife, possessed of a fortune on the’ day of her marriage, by entering into this relation lost as wholly and completely all right to the use and enjoyment, of her”separate property as if the same had been confiscated for rebellion against the government. The decree of confiscation in the one case, and bride’s marriage certificate in the other, would operate alike, and take from rebel and matron with admirable completeness and impartiality all right to use, appropriate, and enjoy the least even of the treasures owned and held by them when either entered into matrimony on the one hand, or committed an act of rebellion on the other. It seems to us the penalty, so to speak, imposed by the law of — 262 — 1865 upon women for entering into tlie marriage relation was unnecessarily severe. It was to get rid of these obnoxious provisions that the act of 1871 was passed. The law as it stood before that act was passed, instead of fostering and encouraging marriages, was framed as if for the very purpose of preventing women possessed of property from entering upon this relation; the more enlightened legislation of 1871 says to every woman contracting marriage in our territory, You shall have the sole and exclusive use and control of your separate property, and may bestow, convey, and transfer the same when and how you will, as fully and perfectly as if unmarried. We think the act of 1871 adds to the methods by which the wife may obtain separate property. That instead of being confined to several methods of gifts, bequest, devises, and descent, she may add to her separate property by purchase, that she may use the rents and profits of her separate property by investing them in the purchase of other property, lands, or personal property, and that such property when so purchased is not acquired in the sense in which that word is used in the first section of the act of 1865. We conclude, then, that the wife, of the age of twenty-one years, in addition to the property owned by her at her marriage, and in addition to that afterwards acquired by gift, bequest, devise, or descent, may acquire property, real or personal, by purchase if the purchase money be of the separate funds of the wife, and that the rents and profits of her separate property are her separate funds. In another case now before us we may consider this matter more fully. The fact, then, that the property intended to be conveyed by the deed offered in evidence was granted to Anna 0. Woffenden for a moneyed consideration is not conclusive that the property was common property, for if the moneyed consideration was of her own separate funds, had and owned by her before marriage, or received by way of rents and profits from her separate property after marriage, the property was her separate property, and under her sole and exclusive control. We pass the question as to the presumption that all property conveyed to the wife for a moneyed consideration is common property, as necessarily involved in this case, if it — 263 — appears, as we think it does, from the transcript that evidence was offered and ruled out which would go strongly to support the theory that the property was the separate property of Anna C. Woffenden at the time of the conveyance by her to the plaintiff and appellant herein; for admitting the legal presumption to be as above stated, such presumption may be rebutted and overcome by proof that the property was purchased with the separate funds of the wife. It is, however, insisted by counsel for the respondent that no evidence was offered by the plaintiff showing or tending to show that the property in controversy was the separate property of Anna 0. Woffenden. Passing the question as to the order in which this proof should have been offered, was such evidence offered at all ? On the examination of the witness Charauleau (see folio 43 of transcript), the witness was asked: “To whom was the safe oj being n: ' riches communicated when The same was owners. The questio C. W. ‘ defer plaifi^ s on and reads: “The offer upon the that when the sale was made by Anna íe plaintiff of the ranches in contest, the informed of it fry her in presence of the ^e did not then question Mrs. Woffenden’ (her right to dispose of the property in ques tion, burv_^/ed the contract to proceed, and the consideration of five thousand dollars to be paid, without any question or objection. The court ruled that there was no deed in evidence, and inquired of the plaintiff’s counsel what he meant by sale. Counsel answered “that he meant a contract for the conveyance of the property in controversy, to be consummated, as it afterwards was, by deed.” We understand from the transcript, as above quoted, that upon putting the question to the witness, the plaintiff’s counsel offered to prove by the witness the matters set out, in substance—that while negotiations were in progress between Mrs. Woffenden and Charauleau for the sale of the ranches the defendant was present, that she was treating the ranches as her separate property, and the defendant in no manner questioned her right so to do, but permitted the negotiation to go on and the plaintiff herein to pay the purchase money, etc. — 264 — As we understand from the transcript, the court not only sustained the objection made by the defendant’s counsel to the question put as leading, but also ruled the evidence offered should be excluded; that is, the court would not permit the plaintiff to prove by the witness the matter he offered to prove, had there been no objection to the form of the question. We have no doubt that in this the court erred; the offer was not by oral testimony to establish and prove a contract for the conveyance of lands, it was to show that the property being negotiated was the wife’s separate property, as evidenced by the conduct of her husband while she was negotiating the sale thereof, 'and treating it as her own. grant for ■ion was Separate Giving full force to the legal presumption contended for by the counsel for the respondent, that the property was common property, it might still be shown to be the wife’s separate property; for though obtained a moneyed consideration, if this moneyed of her separate funds, the property wq property. Now, when she was so negotiating a sal' bargaining it for a price with the view ,’ould not the fact that the husband was pr no objection to the negotiation, nor in an t-ioned her right to the property as her sepan evidence strongly tending to show that the property was her separate property and obtained by her separate funds? The title of the property vested in her by virtue of the deeds from her grantors if the purchase money was of her own funds; if not, then the property became common property. The evidence offered was to show that the defendant himself being present assented to her treating the property as her separate property, which it is assumed he would not have done had the property been purchased with his separate funds or with the common fund. party, g it, ade quesIperty, be Again, the plaintiff offered to prove by the witness Wise (see transcript, folio 57), that the defendant in 1874 “disclaimed in the witness’s presence any interest in the ranches in controversy, and expressed his determination never to return to them.” The deed from Abram Moreno and Mariana Moreno, his wife, and from Ygnacio Robledo and — 265 — Romula Bobledo, bis wife, conveyed the title of the property to Anna 0. "Woffenden to vest in her as her.separate property if purchased by her separate funds, otherwise to become common property. If it was common property, the defendant certainly had an interest in it. "Was not his disclaimer of any interest in the property evidence tending to show that the property was the separate property of the wife ? The husband has control of the common property, and if these lands had been purchased with means from the common fund, would he not have known 'it, and would he have disclaimed any interest in them ? Had the defendant paid for the property out of 1ns own means, or out of the common funds, would he be likely to make such disclaimer ? At any rate, such disclaimer was proper evidence to go to the jury as tending to show that the property was the separate property of the wife. It would have been more regular for the plaintiff, when offering the deed from Anna 0. Woffenden in evidence, to have offered in connection therewith the evidence above referred to. The deed and this evidence should then have gone to the jury, under instruction from the court to the effect that if the evidence satisfied them that the property was purchased by the separate funds of the wife, it was her separate property, and that the deed was sufficient to convey the same. This evidence was a sufficient predicate for the introduction of the deed, and probably the deed would have been offered after this evidence was offered and ruled out, had not the court excluded the deed on the ground that the certificate of acknowledgment was defective. It is apparent that the court held that the deed, even with this evidence, could not properly be admitted to go to the jury. We think both should have been received under instructions as above indicated. We have considered this case upon the hypothesis that it is the presumption of law that all property acquired by either spouse after marriage, otherwise than by gift, bequest, devise, or descent, is common property; but while we have so considered the matter in this case, we would not be understood as adopting the correctness of this presumption stated as broadly as it is in the authorities cited. The current of — 266 — the authorities cited, principally from California reports, is to the effect that all acquisitions by either spouse for a moneyed consideration, during the existence of the marriage, is presumptively common property. It seems to us that there are grave objections to the rule as stated in these authorities. A legal presumption should cer ainly accord with the probable fact. Common property, under our law, can only accumulate after marriage, and if either spouse who married yesterday to-day purchases and pays for property of the value of ten thousand dollars, could the presumption arise that the property is common property ? Would it not, on the other hand, appear certain that the property so purchased was not common property, that it must have been paid for by the separate funds of one or the other? And under the authorities referred to, if so paid for by the separate funds of either spouse, it would become the separate property of such spouse. It appears to us- that no presumption can arise like that referred to, applicable to all cases, as is assumed by the authorities referred to, but that the legal presumption as to ownership would vary with the different facts and circumstances surrounding each case. It follows from the conclusions at which we have arrived, that the judgment of nonsuit herein must be set aside and the case remanded for a new trial, and it is so ordered. Porter, J., concurred.