Termination.

There can be no partition of land held by the entirety, since this would imply a separate interest in each tenant, contrary to the underlying theory of the tenancy.60 But a divorce or dissolution of the marriage terminates the tenancy by entireties, and renders the two owners either tenants in common or joint tenants, as they would have been in case they had never been married,1 and thereafter partition may be obtained by either."2

§ 166. Community property.

In Louisiana, Texas, California, Arizona, Idaho, New Mexico, Nevada, and Washington, what is known as the "community system of matrimonial gains" prevails. The central idea of this system is that whatever is acquired by the efforts of either the husband or wife belongs one-half to each, or, as it is expressed, to the community.63 This system belongs to the civil law, and first found footing in this country during the Spanish and French dominion, but it has been developed on diverse lines by statutory provisions in the different states, and in this development common-law influences have played some part.

64

Gray v. Bailey, 117 N. C. 439; McCurdy v. Canning, 64 Pa. St. 41. That the purchaser at execution sale has no rights in the use and profits during the wife's life, see Cole Mfg. Co. v. Collier, 95 Tenn. 115, 49 Am. St. Rep. 921; Town of Corinth v. Emery, 63 Vt. 505, 25 Am. St. Rep. 780; and that the husband's interest cannot be sold on execution, see Shinn v. Shinn, 42 Kan. 1.

60 Ketchum v. Walsworth, 5 Wis. 95; Gray v. Bailey, 117 N. C. 439; Chandler v. Cheney, 37 Ind. 391.

61 Donegan v. Donegan, 103 Ala. 488; Stelz v. Shreck, 128 N. Y. 263, Finch's Cas. 960; Harrer v. Wallner, 80 Ill. 197; Lash v. Lash, 58 Ind. 526; Hopson v. Fowlkes, 92 Tenn. 697; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269.

62 Russell v. Russell, 122 Mo. 235; Harrer v. Wallner, 80 Ill. 197.

68 Ballinger, Commun. Prop. §§ 6, 11; De Blane v. Lynch, 23 Tex. 25; Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 539.

64 See an article by George McKay, Esq., 6 Am. & Eng. Enc. Law, (2d Ed.) p. 293, where the subject of this section is very clearly and

Either the husband or the wife, or both, may have property other than community property, this being known as "separate property," and being usually defined by statute as including, among other property, that belonging to either at the time of the marriage, and property acquired by either after the mar riage through gift, devise, or descent or in exchange for separate property. Separate property also includes the rents, issues, and profits of separate property, except in Texas, Louisiana, and Idaho, where the rule is generally otherwise.66

65

All property which is not separate property is community property, there being an express or implied provision to this effect in the statute of each state where the system prevails.67 Community property therefore includes, among other property, that gained by the exertions or labor of either husband or wife, and property acquired in exchange for such property.68 Public land which is granted to the husband and wife, or to either of them, is, it seems, to be regarded as community property if the grant is for valuable consideration in pursuance of a contract or

satisfactorily treated. See also Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 539; Saul v. His Creditors, 5 Mart. (N. S.; La.) 569, 16 Am. Dec. 212.

65 Ballinger, Commun. Prop. § 53 et seq.; 1 Stimson's Am. St. Law, § 6433; 6 Am. & Eng. Enc. Law, pp. 301, 307; Stewart, Husb. & Wife, § 313; Love v. Robertson, 7 Tex. 6, 56 Am. Dec. 41; Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538.

66 6 Am. & Eng. Enc. Law, pp. 301, 320-323; Ballinger, Commun. Prop. §§ 21-24; Stewart, Husb. & Wife, §§ 313, 314; 1 Stimson's Am. St. Law, § 6434; Marlow v. Barlew, 53 Cal. 459; Lewis v. Johns, 24 Cal. 98, 85 Am. Dec. 49; De Blane v. Lynch, 23 Tex. 25; De Garca v. Galvan, 55 Tex. 56; George v. Ransom, 15 Cal. 322, 76 Am. Dec. 490; Lake v. Ben der, 18 Nev. 361; Webb v. Peet, 7 La. Ann. 92.

67 6 Am. & Eng. Enc. Law (2d Ed.) p. 307; Ballinger, Commun. Prop. § 51; Ezell v. Dodson, 60 Tex. 331.

68 Ballinger, Commun. Prop. § 19; Wren v. Wren, 100 Cal. 276, 38 Am. St. Rep. 287; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626; Abbott v. Wetherby, 6 Wash. 507, 36 Am. St. Rep. 176; Prendergast v. Cassidy. 8 La. Ann. 96.

legal obligation, but not where it is merely donated."

Prop

erty acquired after marriage by either the husband or wife is presumed to be community property until it is shown to be separate property."

70

As a general rule, the husband has the sole and absolute con trol over the community property, with the sole power of disposing of it.71

The community property is liable for all of what are called "community debts," which comprise any debts or liabilities created by the husband during coverture not for his own especial benefit, the presumption being that the debts are such, and not the separate debts of the husband;72 and it is also liable for all the antenuptial debts of both the husband and wife.73

Upon the death of the wife, the husband has, in Louisiana and Texas, control of all the community property for the purpose of settling the community affairs," and in California,

• Ballinger, Commun. Prop. §§ 25-30; Cooke v. Bremond, 86 Am. Dec. 630, note.

TO Ballinger, Commun. Prop. §§ 17, 46, 67, 159-166; Althof v. Conheim, ̧ 38 Cal. 230, 99 Am. Dec. 363; Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Shaw v. Hill, 20 La. Ann. 531, 96 Am. Dec. 420; Labbe's Heirs v. Abat, 2 La. 553, 22 Am. Dec. 151; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626, and cases cited in note, p. 636; Morris v. Hastings, 70 Tex. 26, 8 Am. St. Rep. 570; Castor v. Peterson, 2 Wash. 204, 26 Am. St. Rep. 854. Except in California, in the case of a conveyance in writing to the wife. Act March 3, 1893 (St. 1893, p. 71); Svetinich v. Sheean, 124 Cal. 216, 71 Am. St. Rep. 50.

71 Ballinger, Commun. Prop. §§ 79-82; 1 Stimson's Am. St. Law, § 6433, Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. Rep. 170.

In Washington, the husband can convey or incumber the community real estate, or render it liable for his debts, only when his wife joins in making the deed or creating the charge. 1 Hill's Code, § 1400; Ballin ger, Commun. Prop. § 95; Holyoke v. Jackson, 3 Wash. T. 235. 72 Ballinger, Commun. Prop. §§ 118, 119, 149.

78 Stewart, Husb. & Wife, § 315; Ballinger, Commun. Prop. §§ 132-135; Davis v. Compton, 13 La. Am. 396; Portis v. Parker, 22 Tex. 699; Van Maren v. Johnson, 15 Cal. 308.

14 Stewart, Husb. & Wife, § 318; Verrer v. Lors, 48 La. Ann. 717; Brewer v. Wall, 23 Tex. 585, 76 Am. Dec. 76.

(385)

76

Nevada, and Idaho he takes all the community property as absolute owner.75 With these exceptions, the half belonging to either the husband or wife descends to his or her heirs or de scendants, subject to the payment of debts, except when it has been disposed of by the will of the deceased." If there are no descendants and no will, the survivor, in some states, takes the half belonging to the deceased.78 The rights of dower and curtesy are incompatible with the theory of the community system, and have no recognition in the states where that system prevails, there being in some states a statute expressly so providing."

167. Partnership property.

Land purchased for partnership purposes with partnership funds is quite frequently treated in text books as being the subject of a distinct form of joint ownership, and sometimes the inexact and misleading expression, "estate in partnership," is employed. As a matter of fact, so far as the legal title is concerned, it is entirely immaterial that the land belongs to a partnership; the right of the partners, as such, and of the firm creditors, being worked out upon the theory of resulting trusts.

Land cannot be conveyed to a partnership as such, it not being recognized as a legal person, and consequently, though the property is intended to belong to the firm, the legal title must be vested in some individual or individuals; and so far as the

75 1 Stimson's Am. St. Law, § 3401; 6 Am. & Eng. Enc. Law, 345; In re Ingram, 12 Am. St. Rep. 90, note.

76 1 Stimson's Am. St. Law, §§ 3402-3404; Ballinger, Commun. Prop. c. 8; Johnston v. San Francisco Savings Union, 75 Cal. 184, 7 Am. St. Rep. 129; Bennett v. Fuller, 29 La. Ann. 663; Robinson v. McDonald, 11 Tex. 385, 62 Am. Dec. 480.

77 Ballinger, Commun. Prop. §§ 234, 240; Brown v. Pridgen, 56 Tex 124; Hill's Estate, 6 Wash. 285.

78 See 1 Stimson's Am. St. Law, § 3403; Rev. St. Ariz. 1887, § 1467; Sayles' Civ. St. Tex. art. 2165; Hill's Gen. St. Wash. § 1481.

7 Ballinger, Commun. Prop. §§ 10, 253.

80

rights of the members of the firm, as such, or of the firm creditors, are concerned, it is immaterial whether the title is in one or more of the partners, or in a stranger." In whomsoever the legal title may be, he is regarded in equity as holding it in trust for the payment of the firm debts, whether in favor of third persons or of members of the firm,81 and, for this pur pose, as before stated,82 it is usually considered that the land is converted into personalty. After the payment of such claims, it becomes immaterial that the persons to whom the land belongs are partners. The holder or holders of the legal title will thereafter, if the legal title and the beneficial interests do not correspond, hold in trust for the partners in proportion to their respective interests, as in any other case where a consideration is paid by persons other than those to whom the title is conveyed, or more is paid by one of the legal grantees than by another.83

The question whether particular land is to be regarded as partnership land in which there is implied such a resulting trust for the purposes of the partnership debts and claims is a question of intention, as determined from the conveyance, the articles of copartnership, the ownership of the funds paid for

8 Parsons, Partnership, § 265; Mechem, Partnership, § 84; Shanks v. Klein, 104 U. S. 18; Fairchild v. Fairchild, 64 N. Y. 477; Page v. Thomas, 43 Ohio St. 38, 54 Am. Rep. 788; Jarvis v. Brooks, 27 N. H. 37, 59 Am. Dec. 359; Nicoll v. Ogden, 29 Ill. 323, 81 Am. Dec. 311; Diggs' Adm'r v. Brown, 78 Va. 292.

81 Fairchild v. Fairchild, 64 N. Y. 471; Jarvis v. Brooks, 27 N. H. 37, 59 Am. Dec. 359; Riddle v. Whitehill, 135 U. S. 621; Pepper v. Thomas, 85 Ky. 539; Paige v. Paige, 71 Iowa, 318, 60 Am. Rep. 799; Shaw's Appeal, 81 Me. 207; Roberts v. Eldred, 73 Cal. 394; Galbraith v. Tracy, 153 III. 54, 46 Am. St. Rep. 867; Fall River Whaling Co. v. Borden, 10 Cush. (Mass.) 475; Murrell v. Mandelbaum, 85 Tex. 22, 34 Am. St. Rep. 777; Buffum v. Buffum, 49 Me. 108, 77 Am. Dec. 249.

82 See ante, § 103.

83 Shearer v. Shearer, 98 Mass. 107; Traphagen v. Burt, 67 N. Y. 30; Davis v. Davis, 60 Miss. 615; Riddle v. Whitehill, 135 U. S. 621; Kruschke v. Stefan, 83 Wis. 373.