McDonald v. Senn , 53 N.M. 198 ( 1949 )

Much of the somewhat lengthy opinion written by the Chief Justice for the majority to support soundness of the result reached represents an attempt to distinguish four California decisions, namely, Smedberg v. Bevilockway, 7 Cal. App. 2d 578,46 P.2d 820; Grace v. Carpenter, 42 Cal. App. 2d 301, 108 P.2d 701; McClain v. Tufts, 83 Cal. App. 2d 140, 187 P.2d 818, and Grolemund v. Cafferata, 17 Cal. 2d 679, 111 P.2d 641. In my opinion, the effort to distinguish these cases fails, each of them affording decisive authority for a result directly opposite that declared by the majority. The prevailing opinion concedes, as well it may, that much of our statutory law on the community property system is appropriated bodily from earlier California statutes. This should make decisions of the appellate courts of that state highly persuasive, even though not involving the question of adopted construction of a statute, where ordinarily they would be decisive. Hence, the observations and holding of the California Court of Appeals in Smedberg v. Bevilockway, supra [7 Cal. App. 2d 578, 46 P.2d 821], become highly pertinent on the precise question before us here. The Court said:

"But this plaintiff does claim that the wife's interest in the community property is liable for the wife's torts, and the plaintiff seeks to so charge that portion of the community property. In other words, the trustee seeks to force a division, whether operative now or in the future. The judgment above mentioned in favor of H.A. Brooks was rendered in an action maintained under section 171a of the Civil Code. It is as follows: `For civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be liable therefor, except in cases where he would be jointly liable with her if the marriage did not exist.' That the liability under said judgment was not against both husband and wife nor was it against the husband is clear. We do not understand the plaintiffs to contend to the contrary. However, as above stated, the plaintiffs seek to hold the wife's interest in the community property in liquidation of said judgment. Can it be so segregated and applied? At the instance of the wife her interest could be segregated by a mutual contract between her and her husband (Civ. Code, § 158); or in a divorce action (Civ. Code, § 146); or a separate action based on a divorce action, De Godey v. Godey, 39 Cal. 157; or, on her death, by reason of the provisions of her will. Probate Code, § 201. Our statutes provide no other methods. There are authorities to the effect that neither husband nor wife, except as we have recited, can force a division of the community property by partition, Freeman on Partition and Cotenancy, § 445, nor by a proceeding in equity. Martin v. Martin, Tex.Com.App., 17 S.W.2d 789."

"Now under the laws of California, except to her husband, a wife may not convey her interest in the community property. Peiser v. Griffin, 125 Cal. 9, 12, 57 P. 690; Tryon v. Sutton,13 Cal. 490, 493; Landers v. Bolton, 26 Cal. 393, 420. As she may not dispose of her interest, the same is not subject to attachment. Howell v. Foster, 65 Cal. 169, 3 P. 647. Nor is it subject to sale under a writ of execution. Freeman on Execution, § 172b.

"Moreover, we have shown above under the laws of this state neither spouse can force a division of the community property except as a collateral issue in a divorce proceeding. That being so, the trustee in the bankruptcy proceedings of one of the spouses cannot do so, because such trustee has no better title or right in property than the bankrupt himself. In re Place, D.C., 224 F. 778."

Again in McClain v. Tufts, supra, the California Court of Appeals had this to say on the same question, to-wit [83 Cal. App. 2d 140, 187 P.2d 819]:

"Appellant relies upon section 161a, Civil Code, which declares that the respective interests of the husband and wife in the community property are present, existing and equal, subject to the management and control of the husband as provided in sections 172 and 172a, Civil Code. The burden of her argument is that because community property is liable for the husband's torts, Grolemund v. Cafferata, 17 Cal. 2d 679, 111 P.2d 641, it is likewise liable for the torts of the wife.

"While the precise question has not been decided by a reviewing court the decisions do not support appellant's contention that the community property should be resorted to for the wife's torts because it is held liable for the torts of the husband. It was held in Smedberg v. Bevilockway, 7 Cal. App. 2d 578, 46 P.2d 820, that the wife's interest in community real property could not be subjected to a lien under a judgment against her for tort, for which her husband was not also liable. The ground of the decision was that the respective interests of husband and wife in community property may be segregated only in the instances and in the manner provided by statute, namely by agreement between husband and wife, by decree of divorce, or by a separate action based upon a decree of divorce. Page 581 of 7 Cal.App.2d, page 820 of 46 P.2d. Division of the community property may also result from either an unsuccessful divorce action or an action for separate maintenance. Civ. Code, §§ 136, 137, 141."

The Supreme Court of California in Grolemund v. Cafferata, supra, decided a few years after the decision in Smedberg v. Bevilockway cited the latter case approvingly on the question at issue. We thus have four decisions from the California appellate courts, one being by the Supreme Court itself, directly against the holding of the majority in the case at bar. The majority seek to escape this formidable array of authorities from the state whose statutes on community property furnish the reservoir from which so many of our own have been taken by establishing that in California the wife's interest in community property is not vested as in New Mexico.

The strength of the majority view, then, must rest largely on their ability to distinguish these cases. It is on this language by the Supreme Court of California in Grolemund v. Cafferata, supra, that they rest the distinction sought, to-wit:

"Though the court in the Smedberg case did not discuss the effect of section 161a, it reasonably can be inferred from that decision that the District Court of Appeal was of the opinion that section 161a of the Civil Code does not change the nature of the wife's interest to a vested one so as to give her creditors the right of sequestration by attachment, execution or any other legal proceeding. Otherwise, her half of the community property would have been subjected to a lien by the trustee in bankruptcy," etc.

The Section 161a of the California Civil Code, referred to in the foregoing quotation and adopted in 1927, declares the respective interests of husband and wife in community property during marriage to be "present, existing and equal". It is set out in full in the quotation from 22 Cal.Law Rev. 404, 417, to follow.

It has been my contention all along that to seize upon this language as concluding the question to be resolved is like lifting oneself by one's own boot straps. The question to which we seek an answer is whether in California the wife's interest in community property is a mere "expectancy," or is "vested" as in New Mexico. If the latter, then four decisions from the appellate courts of that state are directly opposed to the result declared by the majority in the case at bar. Yet because in the Grolemund case the Supreme Court interprets Smedberg v. Bevilockway supra, as seeing in section 161a of Cal.Civ. Code no warrant for dissolving the community to satisfy a personal tort judgment against the wife alone, and as not changing the wife's interest to a vested one in the sense that would permit it, the present majority affirm that "sec. 161a [of Cal.Civ. Code (Statute of 1927)] did not change the wife's interest from a `mere expectancy' to a vested right". As presently will be demonstrated, the majority opinion stands alone among decided cases, in the announced view that the 1927 statute, section 161a, Cal.Civ. Code, did not change the wife's interest from a "mere expectancy" to a "vested" one. Applying the majority interpretation of the language of the Supreme Court of California in Grolemund v. Cafferata, supra, to the interest of the spouses in an estate by the entireties, where such tenancies still exist, an analogy sensed and relied on in support of its conclusion in Smedberg v. Bevilockway, supra, decided by the District Court of Appeals in California, if in rejecting an effort to sequester the interest of the wife alone in certain real estate held by entireties to satisfy a personal judgment against her, 4 Thompson on Real Property 360, § 1824; Gorelick v. Shapero, 222 Mich. 381,192 N.W. 540, some appellate court had said in almost the exact language of the court in the Grolemund case that her interest therein "was not vested so as to give her creditors the right of sequestration by attachment, execution or other legal proceeding" — it could with as much justification, yet contrary to the well recognized fact, be said the interest of the wife in such estate was not vested.

With as much logic, we might conclude that because in New Mexico the wife is denied all voice in the management and control of the community estate; or, because in New Mexico she lacks the power of testamentary disposition over her share of the community estate; or, because in New Mexico, upon her death, her share in the community "belongs" to the husband without administration, whereas, upon the husband's death his share either descends or passes by testamentary disposition — that by reason of those circumstances, her interest is not vested. We have said it is vested, Beals v. Ares, 25 N.M. 459, 185 P. 780, yet "vested", nevertheless, subject to the limitations on present enjoyment, control and disposition pointed out above. Are we to say that by reason thereof, her interest in the community is not vested? On the contrary, as just said, we have held directly opposite. Beals v. Ares, supra. Nor in California, simply because the wife's interest may not be siezed and sold to satisfy a personal tort judgment against her, is it to be concluded her interest in the community is not vested.

Legal essayists of the highest standing in California dispute the majority conclusion in the case at bar that the wife's interest in the community is not vested by virtue of section 161a, Cal.Civ.Code. In an article entitled "Interest of Wife in Community Property" by William M. Simmons of the Hastings College of Law in San Francisco, appearing in 22 Cal.Law Rev. 404, the author states:

"IV. Statutory Enactment of 1927

"In 1927 Civil Code section 161a was enacted, providing:

`The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests under the management and control of the husband as is provided in sections 172 and 172a of the Civil Code. This section shall be construed as defining the respective interests and rights of husband and wife in the community property.'

"It has been suggested that this statutory change did not affect the theory of ownership in community property. However, it seems more probable that it was an attempt to comply with the doctrine of the supreme court as set forth in the Spreckels and Stewart cases and to state in plain language the legislative intent to change the theory of ownership in community property thereafter acquired and afford the wife a vested interest therein. It seems that this view is supported by the second sentence of the section, and also by the fact that the section was enacted within a year after the supreme court's decision in Stewart v. Stewart which again emphasized the need of `plain' language to bring about such a result. Such a construction seems to have been adopted by the federal courts.

"If it be held that the effect of the enactment in 1927 of section 161a of the Civil Code is to create in the wife a vested interest in the community property acquired thereafter, interesting questions still remain as to the exact nature of that interest. Is the wife's interest to be treated as that of a joint tenant, a tenant in common, the interest of a co-partner or of a tenant by the entirety or is it none of these? It has already been pointed out that the Constitution of 1849 gave the legislature the power to define and limit the nature of the wife's interest in the marital property. This was not changed by the Constitution of 1879 which merely defined the separate property of the husband and wife. It still follows, therefore, that `The estate of the wife in the community property is a creature of statute, and is, of course, just what the statute has made it.'

"In view of dissimilar statutory provisions prevailing in other states where the community property system is in effect the decisions of the courts of such states are of doubtful assistance. It has long been provided in Civil Code sections 161 and 682:

"`A husband and wife may hold property as joint tenants, tenants in common, or as community property.

"`The ownership of property by several persons is either:

"`1. Of joint interests;

"`2. Of partnership interests;

"`3. Of interests in common;

"`4. Of community interest of husband and wife.'

"These sections had been repeatedly considered by the supreme court prior to the enactment of Civil Code section 161a, but, because of long established legal doctrine and of other statutory provisions, had been held inadequate to create in the wife a present vested interest in the community property. It would seem, however, that the provisions of section 161a expressly defining the interest of the husband and wife in community property should be construed in the light of these sections and that, as to community property acquired after 1927, the husband and wife hold not as joint tenants, tenants in common, nor in co-partnership but rather that each has a present title and ownership to an equal portion of such community property, the wife's interest being subject to such power of management and control in the husband as public policy expressed through appropriate statutory provisions may deem desirable. This view has already been advanced by at least one commentator."

In another article on "The Ownership of Community Property in California" by Dean M.R. Kirkwood of Stanford University School of Law, 7 So.Cal.Law Rev. (10-13), the author deals at some length with the interests of the wife in community property under section 161a Cal.Civ. Code, and among other things, says:

"Surely the use of the words `present, existing and equal interests' shows a legislative intent to `vest' an interest in the wife. Indeed the complaint of the court in the Spreckels case [Spreckels v. Spreckels, 172 Cal. 775, 158 P. 537], reiterated in the Stewart case [Stewart v. Stewart, 199 Cal. 318, 249 P. 197], was that the Legislature had not said `in plain language' `that the purpose of these amendments was to vest in the wife during the marriage a present interest.' The legislature, coming in 1927, at the first session of the Legislature following the first decision in the Stewart case, seems clearly designed to remedy the defect found by the court in earlier enactments. The use of the word `present' was, in all probability, induced by its use in the two cases mentioned."

Dean Kirkwood then refers to some federal cases including United States v. Malcolm, 282 U.S. 792, 51 S. Ct. 184,75 L. Ed. 714, and concludes:

"The Court having, in these cases, fixed as the test for separate returns the existence in the wife, as well as the husband, of a `proprietary vested interest,' the decision in United States v. Malcolm, based on these cases, is a clear recognition of a `proprietary vested interest' in her under the laws of California after 1927."

See, also, Gillis v. Welch, 9 Cir., 80 F.2d 165; United States v. Goodyear, 9 Cir., 99 F.2d 523, and Horst v. Commissioner of Internal Revenue, 9 Cir., 150 F.2d 1. All are decisions of the United States Circuit Court of Appeals for the 9th Circuit and the latest one, Horst case, was decided several years after Grolemund v. Cafferata, supra. If the Supreme Court of California in the Grolemund case had held the wife's interest in community property is not vested since adoption of section 161a of Cal. Civ. Code, the holding would have been binding on the federal court in the Horst case. Gillis v. Welch, supra. It not only did not so hold but on the contrary, as had been held in the other two Circuit Court of Appeals cases cited, held that the wife's interest in community property is vested since adoption of the statute mentioned. The court said [150 F.2d 2]:

"The community character and incidents of community property are determined by the law in force at the date when the property was acquired. In California, until the adoption of Section 161aof the Civil Code in 1927, the wife had no vested interest. Stewart v. Stewart, 204 Cal. 546, 269 P. 439, 442; Gillis v. Welch, 9 Cir., 80 F.2d 165; United States v. Robbins,269 U.S. 315, 46 S. Ct. 148, 70 L. Ed. 285." (Emphasis mine.)

The majority seek to weaken the effect of the Law Review articles quoted by suggesting they were written before Grolemund v. Cafferata, supra, was decided. Indeed so, yet they were written subsequent to the enactment of section 161a of Cal. Civ. Code, in 1927, whose effect they affirm was to "vest" in the wife her interest in the community estate. Let it be agreed that the articles do precede the Grolemund case, then what of Horst v. Commissioner of Internal Revenue, supra, by the Circuit Court of Appeals of the 9th Circuit, decided after the Grolemund case? Also, what of decisions of the California Courts of Appeal for the 4th and 3rd Districts in Cooke v. Cooke, 65 Cal. App. 2d 260,150 P.2d 514, and in Wissner v. Wissner, Cal.App., 201 P.2d 837, respectively, decided since the Grolemund case? The majority can offer no explanation of these cases consistent with a contention that the wife's interest in the community estate in California is not vested. Instead, after their appraisal of the decision in Grolemund v. Cafferata, they seem content to add:

"The California Supreme Court's construction of that state's statutes should be binding on the world, and we accept it as the law of California."

This declaration has my wholehearted support. But most of all, that construction should be binding on the District Courts ofAppeal of California and the United States Circuit Court ofAppeals for the 9th Circuit of which California is a part. Gillis v. Welch, supra. Yet, in Horst v. Commissioner of Internal Revenue, supra, we find this federal court, some years after the decision in the Grolemund case, holding that section 161a of Cal.Civ. Code gives the wife a vested interest in community property as shown by the quotation from its opinion, supra.

Likewise, in Cooke v. Cooke, supra, more than three years after decision in the Grolemund case, the District Court of Appeals for the 4th District said [65 Cal. App. 2d 260, 150 P.2d 516]:

"The factual situation other than that already outlined seems to be this: The policy was obtained in 1930 after the effective date of section 161a of the Civil Code, and a considerable part of the premiums were paid from the community income so the wifehad a vested community interest in a portion of the policy whichcould not be taken from her without her consent. Union Mutual Life Ins. Co. v. Broderick, 196 Cal. 497, 238 P. 1034; McEwen v. New York Life Ins. Co., 42 Cal. App. 133, 183 P. 373; Lo Presti v. Manning, 125 Cal. App. 442, 13 P.2d 1002. It should follow that plaintiff had a vested interest in that portion of the insurance purchased by community funds and that this interest was not `obtained from or through the other during the marriage and in consideration or by reason thereof' but by purchase from community funds. Thus at least, as to the portion of the policy purchased with the earnings of the husband while the couple were residing in California, if not elsewhere, the Arkansas statute could not be effective as that interest vested under theCalifornia statute and not through any gift from Stephen." (Emphasis mine.)

Again, the Court of Appeal from still another District, the 3rd, in the very recent case of Wissner v. Wissner, supra [201 P.2d 838], made the same holding, its views being epitomized in the following paragraphs of the syllabi, reading:

"Under statute defining the respective interests and rights of husband and wife in community property, a wife has a vested interest in one-half the earnings of spouses. Civ. Code, § 161a.

"Under Fifth Amendment, Congress could not by statute deprive a wife of deceased veteran of her vested right to one-half of the proceeds of a national service life policy paid for out of community funds after the proceeds had come into the possession of a beneficiary other than the wife. 38 U.S.C.A. § 454a, Civ. Code § 161a; U.S.C.A. Const. Amend. 5."

It is not unfair to assume that the appellate courts of California, even though inferior to the Supreme Court of that state, and the Circuit Court of Appeals for the 9th Circuit of which California is a part, bound as all are by a decision of the question by the Supreme Court, are as well circumstanced, if not even better, as the courts of any sister state to speak on the character of the wife's interest in community property as being vested or not. Is it not passing strange, then, if the state of the law there be as the majority here interpret it from the Grolemund case, that not one of the three separate courts just quoted noticed the Grolemund case as so holding, while they themselves were interpreting the law otherwise? It so impresses me, as unquestionably it will others, when due weight is given this circumstance.

The extensive effort in the prevailing opinion to dissipate the effect of the California decisions, namely, the Smedberg, Grace, McClain and Grolemund cases, the latter by claiming for it a holding reasonable interpretation will not support, abundantly demonstrates the weight the majority accord them. Indeed, they frankly admit that "it is this difference in the construction of the statutes by the respective state courts that brings about the different result." This seems an admission that if their appraisal of the Grolemund holding be erroneous, then all the California decisions mentioned repudiate the correctness of the conclusion they announce; to say the least, an admission that the only cases in the books on the exact point all are against them.

An outstanding proof of the majority's error in appraising the Grolemund case is to be found in their failure or inability to define the character of the wife's interest in community property after the adoption of section 161a of Cal.Civ. Code in 1927, if not a vested one. Admittedly, it had been an "expectancy" until that time. The high point in the discussion of the subject finds expression in these excerpts from the prevailing opinion:

"The California Supreme Court holds that the Statute of 1927, Cal.Civ. Code, sec. 161a, did not change the wife's interest from a `mere expectancy' to a vested right," citing the Grolemund case. (Emphasis mine.)

"The California Court did not hold in the Grolemund case that the interest of the wife remained a `mere expectancy' after the Act of 1927." (Cal.Civ. Code, § 161a. Emphasis mine.)

This example of logistics, I am quite unable to follow. The 1927 act did not change the wife's interest from a "mere expectancy" into a "vested right," say the majority in one breath, citing the Grolemund case. In the next — the wife's interest does not remain a "mere expectancy" after the 1927 act — citing the Grolemund case. Then, pray tell us, what is the nature of the wife's interest after the 1927 act? The majority seem unable to catalogue it. They make no attempt at definition. Seemingly, they would place it in a no man's land somewhere between an "expectancy" and a "vested" right, neither fish nor fowl, a nebulous interest floating around in space, so to speak, with nowhere to go.

Of course, this is a conception wholly foreign to a legal comprehension of rights and interests. They either exist, or they do not. They either are expectant or vested. Whenever the majority elevate the wife's interest in the community in California, or elsewhere, above the rank of a "mere expectancy," by that same token they graduate it to the rank and plane of a vested right. There is no middle ground. It was a maxim of the common law that title to real estate must always reside somewhere. So it is here, having admitted that the 1927 act lifted the wife's interest in the community above the grade of an "expectancy", the majority, whether so intending or not, have placed it right into the company of vested rights. 4 Cooley on Cons't. Lim., 8th Ed., 749; Pearsall v. Great Northern Ry. Co.,161 U.S. 646, 673, 16 S. Ct. 705, 40 L. Ed. 838.

They like to read the holding in the Grolemund case as saying the 1927 act "does not change the nature of the wife's interest to a vested one", period. It pleases me to add what follows immediately, viz., "so as to give her creditors the right of sequestration by attachment," etc. If the period be added where I have supplied it, the holding in the Grolemund case would be as the majority affirm. When what follows that point in the sentence is added, it no more supports the majority appraisal of the Grolemund case than if the same had been said of the wife's interest in an estate by the entireties.

Thus it is that the effort in the prevailing opinion to destroy the effect of the California decisions cited, supra, on the supposition that in California the wife's interest in the community is not vested, whereas in New Mexico it is, fails utterly. Unquestionably, the wife's interest in community property is no less a vested interest in California than it is in New Mexico. In addition to authorities already cited on nature of wife's interest in the community estate since adoption in 1927 of § 161a of Cal.Civ. Code, see Bank of America Nat. Trust Savings Ass'n v. Rogan, D.C., 33 F. Supp. 183, and Penn Mutual Ins. Co. v. Fields, D.C., 81 F. Supp. 54.

Nor is the majority opinion to be supported by anything said or held in the recently decided case of Dillard v. New Mexico State Tax Commission, 53 N.M. 12, 201 P.2d 345. While not myself agreeing on the main issue presented in that case, it must now be accepted as the settled law in this state that the veteran's tax exemption is not to be satisfied from the common property as a whole but only from the veteran's share therein. Hence, the other half interest (usually the wife's) is subject to separate assessment and sale for non-payment of the tax thereon. The mere fact that by constitutional mandate, as declared by the majority in the Dillard case, the community interest of the spouses in particular property may be torn asunder in executing the state's overweening power of taxation, certainly is no argument that the existing statutory means otherwise provided for dissolution of the community are to be enlarged by judicial decision to any greater extent than necessary to carry out the purposes intended in granting the veteran's exemption.

The great injustice visualized by suggesting that holding no part of the community property is liable for the wife's torts may permit one worth millions of dollars to escape without liability for grossly negligent or intentionally tortious acts sounds a false alarm. The husband in New Mexico is liable for his wife's torts committed after marriage not done by means of, or in the use of, or in the assertion of some right in reference to her separate property. Henley v. Wilson, 137 Cal. 273, 70 P. 21, 58 L.R.A. 941, 92 Am. St. Rep. 160. See, also, Van Maren v. Johnson,15 Cal. 308; Grolemund v. Cafferata, 17 Cal. 2d 679, 111 P.2d 641; Taylor v. Murphy, 50 Tex. 291; Campbell v. Johnson, Tex. Com.App., 290 S.W. 526; Scott v. Brazile, Tex.Com.App.,292 S.W. 185, and Foster v. Ingle, 147 Tenn. 217, 246 S.W. 530, 27 A.L.R. 1214. And any judgment recovered against him for a tort so committed is to be satisfied from the community as a whole — not from the wife's interest alone.

My views and those of the Chief Justice are widely variant upon the question as to where the weight of authority lies in the matter of the husband's common law liability for torts of the wife committed subsequent to marriage. It is claimed, assertedly supported by citation of approximately a score of decisions, that the "Married Women's Acts" have repealed the common law liability of the husband for torts of the wife. In my humble opinion the weight of authority is the other way. The great weight of authority does agree that the common law liability of a husband for voluntary torts of the wife is abrogated by the "Married Women's Acts" so far as concerns torts committed in themanagement of her separate property, which, in general, confer upon the wife the ownership and management of her own property, free from the control of her husband. But, in the greater number of states, the courts have held the married women's laws have not had the effect to relieve the husband from his common law liability for voluntary torts of the wife not connected with the handling of her separate property. Henley v. Wilson, supra; Taylor v. Murphy, supra; Foster v. Ingle, supra, and Hageman v. Vanderdoes, 15 Ariz. 312, 138 P. 1053, L.R.A. 1915A, 491, Ann.Cas. 1915D, 1197. Certain of the cases cited by the Chief Justice to support his view, among them Hageman v. Vanderdoes, supra; Foster v. Ingle, supra, and no doubt others, affirm this statement of where the weight of authority lies and make the distinction mentioned. As said by the author of the text on "Husband and Wife" on where the weight of authority lies on this question as late as 1944 (although the majority claim such statements appear only in the older cases) when 41 C.J.S., Husband and Wife, § 219, page 713, was published:

"A statute abrogating the husband's common-law liability for his wife's antenuptial torts will not by construction be extended to include exemption from liability for her postnuptial torts;and by the weight of authority general property acts relating tomarried women do not change by implication the husband'scommon-law liability for such torts or alter the wife's general liability therefor; but some authorities hold that by necessary implication such statutes do remove the husband's liability." (Emphasis mine.)

There is an annotation of the subject; "Liability of Husband for Independent Torts of Wife," appearing in 20 A.L.R. 528, with supplements in 27 A.L.R. 1218 and 59 A.L.R. 1468. The annotation in 20 A.L.R. 528 contains a listing of the states on this subject and says:

"In most jurisdictions, statutes have been passed which either expressly abrogate or limit, or by implication are held to abrogate or limit, the common law liability of the husband for the torts of his wife, committed by her without his participation."

It may easily be seen from the listing of the states that when the jurisdictions where the common law liability has been expressly abrogated or limited are subtracted from those holding it repealed by implication, the weight of authority lies exactly where the Supreme Court of California in Henley v. Wilson, supra, the Supreme Court of Tennessee in Foster v. Ingle, supra, and the Supreme Court of Arizona in Hageman v. Vanderdoes, supra, declare it to be on the precise question we are discussing.

The question of whether the husband is still liable for torts of the wife not connected with her separate estate can only be employed arguendo in this case and is not decisive. Nevertheless, it eliminates from consideration the supposed hardship often adverted to in the argument of allowing a person injured by the wife's tort to go remediless. As already indicated, if it be a voluntary tort, not connected with the management of her separate estate, the husband and the entire community estate may be made to respond. The common law liability of the husband remains and is not to be deemed repealed by implication. See Ex parte De Vore, 18 N.M. 246, 136 P. 47, 51, where we said:

"It is well settled that where a statute does not specifically repeal or cover the whole ground occupied by the common law, it repeals it only when, and so far as, directly and irreconcilably opposed in terms."

The Chief Justice himself in the closing lines of the prevailing opinion reflects doubt on his personal view that the husband's common law liability for postnuptial torts of the wife is repealed by implication in this state in the obvious invitation to the legislature to clarify the matter of the liability of the spouses for torts by new statutory enactments.

Turning again to the very question at issue, in a former decision by this court, In re Chavez's Estate, 34 N.M. 258,280 P. 241, 242, 69 A.L.R. 769, we noted the analogy between joint tenancy and our community estate (in some respects akin to estates by the entireties) especially as respects the right of survivorship in the husband upon death of the wife. We observed, however, that the community estate is sui generis, saying:

"Community property is, however, a concept foreign to the English common-law system, and with us is a creature of statute."

In Smedberg v. Bevilockway, supra, the California Court of Appeals in holding directly contrary to the majority here based its decision on dual considerations. First, that to permit the wife's interest to be seized and sold would approve a forced division of the community property in a way not authorized by statute. In the second place, the court fortified its refusal by citing an analogy between the community estate and an estate by the entirety. In an estate by the entirety held by husband and wife, the survivor takes the property owned jointly with the other free from a judgment against the decedent. Lunnen v. Hunter, 348 Pa. 402, 35 A.2d 292. And one of the tenants, acting alone, can not sever the estate. 4 Thompson on Real Estate, Perm.Ed., 332, § 1804.

It is clear that under the reasoning in Smedberg, Grace, McClain and Grolemund cases, all supra, from California, which the majority are unable to explain or distinguish, the wife's interest in community real estate may not be seized in satisfaction of a money judgment against her for a personal tort she committed in the management of her separate property. To hold otherwise would operate as an invasion of the husband's statutory powers of management and control, result in partition of community real estate as between husband and wife upon conditions unauthorized by law and thus bring about a premature dissolution of the community, either in part or wholly, against the will and over the objection of him who is its head. In addition, it would defeat a legislative purpose manifest in the statute declaring all the community property, upon death of the wife shall belong to the husband without administration. 1941 Comp. § 31-108.

The majority opinion heretofore filed on this appeal having been withdrawn, my former dissent filed at the same time is hereby withdrawn and the foregoing opinion substituted therefor. It follows from what is said therein that, in my opinion, the motion for rehearing should be granted and the judgment under review affirmed. The majority having concluded otherwise, I dissent.

DAVID W. CARMODY, District Judge, concurs.