Brotton v. Langert , 1 Wash. 73 ( 1890 )

The opinion of the court was delivered by

Dunbar, J.

The appellant by her complaint filed in the district court of Pierce county, sought to prevent a judgment lien being extended over community real estate, and to obtain a writ of injunction to prevent the appellee from selling the community property of appellant, under and by virtue of a judgment obtained by the appellee, Charles Langert, in a suit against appellant’s husband as constable, he, as said constable, having sold personal property in which appellee had a special property, in execution against a person other than appellee. The appellant obtained a temporary restraining order. On the hearing of the case appellee demurred to the petition, and assigned as grounds of demurrer that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the case dismissed; from w'hich orders and decrees the appellant appealed to this court. In this case it is conceded that the property in question is community property, and that the judgment obtained against M. Brotton was a personal judgment for a tort. Hence, the primary question involved is, whether or not community real estate is exempt from execution on a judgment rendered against an individual member of the community when the debt for which the judgment was obtained was not incurred for the benefit of the community.

The community, composed of husband and wife, is purely a statutory creation; and to the statute alone must we look for its powers, its liabilities and its exemptions. Nor are we much enlightened by quotations from the common law in relation to the property rights and liabilities of husband and wife; for, while we ordinarily look to the rules and maxims of the common law to aid us in the construction and analysis of statutes, it was plainly the intention of the legislature, in the session of 1879, in the passage of the chapter denominated “ Property rights of married persons,” Code Wash. T., chap. 183, to depart from the common law and breathe into legal existence a distinct and original creation, partaking, somewhat, of the nature of a partnership and of a corporation, but differing in some essentials from both; and this creature is termed a “community.” The statute alone determines who the members of the community shall be, the manner in which it shall acquire property, and defines and limits not only the powers of the members of the community over said property, but protects it from acquisition by others, excepting in the manner specified. It also lays down its own vnle of construction in the language of the act itself: “ The rule Of common law that statutes in derogation thereof are to be strictly construed, has no application to this chapter. This chapter establishes the law of this territory respecting the subject to which it relates; and its provisions and all proceedings under it shall be liberally construed with a view to effect its object.” Then the pertinent and vital question becomes, What was the object sought to be effected? Section 2398 provides, “ That every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property and to sue and to be sued as if he or she were unmarried,” and $2398 abolishes “ all laws imposing civil disabilities upon a wife which are not imposed upon a husband,” and succeeding sections define what separate property is, and provide how it may be acquired and in what manner disposed of. So far the evident object of the law is, to place husband and wife on an equal footing in relation to property matters. Section 2409 is as follows: “Property not acquired or owned, as prescribed in §§ 2400 and 2408, acquired after marriage by either husband or wife, or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except that he shall not devise by will more than one-half thereof.” This section discriminates in favor of one spouse only so far as is actually necessary for the transaction of ordinary business. Section 2407 provides that the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. Section 2410 reads as follows: “ The husband has the management and control of the community real property, but he shall not sell, convey or encumber the community real estate, unless the wife join with him in executing tbe deed or other instrument of conveyance by which the real estate is sold, conveyed or encumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife: Provided, hoivever, That all such community real estate shall be subject to the liens of mechanics, and others, for labor and material furnished in erecting structures and improvements thereon, as provided by law in other cases, to liens of judgments recovered for community debts, and to sales on execution issued thereon.” Construing all the provisions of the chapter together, we cannot escape the conclusion that the object of the law was to protect (so far as is consistent with the transaction of ordinary business, as we before observed) one spouse from the misdeeds, improvidence or mismanagement of the other concerning property which is the product of their joint labors. It is in the nature of an exemption, and, as has been well said, “ exemption laws are upheld upon principles of justice and humanity.” The statute provides the ways in which this property can be alienated: First, the voluntary alienation by the husband and wife joining in the deed; second, by making it responsive to certain demands, constituted liens by the statute; and there is no other way contemplated. In fact, the very object of the law is to prevent its alienation in any other way. It expressly provides that the husband shall not sell, convey or encumber it, and he will not be allowed to do, by indirection or fraud, that which he is directly prohibited from doing. The practical result to the non-contracting spouse would be the same whether the law allowed the other spouse to directly convey the property, or allowed the title to pass through the medium of a sale on an execution flowing from a judgment to which he, or she, was not a party. It is the results the law regards; the modes are not important.

If the theory of the appellee is correct, that a personal judgment against the husband will become a lien on the community real estate, then certainly there is no meaning in the proviso to § 2410, for the liens there specified would attach without the proviso. If a judgment which is not obtained for a community debt becomes a lien upon community real property without any special proviso, why make a special proviso for a judgment which is obtained for a community debt ? It is very evident that the intention of the statute was, that community real estate should not be subject to liens on any judgments excepting those mentioned in the proviso and for the causes mentioned in § 2407; and these exceptions are founded on reason and right, because the labor and material furnished by mechanics in erecting structures on the land enhance the value of the community realty, thereby benefiting the community and becoming practically a community debt; and the reason for charging the expenses of the family or the education of the children to the community are too obvious for discussion. It was held by the supreme court of Oregon in the ease of Smith v. Sherwin, 11 Or. 269, that the wife could not be held liable in an ordinary action for goods sold and delivered when such goods were sold upon the order of the husband, although the same were devoted- to family use, under a statute which provides: “That contracts may be made by a wife and liabilities incurred by or against her to the same extent and in the same manner as if she were unmarried;” and which further provides that the property of both husband and wife shall be chargeable with family expenses; being substantially the same as §§ 2896 and 2407 of the code. This decision was based on the ground that the complaint did not affirmatively show that the goods sold were for the benefit of the family. In the case of Andrews v. Andrews, 3 Wash. T. 286, the court says: “ So long as there is only a judgment lien confessed or suffered by the husband alone, the community interest in real estate is not affected, unless in fact the debt upon •which the judgment was given was a community debt. The, force and qualification of the lien of a judgment to which the husband only is a party, as affecting real estate, is given in \ 2410 of the code, by way of proviso to the restriction on the power of the husband to alienate or encumber such property. In the statute itself, the wife and all the world had notice of the limitation of such a lien in regard to such property. Indeed, the judgment not being determinative of any issue as to the character of the property which is to be included in its lien, the husband himself would be at liberty to contest the extension of the lien over community real estate.” But we are met by arguments, in the brief of counsel for appellee, asserting that this construction of the statutes will lead to unsettling business relations, and many supposable cases of hardship to creditors are earnestly dwelt upon; but this is a branch of the subject entirely within the jurisdiction of the legislature. Once it is conceded that this is a rightful subject for legislation, which will scarcely be denied, there is no limit to legistative authority, and it is not the province of a court to speculate or theorize upon the practicability or impracticability of the laws, or the good or bad effects which may result from such laws. These are subjects for legislative consideration, and not for judicial determination. Wethinkthe judgment obtained against Brotton was not a judgment for a community debt, that the petition did state facts sufficient to constitute a cause of action, and that the sale should have been restrained.

It follows that the judgment will be reversed, and the cause remanded to the court below, with instructions' to proceed in accordance herewith.

ÁNDERS, 0. J., and Hoyt and Scott, JJ., concur.