Full opinion text
It is shown by the face and context of the deed that it was a gift. The Act of April 17th,1850, 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.” (Act relative to Husband and Wife; Acts of 1850, p. 254, Sec. 1.) By the same Act, all property acquired by purchase by either party during coverture becomes common property. (Ibid, Sec. 2.) In considering this statute, it is essential that we keep in view its origin and the purpose of its enactment. Nothing is more certain than that we have transplanted our whole jurisprudence, so far as it relates to the rights of property between husband and wife, from the civil law, or rather from that modification of the civil law which prevailed in Louisiana, Florida, Mexico, and other Spanish colonies. This is shown not only by the history of our State, but appears also from a comparison of the provisions of our Act with those of the civil law and of codes founded upon it. The relation which, with us, the husband and wife occupy towards their common property, is identical with the “ partnership” or “ community of acquets and gains” of the civil law, while our phrase “ common property” is the exact synonym of the “ biens gananciales” of the Spanish and Mexican law writers. So, too, our phrase “ separate property,” applied to the wife, exactly corresponds to and embraces her “ dotal and paraphernal” property, under the codes of Louisiana, Justinian, and Napoleon. (Vide Smith v. Smith, 12 Cal. 216-226; Meyer v. Kinzeer and Wife, 12 Cal. 247-255; Scott v. Ward, 13 Cal. 470; Tustin v. Faught, 23 Cal. 241; Tryon v. Sutton, 13 Cal. 493; Escriche—word, Biens gananciales, p. 366.) It is quite manifest that the word “gift” in the Act referred to has not the same meaning as the same word has at common law. At common law the methods of acquiring real property were divided into descent and purchase, and every acquisition which was not a descent was a purchase. (2 Black. Comm. 201; 3 Cruise’s Digest, 317.) After the passage of the Act of April, 1850, that Act having provided no special mode of conveyance, it became necessary to resort to existing forms in order to vest "property in husband or wife by way of gift. The form of deed adopted by Martina Castro is that most usual in California for the assurance of real property. The operative effectual words of conveyance are, “ grant, bargain, sell, and convey,” and the consideration mentioned is “the natural love and affection which the grantor bears for her children, together with the further sum of five dollars.” This deed, when before this Court on a former occasion, was incidentally termed by a learned Judge a “bargain and sale;” but the question of the character of the deed was not then in controversy; and at all events, the Court could only have referred to the verbal structure of the instrument, and not to its legal character as a conveyance. “ A conveyance ivithout a valuable consideration cannot operate as a bargain and sale under the Statute of Uses. And to give it the effect of a covenant, to stand seized, etc., it must be made on the consideration of blood or marriage.” (Jackson v. Saunders, 1 Cowen, 622; Jackson v. Delany, 4 Cowen, 427; Johnson v. Florence, 16 Johnson, 47; Cruise’s Digest, Title Deed, Ch. 12, Sec. 20.) “A deed, under the Statute of Uses, can convey no title unless a good or a valuable consideration is expressed on the face of it, or, if not so expressed, can be shown aliunde.” (Spring v. Hanks, 5 Iredell, 30; 2 Washburn on Real Property, 126-131.) So, too, our own Supreme Court. (Barker v. Koneman, 13 Cal. 9, 10.) Admitting, however, that in countries where the Statute of Uses prevails, the mere words “ bargain and sale ” in a deed do of themselves import a consideration of value, or money; still we say that they can have no such effect with us, (we not having the statute.) Our view is, that, whereas in England and in some of the States these words are exclusively words of contract, evidencing a sale, with us they are like “grant,” “convey,” “lease,” etc., exclusively words of assurance evidencing a transfer. The deed of “ bargain and sale,” or more accurately, deeds containing the wofds “ bargain and sell,” have become the common, we may say the universal conveyances with us, and were so in April, 1850, when the Act in question passed. This was so, even before the adoption of the common law as the rule of decision. Doubtless a conveyance in the exact words of an ancient feoffment or gift in tail, would still be effective with us to pass an estate ; but as a matter of fact, all of these old forms of conveyance have become obsolete in practice, notwithstanding that we have not re-enacted the Statute of Uses, (27 Henry 8,) it is notorious that our conveyances are, as respects form, exclusively those, or more properly speaking, one of those which originated in that Act. For although we have no doubt that a “ lease and release,” “ covenant to stand seized,” or other statutory conveyance, would be as effective with us as in England, yet as they are unnecessary, and in practice are never used, we may. say that our sole form of conveyance is “ bargain and sale.” So universal have the words “bargain and sell” become in our deeds, that being common to all they have very properly ceased to designate or describe any particular hind. The truth is, deed of “ bargain and sale,” or deeds containing these words, have with us a very different operation from what they have in England, and in many of the other States. Whatever may be the effect of such words in a deed under the Statute of Uses, they are with us words of conveyance merely, and not words of contract or purchase, and operate to pass the land, not to raise a use. Their use in the deed of Martina Castro is not inconsistent with a gratuitous conveyance or gift. Our next position is, that whatever effect might be attributed to the words “ bargain and sell” if they stood by themselves in the deed, they, like all other legal phrases, are subject to the intention of the parties, as shown by the whole context of the instrument. And we further contend, that in the case at bar, the whole deed shows plainly, that Martina Castro intended to convey the undivided interest to Ni cano a Lajeunesse by gratuitous title, upon the cdnsideration of blood and maternal affection. Slloan & Provines, in reply. In attempting to make it appear that this conveyance was a gift, counsel contend that the word “ gift ” in the- Act concerning husband and wife, has not the same meaning as the same word has at common law; that our phrase “ separate property,” as applied to the wife, corresponds to the terms dotal and paraphernal property, as used in the codes of Louisiana, etc., and that the provisions of our law, in so far as it relates to the rights of property of husband and wife, were transplanted from that modification of the civil law found in Louisiana, etc. But we have seen that the phrase “ separate property ” is used in our State Constitution in its common law sense, (George v. Ransom, 15 Cal. 324,) and the word “ gift-,” used in the same section, must therefore be regarded as used according to its common law signification; and it cannot be that they are used in a different sense in the Act passed in pursuance of this very constitutional provision. And if these provisions of our law were borrowed from the civil law, why was not the appropriate civil law phraseology also adopted ? Why speak of property acquired by “ gift, bequest, devise, or descent,” all common law modes of acquisition ? Why speak of the wife’s “ separate-,” rather than of her “ paraphernal property ?” It cannot be that the framers of our Constitution intended to “ transplant ” civil law ideas as to rights of property as between husband and wife, and yet at the same time so studiously to avoid the civil law phraseology appropriate to express those ideas; or that they attempted to express civil law principles, and to clothe civil law ideas, in common law language. Had they intended to engraft the rules of the civil law in this particular upon our system, they might have done so by the use of a very few words, and without tedious definitions or carefully studied distinctions. Nothing, however, is said of dotal or paraphernal property, nothing of acquests and gains, nothing of community debts, nothing of donation or testament, nothing of onerous or lucrative title. These terms have no place in our law, nor can they be appropriately used with reference to any property acquired since the adoption of our Constitution and the passage of the Act in question. That the property in question he,re was acquired in this State during the marriage, and subsequent to the passage of the Act concerning husband and wife, is admitted, and it only remains to be determined whether it was acquired by either of the common law modes mentioned in the Constitution and the Act, viz : by “gift, bequest, devise, or descent.” The counsel admits that in England the words bargain and sell “ are exclusively words of contract evidencing a sale,” but contends that “ with us they are exclusively words of assurance evidencing a transfer." But why so ? If these are not words of contract evidencing a sale, what words are used, and what words could possibly be used for that purpose ? It is said the deed of bargain and sale “ has been the common, we may say the universal conveyance with us, and was so in April, 1850.” Even if this were true, we are unable to perceive how it changes or affects the necessary import ‘ of the words. But, in point of fact, it is not true; it is notorious that the common, if not universal mode of conveyance in 1850 was by quit claim deed, the operative words of which are “ remise, release, and quit claim.” And this form of deed has continued to be the principal mode of conveyance to the present day. By Sawyer, J., the other members of the Court concurring specially : This is an action for the partition of the Soquel Rancho, situate in the County of Santa Cruz. The title of the plaintiff to a one-ninth interest, as alleged in the complaint, was admitted both in the answer of Hihn and that of defendant Vandenberg, but the latter alleged that he was the owner of one ninth by title derived from Martina Castro through Francisco Young (Lajeunesse) and Mcanoa his wife, by their deed to him executed on the 31st of January, 1854. Hihn denied this claim of Vandenberg, and alleged title in himself to nine hundred and sixty (960) three thousand two hundred fortieth (3,240) parts of the rancho. The case went to a referee under an order to try the issues and report a “finding” thereon. The referee reported, among other things, that Hihn was the owner in fee simple of seventy-one two hundred seventieths of the property, and as to the remaining fractional interests, they were reported to be vested in other parties to the suit; but the claim of Vandenberg was not found either in whole or in part. ■ On the 22d of April, 1863, an interlocutory judgment was entered upon a confirmation of the report, and the case was sent to Commissioners; and on the coming in of their report a final judgment was entered in the action July 25th, 1864. The appeal is from both judgments, and from an order overruling Yandenberg’s motion for a new trial. Firstly—We cannot consider the questions made upon the sufficiency of the evidence to justify the findings of the referee, for the order overruling the motion for a new trial was made eighteen months before the appeal from the order was taken. The objection that the findings were contrary to the evidence, as well as the exception to the report taken by the appellant on the ground that it did not set forth facts but mere legal conclusions, is overruled on the authority of Hihn v. Peck et als., post. Ho appeal lay from the interlocutory judgment at the time it was entered, nor was one given by the Act of March 23d, 1864. (Gates v. Salmon, 28 Cal. 320.) But the appeal from the judgment entered upon the confirmation of the report of the Commissioners was properly taken as being the judgment in the case, having the quality of finality. (Practice Act, Sec. 336 ; Gates v. Salmon.) The point made by the respondent, that the interlocutory judgment was a final judgment, so far as Yandenberg’s title is concerned, is not in consonance with the views expressed by our predecessors in Seligman v. Kalkman, 17 Cal. 152, and is directly opposed to Gates v. Salmon. We therefore consider the appeal from the final judgment as having been well taken, considered as a matter of procedure, and that the errors of law specified in the statement on appeal are regularly here and open to review. Secondly—It appears that the rancho belonged originally to Martina Castro as her separate property, and that she, “ in consideration of love and affection and of five dollars to her in hand paid,” conveyed one ninth of the-rancho undivided to each of her eight children, on the 29th. day of August, 1850. At that date Hicanoa Coto, one of the children, was a married woman—wife of Francisco Lajeunesse—which fact appeared on the face of the deed; and both the defendants Yandenberg and Hihn claim the one ninth deeded to her by her mother—Yandenberg by a deed purporting to have been executed to him by Lajeunesse and wife, January 21st, 1854, and Hihn by a deed to him from the same parties, dated July 23d, 1860. Hihn took with notice of the prior deed. The deed to Vandenberg was not properly acknowledged by Mrs. Lajeunesse, but it was claimed by Vandenberg that the one ninth be,came and was the common property of Lajeunesse and his wife under the deed of Mrs. Castro,-and, therefore, that the deed to him—Vandenberg—passed the title to the one ninth as the deed of the husband. Hihn thereupon offered to prove that no money was paid or agreed to be paid to Mrs. Castro in consideration of the conveyance to her children, but, to the contrary, that the conveyance was in consideration of love and affection alone. The testimony was objected to, the objection was overruled, and Vandenberg excepted. It is insisted by the appellant that the ruling was erroneous, on the ground that Hihn was estopped by the deed from Martina Castro to her children from denying the money consideration therein named. Gan parol testimony be received to shoto that the deed of a married tvoman of her separate property, expressing a consideration on its face, tvas a deed of gift ? This ruling presents a question of vast importance to the interests of the people of California. I have, therefore, fully investigated the point, together with the cognate questions, and shall dwell at some length upon them, quoting liberally from the authorities. It is admitted that a receipt in a deed acknowledging a payment of the consideration may be varied, or contradicted by parol evidence in an action to recover the purchase money, but, it is said, that the consideration cannot be varied by parol proof with a view to affect the operation of a deed as a conveyance, and numerous common law authorities are cited to establish this proposition. It is then assumed that, to prove that no money was paid, for the purpose of showing the conveyance to have been intended as a gift, and not a sale for a money consideration, would be to contradict the deed for the purpose of controlling its operation, within the meaning of the rule. I shall first consider the common law authorities, and endeavor to ascertain the import of the rule, as it now stands, with the limitations and restrictions put upon it in the modern American decisions. But before proceeding, it is proper to remark, that the precise question now presented never did arise, and never could have arisen, under the common law system unmodified by constitutional, or statutory provisions similar to those in force in this State; and it will be hereafter seen, that the constitutional and statutory provisions modifying the common law rights of husband and wife must be allowed some force in determining the question in issue. The common law cases can only furnish analogies more or less remote, and those most nearly analogous, unless I greatly misapprehend their import, will be found to harmonize with the construction maintained in this opinion. In the earlier cases there was some conflict as to whether • the express consideration of a deed could be contradicted by parol • evidence for any purpose, but in the great body of modern authorities it is held, that, for at least all collateral purposes, the real consideration may be shown in matters arising between parties and privies, as well as between strangers, and the rule never did apply to strangers to the deed. The question is as fully and ably discussed, perhaps, in the principal case cited by appellant’s counsel, (McCrea v. Purmort, 16 Wend. 465) where the authorities are reviewed, as in any other. In that case the Chancellor had admitted testimony to show that the consideration of the deed was iron, and not money, as expressed in the deed. The last point upon which the 'authorities divided was, that although you might show a different consideration, you could not show a consideration of a different species from that expressed in the deed, as iron in the place of money, or a good consideration, such as love and affection, as contradistinguished from a valuable one, as money or other valuable articles. But the case cited (page 471) and other modern cases show that there is no ground for this distinction. And it was so held in Coles v. Soulsby, 21 Cal. 51, which case I shall, in the course of this opinion, endeavor to show, is, so far as it is at all applicable, against the position it is cited to sustain. The-result of the authorities as stated in McCrea v. Purmort and in the cases there cited, is this : “ A party is estopped by his deed. He is not permitted to contradict it; so far as the deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties to it. But the principle goes no further. A deed is not conclusive evidence of everything it may contain. For instance, it is not the only evidence of its execution, nor is its omission of a consideration conclusive evidence that none passed ; nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent considerations,” (473.) “ Looking at the strong and overwhelming balance of authorities, as collectable from the decisions of the American Courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, except for the purpose of giving effect to the operative words of the conveyance. To that end alone is it conclusive,” (475.) “ A man is estopped by his deed to deny that he granted, or that he had a good title to the estate conveyed ; but he is not bound by the consideration expressed, because it is known to be arbitrary, and is frequently different from the real consideration of the bargain.” (Wilkinson v. Scott, 17 Mass. 257.) “ It is perfectly well settled that a consideration expressed in a deed cannot be disproved, for the purpose of defeating the conveyance, unless it be on the ground of fraud. Thus, where a consideration in money is expressed in a deed of bargain and sale, no averment is admissible that no money was paid, in order to show that nothing passed by the deed for want of a consideration in money.” (Moore v. Shattuck, 4 N. H. 232.) “ The deed to Blucker acknowledges that there was a consideration, and the grantors and those claiming under them are estopped from denying that a consideration was paid. They may disprove the payment for the purpose of recovering the consideration money ; but they cannot do so for the purpose of destroying the effect and operation of the deed.”' (Grant v. Townsend, 2 Hill, 557.) The late Chancellor Kent states the rule thus : “ If a consideration be expressed in the deed, the grantor is estopped and cannot be permitted to aver against it, unless there be fraud or illegality in it, and then he may show it.” (4 Kent Com. 515.) I have given the rule as stated in the language of many distinguished jurists, so that the entire field of the exclusion of parol testimony on the point in question-, by the rule, as now established and limited, may be clearly seen. How, what is the origin, purpose and scope of the rule thus stated ? The principal purpose of a deed is not to express a consideration, but to create or pass an estate. The statement of a consideration is not one of the terms or covenants of the contract. It was not necessary in a deed of bargain and sale, at common law, to express a consideration ; but it was necessary that there should in fact be a consideration, and that the consideration should be a vcilua hie, as contradistinguished from a good one. Without a valuable consideration, the deed of bargain and sale would not raise a use; and if there were none in fact, and none expressed in the deed, and no use was declared, there was, at common law, a resulting trust in favor of the grantor, and the operation of the deed would be defeated. If, then, the grantor of a deed of bargain and sale, which expressed a money consideration, should be permitted to prove by parol testimony that no money was in fact paid, he would be permitted to show, in opposition to the deed itself, that he had made no conveyance of a beneficial interest at all, and thereby prevent any beneficial estate from passing from him by the deed. This the policy of the law would not permit him to do, and he was held estopped by his deed from showing the fact for the purpose of preventing his deed from operating to pass an estate. Says Mr. Justice Daggett, in Belden v. Seymour, 8 Conn. 311 : “ It is, moreover, the settled doctrine of the Courts of Great Britain to sustain an action of assumpsit for the price agreed to be paid for land, notwithstanding the consideration is expressly admitted to have been received by the usual clause in deeds, ‘the receipt whereof is hereby admitted.’ The principle is everywhere undoubted that a clause in a deed has the effect to prevent a resulting trust in the grantor. He is forever estopped to deny the deed for the uses therein mentioned; and this is its only operation.” * * “ We free ourselves from all difficulty by considering the origin and purpose of this acknowledgment, viz : to prevent, as above expressed, a resulting trust in the grantor, and that it is merely formal or nominal, and not designed to fix the amount, either paid or to be paid.” (Ib. 312.) The doctrine that the only operation of the rule is to prevent a resulting trust in the grantor was repeated in Meeker v. Meeker, 16 Conn. 387. In that case, in a contest between the children and heirs of Meeker as to the distribution of the inheritance, parol evidence was held admissible to show that nothing was -paid, where a conveyance of land by the father to one of the sous expressed a money consideration of twro thousand dollars, with a view of establishing the conveyance to be a gift and intended as an advancement. Thus, it is seen, that the purpose and scope of the ride, is, to cut off resulting trusts in favor of grantors—to estop grantors from setting up the truth for the purpose of defeating their deeds and preventing them from operating to pass a beneficial estate to their grantees. As before remarked, the precise question now under consideration could not have arisen under the common law ; but there are some analogies which go to show that a deed, in form of bargain and sale, expressing a money consideration, may be made, by the aid of parol evidence, to operate in favor of a grantee otherwise than as a bargain and sale. A deed of bargain and sale must in fact have, or be said in the deed to have had, a valuable consideration to support it, while a covenant to stand seized to the use of a party must be founded upon a good consideration, as blood or marriage, and not a valuable one. But a deed of bargain and sale to take effect in the future is void. In Jackson v. Swart, 20 John. 86, the deed from a father to a son purported to be in consideration of five hundred dollars, but it reserved to the grantor and his wife the use of the premises during their lives. It was contended that, as this deed expressed a money consideration, and was a deed of bargain and sale for a freehold to commence in future, it was void. But the Court, disregarding the expressed money consideration, held, that, as the grantee was a son of the grantor, the blood relationship constituted a good consideration, and that the deed, though void as a bargain and sale, could operate as a covenant to stand seized to the use of the grantor and his wife during their lives, and to the grantee after their death, thus changing the entire consideration and character of the conveyance, and, at least, modifying its operation. The money consideration was discarded, and a good consideration introduced. This case shows the strong leaning of the Courts in favor of giving effect, even to a void deed, according to the intent of the parties, and against defeating the conveyance. And it is on the same principle that the rule of estoppel to prevent a resulting trust in a grantor was adopted. Of this case, Chancellor Walworth, in Bank of United States v. Housman, 6 Paige, 537, says : “So in the case of Jackson v. Swart, 20 John. Rep. 85, the late Chief Justice Spencer held that a deed from a man to his sons, which purported to be founded upon a pecuniary consideration only, might operate as a covenant to stand seised; and that a reservation of a life estate to his wife, without any other consideration except that she was described in the deed as his wife, was valid.as a covenant to stand seized of the life estate for her use. In the present case the grantees are-described in the deeds as the sons of the grantor. And if the deeds cannot operate by toay of bargain and sale, they can, upon the doctrine of these decisions, be made effectual as covenants to stand seised of the premises to the use of the grantees, especially token it is proved that this relationship formed the real consideration of the conveyances, and that the pecuniary considerations expressed therein were merely formal.” Thus implying, at least, that it may be proved that “ the relationship formed the real consideration of the conveyances, and that the pecuniary considerations expressed therein were merely formal.” And it is equally strongly implied from the language of the Chancellor in the same case, that the proper mode of making a gift at common law was, by deed of bargain and sale, expressing a nominal money consideration, for he says, (page 636): “ I believe it cannot be doubted that a man who is perfectly free from debt can make a deed of gift to an illegitimate child, or even to a stranger, which will be valid against the claims of subsequent creditors. But even in such a conveyance, to render it valid under the Statute of Uses, a pecuniary consideration must be inserted although none is, in fact, paid, a consideration of blood or marriage being essential to render a deed effectual as a covenant to stand seized.” A gift, at common law, is where there is in fact no consideration, either good or valuable’—where the conveyance is a mere gratuity. And for this reason the Chancellor supposes it necessary, or at least convenient and proper, to insert a consideration to estop the grantor from denying the operation of the deed and setting up a resulting trust; yet, if this be done in this State, it is insisted that the grantee may still lose the estate, because, in certain cases, under our statute,- the law raises a presumption that the estate vests in a manner different from that intended by the parties and apparent on the face of the deed alone. Upon such a construction, a married woman taking Chancellor Walworth as her pilot to conduct her safely past Scylla, would be sure to fall into Charybdis. So, also, parol evidence was admissible, even between parties and privies, in a Court of equity, at least, to show that a conveyance absolute on its face was intended to be a mortgage. The operation of the deed was not defeated by showing that no interest at all passed; but it was controlled in such a manner as to effectuate the intentions of the parties. And such evidence, since the change in the forms of proceedings and in the character of mortgages, is admitted at law in this State and in New York. (Cunningham v. Hawkins, 27 Cal. 603 ; 15 New York, 374.) Thus, a change in the common law rights of the parties necessitated a change in the rules of evidence to give effect to the new rights. So, also, parol evidence is admissible to show that the consideration of a deed was paid by a stranger, and not by the grantee, for the purpose of controlling the operation of the deed by establishing a trust in the grantee for the benefit of the party who paid the purchase money. But I shall reserve the application of the principles deduced from common law authorities cited till after the consideration of the cases arising under the Spanish-American law bearing upon the question. It must be confessed that the case of Brown v. Cobb, 10 Louisiana Reports, 180, upon an imperfect examination, does seem to support the view of the appellant. But the civil code of Louisiana modifies in many particulars the Spanish law as it prevailed in Mexico, and formerly in Louisiana and other Spanish-American provinces. It regulates very minutely the rights and duties of husband and wife by many provisions applicable to almost every conceivable variety of circumstances. Generally, the property may be separate or common, and the wife’s separate property may be dotal and extra dotal, or paraphernal. She may manage her paraphernal property herself, or allow her husband to manage it, or they may manage it together indifferently; and, when the wife has allowed the husband to administer it, she may withdraw it from his administration. So the husband may administer his own separate property separately, or he may mingle it with the common property. But, under all these different circumstances, the rights of the parties as to the investments of the proceeds of their separate property may vary with the circumstances. It will be found by consulting the various decisions, that, under some circumstances, property purchased with separate property will still be separate; under others, that it will be common property, with a charge upon the community property in favor of the spouse whose separate funds were used for the amount due, and a tacit mortgage to secure it. (See Louisiana Code, Articles 2,305 to 2,412.) Row, if the case of Brown v. Cobb cannot be referred to some of these provisions applicable to special circumstances—and in a later case the Court attempt to so refer it—it is inconsistent with many subsequent cases, both in Louisiana and Texas, and is therefore overruled. Article two thousand three hundred seventy-one of the Louisiana Code is as follows: “ This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or . in any other similar way, even although the purchase be only in the name of one of the two, and not of both, becattse in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” Notwithstanding the closing paragraph, “ because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase,” it is clear from the decisions under that code, that it may be shown that the consideration money came from the paraphernal property of the wife, for the purpose mf establishing the paraphernal character of the estate purchased. In the case of Dominguez v. Lee, 17 La. 297, this principle was upheld. The wife inherited one thousand one hundred dollars from her father, which came into the hands of her tutor. He having in some way misapplied the funds and being unable to pay it, conveyed to her a lot in satisfaction of a part of the demand, called, in the law phrase of Louisiana, “ a dation en paiement”—a giving in payment. The husband and wife afterward mortgaged the lot to raise funds to make improvements and ameliorations upon it. In this condition it was seized on an execution against the husband. The wife obtained an injunction against a sale on the ground that it was her separate property. It is true the Judge says in the opinion, “from the stipulation in the act of sale, the lot so received in payment became her paraphernal propertybut it is also manifest that other evidence was admitted, for the Court and the statement of the case also say : “ The evidence shows that the plaintiff really received the lot of ground described in her petition, in part payment of the amount due her by her tutor,” etc., stating the facts of the case. The Court hold the land itself to be separate property and say : “ It is true, as a general rule, that the law considers to be common property that which is acquired by the husband and wife during the marriage, although the purchase be only in the name of one of the two and not of both. (La. Code, Art. 2,371 ; 10 La. Rep. 148.) The reason is, in that case, the period of time when the purchase is made is alone attended to, and not the persons who made it. But we are not ready to say that no distinction ought to be made when the property is clearly shown to have been bought with the separate funds of one of the parties, and particularly with funds of, the tvife which never came under the administration of the husband.' (1 La. Rep. 523.) It is a well settled doctrine in our jurisprudence that money received during the marriage, even by the husband on account of his wife, does not fall into the community but remains her separate property. (7 lb. 292.) According to Article 2,361 of the Louisiana Code the wife has the right to administer personally her paraphernal property without the assistance of her husband ; and by the Article 2,315, paraphernal is considered as the separate property of the wife. There necessarily results from these provisions of 'the law a power allowed to the wife to administer alone her paraphernal estate as she pleases, and a right to alienate her separate property and to invest her paraphernal funds in whatever manner she ihinlcs proper and most advantageous to her interest, provided she does it with the authorization of her husband. She may even resume the administration of her extra-dotal property, previously confided to her husband, and also demand restitution of what is the object or price of it whenever she chooses.” (La. Code, Art. 2,368 ; [8 Martin N. S. 228,] p. 299.) Some of the distinctions before suggested, arising from allowing her husband to administer the separate estate, are then alluded to by the Judge. The lot is held to be separate property, but the improvements made by funds not coming from the separate estate of the wife were held to be subject to sale. The case of Comeau v. Fontenot, 19 La. 406, goes upon one of the distinctions before alluded to—and the opinion in this case shows that Brown v. Cobb goes upon the same distinction, for the Court on this ground distinguishes them from Dominguez v. Lee. The suit is for a separation of property, and the question w;as, whether a slave, Eose, and her children were the separate property of the wife or community property. The husband had the administration of all the property, and had previously sold one of the children. The slave, Eose, had been conveyed to him by notarial act by the plaintiff’s mother, without the consent of the wife, but the consideration was seven hundred and fifty dollars, due the wife as a part of her inheritance. The Court say : “ We cannot distinguish this case from that reported in the 10th La. Eep. 180, in which we held that property purchased during the marriage, by the husband and in his name, though bought with the funds of the wife, belongs to the community. In Dominguez v. Lee, 17 La. Eep. 295, we ruled, it is true, that property acquired by the wife by a dation en paiemcnt, made to her by her tutor, and which never came under the husband’s administration, still constitutes her separate or paraphernal property. The two cases are quite distinct. In the one the husband, employing a fund belonging to the wife, in the purchase of property in his own name, without her consent, becomes the owner as head of the community, and owes to his wife the amount thus employed. In the other, the wife, who has retained the administration of her paraphernal property, employs it herself in the acquisition of other property, with his consent, or receives a dation en paiemcnt from her own debtor.” The Court, in addition to the fact of the administration by the husband, seems to attach some weight to the fact that the purchase was loithout the wife's consent, and that it might be more to her interest in such case to hold the slave to belong to tine community, with a charge against it in her favor for its value. For it is said : “ Suppose the slave, Eose, purchased with the funds inherited by the wife, instead of becoming the mother of several children, had died. According to the argument of the plaintiff, this loss would have fallen upon her, although the purchase had been made, without her consent, by her husband, who had taken upon himself and was responsible for the administration of her paraphernal estate,” (p. 408.) If the two cases of Brown v. Cobb) and Comeau v. Fontenot do not depend upon the modifications made by the Louisiana code, subsequent cases clearly overrule them. The case of Terrell v. Cutrer, 1 Rob. 367, it seems to me, squarely overrules Brown v. Cobb. The question whether parol evidence is admissible to show that the purchase'money of a slave conveyed by deed was paid out of the separate property of the wife, with a view of controlling the operation of the deed in her favor, was made and directly decided in the affirmative. The plaintiff a married woman, claimed as her separate property two slaves, which her husband had turned out to his creditors. The slaves had been purchased by the wife with funds in the hands of her husband derived from the estate of the wife’s father. It was claimed that-in, order to prevent the property purchased from becoming a part of the community, it must be declared on the part of the wife, “ by notarial act," that is, in the instrument of conveyance (or what answers to our conveyance,) itself, that she purchases for her sole account, and from what source she obtained the money given in payment. The Court say : “ On the trial it was objected that parol evidence was inadmissible to prove that the slaves ivere purchased with paraphernal funds; and the defendant tools a bill of exceptions to its admission, notwithstanding his objections. It was objected to on the ground that such proof was against and beyond ivhat ivas contained in the written contract, and could not be introduced without showing that the wife was in the actual administration of her paraphernal property. The Court, in our opinion, did not err in admitting the evidence. It does not appear to us that the evidence that the ¿mee stated to have been paid vías in fact paid out of the proper funds of the wife, is repugnant to the deed itself; and as the wife has at any time the right of resuming the administration of her paraphernal property, and it belongs legally to her, we see' no necessity for proving that she had the actual administration at the time that she appropriated a part of it to the purchase of the slaves, with her husband’s consent. That act alone was one of administration and was done with the consent of the husband. The bare receipt .of the money by her husband does not alone show that she had confided to him the administration. On the contrary a part of it was employed by her agent in Kentucky, under her orders, and was invested in the purchase of one of the slaves in dispute. If the slaves had died, and the wife had claimed of the syndic, as a debt due her, the amount derived from her father’s estate, we think under all the circumstances of this case that she could not have recovered; because the investment of the amount by her, even during the marriage, would be considered as a valid contract. It is difficult to find any real distinction betioeen this case and that of Dominguez v. Lee, 17 La. 300. In that case we held, that when the wife retains the administration of her paraphernal estate, and the title is taken in her name,,either as a purchase with the funds- which she administers without the assistance of her husband, or as a dation en paiement made to her by a debtor of a separate and paraphernal claim, the property thus acquired remains paraphernal and does not fall into the community of acquets and gains. We readily admit that the subject is not free from difficulties, growing out of the very general dispositions of the law applicable to such cases. The wife’s right to sell or otherwise alienate, and to administer her paraphernal property, is clear. Her right to reinvest the proceeds of her property thus disposed of would seem to be but a corrollary from that -principle. It would perhaps be a safe and proper precaution to require that such contracts should be by authentic act, as contended for by the defendant’s counsel; but ive are not atoare that any lato requires it, and we have never recognized its necessity to their validity,”' (p. 368.) The same principle is implied and recognized, and Terrell v. Cutrer cited as settling the law upon this point in Marshall v. Mullen, 3 Rob. 328. The wife claimed a lot purchased during the existence of the community of acquets, but conveyed to the wife. On the trial “ it was attempted to be proved that it had been paid for with paraphernal funds ; but the Judge thought that allegation not sufficiently established.” On appeal the Court say : “ We can find no evidence to satisfy us that the lot was paid for out of the paraphernal funds of the wife. The deed of sale does not show it with any certainty, and there is no other evidence to prove it. * * * As the case now stands, all the principles involved in it have been settled in the cases of Terrell v. Cutrer and Bertie v. Walker, 1 Rob. 367, 431.” Terrell v. Cutrer was again sanctioned in Rousse v. Wheeler, 4 Rob. 118. The idea would seem, from this and some other cases, to be, that when the wife allows her husband to administer her paraphernal estate, and to sell, invest and reinvest the proceeds of the property purchased, it becomes common upon the principle of the implied assent of the wife that it should be so | and that in such cases there is a charge and mortgage upon the husband’s estate to the amount thus appropriated in favor of the paraphernal property of the wife. The principle of these cases was again affirmed in Broussant v. Her Husband, et al., 11 Lou. An. 446. The slave in question had been sold to the wife, with the consent of her husband, for the price of five hundred and forty dollars, as expressed in the act of sale. There was some question as to the sufficiency of the proof to identify the source whence the purchase money was derived, and the Court thought the circumstances required “ that the case should be remanded for a new trial, and to enable the parties to furnish any further evidence in their power.” Of course it must have been evidence dehors “ the act of sale ”—the conveyance. And the same principle was again sanctioned in Gonor v. Her Husband, 11 Rob. 572. But this case is more nearly on all fours upon the precise point in question with the. case now under consideration, and I shall reserve further comment till I come to the exact point. Again, in Metcalf v. Clark, 8 La. An. 287, the Court approve the foregoing cases, and answer satisfactorily, it seems to me, the suggestions relating to the liability of purchasers to be misled to their injury by the apparent record title, and the further suggestion' as to the necessity of reciting all the facts in the conveyance—on these points fully sustaining the principle determined in Ramsdell v. Fuller, 28 Cal. 37. The Court say, (p. 287) : “ But it is urged that the investment of the paraphernal funds should be expressed in the Act by which the wife acquires the property. The objection does not appear to ms to be founded in latv. In regard to creditors, such a statement would of itself be without effect, except in giving notice to third persons. But as the husband is the head and master of the community, having clone the administration, a purchase in the name of the wife would not be in the usual course of business, and consequently ivould be sufficient to put' third persons upon inquiry. As this rule seems to be applicable to promissory notes signed by the wife, we see no reason why it should not be equally applicable to other contracts entered into by her. The wife, if required, tvould be bound in all cases to establish the reality of the sale to her dehors the act; and the same proof would also be necessary in order to make her acknowledgment in the act binding upon her.” Thus, in Louisiana, even though the conveyance—the act of sale— should upon its face expressly state that the land is conveyed to the wife to her separate use, and was paid for out of her separate estate and every fact necessary to show that it was intended to vest a separate estate, yet, in a contest with the husband, or anybody claiming under him, the presumption of law would seem to be, that the deed operated to convey an estate in common, subject to the absolute disposal of'the husband, and “ the wife, if required, would be bound in all cases to establish the reality of the sale to her dehors the actthat is to say, give other evidence dehors the deed to control its operation, for it is claimed that the apparent operation of the deed is in law its real operation. To the same effect, as to this burden thrown upon the wife, is Forbes v. Forbes, 11 La. An. 326, Clark v. Norwood, 12 La. An. 598. But to what end is this evidence to be introduced unless, when it has been received, it shall control the operation of the deed in accordance with the real facts of the case, against the operation which the lato says it shall have upon the face of the instrument itself ? We will now consider the cases in Texas, where, it is understood, there have been less modifications of the Spanish law in respect to marital rights, as it prevailed in Mexico, Louisiana, Texas and California, than was made by the Louisiana Code. In Love v. Robertson, 7 Texas, 8, the contest was about two slaves between the widow, who claimed them to be common property, and the heir, who claimed them to be the separate property of the husband, his father. The purchase money of one and part of that of the other was paid out of funds, the proceeds of sales of property inherited by the husband, and the balance for the latter out of the common property. The Court cite the Spanish law and some of the Louisiana cases above cited, and say (p. 10) : “ From these cases it seems clear that property purchased with the separate or individual money of either husband or wife does not necessarily belong to the community. * * * Accordingly, in McIntyre v. Chappell, we held that negroes received by the husband during the marriage, in discharge of a debt due him for property which he had sold previous to the marriage, were his separate property. It is difficult to perceive any real distinction between this case and that. In the case of a purchase made during the marriage, it will in general be more difficult to prove the individual ownership of the money, from what source it was derived, and whose money was really employed in making the acquisition, than in the-case of the mere exchange of one article for another. A greater burden of proof will devolve on the claimant. The presumption that property purchased during the marriage was community property, would certainly be very cogent, and would require to be repelled by clear and conclusive proof. But wheu it is established, as in this case, clearly and conclusively, that the property was purchased with the separate money of one of the parties, no reason is perceived why it should have a destination different from that of property received in payment of a debt due the party, or why it should not remain, in the one case as well as in the other, the separate property of the party with whose money it was purchased. Why should not the property purchased with the proceeds of the patrimony receive the same direction as property received in lieu of those proceeds ?” The Court held one of the slaves, and a pro rata interest in the other, to be separate property. There wras no question of admissibility of evidence in this case made or argued, it is true; but it was assimed that the real facts might be proved. In Huston v. Curl, 8 Texas, 240, the contest was between the wife, who claimed a slave as her separate property, and creditors of the husband. There was a bill of sale in the name of the wife, and evidence dehors the instrument upon the question as to who furnished the consideration. The Court say (page 242) “ It is the settled doctrine and law that property purchased during the marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. This presumption may be rebutted by clear and satisfactory proof that the purchase was made with the separate funds of either husband or wife, in which case it remains the separate property of the party whose money was employed in the acquisition. (Scott & Solomon v. Mangard et ux., Dallam, 548 ; McIntyre v. Chappell, 4 Texas, .187; Love and Wife v. Robertson, 7 Texas.)” So in Ross v. Houston, 11 Texas, 326, the Court say: “ The consequence is that to maintain the character of separate property it is not necessary that the property of either husband or wife should be preserved in specie or kind. It may undergo mutations and changes, and still remain separate property ; and as long as it can be clearly and indisputably traced and identified, its distinctive character ivill remain.” See, also, Parker v. Chance, where the Mexican law is cited to the same effect. (Ib. 516.) Of course to trace the property through its “ mutations and changes” in such a manner as to sustain the interests of the wife, requires evidence other than written, and even against it. In Chapman v. Allen, 15 Texas, 283, where the bill of sale purported “ to be in consideration of valuable services rendered by the claimant, and one dollar in hand paid,” the right to show by parol testimony that the consideration was really received from the inheritance of the wife was recognized, although not necessarily decided. The case of Smith v. Strahan, 16 Texas, 315, is another illustration of the great freedom of inquiry into the real facts of the case allowable in transactions relating to marital rights under a system entirely similar to ours. The suit was by the heirs of the wife against the surviving husband for a partition of four hundred acres of land conveyed to the wife during her coverture for a money consideration—the money having been furnished by the husband out of his separate property, and the conveyance having been made to the ivife by direction of the husband. The heirs claimed the land as separate property of the wife, and the husband claimed it as-his separate property. Parol testimony ivas introduced to show that in paying for the land out of his separate property and taking the title in the name of his wife, the husband did not intend it as a gift to the wife, and there was a resulting trust in his favor. It was held, in a well reasoned opinion, that when a husband purchases land with funds belonging to his separate estate and takes the deed in the name of his wife, the presumption of law is that he intends it as a provision for the wife, and that the title vests as a separate estate in the wife. But it ivas further held that this presumption might be rebutted by parol evidence. No such presumption, however, arises wdien he pays for the land out of the common property, for in that case the law determines the operation of the deed. It having been contended that the wife could not be a trustee for the husband, the Court say, (p. 321): “ This principle has little or no force under our system of laws and of marital rights. The right of the wife, under our laws, to hold property is coequal with that of the husband, and upon evidence it may be shown that property in the name of one is really held for the benefit of the other. It is very true that the wife is under the burden, or, as the law intends, under the protection, of some legal disabilities, even with reference to her separate property ; but these have reference to the mode of alienation, and not to any claim of the husband over such property, jure uxoris, for he has none except that of management and its incidents. At all events, where the fundamental principle of the marital relation is that whatever may be the unity of persons, there is no unity of estates, there can be no such rule as that the wife cannot be a trustee for the husband in any sense which would preclude evidence, showing that although property is in her name, it was intended for the benefit of the husband.” Again, as to the effect of the deed, (lb. 232) : “ The legal effect and operation of the deed is to vest the property in the wife. This effect would be rebutted in case a stranger were the nominee in the purchase. But the wife is not as a stranger to the husband. She has distinct rights and a separate estate, but he is bound for her support and maintenance, not only by law, but from impulses of affection ; and a conveyance to her, when the purchase money is advanced by himself, is not to be presumed prima facie an arrangement for his convenience, but as imparting to the wife a substantial benefit, and vesting in her the whole interest as well legal as beneficial. This is but a presumption, and may be rebutted by evidence ; but the wife and her privies are entitled to the benefit of this presumption, and the Court erred in refusing to instruct the jury that such was the inference of the law’.” And further, as to the distinction between the community and separate property, (lb. 323): “ The intention of the husband, in taking the conveyance of community property in the name of his wife, has no effect upon either his own, or the rights of his wife. The law prescribes the operation of such deed, irrespective of the motives in taking it in either the name of the husband or of the wife, or of both jointly; for, whether taken in the one form or the other, the community character of the property is not changed. But there is no such rule in reference to their separate estates, and it could not be applied to them, without producing much embarrassment and confusion. The law having attached no uniform operation to a purchase by a husband, out of his separate funds, in the name of the wife, the question of intention of4the husband, in so talcing the deed, becomes of paramount importance, for upon that depends its operation. The inference of law is, that by such act he intended an advancement, or provision for the wife.” We have then in the case cited this condition of things: A conveyance of land to the wife vipon a money consideration, and the operation of the deed under the law lohen read by its oivn light alone, is, to vest the title in the community subject to the control and absolute disposition of the husband. But parol evidence is admissible, and admitted, to show that the consideration money was paid by the husband out of his separate property and the deed by his direction talcen in the name of the tvife, mid by this parol evidence the effect and operation of the deed is changed and the title transmitted in another direction, for, noto, in the language of the Court, “ the legal effect and operation of the deed is to vest the property in the iuife.” But again, further parol testimony is admissible to show, that, in fact, it was not the intention of the husband to malee a provision for the wife out of his separate estate, and the legal effect and operation of the deed is again varied and the property transmitted in a third direction and becomes the separate property of the husband. - In Claiborne v. Tanner, 18 Tex. 70, a deed of land to a married woman was “ for the consideration of two thousand two hundred dollars expressed therein.” Testimony was introduced showing that the consideration really paid consisted of a negro, received by the wife from her father, and a yoke of oxen, and the Supreme Court recognized the right of the wife to an interest in the land as separate property in proportion to the value of the consideration thus furnished by her. Thus, I think, it is shown by an unbroken line of decisions in Louisiana and Texas, with the exception, perhaps, of two or three early cases in Louisiana—and those cases seem to depend upon modifications of the Spanish laws made by the code of that State, and can scarcely be called exceptions^— that parol testimony may be introduced to-show that the money consideration expressed in a conveyance to a married woman came from her separate property with a view of controlling the operation of the deed, and giving it an effect different from that which the law says it shall have, if construed by the language of the instrument itself. In several of the cases the question was directly made and determined, and in all it was assumed that such evidence is admissible, and in Texas, at least, the unvarying practice of the Courts, from the foundation of the State Government down to the last volume of its reports received here, has been to admit it. The same principle is strongly implied from the course of the argument and the tenor of the quotations in this State, in the case of Meyer v. Kinzer, 12 Cal. 247, in which many of the Louisiana and Texas cases were cited. The statement that the wife must show by clear evidence that the land conveyed to her was purchased with her separate funds, in order to rebut the presumption raised by the law that it belongs to the community, necessarily assumes that she may malee the proof. The same implication runs through many other cases in the California Courts, down to Ramsdell v. Fuller, in which case the question was necessarily involved. It is true the question was not raised on objection to evidence. But it makes no difference, for, when the facts are shown, and it appears that the matter by which it is sought to control the operation of the deed is dehors the deed, effect cannot properly be given to it, if it is for that reason irrelevant and inadmissible. If it is proper to give effect to any matter when proved, which it appears must have been proved by parol or not at,all, it must be proper to prove it. In many of the States where the- common law prevails recent statutory provisions have been made, authorizing married women to hold, as their separate property, such property as they had before marriage, and such as may come to them after marriage lay gift, bequest or devise. In Pennsylvania the Act of 1848 provides that “ every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman