Powell v. Pugh

• Citation: 13 Wash. 577,43 P. 879
• Court: United States State Supreme Court of Washington
• Decision Date: 01 February 1896
• Parties: POWELL ET AL. v. PUGH, SHERIFF.

43 P. 879

13 Wash. 577

POWELL ET AL. v. PUGH, SHERIFF.

Supreme Court of Washington

February 1, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Dora E. and E. L. Powell against F. M. Pugh, sheriff. Judgment for plaintiffs, and defendant appeals. Reversed.

Gordon J., dissenting.

Samuel R. Stern, for appellant.

Blake & Post, for respondents.

SCOTT J.

The respondents were husband and wife, and the husband was engaged in the grocery business in this state; the stock of groceries being the community property of the parties. The appellant, as sheriff of Spokane county, levied upon said stock under an execution issued upon a judgment which was the separate debt of the husband, and this action was instituted by the respondents to enjoin the sale of the property. Judgment was rendered in their favor, permanently enjoining the sale thereof, and this appeal was taken therefrom.

The question to be decided is as to whether the community personal property can be sold to satisfy the husband's separate debt. Under our law, the husband has the absolute control, management, and disposition of the community personal property, as much so as of his separate property excepting that he cannot devise more than one-half thereof. He has no such control or right of disposition as to the community real estate, and for that reason we have held that the community real estate cannot be sold for his individual debts. In this particular the laws of this state are different from those of the other states where community property laws relating to husband and wife are in force. With respect to personal property, however, our laws are substantially the same, and for that reason there is no ground for laying down a different rule as to the disposition of the community personal property. The husband, having the absolute power to dispose of it, may sell it to satisfy his individual debt, and pass a good title. This being so, we see no reason why it may not be sold under an execution issued to enforce collection of that individual debt. If the title may pass by his act, there is no reason why it should not pass by operation of law under similar conditions. See Andrews v Andrews, 3 Wash. T. 289, 14 P. 68.

It is further contended that the judgment of the lower court ought to be affirmed on the ground that it appears there is not enough of the community personal property to satisfy the community debts, but we do not think the respondents are in a position to raise this point. None of the community creditors are questioning the transaction, and we are not called upon to express an opinion as to what rights or claims, if any, they could maintain in the premises. Reversed.

HOYT, C.J., and DUNBAR and ANDERS, JJ., concur.

GORDON J.

I am unable to bring my mind to the conclusion reached by the majority, and will state as briefly as I can the reasons for my dissent. The reason advanced in the foregoing opinion for holding that the community personal property is liable for the individual debt of the husband is that, by statute, he is given the management and control of such property, "with a like power of disposition as he has of his separate personal property." 1 Hill's Ann. St. § 1399. I am aware that there have been decisions in some of the states in which the "community system" obtains which seem to fully support the reasoning and conclusion arrived at by the majority in this case. I think, however, in view of the difference that exists in the statutory provisions of those states and our own upon this subject, and the fact that this court, in many cases involving other questions arising under the community laws of this state, has been constrained to adopt conclusions differing widely from those reached in such other states upon kindred propositions, that the holdings of such states upon the question arising in this case ought not to be considered of much binding authority. It has been held, in Texas, that, upon the death of the wife, the husband occupies the relation of a surviving partner in an ordinary partnership. Moody v. Smoot, 78 Tex. 119, 14 S.W. 285. At page 179 of his very excellent work on Community Property, Judge Ballinger says: "In Texas, the liability of the community for the separate debts of either spouse contracted before marriage seems to be placed upon the theory that, because the income of the separate property falls into the community, so, also, the charges against the owners thereof become community debts." In this state the interest of the wife in the property acquired by the combined energies of herself and husband during the existence of the marriage is something more than a mere expectancy, and therein we differ from California and Louisiana. Packard v. Arellanes, 17 Cal. 525; Succession of McLean, 12 La. Ann. 222. Indeed, I am satisfied that there are many other essential points of difference between our "community system," as it exists by statute and as interpreted by the decisions of this court, and the system existing in any other state. It seems to me illogical to hold...