Schofield v. Gold

• Decision Date: 17 April 1924
• Docket Number: Civil 2069
• Parties: GEORGE SCHOFIELD, Appellant, v. MARTIN GOLD, DOLORES GOLD, ROSA GOLD and HELEN GOLD KELEEN, Appellees
• Court: Arizona Supreme Court

225 P. 71

26 Ariz. 296

GEORGE SCHOFIELD, Appellant, v. MARTIN GOLD, DOLORES GOLD, ROSA GOLD and HELEN GOLD KELEEN, Appellees

Civil No. 2069

Supreme Court of Arizona

April 17, 1924

On Rehearing.

(For former opinion, see 25 Ariz. 213, 215 P. 169.)

APPEAL from a judgement of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Messrs Alexander & Christy and Mr. Hess Seaman, for Appellant.

Messrs Jennings & Strouse and Mr. Thomas W. Nealon, for Appellees.

Messrs Armstrong, Lewis & Kramer, Mr. James R. Moore, Messrs. Baker & Whitney, Mr. G. P. Bullard, Mr. Richard E. Sloan, Mr. C. F Ainsworth, Mr. E. E. Ellinwood, Mr. Maurice Blumenthal, Messrs. Kibbey, Bennett, Gust & Smith, Messrs. Kingan, Campbell & Conner, and Mr. Ben C. Hill, and Messrs. Morrison & Morrison, Mr. Ziba O. Brown, Mr. R. B. Westervelt, Messrs. Norris & Norris, Messrs. Anderson, Gale & Nilsson, Mr. Edw. S. Lyman, Mr. John A. Ellis, Mr. J. E. Russell, and Mr. Howard Cornick, Amici Curiae.

OPINION

LYMAN, J.

Since deciding this case (25 Ariz. 213, 215 P. 169), rehearing was allowed and had with exhaustive briefs and argument upon the right of the wife to convey by deed of gift directly to her husband her interest in their community real estate. The conclusion now arrived at requires a restatement of the law upon the subject.

The original opinion seems to have been stated so broadly as to imply a lack of authority in the husband to convey community real estate directly to the wife, a conclusion not contemplated nor intended, and so stated by Judge ROSS in the course of the argument upon this rehearing. The deed in question was not made in contemplation of any termination of the marital relation. The property affected was not unpatented mining claims.

Not only the property rights of husband and wife, but the whole system of domestic relations upon which such property rights depend, are the subject of statutory regulation in this state, widely if not fundamentally different from either the common law or the parent law of our community property system. Legislation has superseded them both, and governs in their stead.

Unlimited freedom of contract is allowed to both husband and wife in dealing with their separate property. Either one acting alone may convey that; so that apparently either may contract with the other, or with strangers, with reference to such property. It must therefore be concluded that, so far as the mere power to contract is concerned, there is no policy of the law forbidding the husband and wife to contract with each other; nor is there any distinction or discrimination in the powers possessed by each with reference thereto.

The husband alone may dispose of the community personal property. Over that the wife has no control. Revised Statutes (Civ. Code 1913) par. 3850.The husband may also contract "community debts" for which the community property shall be liable. Revised Statutes, par. 3854. The term "community debts" seems to imply a restriction upon the husband's power to bind the community property by his obligations. Within these limitations, and subject to the restrictions stated in these provisions, the husband is not inaptly described as the "agent," appointed by statute, for the management of the community estate. That this "agency" is not without limitation is apparent.

The contractual power of the wife over the community estate is thus stated:

"Married women shall have the same legal rights as men of the age of twenty-one years and upwards, . . . and shall be subject to the same legal liabilities as men of the age of twenty-one years and upwards." Revised Statutes, par. 3852.

From this grant of authority there is, however, reserved one exception: "The right to make contracts binding the common property of the husband and wife." Such contracts she is forbidden to make. This exception is in accord with the other sections of the statute just referred to, investing the husband with the power of disposition of personal property, and to incur "community debts." Manifestly these powers are contractual rights not vested in the wife.

Subject to the one exception stated, the wife's freedom of contract is so complete that it is not compared with that of one bound by marital ties, but with that of a man of competent age without such ties. With the one exception, it invests her with all the rights, and burdens her with all the responsibilities, which are incident to that status. Her contracts not in contravention of the exception are to be given the same force and effect as the contracts of an unmarried man, including the right to contract with whomsoever she will, the husband included.

The power to dispose of community real estate by direct contract is not vested in either husband or wife alone, and may be affected only by the joint contract of the two, Provision for such contracts is made in the following terms:

"Husband and wife must join in all deeds and mortgages affecting real estate." Paragraph 3850, Revised Statutes of Arizona.

Unpatented mining claims and separate property are excepted from operation of this provision. It is obvious from this that the exception to the wife's right to make contracts binding community property does not apply to any contract conveying real estate in which she is joined by her husband. Such a contract is not only not excepted from her powers, but is expressly and explicitly included in them, and in such terms as to leave no doubt as to the quality of the power and function performed by husband and wife in executing that duty. Neither one alone may convey community real estate to a third person. Together they may convey it to whomsoever they will. But does it authorize either one to convey to the other? A similar statute has been held to give the husband power to convey directly to the wife.

In Luhrs v. Hancock, 6 Ariz. 340, 57 P. 605, this court had under consideration a deed from the husband directly to the wife, conveying a homestead, which the statutes of that day provided could only be conveyed by deed signed by both husband and wife, just as community real estate must now be conveyed. Par. 3850. The court in that case cited the statute, which is as follows:

"No mortgage, sale or alienation of any kind whatever of such land (homestead) by the owner thereof, if a married man, shall be valid without the signature of the wife, to the same, acknowledged by her separately and apart from her husband." Compiled Laws of 1877, par. 2141.

Upon the necessity of both joining in the deed, as directed by this statute, the opinion has this to say:

"It would be a foolish and senseless act for the wife to join in a conveyance to herself, and we cannot think the statute contemplates any such absurd requirement."

There is no distinguishable difference in the provisions of paragraph 2141, Comp. Laws of 1877, above cited, and paragraph 3850, Revised Statutes 1913, in their effect upon the right of alienation of the property severally affected.

It has been repeatedly assumed, in more recent decisions of this court, that under our present statute (Revised Statutes, par. 3850) the husband may convey community real estate directly to the wife. First Nat. Bank v. McDonough, 19 Ariz. 223, 168 P. 635; Germania Fire Ins. Co. v. Bally, 19 Ariz. 580, 1 A.L.R. 488, 173 P. 1052. Such has been the unquestioned law of this state for many years.

Whatever power of alienation is given to either husband or wife of community real estate is now found in paragraph 3850, above cited.

It seems to be, however, assumed that the husband is invested with some sort of a so-called agency in the management of the community estate. The statute nowhere describes the husband's relation to the community as an agency. That is a term applied by text-writers and courts in an effort to generalize upon the husband's rights in the premises. If any such agency exists, it must, of course, rest upon some statute, and be understood and defined by the terms of that statute. The scope of such agency can be no broader than the power conveyed by the statute upon which it rests. Such exclusive authority as the husband has in the management of the community estate consists in the sale of personal property, and incurring community debts which are a charge upon community property. This court long ago indicated what it understood to be the meaning of those statutes.

In La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B, 70, 137 P. 426, the court went at some length into an analysis of the several powers of the husband and wife over the community. Among other things it said:

"So it has clothed the husband with this agency, deeming him the best qualified for the purpose, but limiting such agency to the personalty and during the period of coverture."

The assumption that the husband's power over the community personal property in some way extends to and amplifies his power to convey real estate is wholly untenable, and finds no support either in statute or in judicial construction of the statute. Manifestly the power of the husband to convey real estate does not rest upon those provisions of the statute which merely provide for the disposition of personal property and for incurring community debts. Authority for deeds to real estate must rest upon some more secure foundation than a vague and fanciful agency.

[26 Ariz. 302] Paragraph 3850 provides for the transfer of community real estate, specifying how and by whom that may be done. The wife is one of the necessary grantors. Whatever she is empowered to do by this paragraph she may lawfully do even though in conflict...