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than testamentary) as he has of his separate estate," it is held that the husband is the absolute owner of the community property and that the wife has no vested interest therein till the dissolution of the marriage and is not a proper party to be joined as plaintiff in an action to recover community property. Spreckels v. Spreckels, 116 Cal. 339 (48 Pac. Rep. 228; 58 Am. St. Rep. 170; 36 L. R. A. 497).

Sec. 111. Idaho. (See Vol. III, § 81). The only estate or interest the wife has in that portion of the community property which is occupied as a residence, and not dedicated as a homestead, is subject to the control of the husband, except as to the alienation or incumbrance, as prescribed by the statutes. A residence can be changed or abandoned at any time by the husband without the consent of the wife; and, when such change or abandonment has taken place, the property is again under the absolute control of the husband, unless the same has been dedicated as a homestead as provided by law. Law v. Spence. Idaho (48 Pac. Rep. 282). Upon the death of either spouse, the survivor holds the legal title to one-half of the community property absolutely, and the other half in trust for the heirs subject to its due proportion of the community debts, and it will be presumed in favor of a purchaser claiming title for a long time under such survivor that the sale was made necessary on account of the existence of community debts. Von Rosenberg v. Perrault, Idaho

(51 Pac. Rep. 774).

Sec. 112. Louisiana. (See Vol. III, § 82; Vol. IV, § 69; Vol. V. § 66). Particular evidence held insufficient to rebut the presumption that property acquired by a wife was community property. Nouvet v. Municipal Imp. Co., 49 La. 37 (21 So. Rep. 170). The usufruct of a surviving spouse of the share of the deceased spouse in community property, is not affected by the fact that there is an adopted child of the spouses surviving the deceased. Rev. Civ. Code, art. 915, 916; Rev. Stat., §§ 628, 629, applied. Succession of Teller, 49 La. 281 (21 So. Rep. 265). As to the right of a surviving spouse in community property and its liability for debts, see Zeigler v. His Creditors, 49 La. 144 (21 So. Rep. 666). The heirs of a deceased wife are not bound to await liquidation of the community before resorting to a petitory action to recover their share of the community. Ogden v. Leland University, 49 La. 190 (21 So. Rep. 685) Particular case as to accounting between the separate estate of deceased spouse and the community estate Succession of Webre, 49 La. 1491 (22 So. Rep. 390). For particular case upon partition of commuuity property, see Hottinger v. Hottinger, 49 La. 1633 (22 So. Rep. 847).

Sec. 113. Nevada. (See Vol. III, § 84; Vol. V, § 67). Under Nev. Gen. Stat., § 539, the wife has a right to select a homestead out of the community property and file the required declaration without the knowledge or consent of her husband. Such a declaration has priority over a previous mortgage of the property given by the husband, which on account of error in the description does not cover the homestead and

such homestead is exempt from the payment of any mortgage thereon subsequently given, unless the same is executed and given by both husband and wife. Adams v. Baker, Nev. (51 Pac. Rep. 252).

Sec. 114. New Mexico. (See Vol. III, § 85). For a discussion of the history and construction of the laws of New Mexico in reference to community property, see Barnett v. Barnett, N. M. (50 Pac.

Rep. 337); Crary v. Field, N. M. (50 Pac. Rep. 342).

Sec. 115. Texas. (See Vol. III, § 86; Vol. IV, § 70; Vol. V, § 68). Property acquired during the existence of the marital relation will be presumed to be community property. Byrn v. Kleas, 15 Tex. Civ. App. 205 (39 S. W. Rep. 980). Property purchased with money originally belonging to a wife which her husband had reduced to his possession while they were living in another state, the laws of which gave him title thereto, in such a case does not constitute community property. MeDaniel v. Harley, Tex. Civ. App. (42 S. W. Rep. 323). Land located under land certificates, in which a wife had no interest, by her husband, after her death, will not be treated as community property. Figures v. Gregg, Tex. Civ. App. (39 S. W. Rep. 1011). A wife does not acquire any community interest in land conveyed to her husband solely in the capacity of a trustee. Crenshaw v. Harris, 16 Tex. Civ. App. 263 (41 S. W. Rep. 391). Where a husband holds the legal title to community lands a purchaser from him, after the wife's death, takes the land free from the equitable community title of her heirs where he has no notice of such title. Mangum v. White, 16 Tex. Civ. App. 254 (41 S. W. Rep. 80). A conveyance of a wife's interest in the community executed by her husband after her death does not affect the title of her heirs. Parker v. Stephens, Tex. Civ. App. (39 S. W. Rep. 164). The will of a deceased husband cannot empower his executor to convey his surviving wife's interest in the community. Mealy v. Lipp, 16 Tex. Civ. App. 163 (40 S. W. Rep. 824). It is not essential to the validity of a deed of trust given by the husband on community property that the wife shall join in its execution. Boehm v. Beutler, 16 Tex. Civ. App. 380 (41 S. W. Rep. 658). A power of sale in a deed of trust of community property to secure a husband's debt is not revoked by the subsequent death of the wife, and title to her interest in the community property will pass upon a regular exercise of such power. Western Union Tel. Co. v. Hearne, Tex. Civ. App.

(40 S. W. Rep. 50). For construction of particular conveyance by a man and his second wife of the community estate belonging to himself and his deceased wife see Bass v. Davis, Tex. Civ. App. (38 S. W. Rep. 268). Act of Congress of the Republic, Jan. 20, 1840, construed and applied descent and distribution of community property. McCown v. Owens, 15 Tex. Civ. App. 346 (40 S. W. Rep. 336).

Sec. 116. Washington. (See Vol. III, § 87 Vol. IV, § 71; Vol. V,§ 69). Land conveyed to a wife during the continuance of the marriage relation will be presumed to be community property. Woodland Lumber Co

v. Link, 16 Wash. 72 (47 Pac. Rep. 222). A conveyance of community property by a married man to a woman with whom he is living in adultery, passes no title, the grantee having knowledge of the facts. Kimble v. Kimble, 17 Wash. 75 (49 Pac. Rep. 216). Where a surviving husband whose wife left community property and community debts, subsequently remarries and then dies, an allowance to his second wife out of his interest in the community property, cannot be given such superiority as to cast upon the first wife's share of the community property, more than half of the community debts. Hill's Code, Vol. I, § 1481; Vol. II, § 974, construed and applied. In re Cannon's Estate, 18 Wash. 101 (50 Pac. Rep. 1021).

CONTRACTS.

EPITOME OF CASES.

Sec. 117. Validity of contracts-Public policy. A sale of land which a purchaser may rescind, at his election, on account merely of the fraud which the law, prima facie, imputes to it, when effected by an agent of the purchaser, who at the same time represents the vendor, for a promised reward, is not void as against public policy, the transaction not appearing to be one of a public character; and, so long as the purchaser does not complain, there is no cause for treating the contract of sale other than as valid, and no reason why the vendor, who has enjoyed the benefit of the unrescinded sale, should not pay the selling agent his stipulated reward. Dexter v. McClellan, 116 Ala. 37 (22 So. Rep. 461). A contract with commissioners to convey to the county certain land free of charge in case it is chosen by them as a site for a court house, is not void as against public policy. Island Co. v. Babcock, 17 Wash. 438 (50 Pac. Rep. 54). Where a statute (Starr & C. Ann. Ill. Stat., Vol. 1, p. 472, art. 5, par. 63, subd. 90) requires as a condition precedent to the grant by a municipality of authority to construct a street railroad in its streets, that the owners of more than one-half of the property abutting on the street where the road is sought to be located, consent to its location, a contract purchasing the consent of a property owner is void as against public policy. The same is held as to an agreement by a street railway company with an

abutting owner not to lay a second track without his consent. Doane v. Chicago City Ry. Co., 160 Ill. 22 (45 N. E. Rep. 507; L. R. A. 588). An agreement having for its object the suppression of competitive bidding at a judicial sale, is void, and no recovery can be had thereon. De Baun v. Brand, 60 N. J. L. 283 (37 Atl. Rep. 726). Fictitious bids made by an auctioneer at the instance of an owner, although such fraudulent conduct may be customary, renders an auction sale of land void. Flannery v. Jones, 180 Pa. St. 338 (36 Atl. Rep. 856; 57 Am. St. Rep. 648). No action can be maintained upon a lease of Indian lands made in violation of U. S. Rev. Stat., § 2116. Mayes v. Cherokee Strip Live-stock Ass'n, 58 Kan.

713 (51 Pac. Rep. 215).

Sec. 118. Validity of contracts-Gambling and usurious contracts. Where, to promote the establishment of a manufacturing plant, several parties join in a subscription agreeing to purchase lots, the method of the division of the lots to be decided upon by a vote of subscribers, such contract is not rendered invalid as constituting a lottery, within the meaning of Ia. Code 1873, § 4043, or Const., art. 3, § 28, prohibiting lotteries, on account of the fact that the subscribers subsequently apportioned the lots by casting lots. Chancy Park Land Co. v. Hart, 104 Ia. 592 (78 N. W. Rep. 1059). The effect of violating the law against usury cannot be avoided by disguising the transaction, in fact a loan, by putting it in the form of a sale. Watts v. National Bldg. Loan Ass'n,

Ky. (42 S. W. Rep. 839). Where the place of performance of a contract is fixed in a foreign state for the avowed purpose of evading the usury laws of the state in which it must be enforced, the laws of the latter state upon usury will govern in its enforcement. Building & Loan Ass'n v. Griffin, 90 Tex. 480 (39 S. W. Rep. 656).

Sec. 119. Validity of contracts made in violation of a license law. Construing and applying the statutes of Idaho (Rev. Stat. §§ 1636, 1644, 6983), making it a misdemeanor for one to engage in the business of loaning money at interest without obtaining license and paying a license tax, it is held that a note and mortgage to secure the repayment of

money loaned at interest, taken by one engaged in such business without obtaining the required license may be enforced. Vermont Loan & 7. Co. v. Hoffman, Idaho (49 Pac. "The general

Rep. 314; 37 L. R. A. 509). The court say: rule, as urged by appellants, that a contract founded on an act forbidden by a statute under a penalty is void, although it be not expressly declared to be so, is correct, and well established by authority. But in applying the rule many courts have excepted from its operation one class of cases, viz. when the statutory prohibition is found in a statute enacted for the purpose of raising revenue or the regulation of traffic or business, when, unless it is manifestly the intention of the statute to make the contract void, the court will treat the contract as valid. Mr. Sutherland, in his admirable work on Statutory Construction, at § 366, in treating the question under consideration, very aptly says: 'When a statute is for revenue purposes, or is a regulation of a traffic or business, and not to. prohibit it altogether, whether a contract which violates the statute shall be treated as wholly void will depend on the intention expressed in the particular statute. Unless the contrary intention is manifest, the contract will be valid.' And in support of the rule Mr. Sutherland, in a foot note, cites many authorities, among the following which support the text, as we have seen by a careful examination of the cases, towit: Harris v. Runnels, 12 How. 79; Insurance Co. v. Bledsoe, 52 Ala. 538; Niemeyer v. Wright, 75 Va. 239 (40 Am. Rep. 720); Johnson v. Hudson, 11 East 180; Brown v. Duncan, 10 Barn. & C. 93; Parton v. Hervey, 1 Gray 119; Bly v. Bank, 79 Pa. St. 453; Pangborn v. Westlake, 26 Ia. 516; Bemis v. Baker, 1 Kan. 226; Lindsey v. Rutherford, 17 B. Mon. 245; Strong v. Darling, 9 Ohio 201; Watrous v. Blair, 32 Ia. 58; Foster v. Railway Cor. 13 C. B. 200; O'Hare v. Bank, 77 Pa. St. 96; Vining v. Bricker, 14 O. St. 331. The following are other authorities supporting the rule laid down by Mr. Sutherland, cited above, which we have examined, to-wit: Fackler v. Ford, 24 How. 322; Mandlebaum v. Gregovich, 17 Nev. 87 (28 Pac. Rep. 121); La France Fire Engine Co. v. Town of Mt. Vernon, 9 Wash. 142 (37 Pac. Rep. 287; 43 Am. St. Rep. 827); Larned v. Andrews, 106 Mass. 435 (8 Am. Rep. 346); Bowditch v. In

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