¶1 (concurring and dissenting).
¶2*539 I concur in the result of the decree of the Circuit Court to the extent that it applies to the ownership of the property located at Lugoff in Kershaw County, and to the grocery business conducted therein. Whether the relationship of the parties in regard to that property is characterized as a partnership or a joint ownership, or otherwise, the fact is that the property in which the business was conducted is in the joint names of the parties and that the business conducted therein was so conducted as to amount to a joint operation. At least there is testimony supporting that view of the matter, and appellant’s counsel appear to concede this in their printed argument.
¶3 I dissent, however, from the affirmance of so much of the Circuit Court decree as undertakes to create a partnership ownership of the real estate which is in the name of the appellant. It is a dangerous thing to tamper with real estate titles on the basis of inferences from circumstances of a debatable character and upon verbal testimony that does not purport to create a trust.
¶4 To say that the real estate in the appellant’s name is jointly owned by the respondent and the appellant is to disregard controlling, circumstances disclosed by the record.
¶5 Of the various properties acquired by these parties .some were put in the name of the appellant, some in the name of respondent, and some in the name of both parties as co-owners. This course of action extended over the whole period involved in the present litigation, and resulted from the claims of the respondent to participation in the fruits of the operations of the parties and from the dealings and arguments between them on the subject. It appears to me that the parties themselves undertook, as their operations progressed, to make division of their properties and other assets and that they thereby negatived any possible claim on the part of either against the other as to what their intentions were.
¶6*540 With respect to the personal assets, other than those at Tugoff, it does not appear to me that because the appellant and the respondent commingled the fruits of their separate and joint labors, and that because the appellant (according to the respondent) dominated the situation, a partnership or joint interest in such of the proceeds as got into the hands of the appellant was created. He demanded money from the businesses in which the respondent participated or which she conducted and she handed it over to him. There was no duress and no fraud. Only the normal relationship between husband and wife existed, with the situation of the husband in this case being at the most, domineering and grasping. But the respondent was not lacking in the assertion of her rights as she understood them, and, with one exception, was not without success in getting what she demanded in each transaction as her share of the property and earnings.
¶7 It is not without significance that these parties separated several times and that on none of these occasions did the respondent make the claims which are presented in this case. Nor does she even in her testimony assert the existence of a partnership relationship. She merely asserts her view or feeling that she should have a half interest in the family accumulations because of the marital relationship, and of the fact that she assisted her husband in making the accumulations.
¶8 It may well be that abstract justice demands that the fruits of the earnings of a married couple should be deemed community property. In a number of states the law has been so declared by constitutional and statutory enactments. I think that in the present case the Court has reached out into that realm of law and has thereby, in effect, made a fundamental change in the laws relating to property accumulated during the marital relationship.
¶9 It is not for this Court, it seems to me, to attempt to “‘unscramble the eggs” when two thoroughly competent persons, *541 even though they be husband and wife, have themselves distributed the fruits of their earnings. In any event, at this late day in the affairs of the parties, with no claim that records have been maintained to establish the respondent’s case, the most searching audit by a certified public accountant could not evolve even an approximately equitable statement of account upon which to determine where the equities of the situation lie.