Anders v. Bouska

¶1(dissenting) — I dissent. Under section 5917, Rem. & Bal. Code, property “acquired after marriage by either husband or wife, or both,” except such as is acquired by gift, bequest, devise or descent, with the rents, issues and profits thereof, is community property. Under the succeeding section, community real estate is subject to the lien of judgments recovered for community debts, and to sale on executions issued thereon. The land in controversy was the community property of Logan Snell and Clara Snell, his wife, on the 19th day of November, 1906, when levied upon under a writ of attachment, sued out in an action *396prosecuted against the husband for a community debt. That the levy of the writ created a lien on the community property, I presume will not be denied, and that a deed from the wife alone would convey no title to a purchaser will not be gainsaid. The majority seem to proceed on the theory that, inasmuch as the record or paper title stood in the name of the wife, a purchaser from the community was not chargeable with notice of liens for community debts recorded against the husband alone. By a parity of reasoning it might be argued that neither was he chargeable with notice of any interest or claim the husband might have in or to the property. Yet all will concede that the purchaser was bound to take notice of the marriage relation of the parties, and of the community character of the property, and that a deed from the wife alone would be mere waste paper. And if the purchaser was chargeable with notice of the community interest of the husband in the property, why was he not likewise chargeable with notice of recorded liens against that interest. In Mabie v. Whittaker, 10 Wash. 656, 39 Pac. 172, this court held that “A deed of lands under the conditions specified in the statute vested the ownership in the community, no matter which spouse was named as grantee in the deed, and the title of one spouse therein was a legal title as well as that of the other.” It is now held .that that, legal title vested in the husband may be acquired free from attachment liens for community debts recorded against it. In such a conclusion I cannot concur. I do not think that, the majority opinion is supported by the two cases cited from this court, but if so, they are so entirely out of harmony with our community property system that they should be overruled.