Jenkins v. Huntsinger

The majority opinion results in injustice and the conclusion arrived at disregards the issue of estoppel and certain principles of equity which should lead to a different result, and therefore I dissent.

In order to better present my views, I will restate some of the essential facts in sequence.

Roberts on the 8th of June, 1929 (his wife not joining in the conveyance), attempted to convey community real estate to Jenkins, the appellant. The instrument in writing employed by Roberts was in due form, signed and acknowledged, and was recorded on July 19, 1929. It was designated "Warranty Deed" and contained the usual covenants of seizin, of good right to convey, for quiet enjoyment, and a covenant of general warranty.

The consideration for the conveyance was $900; one half cash, the balance secured by a mortgage on the land.

Jenkins, the grantee, was by the grantor Roberts on the same day, placed in possession of the land and he remained in possession thereof, continuously until the day of the trial of the cause.

About nine months later, on March 19, 1930, a decree of divorce was granted to the wife of Roberts, which decree awarded to her an undivided one-half of the land involved.

Thereafter on July 13, 1930, Roberts demanded of Jenkins the payment of the balance of the purchase price which sum was paid to him by Jenkins on August 22, 1930.

Afterwards, on May 2, 1933, Nannie J. Roberts, the divorced wife of George Roberts, conveyed by warranty deed her undivided one-half of the land to Jenkins.

Jenkins sued Roberts on the covenants of his attempted conveyance to Jenkins and recovered judgment for $450, which is equivalent to the amount Jenkins paid to Mrs. Roberts for her one-half of the land.

This left Jenkins out of pocket $450 which he had paid to George Roberts, and which the said Roberts never paid or offered to pay.

Notwithstanding the retention by George Roberts of this $450, he on the 22d day of March, 1935, executed and delivered to Huntsinger (the appellee) a quitclaim deed to the land involved.

It is charged by plaintiff and it seems to be conceded that Huntsinger had personal knowledge of the foregoing facts at the time he accepted the quitclaim deed from Roberts. He had record notice of the material facts.

The divorced wife of Roberts claims no interest in the land and her rights are not here involved.

Upon this state of facts, the question is whether appellant Jenkins or appellee Huntsinger is entitled to the undivided one-half of the land awarded to Jenkins in the divorce decree.

As to whether the deed executed by George Roberts and delivered to Jenkins along with the possession of the land, served to convey or transfer an interest in the land described in such attempted conveyance in praesenti, I leave to one side. For the purpose of the discussion, I assume that said instrument was ineffectual or in other words, was "of no effect" as a conveyance of the land in praesenti.

Does it follow that the written instrument designated a warranty deed and every part thereof including the covenants of warranty, of seisin, and of quiet enjoyment therein contained are likewise of no effect, even as foundation for working an estoppel?

It is this question of estoppel to which I address my discussion since according to my view it settles the controversy.

It is said by an eminent text writer:

"`The covenant of warranty is a personal one. * * * It is a covenant that runs with the estate with reference to which it is made, and may be availed of as such, in his own name, by any one to whom the same shall come by deed, even after successive conveyances or a descent or devise.'" 3 Washburn Real Property 399, quoted by the Supreme Court of Texas in Flanniken v. Neal,67 Tex. 629, 4 S.W. 212, 214.

The Court also said: "It is not to be disputed that a deed without warranty may convey all the right, title, and interest of the grantor at the time of its execution as fully as one with warranty". Flanniken v. Neal, supra.

The rule respecting after-acquired property and its basis is thus stated in 8 R.C.L., Deeds, Sec. 110. "As a general rule, when a person conveys land in which he has no interest at the time, but afterwards acquires a title to the same land, he will not be permitted to claim in opposition to his deed, from the grantee, or any person claiming title from the grantee. And where a vendor undertakes to sell a full title for a valuable consideration, when he has less than a fee simple, but afterward acquires the fee, he holds it in trust for his vendee, and will be decreed to convey it to his use. One view is that a conveyance before the grantor has acquired the title operates as anagreement to convey, which, when the title has been subsequently acquired, may be enforced in chancery. Another is that irrespective of courts of equity, it has always been possible to convey subsequently acquired interests by the operation of the principles of estoppel; and another, that the deed works by way of both estoppel and contract, and has effect as an estoppel, without regard to the grantor's liability to a personal action of the covenants, and even if he has obtained discharge in bankruptcy before acquiring the subsequent title. Again, it has been declared that the basis of the doctrine is the warranty; that in very ancient times, before the system of passing title by bargain and sale came into use, it was upon the implied warranty; but that warranty must exist in fact, or be supplied as a fiction; and certainly recitals and covenants may conclude parties and privies, and estop them from denying that the operation of the deed is what it professes to be — a conveyance of the specified title, though it is not in the grantor at the time. But whether the effect is produced by way of estoppel, remitter, or operation of the statute of uses, matters little, since the effect produced in any event is in all respects the same." (Emphasis supplied.)

If we consider the covenant of warranty as equivalent to an agreement to convey, then we come within the doctrine of Conley v. Davidson, 35 N.M. 173, 291 P. 489, which is to the effect that section 68-403, Comp. St. 1929, which provides that the husband and wife must join in all deeds and mortgages affecting community real estate and that transfers or conveyances thereof attempted to be made by either husband or wife alone shall be void and of no effect, has no application to a suit for damages resulting from breach of husband's agreement to convey community real estate.

We there decided that there is no merit in the contention that if a transfer or conveyance of a husband without his wife's joining, would be void and of no effect, then a contract to make such transfer or conveyance would likewise be void and of no effect.

Again in Potter v. Connor, 38 N.M. 431, 34 P.2d 1086, 1087, the contention was made that since the subject matter of the contract to convey was community property of one of the parties, and his wife, and the wife failed to sign the contract, the said contract was void. Of this contention we said: "There was no merit in the defense that the contract was void and the note without consideration because of the failure of Mrs. Chesher to join as a contracting party." Citing Conley v. Davidson, supra.

Indeed, there is no conflict of view on this proposition, since the majority say in concluding their opinion, "Appellee appropriately points out that the remedy is against the maker under the covenants contained in this Roberts deed for breach of contract and failure of the warranties, as, indeed, appellant himself must have sensed, since he moved, in an earlier suit, to assert, and successfully asserted, such remedy. We have held that may be done. Conley v. Davidson, 35 N.M. 173, 291 P. 489."

What the majority overlooked is that an injured party is not limited in his remedies to a suit for damages for breach of contract and failure of the warranty.

The modern tendency is to permit the grantee to choose whether to sue on the covenants or to claim the title by estoppel. See Tenn. Law Review, Vol. 14 (1935-1937) page 120, and cases cited.

This view is also supported by the text of Thompson on Real Property (Permanent Edition) Sec. 3845 and cases cited: "The grantor's acquisition of title, even after his grantee has brought suit upon the covenants, has the effect to reduce the damages the grantee can recover; and if such acquisition wholly remedies the defect for which suit was brought, the grantee is entitled to nominal damages only." (Citing cases.)

In 21 C.J., Estoppel, sec. 39, it is said: "If a grantor having no title, a defective title, or an estate less than that which he assumed to grant, conveys with warranty or covenants of like import, and subsequently acquires the title or estate which he purported to convey, or perfects his title, such after-acquired title will inure to the grantee or to his benefit, by way of estoppel."

Note 57(a) to the above text states: "As aptly stated by an early commentator `the fruit and effect of a warranty in a deed is that it concludes the warrantor, so that all present and future rights that he has or may have in the land, are thereby extinct.'" (Citing)

I believe that the same result would follow if it be considered that the title is merely bottled up in the grantor for the benefit of the grantee, at least in so far as subsequent purchasers of the after-acquired title with notice are concerned.

In Gough v. Center, 57 Wn. 276, 106 P. 774, it was decided: "Both at common law and under Ballinger's Ann. Codes * * * where a person when conveying land by deed has no title and afterwards acquires title, it inures to the conveyee, though the originaldeed be void."

In the course of the opinion, the court said: "We apprehend a deed is always void, or at least ineffectual, where the grantor has no title at the time of its execution, but this is no objection to the application of the rule that an after-acquired title passes by estoppel. Indeed, the rule could have little or no application if the contention of the appellant is sound."

In Tolliver v. Great Northern Railway Co., 187 F. 795, 797, the Circuit Court of Appeals, Ninth Circuit, said, referring to the Washington statute: "This rule is merely declaratory of the law as it existed previous to and independent of statute."

In Demerse v. Mitchell, 187 Mich. 683, 164 N.W. 97, it was decided: "Where a wife conveyed with warranty land in which she only had an estate by the entirety, and her husband afterwards devised her all of his rights, her former conveyance carried the after-acquired title."

That the result is the same where the grantor does not have the title and where he does not have the power to convey, see King v. Gilson's Adm'x, 32 Ill. 348, 83 Am.Dec.269. Referring to certain covenants there, as here, involved, the court said: "They are, that the grantor is then seised, and has good right to convey. If he is not well seised, or if he has not the power to convey, when the deed is delivered, an action at once accrues, and a recovery may be had."

And also decided: "Nominal damages only can be recovered for breach of the covenants of seisin and of good right to convey, in case the grantor acquires title after suit brought." See also Pelletier v. Langlois, 130 Me. 486, 157 A. 577, where it was held that a ward's warranty deed to property, on reaching majority, to guardian, at once vested ward's interest therein in guardian's transferee under guardian's former warranty deed to same property. And in Tennessee, notwithstanding a champertous conveyance passes no title and is no bar to recovery of the land from the purchasers vendee, such a recovery inures to the purchaser's benefit by way of estoppel. Nance's Lessee v. Thompson, 1 Sneed 321.

There are a number of clauses in deeds which may be independent of each other, not all of which are necessary to the "transfer or conveyance" of real estate. There is the granting clause to which is looked to see what it was intended to convey. Then there is the habendum clause and also there may be the covenants of seizin, of quiet enjoyment and the covenant of warranty. The granting clause is required to transfer title, but the covenant of warranty is not necessary to make a deed effective. For a discussion of this subject, see Porter v. Henderson, 203 Ala. 312, 82 So. 668.

My argument is that our statute under consideration, which I will discuss more in detail later, declaring, "That any transfer or conveyance attempted to be made of the real property of the community by either husband or wife alone shall be void and of no effect" does not serve to render void and of no effect the covenants in an instrument in writing, which are independent of the granting clause or words of transfer of the title. See Conley v. Davidson and Potter v. Connor, supra.

In Doe ex dem. Anniston City Land Co. v. Edmondson, 145 Ala. 557, 40 So. 505, it was held that a deed without words of transfer, but describing the land and containing a warranty of title, works an estoppel against the grantor to assert title against the grantee or to defeat an assertion of title by grantee against grantor, and also estops grantor to assert an after-acquired title to the land against the grantee. See also Porter v. Henderson, supra.

Our statute does not destroy or render void and of no effect for every purpose whatsoever every part of the instrument in writing which is evidence of the contract between the parties. It merely makes void and of no effect the words of transfer employed in such instrument in writing.

There is no virtue in the fact that the agreement to convey was written on a separate piece of paper as in Conley v. Davidson and Potter v. Connor, supra. If a legislative enactment may be sustained in part, although certain clauses therein may be void because unconstitutional, I see no reason why a contract in writing containing both an agreement to convey and also words of transfer and conveyance, may not be upheld in so far as the agreement to convey is concerned, even though the granting clause is stricken down because void and of no effect. There is authority to support this view. In Devlin on Deeds, 3d Ed., Sec. 1276, it is said: "Where a deed is only partially void, the part that is good may work an estoppel. So if a husband and wife join in a conveyance, and the conveyance be void as to the wife, it may still bind the husband by estoppel."

The author cites among other cases, United States v. Hodson, 10 Wall. 395-408, 409, 19 L.Ed. 937, which decides: "Where a bond contains conditions, some of which are legal and others illegal, and they are severable and separable, the latter may be disregarded and the former enforced."

The foregoing considerations would seem to be enough to warrant a decision in favor of the appellant.

But because the result attained by the majority casts doubt upon the integrity of our previous decisions in Conley v. Davidson and Potter v. Connor, I think it proper to set forth my views of the intention of the legislature in the enactment of sec. 68-403, Comp.St. 1929.

I think that if the legislature when it employed the language "void and of no effect" intended the meaning credited to it by the majority, it would have been logical for this court in Conley v. Davidson and Potter v. Connor, supra, to have decided as contended by counsel there, that if the transfer or conveyance of a husband without his wife's joining, would be void and of no effect, then the contract to make such deed would likewise be void and of no effect. The fact that our court repudiated this contention leads me to believe that the court did not consider that the legislature had used the word void in the sense sometimes employed, that the transaction is tainted with illegality and contrary to a general public policy and therefore the transaction is void to all intents.

We have already decided that the words void and voidable are often used interchangeably and that: "Indeed, `void' is so often used in the sense of `voidable' as to have almost lost its primary meaning." Kyle v. Chaves, 42 N.M. 21, 74 P.2d 1030, 1033.

In that case is an extended discussion of the subject and we quoted liberally from the opinion of Mr. Chief Justice Roberts in Gross, Kelly Co. v. Bibo, 19 N.M. 495, 145 P. 480, 484. Justice Roberts in turn quoted Judge Cooley as saying: "If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while, if the manifest intent is to give protection to determine individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it." (Emphasis supplied.)

While I refer to other parts of our decision, I adopt the foregoing test by Judge Cooley as my chief guide in construing the statute in question.

Was the legislative purpose to protect husbands and wives in their interest in community real property, or was there some clearly apparent general public policy sought to be served in addition to the protection of the spouses?

The Wisconsin case cited hereafter says that if "voidable" will accomplish the purpose of the statute, it must be assumed that the legislature used the word void in the sense of voidable. That is the same thing that we said in Kyle v. Chaves, supra, and therefore I shall have occasion to refer to this Wisconsin case again.

Our first concern, then, is to discover the purpose of the enactment and whether there is any general public policy involved.

We have already said in at least two cases that the purpose of this statute is for the protection of the interest of the wife in community real estate. In McDaniel v. McDaniel, 36 N.M. 335,15 P.2d 229, 233, Mr. Justice Sadler, writing for the court concerning this statute, said: "Furthermore, the limitation imposed by this statute on the power of the husband to convey community property is obviously for the wife's protection." Citing Davidson v. Click, 31 N.M. 543, 249 P. 100, 47 A.L.R. 1016.

I assume that it is also for the protection of the husband.

Our decisions, so far as I have been able to find, have not pointed out any other purpose or design of the legislative act than that mentioned in McDaniel v. McDaniel, and Davidson v. Click, supra.

We are brought back, then, to Judge Cooley's test which we have adopted as heretofore seen, and required to examine the statute to see whether it was enacted to serve a general public policy.

This, of course, drives us to the texts and court decisions to determine what is meant by "public policy."

An illustration will suffice: Public policy is "That principle of law which holds that no subject or citizen can lawfully do that which has a tendency to injure the public or against the public good." Ballentine's Law Dictionary.

When we are required to determine whether the legislature used the word "void" as understood in its primary meaning, which has, as we have seen, to have been "almost lost" in usage, or in the sense of "voidable", we get no aid from the form of the use of the word itself as indicating a general public policy, but we must look elsewhere.

The citations in the majority opinion are chiefly of decisions involving the interpretation of statutes imposing restraint upon alienation of homesteads occupied by the husband and wife.

The majority say that the analogy is close and persuasive. I do not think the analogy is either close or persuasive.

There is a "general public policy" discernible in the statutes placing a restraint upon the alienation of homesteads which does not appear with respect to the real property not occupied as a homestead. See Note, Alt v. Banholzer, 39 Minn. 511, 40 N.W. 830, 12 Am.St.Rep. 681, and Waples on Homesteads and Exemption, p. 397.

At this point I call attention again to the decision of the Wisconsin Supreme Court in Good v. Starker, 1934, 216 Wis. 253,257 N.W. 299. The court decided:

"Whenever from nature of transaction prohibited and purpose of its enactment such legislative intent may be reasonably read into statute, word `void' will be construed as meaning `voidable.' * * *

"When whole purpose of statute is effected by giving word `void' meaning of `voidable,' and `public policy' is not involved, word should be given such meaning.

"Term `public policy' is one of vague and uncertain meaning, but means that principle of law which holds that no subject can lawfully do that which has tendency to be injurious to public or against public good, and whatever contravenes good morals or any established interests of society is against `public policy.' * * *

"Statute should not be construed as declaring a public policy that would defeat purpose of its enactment, if construction that will effect its purpose can be given."

The court called attention to the fact that: "The statute does not proscribe selling stock of corporations as against public policy. It does not prohibit sales of stock. It only surrounds its sale with certain safeguards."

We might paraphrase this by saying that our statute: "Does not proscribe the conveyance of community real property as against public policy. It does not prohibit the conveyance of community real property. It only surrounds its conveyance with certain safeguards."

Since the purpose of the statute was to prevent frauds upon the nonjoining spouse and this purpose is effected by giving the word "void" meaning of "voidable" we should presume that the legislature intended the latter meaning, and thus prevent the statute from becoming a cloak for frauds.

Turning to cases cited by the majority from community property states not dealing with homesteads, I concede that the decisions of the Idaho Court consistently hold that under the statute of that state a conveyance of community real estate not joined in by the husband and wife, is void in the primary meaning of that word, and not subject to ratification, although I do not find an Idaho decision on estoppel as to situations like the case at bar. They go to the extent of holding that a written lease for a term of years is a "conveyance" and an "incumbrance" of realty and is void unless wife joins with the husband in execution and acknowledgment thereof. This view is repudiated by our court in Fidel v. Venner, 35 N.M. 45, 289 P. 803. This and other New Mexico decisions hereafter cited show that we have already refused to accept the strict view of the Idaho Courts.

The Courts of California, Arizona and Washington, also community property states, recognize the doctrines of ratifications and estoppel as repelling the view that such statutes restricting the power of alienation of community real property are absolutely void. See Pacific Digest and Decennial Digests, Husband and Wife. I do not discover that the decisions of the court of Louisiana and Texas are of any value on either side of the controversy.

The majority cite Rundle v. Winters, 38 Ariz. 239, 298 P. 929. It is well to note that this was a suit by a husband and wife asserting the invalidity of a contract for the conveyance of their community real estate, which contract had not been joined in by the wife.

Since the object of the statute is the protection of the owners of the community real property, the decision was logical. But see Cook v. Stevens, 1938, 51 Ariz. 467, 77 P.2d 1100, where the court decided: "If a husband attempts to convey realty without wife joining in conveyance, and wife with knowledge of facts makes no protest and grantee goes into possession of premises under the void conveyance, statute of limitations runs against the wife in the same manner as it does against any other person, and if the grantee remains in possession for the statutory period, both the wife and husband will be barred from action to recover the premises."

And see also Nickerson v. Arizona Consol. Mining Co., 1939,54 Ariz. 351, 95 P.2d 983, holding: "A widow, estopped to assert interest in mining claims constituting community property as against company to which husband conveyed them, cannot assert such interest as against anyone whose title passed through such company, and its conveyance thereof to third party was good, so as to entitle grantee's successor in interest to judgment quieting his title thereto as against widow, regardless of whether owners subsequent to such company knew that she was married or that recorder's records disclosed defect in her title."

From these late expressions of the Arizona Supreme Court, I believe that by the expression that the conveyance of community property by the husband alone was void, it was meant that the conveyance was voidable at the option of the wife.

Our own decisions, while not settling the exact question here presented, leans away from the Idaho doctrine. See Davidson v. Click and McDaniel v. McDaniel, Fidel v. Venner, supra; Conley v. Davidson, 35 N.M. 173, 291 P. 489; Potter v. Connor, 38 N.M. 431,34 P.2d 1086.

I think the majority failed also to give proper consideration to the argument of appellants that section 68-401, N.M.Comp. Stats. 1929, supports the view that the legislature intended the restriction on alienation contained in Sec. 68-403, Comp.St. 1929, to be voidable instead of void. This section 68-401 was cited by this court in McClendon v. Dean, September 18, 1941,45 N.M. 496, 117 P.2d 250, on the assumption that it was still in full force and effect. Appellants make the argument that this section throws light upon the proper interpretation to be given the statute now in question in the case at bar, and counsel for appellees completely ignore this argument, and they do not pretend that this statute has been repealed. Notice the language of it. "Whenever any property [real property as construed in McClendon v. Dean] is conveyed to a married woman by an instrument in writing the presumption is that title is thereby vested in her as her separate property."

Now notice a subsequent provision of the same section, "In cases where married women have conveyed or shall hereafter convey, real property which they acquired prior to March 18, 1907, the husband(s), or their heirs or assigns, of such married women, may be barred from commencing or maintaining any action to show that said real property was community property, or to recover said real property, as follows; as to conveyances hereafter made from and after one year from the filing for record in the county clerk's office, of such conveyances respectively." (s) interpolated.

I understand that to mean that if the wife has conveyed community real property by her sole deed, not joined in by her husband, then such deed is not "void" but is voidable at the option of the husband or the heirs or assigns of such husband, provided they bring an action to show that the real property conveyed by the wife alone was community property or to recover said community property and provided further that such action must be brought within one year from the date of filing for record of such deed in the county clerk's office. If the legislature meant that such a conveyance of community property by the wife, without the joinder of her husband in such conveyance would be absolutely void to all intents and purposes, from the beginning, then it would have been absurd to provide that the husband and others mentioned in the statute could bring an action to nullify said deed within one year from the filing thereof in the clerk's office, inferentially saying that if no such action was brought by the husband or heirs, etc., within a year, that such deed would have to stand.

The fact that the husband or his heirs or assigns, by this section, are barred from questioning the conveyance by the wife alone after one year from the date of the filing of the conveyance in the clerk's office, and no limitation is put upon the time when the wife may bring an action to set aside a deed made by the husband of the community real property without her joining therein, further indicates a solicitude on the part of the legislature to protect the interest of the wife.

This section (68-401) is the same as section 2764, Code 1915. That last-cited section was derived from Sec. 10, Ch. 37, L. 1907.

Section 10 of the New Mexico Act 1907 is almost word for word the same as Sec. 164, Civil Code of California, as it stood when Ch. 37, L. 1907, was enacted. See Deering's Civil Code of California, 1915, Sec. 164.

There seems to be a typographical error in our Sec. 10 of Ch. 37, L. 1907, in that in the California statute the language is "The husbands, or their heirs or assigns, of such married women, shall be barred from commencing or maintaining any action, etc." Whereas our Sec. 10 of Ch. 37, L. 1907, reads: "The husband, or their heirs or assigns, of such married women, may be barred from commencing or maintaining any action," etc. Manifestly in copying, the s was left off of the word "husband" in our statute, and if supplied, the sentence reads with proper effect.

The compilers of the 1915 Code in Sec. 2764 seem to have worked over the limitations of action portion of Sec. 10, Ch. 37, L. '07, but the change does not affect my argument.

I assume that the omission from the 1915 Code section in Sec. 10, Ch. 37, L. '07, of the special limitations period for commencing suit "as to conveyances heretofore made from and after one year from the date of the taking effect of this act" left what was supposed to be some other general statute of limitations to apply as to commencing actions as to conveyances made prior to the passage of the act.

My argument is that since this section has never been repealed, and has not been amended since the 1915 codification, it must be considered in connection with Ch. 84, Laws 1915.

How can it be said the legislature intended to say that where a married woman has conveyed real property which she acquired prior to March 18, 1907, the husband of such married woman or his heirs or assigns may commence an action, within one year from the filing for record in the county clerk's office of the conveyance by the wife for the purpose of showing that the said real property described in the conveyance by the wife was community property, or to recover said real property, if they also meant that the language of Ch. 84, L. 1915, "Any transfer or conveyance attempted to be made of the real property of the community by * * * wife alone shall be void and of no effect" was taken to be understood in its primary meaning of absolutely void to all intents from its inception and not subject to ratification or estoppel?

If this language were to be accepted in its primary meaning, the portions of Sec. 68-401, Comp.St. 1929, which I have quoted, would be meaningless.

Section 68-302, Comp.St. 1929, says: "All property of the wife owned by her before marriage and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof is her separate property."

Section 68-401 says that all other property acquired after marriage by the wife is community property. Then the same section erects a rule of evidence for her benefit and says that if after her marriage any real property is conveyed to her (acquired by her) by an instrument in writing, the presumption is that title is thereby vested in her as her separate property. Of course, this is disputable presumption. Stafford v. Martinoni, 192 Cal. 724, 221 P. 919.

It must be remembered that the community property law in New Mexico did not originate with Ch. 37, L. 1907. See Ch. 62, L. 1901; Sec. 2030, C.L. 1897; Beals v. Ares, 25 N.M. 459,185 P. 780; Arnett v. Reade, 220 U.S. 311, 31 S.Ct. 425, 55 L.Ed. 477, 36 L.R.A., N.S., 1040.

The presumption that wherever real property is conveyed to a married woman by an instrument in writing, it is her separate property, attends conveyances by which she acquires real property under the circumstances mentioned in Sec. 68-302, as well as otherwise. So when Sec. 68-401 says in the limitations of action portion thereof that: "In cases where married women have conveyed or shall hereafter convey, real property which they acquired prior to March 18, 1907" the word "acquired" meant acquired in any manner. If she acquired it after marriage by an instrument in writing, the presumption would aid her in proving that she acquired it in the manner mentioned in Sec. 68-302. If the husband or his heirs or assigns should successfully challenge the wife's claim that the real property conveyed to her by an instrument in writing was acquired by her under the circumstances mentioned in 68-302, then the presumption as well as other evidence produced by the wife would be overcome, and the conclusion would be that the wife had acquired it as community property in accordance with the first sentence of Sec. 68-401, which says that "all other property acquired after marriage by * * * wife * * * is community property."

Let us suppose then that prior to March 18, 1907, a married woman after her marriage acquired real property by virtue of a written conveyance to her. By the provisions of Sec. 68-401 the presumption is that she acquired it as her separate property. Later on she conveys said property to one other than her husband, and the husband does not join in conveyance. Within one year after such conveyance is filed for record the husband may commence an action to show that the property conveyed was in fact acquired by the wife as community property, and that consequently the grantee named in the wife's sole deed or conveyance took nothing because he, the husband, had not joined in the conveyance. If the husband prevails in such a lawsuit, then truly the wife's deed or conveyance is of no effect to accomplish her attempted transfer of the community property described in the conveyance, and the plaintiff husband will have the relief demanded in his complaint, which might be to quiet the title to the property or to recover the same for the benefit of the community.

But in the event the husband stands by for more than one year after such a deed by the "wife alone" has attempted to transfer and convey such community property, it will be too late for him to challenge the conveyance. The result will be that the title of the grantee will thereafter be impervious to attack by the husband or his heirs or assigns. The grantee's title will be "good because plaintiff [husband] is estopped from attacking it". See Nickerson v. Arizona Consol. Mining Co., supra.

If the conveyance by the wife alone of such community property was "void and of no effect" to all intents in the sense that those words may be used in their primary meaning (which meaning we have said has been "almost lost"), then there would be no occasion for the legislature by Sec. 68-401 to have recognized the right of the husband to "avoid" the effect of the conveyance of community property by the "wife alone", provided he moved to do so within the time allowed. That which may be avoided is not void. In other words, that which the statute says may be avoided is voidable and not absolutely void to all intents.

The legislature has in Sec. 68-401 plainly said that a conveyance of community property by the wife alone is voidable by the husband or his heirs or assigns — it follows therefore that when in Sec. 68-403 they said such conveyance is void they used the word void in the sense very frequently used as meaning voidable.

A similar question was presented in Rice v. McCarthy, 73 Cal.App. 655, 239 P. 56, 59, in which a similar statute was involved. The court after giving recognition to the rule that estoppel cannot vitalize a transfer which is void because prohibited by law or because it is against public policy, said:

"These considerations lead irresistibly to the conclusion that, so far as the meaning of the words `such instrument' is concerned, the first and last parts of the section should be read as though the proviso which separates them had been omitted. So read, the section would provide that:

"`* * * The wife must join with him (the husband) in executing any instrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed or encumbered; But no action to avoid such instrument shall be commenced after the expiration of one year from the filing for record of such instrument in the recorder's office in the county in which the land is situate.'

"From the foregoing analysis of the section, it will be seen that it fixes a limitation of one year from the recording of an instrument executed by the husband alone, and which is not within the saving grace of the proviso, within which to bring an action to avoid the husband's instrument. But a statutory provision which prescribes a time limitation within which a wife may bring an action to avoid her husband's instrument of conveyance enwombs the necessary implication that the title passes by the instrument even though the wife did not join with her husband in executing it — that the title passes, but that the instrument which passes it may be invalidated or avoided if the proper action be brought within the prescribed time. In other words, even those instruments which are not under the shield of the proviso are only voidable and are not void. And that is precisely what was said of such instruments in Goodrich v. Turney, 44 Cal.App. 516,519, 186 P. 806, 807, the court there remarking that if it be assumed that a contract to exchange properties is within the purview of section 172a, `that does not make the writing absolutely void, but voidable only at the instance of the wife.' The Supreme Court in that case denied a petition for a hearing by it after judgment of the District Court of Appeal. We conclude, therefore that the instrument here sought to be avoided is not void because prohibited by law.

"Nor is there any reason why it should be held that `public policy,' a term of vague and uncertain meaning, forbids the wife from waiving her right to avoid a transfer of community real property executed solely by her husband. A wife's right to avoid an instrument transferring community real property, or an interest therein, executed by her husband alone, is a privilege in which the state has no interest apart from that of the wife herself. There is no duty, perfect or imperfect, on the part of a wife to contest the validity of her husband's transfer of community real property."

The court went on to say: "We think it equally manifest that the provision in section 172a which recognizes the wife's right to avoid an instrument which is within the purview of that section was intended solely for the wife's benefit, and that she is under no obligation to the state to exercise the right. It is generally held that statutory provisions designed solely for the benefit of individuals may be waived by the persons for whose benefit they are designed. 6 Cal.Jur. p. 120. See In re Garcelon's [Estate], 104 Cal. 570, 38 P. 414, 32 L.R.A. 595, 43 Am.St.Rep. 134, where an agreement between nephews and the testatrix not to contest the latter's will was sustained against the plea that the contract was opposed to public policy. In section 172a the Legislature itself, by allowing the wife the short period of one year from the recording of her husband's instrument of conveyance within which to bring an action to avoid it, evinces an unmistakable intention to regard her right as one to which no special sanctity attaches."

The court also said: "The question, then, is this: May the wife by her conduct estop herself from asserting the right which is given her by section 172a, i.e., the right to avoid her husband's conveyance of community real property in which she did not join? As a general rule, estoppel cannot vitalize a transfer which is void because prohibited by law or because it is against public policy. In the eye of the law such a transfer has no existence whatever, and neither action nor inaction can validate it or estop a party against asserting its utter invalidity."

I assume that the rights and duties of husband and wife are reciprocal and that if the husband alone conveyed community property, the wife who had not joined in the conveyance, could commence and maintain an action to protect her interests in such community property. A difference is that the wife would not be controlled by the short statute of limitations contained in Sec. 68-401. The statute here in question affects only the power of alienation and the legislative intent may best be carried out by regarding the transfer as good against the husband or wife, making it but voidable at the option of the spouse not joining in the conveyance, and the heirs and assigns of such injured spouse.

It is argued that because in Ch. 84, L. 1915, Sec. 68-403, Comp.St. 1929, the word void is followed by the words "and of no effect" and these additional words indicate an intention of the legislature to make the conveyances not executed in accordance with the terms of the statute, absolutely void to all intents and purposes.

The additional words did not add any additional signification to the word void. It was mere tautology.

Ballentine's Law Dictionary has this to say under the word "void": "The words `to be void and of no effect' are often used in statutes and legal documents, such as deeds, leases, bonds, mortgages and others, in the sense of voidable, merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, incapable of giving rise to any rights or obligations under any circumstances. Thus we speak of conveyances void as to creditors, meaning that creditors may avoid them, but not others. Leases which contain a forfeiture of the lessee's estate for nonpayment of rent, or breach of other condition, declare that on the happening of the contingency the demise shall thereupon become null and void, meaning that the forfeiture may be enforced by reentry, at the option of the lessor. A deed obtained by fraud is sometimes said to be void, meaning that the party defrauded may elect to treat it as void. See Ewell v. Daggs, 108 U.S. 143, 149,2 S.Ct. 408, 27 L.Ed. 682, 684." (Emphasis supplied.)

For other decisions to the same effect, see 44 Words and Phrases, Permanent Edition, p. 358, defining the meaning of the phrase "void and of no effect" when used in statutes and elsewhere.

I have already pointed out that the Idaho court is the only one cited which takes the extreme view of the word "void" adopted by the majority.

That court goes so far as to hold that the husband's written contract to convey community property is void unless the wife joined with husband in executing such contract. See Elliott v. Craig, 45 Idaho 15, 260 P. 433. We were asked to so declare the law in Conley v. Davidson and Potter v. Connor, supra, but declined to do so and on the other hand decided to the contrary.

So that, even conceding as I do that the Roberts deed to Jenkins was void as to Robert's wife and ineffectual as aconveyance to transfer the community property in praesenti, thewriting and all of its terms were not necessarily void.

In accord with the principles announced in Conley v. Davidson and Potter v. Connor, supra, it is my view that appellant had the right to rely upon the covenants of seisin, good right to convey, and the covenant of warranty, and that these covenants serve as the basis not only for a suit for damages by appellant Jenkins, but also as a basis for his claim of title by estoppel, in view of all of the circumstances in this case. It would be different, of course, if the contract, whether in a separate paper or in the same paper with the abortive attempt to convey, was one involving moral turpitude, for no rights can accrue under a contract to do an unlawful or immoral act. Such is not the effect of a contract to sell and convey community property, and such is not the effect of the covenants of seisin, good right to convey, and of warranty, because the covenantor may thereafter acquire the title.

From all of the foregoing, I conclude that the appellant should prevail and that the judgment should be reversed, and therefore I dissent.