that they left it with her to be executed. Why should they have done these things if they were ignorant that she made any claim to a separate interest in the property? Evidently they were not ignorant. They had both actual and constructive notice, and so much of the fourteenth finding as declares the contrary must be rejected in considering the appeal.

With this general statement of the facts of the case, we will proceed to consider such of the assignments of error as require discussion.

By the decree the defendant M. H. Torrence is compelled to convey to the plaintiffs all of the community interest in the property as found by the court, upon payment of the agreed price of twenty thousand dollars, less eight twenty-fifths of the estimated value of the hotel property, less, also, the five hundred dollars paid at the date of the contract, and less the community interest in the estimated value of the rents and profits of the whole property from the first day of February, 1886, the date when by the terms of the contract the plaintiffs were to have possession. It is further decreed that the plaintiffs be let into possession of the property, to hold the saloon exclusively, and the hotel and personal property in common with Esther Torrence, seventeen twenty-fifths to them, and eight twentyfifths to her.

The first point made by plaintiffs in support of their appeal is, that the superior court erred in not finding that the whole of the property belonged to the community. We think the findings of the court on this point are not only fully sustained by the evidence, but that it would have sustained findings much more favorable to the wife. She is found to be the owner of only eight twenty-fifths of the hotel property. But the evidence shows that the price of this parcel was ten thousand dollars; paid four thousand in cash, balance on time. Of the cash payment she contributed out of her separate

funds three thousand two hundred dollars, and her husband only eight hundred dollars. In other words, she paid in cash eight twenty-fifths of the whole price, and four-fifths of the cash payment. The balance was paid out of what they jointly owned in keeping the hotel. Certainly she owned no less proportion of the property than her cash payment bore to the whole price. Indeed, she was entitled to more; she was entitled to interest on her cash payment, and to have the amount of such interest computed as a part of her contribution to the purchase. And the court might have found upon the testimony of the husband that he intended to, and did, make his wife a gift of the whole hotel property. His testimony is to the effect that he so intended, and that the deed was made to her by his direction. There is no evidence that he was indebted to any one at the time, and if he was free from debt he had the right to give her the property, and could make the gift effectual by simply directing the conveyance to be made to her. (Peck v. Brummagim, 31 Cal. 441; 89 Am. Dec. 195; Dow v. Gould and Curry Co., 31 Cal. 653; Ingersoll v. Truebody, 40 Cal. 603; Woods v. Whitney, 42 Cal. 359; Higgins v. Higgins, 46 Cal. 263.)

This evidence of the defendants, to the effect that it was intended between themselves that the wife should be sole owner of the hotel property, is the only direct evidence of their intentions, and is diametrically opposed to the contention of plaintiffs that Esther Torrence intended to contribute her three thousand two hundred dollars to the common stock, and that on the purchase of the hotel everything became, and continued thenceforth to be, community property. There is nothing in the case to sustain this theory.

But it is contended by plaintiffs that Esther Torrence is estopped from making any claim to the property because she did not, during the negotiations for the sale of it, distinctly inform them of the nature and extent of her

interest. The argument is, that a grant to a wife expressing a valuable consideration creates a presumption that the granted premises are community property; that an intending purchaser has a right to rely on this presumption, and in the absence of express notice from the wife that she claims some definite interest, he is at liberty to infer, and act upon the inference, that she has no interest; that this is especially so when she is informed that her husband is negotiating a sale or other disposition of the property; and that if under such circumstances she keeps silence, she must not afterward be allowed to assert her claims, however well founded.

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We think that even in the strongest case that can be supposed this is a dangerous and unnecessary doctrine. The intending purchaser of land which has been conveyed to a married woman is under no compulsion to take it and pay for it without getting her deed, properly acknowledged. He knows her husband has no title to it except through the deed purporting to convey it to her, and that he can get no clear and perfect title himself without a deed from her. If she is willing, deliberately and with full knowledge of her rights and of the effects and consequences of her acts, to disclaim all interest in the property, she will be willing to sign and acknowledge a deed. If she is not willing to sign and acknowledge a deed, no other sort of admission should be held to bind her. The clearly expressed purpose and policy of the laws is to permit no alienation of a married woman's real property except by deed acknowledged by her on examination, separate and apart from her husband, and after its contents have been fully explained to her by the officer whose sworn duty it is to see that she not only understands what she is doing, but does it without any constraint due to the presence of her husband. In place of all these safeguards for her independence and freedom of volition, the doctrine contended for would substitute the testimony of witnesses that when her hus

band had asserted a right to dispose of her property she had failed to contradict him. How dangerous a breach upon the policy of the law designed for the protection of married women from marital influence would be made by the establishment of such a doctrine, is too obvious to require comment.

And, in addition to its danger, how utterly inexpedient it would be! Its only effect would be to encourage honest purchasers to rely upon uncertain and doubtful admissions, in place of the certain, authentic, and secure admission of an acknowledged deed, and to encourage dishonest husbands to enter into fraudulent combinations with simulated purchasers in order to defraud their wives. In other words, the establishment of the doctrine contended for would merely tend to the multiplication of unnecessary litigation, in which fraud and perjury would often carry the day. We had better hold strictly to a law with which compliance in all cases is not only possible but easy, and which, being observed, leaves no room for litigation in which the most easily manufactured testimony may overwhelm the right. If a purchaser cannot get a married woman's acknowledged deed for property, the title of which stands in her name, let him keep his money, and wash his hands of the business.

But, aside from this view of the legal branch of this proposition of the plaintiffs, it is to be observed that in this case it rests upon no basis of fact.

There is not a particle of evidence that M. H. Torrence ever did, in fact, represent himself to be the sole owner, or to have the sole right of disposition of this property to plaintiffs or to any other person; and there was, consequently, never an occasion when his wife was called upon to contradict such an assertion. The authorization to Coward to make the sale was signed by both husband and wife. The oral negotiations that ensued with the plaintiffs were conducted by both husband and wife; the written contract prepared by plaintiffs in terms implied

her concurrence. It was left by plaintiffs to be executed by her, and it was signed by her. There is no suggestion from beginning to end that M. H. Torrence claimed, or that plaintiffs understood him to claim, a right to dispose of the property without his wife's concurrence. On the contrary, the evidence leaves no room to doubt that plaintiffs all along understood that Mrs Torrence was claiming an interest in the property, and a voice in its disposition. For that reason they sought to bind her by a written contract to convey, and no doubt they then thought, as their counsel still contend, that she was bound by the contract, though she had not acknowledged it. Considering themselves secure of getting her deed, they did not care to inquire what her interest was, and they never did inquire. They did not intend to pay for the property without a deed from her and her husband, which they knew would operate a transfer of the whole of it, whatever the respective interests of the grantors might be. What they relied on was not an admission by her that her husband had power to convey, but the promise of her conveyance, and they simply made the mistake of not getting her promise executed in a form to bind her.

We conclude that there was no estoppel against Esther Torrence to assert her rights, not only because the law would not raise an estoppel on the facts assumed, but because the facts assumed had no existence.

We ought not, perhaps, to leave this branch of the case without noticing the argument of counsel, repeated so often and with such variation of statement, by which they seek to found an estoppel on a legal fiction.

Every one they say is conclusively presumed to know the law; and if it be the law (which they deny) that a married woman's executory contract to convey land does not bind her unless it is acknowledged, why then we must impute to Esther Torrence knowledge that the contract signed by her husband was his sole