community property; but whenever any property is conveyed to a married woman by an instrument in writing the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married woman and her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her as tenant in common, unless a different intention is expressed in the instrument; and the presumption in this section mentioned is conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration. And in cases where married women have conveyed, or shall hereafter convey, real property which they acquired prior to May 19th, 1889, the husbands, or their assigns, of such married women, shall be barred from commencing or maintaining an action to show that said real property was community property or to recover said real property, as follows: As to conveyances heretofore made, from and after one year from the date of the taking effect of this Act; and as to conveyances hereafter made, from and after one year from the filing for record in the Recorder's office of such conveyances, respectively." Stats. 1897, p. 63.

Property purchased during marriage is presumed to be community property, and this presumption can be overthrown only by evidence of a clear, certain and convincing character, establishing the contrary; and the burden of showing the contrary is upon the party claiming the separate character of the property. In the absence of such proof, the presumption as to a community character of the property becomes conclusive. Under Cal. Civ. Code, § 1402, upon the death of the husband, intestate and without issue, the widow is entitled to three-fourths of the community property. In re Boody's Estate, 113 Cal. 682 (45 Pac. Rep. 858). Civ. Code, § 1401-1402, regulating descent of community property construed and applied. In re Burdick's Estate, 112 Cal. 387 (44 Pac. Rep. 734).

Sec. 66. Louisiana. (See Vol. III, § 82; Vol. IV, § 69.) Property bought during the existence of the community is presumed to be community property, but this presumption may be overcome; however, a mere declaration in a deed that the property was bought with the separate fun is of the wife is not sufficient to overcome this presumption. Bartels v. Souchon, 48 La. 783 (19 So. Rep. 941). When the community is dissolved by the death of one of the spouses, the survivors and the heirs are each seized of one undivided half interest in the community property, subject to the rights and privileges of the community creditors. This interest can be mortgaged or sold, and is therefore subject to seizure by a judgment creditor of the heir or of the surviving spouse. Succession of Giddens, 48 La. 356 (19 So. Rep. 125). The administrator of a succession of a deceased wife is without right or authority to take possession or assume control of property held in community between the deceased and the surviving husband and usufructuary, or to sell the same for the purpose of paying debts of the community, notwithstanding they are debts which the community owes to the separate paraphernal estate of the wife,

Verrier v. Lorio, 48 La. 717 (19 So. Rep. 677). Until there has been a sale, or something that is equivalent, of real property of a community, the interest of the heirs of the deceased remains, and the survivor is without power, by any convention of his own, to make a full title to another. Probate proceedings, contradictorily taken between the heirs of the deceased wife and the surviving husband, to ascertain the value of the heirs' net interest in the community property, and to fix the basis of the usufructuary's bond, cannot operate as a substitute for a sale of their interest therein. Abes v. Levy, 48 La. 40 (18 So. Rep. 897). As to the rights of creditors as against a mortgage upon the community property by a surviving spouse, see Newman v. Cooper, 48 La. 1206 (20 So. Rep. 722). Civ. Code, Art. 333 applied-foreclosure of mortgage held by heirs on community property. Succession of Aron, 48 La. 817 (19 So. Rep. 763). Cancellation of community mortgage-rights of wife. Neal v. Lapleine, 48 La. 424 (19 So. Rep. 261).

Sec. 67. Nevada. (See Vol. III, § 84.) "The husband has the entire management and control of the community property, with the like absolute power of disposition thereof, except as herein provided as of his own separate estate: provided, that no deed of conveyance, or mortgage, of a homestead as now defined by law regardless of whether a declaration thereon has been filed or not, shall be valid for any purpose whatever unless both the husband and wife execute and acknowledge the same as now provided by law for the conveyance of real estate." Laws, 1897, p. 24.

Sec. 68. Texas. (See Vol. III, § 86; Vol. IV, §70.) An agreement between husband and wife, after marriage, that each should retain his or her separate property, and that the increase should remain separate property is void. Engleman v. Deal, Tex. Civ. App. (37 S. W. Rep. 652). Upon the death of both husband and wife there may be a joint administration upon their community estate. Stephenson v. Marsalis, 11 Tex. Civ. App. 162 (33 S. W. Rep. 383).

Sec. 69. Washington. (See Vol. III, § 87; Vol. IV, § 71). The presumption that property acquired by the husband or wife during the existence of the marital relation is community property is not conclusive but may be overcome

by evidence. Weymouth v. Sawtelle, 14 Wash. 32, (44 Pac. Rep. 109). A debt contracted by the husband during the existence of the community is prima facie a community debt, and his wife cannot set aside an execution sale made under a judgment rendered for such debt without showing that it was his individual debt. Bryant v. Stetson & Post Mill Co., 13 Wash. St. 692 (43 Pac. Rep. 931). Community real estate is not liable for the separate or individual debt of the husband, although contracted in another state where a contrary rule prevails. La Selle v. Woolery, 14 Wash. 70 (44 Pac. Rep. 115; 54 Am. St. Rep. 855). Community real estate is not liable for the satisfaction of a judgment ren

dered upon an accommodation paper of the husband, negotiable in form, in favor of a bona fide holder who acquired the paper before maturity without notice of its accommodation character and in such an action the wife may intervene for the purpose of having the debt adjudged not a community debt. Gund v. Parke, 15 Wash. 393 (46 Pac. Rep. 408). A contract of suretyship made by a husband for a company in which he held stock for the benefit of the community may be enforced against the community estate. Horton v. Donohoe-Kelly Banking Co.. 15 Wash. 399 (46 Pac. Rep. 409). Under Wash. Gen. Stat., § 1446, authorizing a wife to execute a power of attorney to her husband to sell or otherwise dispose of her interest in the community property, a husband having such a power of attorney from his wife may execute a valid mortgage on their community homestead. Oregon Mortg. Co. v. Hersner, 14 Wash. 515 (45 Fac. Rep. 40). The levy of an execution issued upon a judgment enforcible against the community property upon all of the husband's interest in the property levied upon authorizes a sale of the property standing in his name for the benefit of the community. Horton v. Donohoe-Kelly Banking Co. 15 Wash 399 (46 Pac. Rep. 409).

CONTRACTS.

EPITOME OF CASES.

Sec. 70. As to what is a contract of sale-Recovery of purchase money upon rescission. Where one enters into the possession of land under a written contract with the owner, by the terms of which it is agreed, upon his part, that he will pay to the owner a certain sum, denominated as "rent," and at the same time executes to the owner his promissory note for certain other sums, designated as "purchase money for land," it being stipulated in the written agreement above mentioned that payment of rent should not be required in the event of the payment of the purchase money note first to become due, and further, that, upon the payment of such first note, the owner would execute to the person so entering a bond for titles, but reserving in himself no right of entry in the event of a failure to pay any one of the notes,→ such a contract constitutes a contract of sale and not a contract of rental, the position of the person entering thereunder was that of a purchaser and not a tenant, and if, upon default

in payment of the purchase money, the owner elects to rescind the whole agreement, and summarily evicts the purchaser, the latter is entitled to recover, in an appropriate action, any sums paid as purchase money in advance of the execution of the written agreement and notes, and, in addition thereto, such expenses as may have been incurred by him in making necessary improvements during the time of his possession, less the value, according to the agreement, of the premises for rent. Blitch v. Edwards, 96 Ga. 606 (24 S. E. Rep. 147). Letters passing between a vendor and vendee, when construed together, may constitute a valid contract for the sale of land, even though they do not specifically give the vendee the right to possession. Corning v. Loomis, 111 Mich. 23 (69 N. W. Rep. 85). Where an executory contract consists of mutual promises, both parties must be bound, or it will be void for want of mutuality. There can be no valid contract for the sale and conveyance of land, unless the parties have mutually consented to the same conditions, until there is a clearly-defined offer on the one hand, and an acceptance on the other of the very terms offered. Heiland v. Ertel, Kan. App. (44 Pac. Rep. 1005). A conditional acceptance of a proposition does not constitute a contract until the other party has acquiesced in the conditions. Stough, 161 11l. 312 (43 N. E, Rep. 1061).

Middaugh v.

Where two per

sons enter into a written contract, in which one acknowledges the receipt of a portion of the purchase money of a described lot of land, and agrees that, upon the payment of a specified sum as the balance of the purchase money by a given date, he will make the other party a deed to the property, and the latter binds himself "to comply with the above contract by date named," these are mutual and dependent covenants; and the seller, upon offering to perform his portion of the same, may maintain an action against the purchaser for the stipulated balance of purchase money without first conveying the property to him, or putting him in possession. Morris v. McKee, 96 Ga. 611 (24 S. E. Rep. 142). While the rule is that every part of a contract should be given force and effect if possible, and, if the meaning of the language of a part only is neces

sarily uncertain, such uncertain part must be suppressed, and effect given to the balance, if thereby the intention of the parties can be effectuated, but if the uncertainty grows out of the omission of words which can not be constructively supplied, and that affect the whole clause, evidently designed for a particular purpose, which is rendered uncertain by such omission, then the whole clause must be suppressed. Mississippi R. Logging Co. v. Wheelihan, 94 Wis. 96 (68 N. W. Rep. 878). Where the parties in interest have placed a construction upon their contract, the court will enforce the contract as thus construed. Wysor v. Lake Erie & W. R. Co., 143 Ind. 6 (42 N. E. Rep. 353). Citing, Pate v. French, 122 Ind. 10 (23 N. E. Rep. 673); Heath v. West, 68 Ind. 548; Johnson v. Gibson, 78 Ind. 282; Bish. Cont., § 412. The intention of the parties should govern in the construction of contracts. Wolff v. Helbig, 21 Colo. 490 (43 Pac. Rep. 133). While a valid statute regulating contracts is, by its own force, read into, and made a part of, such contracts, it is otherwise as to invalid statutes. Palmer v. Tingle, 55 O. St. 423 (45 N. E. Rep. 313). For cases which depend upon particular facts and illustrate the construction of land contracts, see Buena Vista Co. v. McCandlish, 92 Va. 297 (23 S. E. Rep. 781); Nash v. Jones, 41 W. Va. 769 (24 S. E. Rep. 592); Beulah Marble Co. v. Mattice, 22 Colo. 547 (45 Pac. Rep. 432).

Sec. 72. Time as of the essence of the contract. Time is usually considered as of the essence of the contract where the character of the property affected by it is such that it is liable to sudden fluctuations in value. Tyler v. Cate, 29 Or. 515 (45 Pac. Rep. 800). Where a vendor of land sues the vendee at law for the recovery of damages for an alleged breach by the vendee of the executory contract of purchase, time in such cases, at law, is the essence of the contract; and the vendor, in order to recover, must show himself to have been ready, able, and willing to convey by good and perfect title promptly at the time expressly stipulated. Frazier v. Boggs, 37 Fla. 307 (20 So. Rep. 245). In contracts for the sale of real estate, time of performance of its stipulation, is, in equity, of the essence of the contract producing loss or forfeiture of rights. Jarvis v. Cowger's Heirs, 41 W. Va.