Under the law of New Mexico of 1901, providing that both husband
and wife must join in conveyances of real estate acquired during
coverture, a deed of the husband in which the wife does not join is
ineffectual to convey community property even though acquired prior
to the passage of the act.
The facts are stated in the opinion.
Page 220 U. S. 318
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit to quiet title, brought by the appellee against
the widow of Adolpho Lea, for whom her heirs were substituted upon
her decease. Adolpho Lea married in 1857. He bought the land in
question in 1889 and 1893, and it became community property. In
1902, he sold it to the appellee, shortly before his death in the
same year, his wife not joining in the conveyance. By the laws of
New Mexico of 1901, c. 62, § 6(a),
"neither husband nor wife shall convey, mortgage, encumber, or
dispose of any real interest or legal or equitable interest therein
acquired during coverture by onerous title unless both join in the
The courts of New Mexico gave judgment for the plaintiff on the
ground that the husband had vested rights that would be taken away
if the statute were allowed to apply to land previously acquired,
citing Guice v.Lawrence,
2 La.Ann. 226, Spreckels v.
116 Cal. 339, etc. The defendants appealed to this
There was some suggestion at the argument that the husband
acquired from his marriage rights by contract that could not be
impaired; but, of course, there is nothing in that, even if it
appeared, as it does not, that the parties were married in New
Mexico, then being domiciled there. Maynard v. Hill,
125 U. S. 190
125 U. S. 210
et seq.; Baker v. Kilgore, 145 U.
, 145 U. S.
-491. The supreme court does not put its decision
upon that ground, but upon the notion
Page 220 U. S. 319
that, during the joint lives, the husband was in substance the
owner, the wife having a mere expectancy, and that the old saying
was true that community is a partnership which begins only at its
end. We do not perceive how this statement of the wife's position
can be reconciled with the old law of New Mexico embraced in §§
2030-2031 of the Compiled Laws 1897, referred to in the dissenting
opinion of Abbott, A.J., that, after payment of the common debts,
the deduction of the survivor's separate property and his half of
the acquest property, and subject to the payment of the debts of
the decedent, the remainder of the acquest property and the
separate estate of the decedent shall constitute the body of the
estate for descent and distribution, and, in the absence of a will,
shall descend one-fourth to the surviving husband, etc. For if the
wife had a mere possibility, it would seem that whatever went to
the husband from her so-called half would not descend from her, but
merely would continue his. The statement also directly contradicts
the conception of the community system expressed in Warburton
v. White, 176 U. S. 484
176 U. S. 494
that the control was given to the husband "not because he was the
exclusive owner, but because by law he was created the agent of
community." And, notwithstanding the citation in Garrozi v.
Dastas, 204 U. S. 64
some of the passages and dicta from authors and cases most relied
upon by the court below, we think it plain that there was no intent
in that decision to deny or qualify the expression quoted from
Warburton v. White. See
204 U.S. 204 U. S. 78
Los bienes que han marido y mujer que son de ambos por
Novisima Recopilacion, Bk. 10, title 4, Law 4.
It is not necessary to go very deeply into the precise nature of
the wife's interest during marriage. The discussion has fed the
flame of juridical controversy for many years. The notion that the
husband is the true owner is said to represent the tendency of the
Page 220 U. S. 320
customs. 2 Brissaud, Hist. du Droit Franc. 1699, n. 1. The
notion may have been helped by the subjection of the woman to
marital power; 6 Laferriere, Hist. du Droit Franc. 365; Schmidt,
Civil Law of Spain and Mexico, Arts. 40, 51, and in this country by
confusion between the practical effect of the husband's power and
its legal ground, if not by mistranslation of ambiguous words like
dominio. See United States v.
2 Black 17, 67 U. S. 227
However this may be, it is very plain that the wife has a greater
interest than the mere possibility of an expectant heir. For it is
conceded by the court below and everywhere, we believe, that in one
way or another she has a remedy for an alienation made in fraud of
her by her husband. Novisima Recopilacion, Book 10, Title 4, Law 5;
Schmidt, Civil Law of Spain and Mexico, Art. 51; Garrozi v.
Dastas, 204 U. S. 64
204 U. S. 78
should require more than a reference to Randall v.
23 Wall. 137, as to the power of the
legislature over an inchoate right of dower to make us believe that
a law could put an end to her interest without compensation
consistently with the Constitution of the United States. But,
whether it could or not, it has not tried to destroy it, but, on
the contrary, to protect it. And, as she was protected against
fraud already, we can conceive no reason why the legislation could
not make that protection more effectual by requiring her
concurrence in her husband's deed of the land.
MR. JUSTICE McKENNA, dissenting:
I dissent from the opinion and judgment of the court for the
reasons set forth in the opinion of the Supreme Court of New
Mexico. See also Spreckels v. Spreckels,
116 Cal. 339.