words of identity occur in the statutory form in this connection: And also appeared Mary Smith, wife of the said John Smith, with whom I am personally acquainted, etc., and it is held that the officer is not required to be personally acquainted with the wife, but only with the husband.1

$114. Community Property.

In several states, especially Texas and California,2 all property acquired during the existence of the marital relation, except that acquired by gift, devise or descent, is community property of the husband and wife, and is subject, unless it be the homestead, to disposition by the husband alone. As the joinder of the wife in a conveyance of such property by the husband is not necessary, it follows that defects in her acknowledgment in such case are immaterial, since her signature as well as acknowledgment can be dispensed with as surplusage. Although the conveyance be

1 Bell v. Lyle, 10 Lea, 44. As the officer certifies in the preceding part of the certificate that he is acquainted with the husband, it is evident that the court looked to the reason and spirit of the matter; as otherwise they might plausibly have held, and without doing serious violence to the rules of grammar, that the statute intended the words of identity in the latter part of the certificate to apply to the wife.

2 Rev. Stats. of Tex., §§2852-3; Civ. Code of Cal. §§162-4, 172; Maguire v. De Fremery, 76 Cal. 401; Morse v. Jones, 63 Cal. 12. The law of community property, derived mainly from the civil and Spanish law, prevails with some statutory differences in New Mexico, Arizona, Louisiana and Florida, and also in Nevada, Idaho and Washington Territory. Comp. Laws Ariz., §1968; Charauleau v. Woffenden, 1 Ariz. 243; Rev. Civ. Code La., §§2332-4; McCaffrey v. Benson, 40 La. 10; s. c. 3 South. Repr. 393; Code of Wash. Ter., §2409; Lemon v. Waterman, 2 Wash. Ter. Rep. 485; s. c. 7 Pac. Repr. 899; Andrews v. Andrews, 3 Wash. Ter. 286; s. c. 14 Pac. Repr. 68; Ray v. Ray, 1 Idaho, 566; Laws of Nev., 1873. §§152, 156; Dominguez v. Lee, 17 La. 296. See also, Tillinghast v. Champlin, 4 R. I. 209, and cases in notes to §182, post.

3 Parker v. Coop, 60 Tex. 112; Parry v. Kelly, 52 Cal. 334; Tucker v. Case, 39 Tex. 102; Eslinger v. Eslinger, 47 Cal. 62; Succession of Dejan, 40 La. Ann. 437; s. c. 4 South. Repr. 89; Parker v. Chance, 11 Tex. 518; Smith v. Smith, 12 Cal. 216; s. c. 73 Am. Dec. 533; Huston v. Curl, S Tex. 239; s. c. 38 Am. Dec. 110; Peet v. Commerce Ry. Co., 70 Tex. 522; s. c. 8 S. W. Repr. 203; post, $182.

4 Tom v. Sayers, 64 Tex. 339; Pixley v. Huggins, 15 Cal. 127; Stephens v. Matthews, 69 Tex. 340; s. c. 6 S. W. Repr. 567.

As against the title conveyed by an older unrecorded deed from the husband, the wife cannot be a bona fide purchaser from the husband

made to the wife alone, and the property be in fact her separate property, yet if made during the marriage, the law, prima facie, presumes the property to be community, and a purchaser from the husband alone will be protected unless the recitals in the deed to the wife show it to be her separate property, or there be other facts putting the purchaser upon actual notice of her title. The presumption of community property may be countervailed by a recital in the deed that the premises are conveyed as and for the separate property of the wife, or are paid for out of her separate means, as such recital will charge subsequent purchasers dealing with the husband with notice of the wife's title.2

where the consideration of the deed to her is community property; nor can the husband in such case be the agent of the wife in making a contract with himself resulting in such second deed. Pearce v. Jackson, 61 Tex. 642.

1 French v. Strumberg, 52 Tex. 109; Cooke v. Bremond, 27 Tex. 459; McComb v. Spangier, 71 Cal. 419; s. c. 12 Pac. Repr. 347. Where the deed is to the husband alone, the legal title is in him, although the equitable title be in the community estate, and a purchaser from the husband, after the wife's death, without notice of her equitable title, will be protected. Edwards v. Brown, 68 Tex. 329; s. c. 5 S. W. Repr. 87. The statute and decisions seem to be different in Louisiana as to the legal title. Civ. Code, art. 2371; Provost v. De la Houssaye, 5 La. Ann. 610. 611; Dominguez v. Lee, 17 La. 296.

Where a wife abandoned by her husband, conveyed property in his name, it was held under the facts and pleadings of the case that the registration of the deed from her was notice to a subsequent purchaser from the husband. Zimpleman v. Robb, 53 Tex. 274.

2 Morrison v. Clark, 55 Tex. 437; Cline v. Upton, 56 Tex. 319; Kirk v. Navigation Co., 49 Tex. 215; Montgomery v. Noyes (Tex.), 11 S. W. Repr. 138; post, §182.

Actual notice of the wife's separate title will defeat the judgment lien of a creditor of the husband, if given before a sale of the property under the judgment. Bonner v. Stephens, 60 Tex. 618; Parker v. Coop, 60 Tex. 114; McKamey v. Thorp, 61 Tex. 649; Stoker v. Bailey, 62 Tex. 299; Ross v. Kornrumpf, 64 Tex. 390; though in Wallace v. Campbell, 54 Tex. 87, it seems to have been held that notice after the judgment lien attached came too late.

The remark in Garner v. Thompson, 1 Tex. Law Rev., 286 (May, 1883), that a purchaser must take notice of the existence of the vendor's family and their rights to the land under our marital laws, held obiter dicta in Edwards v. Brown, 68 Tex. 329. See as to California, post, $182.

$115. Relinquishment of Dower.

Some of the statutes require that in order to bar a married woman's right of dower, an express relinquishment of dower shall be stated in the certificate of her acknowledgment; and where this is the case, the statute must be complied with, or the deed will not have that effect. The acknowledgment need not be in the very words of the statute; but a certificate omitting this matter and showing only that the wife acknowledged the execution of the instrument, is not sufficient. Where, in a conveyance of the wife's separate property, the certificate contained also the words appropriate to bar her dower, the super-added words were held not to restrict or impair the acknowledgment already made, but to show a mistaken intent to release her right of dower, in addition to the interest already conveyed, and were treated as surplusage.3

A married woman's interest in land, inherited from the community estate of her mother, cannot be transferred by a release of all interest in the community estate, executed by her to her father, for value, but without privy acknowledgment or the joinder of her husband. Stephens v. Shaw, 68 Tex. 261; s. c. 4 S. W. Repr. 458.

1 Dundas v. Hitchcock, 12 How. 256.

2 Lindley v. Smith, 46 Ill. 524; Thomas v. Meier, 18 Mo. 573; Becker v. Quigg, 54 Ill. 390.

8 Stone v. Montgomery, 35 Miss. 83; Grapengether v. Fejevary, 9 Iowa. 163; s. c. 74 Am. Dec. 336. In Florida this principle of construction has been carried further. Thus, where the certificate stated that the wife made herself party to the deed (of her separate property), "for the purpose of relinquishing her right of dower," she having no such right, present or prospective, this was construed to be an acknowledgment of the due execution of the deed according to its language and import. Evans v. Summerlin, 19 Fla. 858. See contra, Allendorf v. Gaugengihl, 146 Mass. 542; s. c. 16 N. E. Repr. 283; and as supporting the Florida case, Johnson v. Parker (Ark.), 11 S. W. Repr. 681.

Where the statute provided that the wife, in order to relinquish dower, should acknowledge and subscribe the deed before the officer, a certificate showing a proper acknowledgment, but failing to show that the relinquishment was subscribed before the officer, was held bad. Kay v. Jones, 7 J. J. Marsh. 38. See further as to relinquishments, Mosely v. Hankinson, 23 S. Car. 519; Lane v. Dolick, 6 McLean, 200; Sykes v. Sykes, 49 Miss. 190; Ford v. Gregory, 10 B. Mon. 177; Tomlin v. McChow, 5 J. J. Marsh. 135; Leavitt v. Lamprey, 13 Pick. 383; Powell v. Monson, 3 Mason, 349; Lufkin v. Curtis, 13 Mass. 223; Stevens v. Owens, 25 Me. 94; Hall v. Savage, 4 Mason, 273; Dutton v. Stewart,

$116. Acknowledging Deed with Blanks.

In the case of Drury v. Foster,' the Supreme Court of the United States had occasion to pass on the validity of a mortgage of the wife's lands, signed by her and duly acknowledged, but in which there were blanks for the name of the mortgagee, and the amount of the mortgage debt, at the time of such execution by her. It was conceded that aside from the question raised by the blanks, the instrument was valid, and also that ordinarily parol authority is sufficient to authorize such blanks to be filled by an agent. But upon the ground that a married woman was disabled in law from delegating a person, either in writing or by parol, to fill up the blanks and deliver the mortgage, and that there could be no acknowledgment of the instrument within the requisitions of the statute until the blanks were filled and the deed complete, it was held that the mortgage was a nullity, and no better than so much blank paper; and further, that to hold the wife estopped by her acts, which included the receipt by the husband, as her agent, of the money advanced, would be to introduce into the law an entirely new system of conveyances of the real property of femes covert. The statutes of Minnesota, it was said, in requiring a separate and privy examination, disable the wife from executing or acknowledging a deed by procuration, and from making a power of attorney.

117. Wife's Power of Attorney.

At common law the wife could not make a valid power of attorney to convey real property, and this is still the settled law in a number of the states. But by force of stat

41 Ark. 101; Johnson v. Parker (Ark.), 11 S. W. Repr. 681; Williams v. Cudd, 26 S. Car. 213; s. c. 2 S. E. Repr. 14; post, §120.

1 2 Wall. 24; s. c. 1 Dillon, 460.

2 Mays v. Frazee, 4 Litt. 391; Bank of L. v. Gray, 84 Ky. 565; s. c. 2 S. W. Repr. 168; Field v. Moore, 19 Beav. 176.

3 Allen v. Hooper, 50 Me. 373; Holladay v. Daily, 19 Wall. 609; Sumner v. Conant, 10 Vt. 9; Boyd v. Turpin, 94 N. C. 137; Earle v. Earle, 1 Spen. 347; Caldwell's Appeal (Pa.), 7 Atl. Repr. 211; Elliott v.

utes in some states, and of decision alone in a few others, the right of a wife to convey by power of attorney is now recognized.1 In Texas, although the statute requires a privy examination and expression of the wife's desire not to retract, in the acknowledgment of her conveyances, the courts have held, without any enabling act, that she may convey by power of attorney. On the ground that she has the right to retract until the conveyance is complete, they adhere, however, to the general doctrine that specific performance of her bond for title or other executory contract will not be enforced. So, also, the Texas court has reTeal, 5 Saw. 249; Kearney v. Macomb, 16 N. J. Eq. 189; Lewis v. Coxe, 5 Harris, 401; Toulman v. Heidleberg, 32 Miss, 268; Clarke v. Reins, 12 Gratt. 103; Pilcher v. Smith, 2 Head. 209; Carr v. Williams, 10 Ohio, 310; Butt v. Broughton, 72 Ala. 294; Bank of Louisville v. Gray, 84 Ky. 565; s. c. 2 S. W. Repr. 168..

1 Civ. Code of Cal., §6094; Dow v. Gould, 31 Cal. 646; Rev. Stats. of Wis., §2222; Weisbrod v. Chicago, etc., 18 Wis. 41; Hardenburg v. Larkin, 47 N. Y. 113; Roarty v. Mitchell, 7 Gray, 243; Stats. of Fla., 1881, ch. 150, $11; Rev. Stats. of Ohio, 1880, $4108; Gen. Stats. of Ky., 1881, ch. 24, $36; Rev. Stats. of Mo., 1879. §670; Howell's Stats. of Mich., 1882, §5725; Code of N. C., 1883, §1257; Rev. Stats. of Ind., 1881, §2949; Gridly v. Wynant, 23 How. 503; Wilkinson v. Getty, 13 Iowa, 137; Warren v. Jones, 69 Tex. 462; s. c. 6 S. W. Repr. 775.

2 Patton v. King, 26 Tex. 685; s. C. 84 Am. Dec. 596; Cannon v. Boutwell, 53 Tex. 626; Warren v. Jones, supra.

3 Jones v. Goff, 63 Tex. 255; Burch v. Jones (Ky.). 5S. W. Repr. 408; Wright v. Duffield, 2 Baxt. 218; Rockafellow v. Oliver, 41 Ark. 169; Warren v. Jones, 69 Tex. 462; Cross v. Evarts, 28 Tex. 531; Lane v. McKeen, 15 Me. 304; Waterman on Specif. Perf., §127; Hord v. Taubman, 79 Mo. 101; Baldwin v. Snowden, 11 O. St. 203; Ackert v. Pultz, 7 Barb. 386.

Equity will not enforce a wife's contract to convey not acknowledged by her, although the purchaser has paid the consideration, and is in possession. Goss v. Furman, 21 Fla. 406, citing Bish. on Law of Mar. Wom., §601; Story Eq., 1391; 2 Kent, 168; Rooney v. Michael, 84 Ala. 585; s. c. 4 South. Repr. 421; Blythe v. Dargin, 68 Ala. 370. But see Homeopathic Co. v. Marshall, 32 N. J. Eq. 106.

Where on an agreement to exchange lands the wife received the deed of the other party, and then refused to acknowledge a deed conveying her tract, the court would not compel her to acknowledge the deed, but divested her of the title to the tract received. Burns v. McGregor, 90 N. C. 222, citing Atkinson v. Richardson, 74 N. C. 455; Towles v. Fisher, 77 N. C. 437. Had it been a case of money paid by the purchaser, instead of land given, he would have been remediless. Scott v. Battle, 85

N. C. 184.