3. The Taylor was in fault for trying to pass astern of the Raineer while she saw that the latter was caught aback, and that the wind would tend to drift her under the former's bows.

4. The Taylor was in fault for not luffiing when she approached the Raineer and found that the latter was making sternway and was unmanagable.

5. The Raineer was in fault for not recovering command of herself

sooner.

6. The Taylor was in fault for not beginning to lower her sails the instant it was clearly inevitable that the vessels must come together. 7. The Raineer was in fault for not cutting her main topmast backstay lanyards as soon as it was evident that the Taylor's foreyard was held fast by them. Such loss as has been sustained should be divided between both. A decree should be rendered in favor of the Taylor for $500."

The judgment of the court below is affirmed. Costs being entirely in the discretion of the court, those made in this court will be equally divided between the parties.

GREENE, C. J., and HOYT, J., concurred.

HOLYOKE V. JACKSON.

Filed July, 1882.

COMMUNITY PROPERTY-HUSBAND'S POWER OF DISPOSITION OVER. -Subsequent to the Hus band and Wife act of 1879, a husband cannot enter into a valid contract for the sale of community property without his wife joining therein. A vendee under such contract, with knowledge that the subject matter thereof was community property, cannot recover damages for the husband's failure to convey.

ERROR to the district court. The opinion states the facts.

C. H. Hanford, for the plaintiff in error.

McNaught, Terry, McNaught & Mitchell, for the defendant in error. GREENE, C. J. The primary question involved in this question is whether subsequent to the Husband and Wife act of 1879, the plaintiff in error, being a husband, could without his wife joining, make valid contract to sell to defendant in error, community property.

By the provisions of the Husband and Wife acts passed in 1879 and previously, the husband and wife are conceived as constituting together a compound creature of the statute called a community. This creature is sometimes, though inaccurately, denominated a species of partnership. It probably approaches more nearly to that kind of partnership called universal than to any other business relationship known to the civil or common law.

A conventional community, in a state where statutes would permit, might be contrived which would be substantially a partnership; but an ordinary legal community is, in many important particulars, quite distinct. It is like a partnership, in that some property coming

from or through one or other or both of the individuals, forms for both a common stock which bears the losses and receives the profits of its management, and which is liable for individual debts; but it is unlike, in that there is no regard paid to proportionate contribution, service or business fidelity, that each individual once in it, is incapable of disposing of his or her interest, and that both are powerless to escape from the relationship, to vary its terms, or to distribute its assets or its profits. In fixity of constitution, a community resembles a corporation. It is similar to a corporation in this also, that the state originates it, and that its powers and liabilities are ordained by statute. In it the proprietary interests of husband and wife are equal, and those interests do not seem to be united merely, but unified; not mixed or blent, but identified. It is sui generis, a creatue of the statute. By virtue of the statute, this husband and wife creature acquires property. That property must be procurable, manageable, convertible, and transferable in some way. In somebody must be vested a power in behalf of the community to deal with and dispose of it. To somebody it must go in case of death or divorce. Its exemptions and liabilites as to indebtednees must be defined. All this is regulated by statute. Management and disposition may be vested in either one or both of the members. If in one, then that one is not thereby made the holder of larger proprietary rights than the other, but is clothed, in addition to his or her proprietary rights, with a bare power in trust for the community. This power the statute of 1873 chose to lay upon the husband, while the statute of 1879 thought proper to take it from the husband and lay it upon husband and and wife together. As the husband's "like absolute power of disposition as of his own separate estate" bestowed by the ninth section of the act of 1873, was a mere power conferred upon him as member and head of the community in trust for the community, and not a proprietary right, it was perfectly competent for the legislature of 1879 to take it from him and assign it to himself and his wife conjointly. This was done. When, therefore, in 1880, the plaintiff in error, without his wife, entered into an agreement to sell the land in question, he agreed to do, what he himself, by himself, could not do, and, therefore, could not agree to do. To make an actual sale or conveyance without his wife, he had no power. The law says such a thing shall not be done. An agreement proposing it, is in conflict with the law, and void.

As the defendant in error knew of the marriage, and that the property was community property, he was a participant in an invalid transaction, wherein the law charged him with knowledge of the invalidity. He was doing what he is presumed to have known was against the law. So circumstanced, hejis entitled to no redress for the failure of plaintiff in error to carry out the void contract to sell. A second, exceedingly interesting question arose in this case, and has been ably discussed upon the argument. It is the measure of damages for a breach of a contract to convey lands.

Our conclusion upon the other question, makes any discussion of this unnecessary to a decision of the cause. We, therefore, decline to enter upon it.

Let the judgment of the district court be reversed, and the cause be remanded to that court with directions to vacate the order setting aside the judgment of nonsuit.

HOYT, J., concurred.

On a motion for a re-hearing the following opinion was delivered:

GREENE, C. J. Community property was created by statute of December 2, 1869, although called "common property" by that statute and by the statute of 1873.

By the statute of 1879, it was first denominated " community prperty."

The rights referred to in the 31 section of the act of 1879, are proprietary rights, and not such naked power of management, control, or disposition, as are devolved upon any married person to be exercised in trust for the community. Therefore all the provisions of the act of 1879, which operate to create, vary or assign powers of that description, are applicable to property previously acquired.

By section 8 of the statute of 1879, the husband is clothed with a certain trust in respect to community real property. The management and control of it is vested in him, not for himself, but for the community. Besides this, he, with the wife, is endowed with power to dispose of it. This power, two, is in trust for the community.

For we must distinguish the community called into existence by the statutes, from the two individuals who composed it.

By a like distinction a corporation is conceived to differ from its stockholders. When the husband, therefore, thus situated, undertakes to dispose of the community property as his own, he stands differently from the absolute proprietor of a homestead, who has the power to shift the domicile of his family at pleasure, and who is required to have his wife join, not because she is joint trustee with him, nor because he without her is not owner, but merely as a check on his power of disposition, lest certain consequences follow injurious to the proper policy of the state. In the matter of disposing of community real property, husband and wife are, by the law of 1879, joint trustees for their mutual benefit in the community. Within the scope of their joint trust, neither can act without the other. No contract of disposition undertaken by either husband or wife, in contravention of his or her fiduciary relation to community real property can be enforced so as to reach any such property directly or indirectly. And if, at the time of making the supposed contract, the would be purchaser knows it to be in breach of fiduciary duty, then it is void in every aspect and cannot be the foundation of any liability whatever.

In the case at bar, the supposed contract was made without consulting the wife, without her knowledge, against her will, notwithstanding the defendant well knew that under the statute she was entitled to and bound to exercise an equal voice and responsibility in the matter with her husband.

Let the motion for a re-hearing be denied.

BREWSTER, Receiver, etc., v. BAXTER.

Filed July, 1882.

PRACTICE OF ASSIGNING MORE ERRORS THAN ARE NECESSARY to present the points relied on, strongly condemned.

THE CIRCUMSTANCES SURROUNDING THE EXECUTION OF A WRITTEN CONTRACT may be shown by parol evidence. Held, therefore, in this case, that where a written contract was executed by a woman in her own name, parol evidence was admissible to show that she executed the same as an executrix.

REFUSAL TO GIVE INSTRUCTIONS ASKED IS NOT ERROR, if the jury have been properly instructed upon all questions left for their determination.

FACTS CLEARLY PROVEN NEED NOT BE LEFT TO THE JURY to decide.

INFORMALITY IN THE DELIVERY OF PERSONAL PROPERTY SOLD BY AN EXECUTRIX DOES NOT VITIATE the sale so as to render it impossible of subsequent ratification by the probate court. A SALE OF THE PROPERTY of an estate without an order therefor by the probate court, may be subsequently ratified by such court, or by the parties interested in such estate, so far as their interest is concerned.

ERROR to the district court. The opinion states the facts.

Haller & Engle, for the plaintiff in error.

Struve & Haines, for the defendant in error.

HOYT, J. The defendant in error brought this action to recover certain hay which he claimed to have purchased of Mary A. Dodge, as executrix of the last will and testament of Edwin T. Dodge, deceased, which hay had been taken possession of by the plaintiff in error, as receiver, in a certain foreclosure suit, wherein G. O. and H. M. Haller were plaintiffs, and said executrix, as such, and others were defendants; and the only questions made upon the trial of the cause were as to whether certain negotiations as to the hay between the plaintiff below and said executrix amounted to a legal sale thereof, and if they did not, then as to whether they were sufficient to found acts of ratification upon, and were they in fact ratified by any one authorized to bind the plaintiffs in said foreclosure suit. Upon the evidence introduced in regard to the said issues, the defendant below presented eighteen separate requests for instructions to the jury, and upon the errors growing out of the action of the court in regard thereto, and other questions in the case, now brings it here and assigns thirty separate errors as grounds for reversal of the judgment rendered in the court below. With these facts before us, we think it our duty to say that in our opinion we would be entirely justified in affirming the judgment for want of any proper assignment of errors, for the reason that in a case of this kind it would be as nearly in accordance with the spirit of our statute and a correct rule of practice for the plaintiff in error to

have said that he relied upon each and every error committed by the court below, as it was for him to assign, in a case of this kind thirty different errors, and rely upon one and all of them. And as the first method would be clearly insufficient. so we think the latter to be; but as this is the first time this matter has been referred to in this court, we have concluded to look into this case, so far as is necessary to decide it, and only say what we have, that it may be understood that the practice of assigning so many errors as to confuse rather than aid the court and opposite counsel as to the real question in the case, will not be tolerated in the future.

The only questions we feel called upon to decide in this case are: 1. Did the court err in allowing parol proof to explain and amplify the writing given at the time of the alleged foreclosure by the defendant in error?

2. Did the court err in refusing to give the instructions asked for by plaintiff in error?

3. Were the instructions which the court gave the jury upon its own motion correct and sufficient in view of the circumstances of the case?

As to the first question, all the proof admitted, excepting that which sought to show that though the paper was signed "Mrs. Mary A. Dodge," it was in fact executed by her as executrix of the estate of said Edwin T. Dodge, deceased, come so clearly within the general rule that all the circumstances surrounding the execution of any instrument in writing may be shown by parol, and so clearly shown that said writing was only an incomplete memorandum of a sale made before its execution, that we do not think it necessary to discuss it, and will only say, as to this point, that, in view of the undisputed facts in the case as to the farm upon which Mrs. Dodge lived being that of the estate and not her own, and that said paper was dated at "Dodge's Farm," and that the hay which was the subject matter of the sale, was known by all to be the property of the estate, as well as other circumstances in the case, we are of the opinion that parol proof as to the capacity in which Mrs. Dodge signed, was properly admitted: See Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheaton, 326; Baldwin v. Bank of Newbury, 1 Wallace, 239.

The answer to the second question depends entirely upon that given to the third, for it is well settled that it is not error in this territory to refuse to give instructions asked for, if the jury are in fact properly instructed as to all the questions left for them to decide; and we therefore now proceed to the final and material question in the case, and in order to properly examine the instructions actually given we must look into the record to see what facts are undisputed, or so clearly proven that the court could properly assume them to be conceded, for as to such facts nothing need be said to the jury. It was not disputed but what defendant in error had had a certain transaction with Mrs. Dodge as executrix of the estate of Edwin T. Dodge, deceased, in regard to the hay in ques