The question presented to the court below was, whether, in law, the legal title to the whole or any part of the property described in the complaint was in the community or the defendant, and we are called upon to say whether or not the evidence is sufficient to support the findings.

Prior to the statute of 1865 (Stat. 1864-5, 239) the property rights of husband and wife were governed by the common law. That statute only affected property subsequently acquired: Darrenberger v. Haupt, 10 Nev., 46.

It follows that all property owned by defendant at the date of marriage as well as those purchased by him, and the rents, issues and profits of the same, up to March 7, 1865, the date of the first statute, belonged to defendant as his separate estate.

But it is claimed by counsel for plaintiff that, under that statute, the rents, issues and profits of defendant's separate estate, until the passage of the statute now in force (C. L., 151) became common property.

The statute of 1865 was passed pursuant to the constitution, which provided that "all property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be her separate property; and laws shall be passed, more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband.”

Under a similar constitutional provision, the legislature of California passed an act defining the rights of husband and wife (Stat. of 1850, 254), wherein, like our statute of 1865, it was declared that "all property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise or descent, shall be his separate property. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property."

But the California statute also provided that "the rents and profits of the separate property of either husband or wife shall be deemed common property.'

This provision was left out of our statute, although the first part of the section of the California act containing it was copied verbatim.

In George v. Ransom, 15 Cal., 323, the supreme court held that the legislature had not power, under the constitution, to say that the fruits of the property of the wife should be taken from her and given to her husband or his creditors; that the sole value of property is in its use. Counsel for appellant admit the correctness of that decision, but they say there is no such constitutional provision as to the property of the husband, and inasmuch as the statute of 1865 did not make his rents, issues and profits separate estate, they

belong to the community, because acquired after marriage, and not by gift, devise or descent.

It is said, also, that the supreme court of California affirmed this theory of the law in Lewis v. Lewis, 18 Cal., 659. But it must be remembered that when that case was decided the statute of 1850, before referred to, was in force, except as affected by the decision in George v. Ransom. It was the law then that the rents, issues and profits of the husband's separate property should be deemed common property.

If we concede that the legislature might make the profits of his separate estate common property, still the fact remains that it did not do so, but, on the contrary, expunged the very words of the California statute that produced this result.

Again, since under the constitution the legislature could not lawfully make the rents, issues and profits of the wife's estate common property, in the absence of affirmative words making them such, the presumption is that there was no intention of doing so.

Now, the first and second sections of the statute of 1865 must be construed together. If, under the first, the profits of the wife's separate estate belongs to her, then we cannot say that, under the second, they belong to the community. And, if under the first, the profits of her estate belong to her, it cannot be said that a different rule should prevail as to him, for the language is precisely alike as to both. Besides, it would be unfair to take from one what is given to another.

And, too, it is evident from section 3 that the legislature intended that the wife's profits from her separate property should remain hers. It provides that an inventory of the wife's separate property, except money in specie, should be executed and recorded, and thereafter a further inventory should be made and recorded of all other separate property afterwards acquired, excepting money whilst in specie and unconverted, and excepting the rents and profits of her separate property included in the original or any subsequent inventory, if the same was money, so long as it should remain in specie and unconverted. When the rents and profits of her separate property were converted into property other than money, it was her duty to record an inventory of the same, but the rents, issues and profits of her estate while in specie belonged to her without an inventory. And, under section 5, all property belonging to her included in the inventory, as well as money in specie not so included, was exempt from seizure for the debts of her husband. Thus we find a plain recognition of the wife's right to the rents, issues and profits of her separate estate.

We are satisfied that under the statute of 1865, the rents, issues and profits of defendant's separate estate did not become common property: Williams et al. v. McGrade et al., 13 Minn., 51; Wells' Separate Property of Married Women, Sec. 112; Glover v. Alcott, 11 Mich., 482; Bishop on the Law of Married Women, Secs. 50, 94, 632, 776.

It is conceded that property acquired during coverture presumably belongs to the community. The burden is on the defendant in this case to overthrow this presumption by proof, sufficiently clear and satisfactory, to convince the court and jury of the correctness of his claim as in other cases.

Respecting the amount and character of evidence required to overcome the presumption mentioned, the supreme court of Michigan has expressed our views in Davis v. Zimmerman, 40 Mich., 27, where it said: "Some Pennsylvania cases are cited, in which the court has used somewhat strong language respecting the evidence which shall be required to make out a gift from husband and wife. Chief Justice Black said in Gamber v. Gamber, 18 Pa. St., 363, 366, that a married woman claiming property must show her right 'by evidence which does not admit of reasonable doubt.' This is a very strong statement, and lays down a much more severe and stringent rule than is applied to other persons. In this state, no such distinction is recognized. Convincing proof is required, but nothing more. No doubt the circumstances of the relation, and the facility with which frauds may be accomplished under the pretense of sales or gifts between husband and wife, ought to be carefully weighed in determining whether or not a gift has been made, but when all are considered the one question, and the only question, is, whether the wife has established her right by a fair preponderance of evidence; if she has, no court has any business to require more:" And see Bishop on the Law of Married Women, Vol. 2, Sec. 136, 138, 140; Tripner v. Abrahams, 47 Pa. St., 229; Seeds v. Kahler, 76 Pa. St., 267; Earl v. Champion, 65 Pa. St., 195; Glover v. Alcott, 11 Mich., 493.

The court did not err in admitting the testimony of witness Lake to show that the real consideration was other property given in exchange, instead of the money stated in the deeds from Crocker and Osbiston: Peck v. Brummagin, 31 Cal., 447; Ramsdell v. Fuller, 28 Cal., 37; Peck v. Vandeburg, 39 Cal., 11; Salmon v. Wilson, 41 Cal., 595; Higgins v. Higgins, 46 Cal., 259; Wedel v. Herman, 59 Cal., 516.

It is admitted that all property described in the complaint which was owned by defendant before marriage, remains his. It is equally true that property purchased with or taken in exchange for such property, is his also, as well as the rents, issues and profits of his separate estate. But the question arises, what are properly rents, issues and profits under the facts proven? The contention in this case comes mainly from a difference of opinion as to the proper solution of this query. The subject is beset with difficulties which must be met as the cases present themselves, and each must be decided upon its own, its peculiar facts. Extreme cases may be suggested upon both sides, in which it would be difficult to mete out exact justice by following the theory of either plaintiff or defendant. But such examples are not uncommon in the law, and

courts have never considered them sufficient to justify a departure, in an individual case, from well established legal principles.

We are satisfied that it is not necessary to prove that property is, in fact, the product of the joint efforts of the husband and wife in order that it may be declared community estate.

If it is acquired after marriage by the efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community. Such property is common, although the wife neither lifts a finger nor advances an idea in aid of her husband. She may be a burden and a detriment in every way, or she may absent herself from the scene of his labors, know nothing of his business and do nothing for him; still it is

common.

On the other hand, property acquired by either spouse in any one of the ways mentioned in the statute, that is to say, by gift, devise or descent, or by exchange of individual property, or coming from the rents, issues or profits of separate property, belongs to him or her, as the case may be, and the other has no more right to share it than a total stranger.

After marriage it was defendant's duty to support his wife, but he was under no legal obligation to accumulate community property. He could attend to his separate estate and support his family from that, if he was so inclined.

If common property is acquired, the wife has her statutory rights therein, but she has no vested rights in, or lien upon, his time or labor. If he is indolent, and barely supports the family, or if he spends his time in increasing his separate estate, instead of enriching the community, her remedy is an appeal to his better nature. The law furnishes no aid.

And since the law gives to each spouse the rents, issues and profits of his or her separate estate, it cannot be true that they become common property by reason, simply, of the marriage relation.

But the record shows, and the court finds, that the plaintiff assisted, in her department, in carrying on the Lake hotel business, the Meadow Lake hotel or eating house, and the Lake ranch; and after the old Lake house was destroyed by fire, the men employed upon defendant's toll-road boarded at his private house, and plaintiff cooked and washed for them. She also advised with defendant at times about his business.

Do these facts make the profits from the sources just named, if any there were, community estate, provided the property used, and out of which the profits came, belonged to defendant alone.

Most of the cases to which we shall refer upon this question involve the rights of a wife to claim profits arising from the use of her separate estate, as against creditors of the husband, when they have been increased by his labor and skill.

There are cases intimating, at least, that in a contest between husband and wife, where the husband has increased the income of

the wife's estate by his labor, she might claim the entire product, although she could not do so as against her husband's creditors: See Wells' Separate Prop. of Mar. Women, sec. 47; Hackett v. Bailey, 86 Ill., 77; Wilson v. Loomis, 55 Ill., 355; Skillman v. Skillman, 13 N. Y. Ch. R., 409.

But we think the principles of law that control those cases should govern this: Parrott v. Nimmo, 28 Ark., 358.

Such, also, is the opinion of counsel for plaintiff.

Lewis v. Chard, 24 Cal., 100, shows that wheat raised upon land of the wife was seized under an execution against her husband. He had employed men, purchased seed wheat, made contracts to be paid out of the crops, superintended the farm labor and performed some himself. After referring to George v. Ransom, supra, the court said: "That the husband can not, by any management, supervision or labor, acquire any interest in the estate itself, is conceded, and by parity of reason, he can not acquire any interest in the increase, for that is hers also, and upon the same terms-the latter being a corollary of the former proposition. There is no magic in the touch or manipulation of the husband by force of which separate, is transformed into community property. If he acquired, as contended by respondents, any right whatever, as agains this wife, by virtue of his supervision and labor, it is not his right in the nature of a lien in the thing supervised, or upon which the labor is bestowed, but merely a right to compensation, and his creditors could only proceed by the process of garnishment. In the absence of an express agreement to that effect, there is no implied obligation on the part of the wife to compensate the husband for his services, and in either case there would be only an imperfect obligation which neither husband nor his creditors could enforce. The doctrine contended for would banish the husband from the premises of the wife, and deprive her of his counsel and guidance, for his presence there might bring ruin instead of affording protection."

In Webster v. Hildreth, 33 Vt., 457, it appears that Mrs. Hildreth, one of the defendants, became the owner of wild land by deed from her father. Hildreth and wife moved on to the land, and there lived until the suit. With the help of their children they cleared up a large part of it, erected buildings and made valuable improvements. The land was originally worth two or three hundred dollars, but at time of suit was valued at twelve or fifteen hundred, the increased value having been in part from the rise of the land in price, and part in the improvements. Hildreth contributed to the improvements by his labor and money; but during the whole time the title to the land was in his wife. This fact so appeared of record and was generally known.

The plaintiff having a judgment against Hildreth levied on seven undivided twelfth parts of the farm, claiming that the husband's labor, earnings and money had contributed to the improvements and made up that much of its value. The supreme court held that in the absence of an agreement in some legal form, that his labor