and improvement of the farm should vest in him some interest therein, or entitle him to compensation, he had no equitable claim upon the farm, and could claim nothing for his services, and that creditors had no greater right against the wife's estate than her husband had.

In Rush v. Vought, 54 Pa. St., 442, the evidence showed that the husband and wife lived on the latter's farm. She took the entire management, but he assisted somewhat, her children doing most of the work. He generally sowed the grain. The trial court charged the jury that, "the labor on the farm was bestowed by her husband and his children, and the grain, hay and other crops raised were the joint products of such labor and the land, and if the personal property now claimed by the wife was paid for out of the products the husband had an interest in it. It cannot, therefore, be said to have been purchased and paid for out of the separate funds of the wife.' Commenting upon that instruction, the supreme court said: "Thus the sowing of the grain, which was Jacob Rush's chief labor, mingling with the tillage, carried away from Mrs. Rush, not only all the products of the soil (hay as well as grain), but the stock purchased with their proceeds, when converted by Mrs. Rush into money or bartered. A deduction which leads to such wholesale destruction of the wife's rights of property cannot be founded in correct principle. The error arose from an oversight of the true foundation of the wife's right. This is not the case of property purchased during coverture, where the price of it presumptively, if not actually, came from the husband. But here the title to the products grows out of the title to the land itself. The ownership of the farm carries with it at law, and in equity, the right to its products. No change can take place in the title to the fruits of the soil without the owner parts with his title or possession, or permits its cultivation for the benefit of another. But the labor of others for the owner, though mingling in the production, creates no title to the products. The owner may be a debtor for the labor which tills his soil, or that labor may be given without a required equivalent, or for an equivalent in maintenance, which is consumed in its use; but this gives no usufruct or ownership in the product of the tillage. It matters not, therefore, whether the labor, when thus rendered, be that of a husband or another; without contract for the product, or cultivation, by the husband for himself, it confers no title or usufruct." To the same effect are Hanson v. Millett, 55 Me., 188; Holcomb v. Savings Bank, 92 Pa. St., 342; Silven's Executors v. Porter, 74 Pa. St., 451; Wieman v. Anderson and wife, 42 Pa. St., 317; Manderbach v. Mock, 29 Pa. St., 46; Hamilton v. Booth, 55 Miss., 61; Bongard v. Core, 82 Ill., 19; Garvin v. Gaebe, 72 Ill., 448; Coon v. Rigdon, 4 Colorado, 283; Russell v. Long, 52 Iowa, 250; Dayton v. Walsh, 47 Wis., 117; Feller v. Alden, 23 Wis., 303; Noe v. Card, 14 Cal., 607; McIntyre v. Knowlton, 6 Allen, 566; Knapp v. Smith, 27 N. Y., 279; Abbey v. Deyo, 44 N. Y., 348; Gage v. Douchy, 34 N. Y., 295; Whedon v. Champlin, 59

Barb., 65; Buckley v. Wells, 33 N. Y., 520; Picquet v. Swan, 4 Mason, 455; Well's Sep. Prop. of Married Women, sections 113, 162, 176.

In the case of Buckley v. Wells, supra, the property in question consisted of a stock of goods in a country store, of which the wife was the sole proprietor. The husband conducted the business in her behalf in the name of "L. Smith, Agent," and nominally, if not really, for her as his principal. The entire capital was contributed from her separate estate, except money borrowed in the name of "L. Smith, Agent," and the profits accruing from the use of such capital. The business was carried on for several years. The wife took no part in the management of the store.

The point was made that the goods belonged to the husband and were liable for his debts, since his labor entered into and formed a part of the property, and increased its value. The court held that the goods belonged to the wife.

In Abbey v. Deyo, supra, plaintiff, the wife, was engaged in the business of buying and selling flour, etc. Her husband was her agent, and, as such, bought and sold, and carried on the business for her. The decision in the court of appeals was the same as in Buckley v. Wells.

In Sheldon v. Champlin, supra, plaintiff, the wife, owned a boat and carried on the business of boating.

In Wieman v. Anderson and wife, supra, the proof was clear that the stock of goods in Anderson's store, in January, 1858, became the separate property of his wife, by gift from her brother. Those goods were sold and others purchased in her name, so that in November, 1859, when plaintiff levied his execution, issued upon a judgment against the husband, few, if any, articles of the original goods remained. The stock levied on was an entirely separate and distinct stock from that given to Mrs. Anderson, although it was purchased with the proceeds of the former stock. Mrs. Anderson did not do business as a sole trader.

Both husband and wife attended to the business. Most of the purchases were made in the name of the wife, but the husband continued to attend to the store. He made sales and received moneys.

The Pennsylvania statute then in force declared that property which accrued to a married woman should be owned, used and enjoyed by her as her separate property.

The court said: "The use and enjoyment here referred to must be such as are consistent with the nature and kind of property.

"A store of liquors and cigars cannot be used and enjoyed in the same manner as household furniture. They are merchandise, and it is the nature of such merchandise to be sold and exchanged. When, therefore, the statute authorizes married women to own, use and enjoy merchandise as their separate property, it legalizes trade by them. It makes them merchants."

In Manderback v. Mock, supra, the wife bought livery stock on credit, rented a stable and carried on the livery business in her own

No. 43.-3.

name.

Her husband and children attended to the stable, taking care of the horses and vehicles, but she controlled the business. The court sustained her claim to the property.

In most of the other cases cited it was held that the title to crops followed the title to the land, although they were produced by the joint effort of the husband and wife, or the husband alone, if the wife owned the land.

But under our statute the sole question is, whether property claimed by either spouse belonged to him or her at the time of marriage, or has since been acquired by gift, devise or descent, or has come from the rents, issues or profits of separate estate. And in this or any other case, if profits come mainly from the property rather than the joint efforts of the husband and wife, or either of them, they belong to the owner of the property, although the labor and skill of one or both may have been given to the business. On the contrary, if profits come mainly from the efforts or skill of one or both, they belong to the community. It may be difficult in a given case to determine the controlling question, owing to the equality of the two elements mentioned, but we know of no other method of determining to whom profits belong. In the use of separate property for the purpose of gain, more or less labor or skill of one or both must always be given, no matter what the use may be; and yet the profits of property belong to the owner, and in ascertaining the party in whom the title rests, the statute provides no means of separating that which is the product of labor and skill from that which comes from the property alone.

In this case we are not burdened with the only question involved in the case of Glover v. Alcott, 11 Mich., 480, wherein the court said: "But it does not necessarily follow that, because the statute has secured to her (the wife) the income and profits of her separate property, it has therefore authorized her to engage in any and every kind of general business which might be carried on with it or upon it, and given her the profits and income of the business as well as the property. Here is a distinct element entering into the product, beyond that of the income of her separate property."

In that case the only question was, whether the wife had legal capacity to carry on the general business in which she was engaged; while here it cannot be doubted that defendant had that power.

In relation to the decision in the case referred to, as well as in Glidden v. Taylor, 16th Ohio St., 509, and similar decisions, we content ourselves with a reference to Mr. Bishop's criticism, at sec. 465, vol. 2, of his work on the Law of Married Women.

The old hotel with its furniture, including the bar and its fixtures, belonged to defendant. The new one was built from the proceeds of his separate property. Part of the time they were rented, and it is admitted that the rents belonged to him. At other times he carried on the business himself. In either case, if there were profits, they were the result of the ordinary use by him of the prop

erty belonging to his separate estate: Estate of Higgins, 3 West Coast Rep., 358.

Having the hotel, he was obliged to rent it or run it himself. If he could make more from it by one use than another, surely there was no legal incapacity to prevent him from using it in the most profitable way; and the profits of the business belonged to him, if they came mainly from the property, rather than from his personal efforts, or those of himself and wife.

Any other conclusion would compel a husband, under certain circumstances, to remain idle, or make him divide profits, which the law gives to him alone.

Without further discussion, our opinion is, that the rents, issues and profits, which accrued from the toll-road and bridge, the lake house and the lake ranch belonged to defendant. Such profits, if any there were, came from the ordinary use of his individual property.

The Meadow Lake venture was in 1865-6. Prior to that time there had been no community business, in the sense that the proceeds thereof belonged to the community. Defendant went there to keep a hotel. Whatever expense was incurred in the beginning, must have been borne by him out of his separate funds.

He carried on business there five or six months, and during the time built a hotel, or boarding house.

The record fails to show the extent of the outlay, or the amount of business done; we are, therefore, unable to say that the profits belonged to defendant.

He testified, however, that "the hotel there made no money; we came out about even, owing to the fire."

From this it is argued that, prior to the fire, they must have made money, and that, if any property was purchased with such profits, it belongs to the community.

Defendant advanced money, or obtained credit for the business, and received the proceeds. The building of the hotel was as much a legitimate expense, chargeable to the business, and to be paid from its proceeds, as was the cost of supplies, or the wages of hired help. Defendant had as much right to re-pay his advances, or satisfy any indebtedness incurred by him for the business, as he had to pay any other demand.

The advances were made, or the indebtedness was incurred, for the business, and it is fair and proper that they should be paid from the proceeds.

The meaning of defendant's testimony is, that the proceeds of the business were about as much as the entire expense, including the cost of property burned; that by reason of the fire, there were no profits; in other words, that the property burned represented the profits.

By reason of the Meadow Lake enterprise, defendant, at no time, had more money to invest in property, than he had before engaging in it, or than he would have had if it had not been undertaken.

If we are correct so far, it cannot be said that the court erred in its findings, as to the balance of the property in controversy.

In view of the result now reached, it is urged by counsel for appellant, that this court may and should order a division of defendant's separate property.

After divorce granted to plaintiff, the law imposes upon the defendant the duty of supporting her according to his ability and condition in life.

The court allowed plaintiff one hundred and fifty dollars a month for herself, and fifty dollars a month for the child, and retained jurisdiction to increase the allowance at any time, upon proper showing.

We deem it unnecessary to decide, in this case, whether or not, upon granting a divorce, on the ground of cruelty, courts have power to divest the husband of the title to his separate estate.

The division of property, by the statute, is left to the legal discretion of the trial court, and this court ought not to interfere, unless the discretion given has been abused.

Upon the evidence before us we cannot so say.

It appearing by the records of this court that defendant, M. C, Lake, has died since the taking of the appeal in this case, and that by order of the court, C. T. Bender, administrator of his estate, has been substituted as defendant and respondent in the place of said deceased, the said C. T. Bender, administrator, is hereby substituted herein as party defendant and respondent, and the judgment and order appealed from are affirmed.

HAWLEY, C. J., dissenting. I agree with the conclusions reached by the court that the court below had the power, and it was its duty, to grant a new trial of the issue relating to the property rights of the parties, if there was any error which materially affected the rights of the plaintiff; that all property owned by the defendant at the time of his marriage, and all property which has since been acquired with funds derived from the rents, issues and profits of such property, and all property acquired by an exchange of property owned by him at the time of his marriage, is his separate property. But I am unwilling to give my assent to the proposition that the profits, if any, derived from the hotel and saloon business in which the defendant was engaged would be his separate property. I am of opinion that the profits, if any, made in the hotel and saloon business would belong to the community.

There is a distinction that must be kept constantly in view between a business which does not necessarily derive its profits from the fact of the ownership of the property in which it is conducted and a business which depends entirely for its profits upon the fact of the ownership of the property. If the owner rents a house the money collected for the rent belongs to him because of his ownership of the property..

The profits from the property in such a case do not necessarily depend upon the efforts or skill of either spouse, although some