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No. 7,102.

WHITTIER ET AL. v. DIETZ.

Department One. Filed November 6, 1884.

TRADE MARK EXCLUSIVE USE OF RECORDING WITH SECRETARY OF STATE. Subsequent to the adoption of the code a right to the exclusive use of a trade-mark or name, in this state cannot be acquired, unless it be filed for record with the secretary of state.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant. The opinion states the facts.

Wheaton & Scrivner, for the appellant.

J. L. Boone, for the respondent.

MCKINSTRY, J. No points have been filed on the part of respond

ent.

We think the device alleged to have been used by defendant is not such a colorable imitation of the plaintiff's label as could deceive: Falkingburg v. Lucy, 35 Cal., 52. No one, since the codes. went into operation, can acquire the exclusive use of a name or trade-mark in this state, except by filing it for record with the secretary of state: Pol. Code, 3,197. Section 3,199 only provides that one may become the owner of a name or trade-mark who has first adopted, recorded and used it--whether first used within or beyond the limits of the state. Only by making the clause "within or beyond the limits of the state," relate to the use of the name or trademark can effect be given to the word "recorded" in the same action. What is a legal record of a trade-mark in another state? It is manifest the record referred to is the record in the office of the secretary of state. Derringer v. Plate, 29 Cal., 292, was decided before the codes, and turned in part upon the point that the act of 1863, provided that the counterfeiting of a trade-mark should be a misdemeanor, punishable as such, and thus only creating a new penalty for a violation of the trade-mark provided by the statute; and, principally, upon the fact that the act of 1863, contained sections which clearly indicated the legislature did not intend to divest of existing rights in trade-marks, those who had acquired the right at common law, before the taking effect of the act.

Here the complaint shows that plaintiff's asserted right is claimed to have been acquired subsequent to the adoption of the codes, and neither the political nor civil code imposes any special or additional penalty upon violators of such rights, nor furnishes any remedy for their enforcement unknown to the common law.

Judgment affirmed.

MCKEE, J., and Ross, J., concurred.

WEST COAST REPORTER.

WHOLE NO. 47.

NOVEMBER 20, 1884.

VOL. IV. No. 8.

COMMUNITY PROPERTY.

The system of community property in this state, as established and regulated by the civil code, and as settled by judicial decisions, may produce some very curious and unexpected results. After the lapse of several years, it is possible, even if not probable, that the operations of the system may be found to have created a serious confusion and complexity among private titles,-especially among titles to real property, a confusion which the universal practice of recording conveyances, can do nothing to obviate, but will rather tend to increase. I purpose in the present article to point out some of these possible or probable effects. The main features of the com inity property system are clearly defined in a few sections of the civil code. After describing the separate property of each spouse, the code says: "§ 164. All other property acquired after marriage by either husband or wife, is community property." It should be carefully observed that in everything re lating to the acquisition of community property, and to the determining what property is community property, both husband and wife are placed upon absolutely the same footing. This is the key to the whole. position. My purposes do not require me to examine with any care the question, what property is community property? 1 only desire to emphasize the fact, that whatever belongs to the community property and to its acquisition, exactly the same rules apply to the husband and to the wife, with the single exception as to her earnings when living separate and apart from her husband. With regard to the power of controlling, managing, and disposing of the community property, the code provides: § 167. The property of the community is not liable for the contracts of the wife made after marriage, unless secured by a pledge or mortgage thereof executed by the husband." As the wife cannot bind the community property by her contracts, so a fortiori she cannot dispose of it absolutely by her conveyance or transfer. § 172. The husband has the management and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate." From the very commencement of the state government the separate property of the two spouses and the community property have existed in, all respects essentially the same, and with sub

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stantially the same statutory regulations, as at present under the civil code. The only material differences were that under an early statute which was operative for a time, the rents, issues, and profits of the separate estate of each spouse were declared to be community property. This statute was held void, so far as it applied to the wife's separate property, on account of a clause of the state constitution defining and protecting her separate estate. And by another early statute, which remained in force for a while, the wife had not the complete, unrestricted power of disposing and conveying her separate property which is given to her by the code. With these exceptions, and so far as any questions to be examined in this article turn upon statutes, the statutory provisions concerning community property prior to the code, were essentially the same as those contained in the civil code. Decisions made upon this earlier legislation will, therefore, be applicable and binding at the present day. In the judicial interpretation of this legislation, certain principles or general doctrines have been settled by the courts. One of these I have already mentioned in a previous article, that the theory of community property assumes it to be always the product of the joint labors and activity of the two spouses. Another most important principle, and which, in connection with the sections of the civil code quoted above, will be the foundation of all my subsequent speculations, relates to the acquisition of community property, and to the presumption which arises from the acquisition of any property after the marriage by either spouse.

It is the fundamental doctrine, established by an absolute unanimity of decision in all the states where the system exists, that all property acquired either by the husband or by the wife during the marriage, and especially where it appears to have been conveyed, assigned or purchased for a valuable consideration, is presumed to be community property, and the burden of proof lies upon the owner claiming it to be the separate property of either spouse. The leading case in this state is Meyer v. Kinzer. Mr. Justice Field quotes from important decisions of the Texas and Louisiana courts, and then applies their doctrine to the law of California, as follows: "In Love v. Robertson,' the supreme court of Texas held this language: The presumption that property purchased during the marriage was community property, would certainly be very cogent, and would require to be repelled by clear and conclusive proof.' In Houston v. Carl," the same court said: It is the settled doctrine and law that property purchased during the marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. This presumption may be rebutted by clear and satisfactory proof that the purchase was made with the separate funds either of the husband or of the wife, in which case it

1 12 Cal., 247, 252.

27 Tex., 11.

38 Tex., 240.

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remains the separate property of the party whose money was employed in the acquisition.' And again in Chapman v. Allen,' the court said: The presumption that property purchased during the marriage is community property, is very cogent, and can only be repelled by clear and conclusive proof that it was purchased with individual money or property of one of the parties.' Where the property has not been preserved. in specie or in kind, but, as in this case, has undergone mutations and changes, it is indispensable, in order to ascertain its separate character, that it be clearly and indisputably traced and identified.".

"To the same effect are the decisions of the supreme court of Louisiana. In Smalley v. Lawrence, the plaintiff claimed to be owner of several tracts of land, by purchase from the United States, against an assignment of his property to his creditors by her husband. The parties were married in 1839, and the land was bid off at a land sale in 1841, and paid for by the husband, who took the receipts in the name of his wife, the plaintiff, and the court said: "The land was purchased during the continuance of the community, and although the receipts or certificates are in the name of the wife, still the property as much belongs to the community as if it stood in the name of the husband, unless she can prove that the purchases were made with her own money or the property was given in payment of a debt owing to her in her own right. All property acquired by either spouse during the existence of the community, the law presumes to belong to it, and is liable for community debts. If the wife sets up a separate claim, she must make legal proof of it. The title being in her name does not even raise a presumption in her favor." This invariable presumption which attends the possession of property by either spouse during the existence of the community, can only be overcome by clear and certain proof that it was owned by the claimant before marriage, or acquired afterwards in one of the particular ways specificed in the statute, or that it is property taken in exchange for, or in the investment of, or as the price of, the property so originally owned or acquired. The burden of proof must rest with the claimant of the separate estate. Any other rule would lead to infinite embarrassment, confusion and fraud." The principle so clearly laid down by Mr. Justice Field, has been reaffirmed in numerous subsequent decisions without exception, and is the settled doctrine of the law of this state."

15 Tex., 278.

5 See, also, Lott v. Keach, 5 Tex., 394; Hemmingway v. Matthews, 16 Id., 207; Parker v. Chance, 11 Id., 513; Wells v. Cockrum; 13 Id., 127; Clairborne v. Tanner, 13 Id., 69. 69 Rob., 201.

See, also, Ford v. Ford, 1 La., 201; Davidson v. Stuart, 10 Id., 146; Dominguez v. Lee, 17 Id., 295; Comeau v. Fontenot, 19 Id., 405; Fisher v. Gordy, 2 La. An., 762; Provost v. Delahouseaye, 5 Id., 610; Prendergast v. Cassidy, 8 Id., 96; Webb v. Peet, 7 Id, 92; Andrew v. Bradley, 10 Id., 606; Forbes v. Forbes, 11 Id., 326.

See the following cases among others: Smith v. Smith, 12 Cal., 216; Mott v. Smith, 16 Id., 533, 557; Burton v. Lies, 21 Id., 87; Adams v. Knowlton, 22 Id., 283; Riley v. Pehl, 23 Id., 70; McDonald v. Badger, 23 Id., 393; Landers v. Bolton, 26 Id., 393, 420; Ramsdell v. Fuller, 28 Id., 37; Peck v. Brummagim, 31 Id., 440; Althof v. Conheim, 38 Id., 230, 223.

While thus referring to the decisions, I shall quote two other cases, although their bearing is now directly upon points to be mentioned in a subsequent portion of the discussion. In Pixley v. Huggins," the facts were as follows: One L. conveyed certain land by deed to the wife of M. for four thousand dollars, which sum was recited in the deed as the consideration thereof. Afterwards, M. and his wife, by a joint deed expressing a consideration of nine thousand five hundred dollars, conveyed the same land to the plaintiff, this deed being sufficiently acknowledged by the husband, M., but not so acknowledged by his wife as to make it a valid deed by her. The deed in this condition was recorded. Some time after this last conveyance, the defendants obtained a judgment against M., which was docketed in the county where the land was situated, and execution thereon was issued to the sheriff. He, therefore, levied on this land and advertised all of M.'s right and title in it for sale, claiming that the aforesaid deed from M. and his wife to the plaintiff was void. Plaintiff brought this action to restrain defendants and the said sheriff from selling the land under the execution. The court held that the injunction should be granted; because by the deed from L. to Mrs. M., the land thus conveyed to her became community property, and the husband M. had the absolute power to dispose of it, and the full title passed to the plaintiff by M.'s sole deed, even though M.'s wife had not attempted to join in it.

On the subject of the land being community property, and not the separate property of Mrs. M., the court further held that the fact that the deed from L. was taken in the name of M.'s wife alone, created no inference nor presumption that the property was her separate property, the deed having been made on a purchase; that the fact of a purchase from a third person excludes the supposition of an acquisition by gift, bequest, devise and descent; and that in the absence of proof that the purchase was made with the separate funds of the wife, the presumption that it is community property is absolute and conclusive; and that the husband could sell and convey the community property by his sole deed without the concurrence or consent of his wife. Again, in Tusten v. Faught, it was held that when land is conveyed to a married woman by a deed which recites a consideration of money paid, as well as love and affection, the land so conveyed becomes community property, and the deed of the husband alone is sufficient to convey it to a third person.

10

My attention was directed to some of the peculiarities of the community property system, and to possible results which might flow from it, by the facts of a case which recently came under my notice. As this case furnishes a striking illustration of these possibilities, I shall briefly state its material facts, suppressing of course all names, places, and 10 23 Cal., 237.

9 15 Cal., 128.

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