Spreckels

I concur in the judgment, but upon a ground somewhat narrower than that taken in the opinion of Justice Temple. It does not seem to me necessary, in order to sustain the ruling of the superior court upon this demurrer, to go to the extent of *350 holding the proviso added to section 172 of the Civil Code by the act of 1891 an unconstitutional attempt to take away from the husband his vested rights in community property acquired prior to that date. I am not at all clear that it does impair any vested right. But, allowing the law to be constitutional as to all community property, irrespective of the date of its acquisition, or of the marriage by which the community was formed, it still does not go far enough to sustain this action.

If the husband makes a gift or voluntary transfer of community property, the transfer is good against him. He has no right of action to recover it back. The only person who in any case has a right to complain is the wife, and she cannot maintain an action to revoke the gift until she has been injured by it. Upon the dissolution of the community by the death of the husband, or by divorce, I think that in estimating her share of the community property she…

This is an appeal from a judgment entered upon demurrer to the complaint, and from an order dissolving an injunction. The plaintiffs are husband and wife, and sue to recover certain corporate stock. It is averred in the complaint that the plaintiffs intermarried July 11, 1852, and that on the thirty-first day of July, 1893, they owned the corporate stock, as community property, which on that day the plaintiff, Claus Spreckels, voluntarily, and without any consideration and without the consent of his wife, the other plaintiff, transferred as a gift to the defendant. The said Anna C. Spreckels has never consented in writing or otherwise to said transfer or gift. The complaint contains many other allegations, which, however, are not material to this discussion.

The complaint wus demurred to on various grounds, and, among them, that the complaint does not state sufficient facts to constitute a cause of action, and there is a misjoinder of parties plaintiff, in that the wife is joined with her husband as plaintiff in an action to recover community property.

The first point made by the demurrer rests upon the assumption that the complaint shows that the stock became the community…