(dissenting). I am constrained to dissent, and deem it proper to-give my reasons briefly.

The preference right to buy the land involved in this suit, together with other lands, was in Laack prior to March 25, 1895. This preference right, together with the right of assignment thereof, was expressly conferred by the statutes of the state of Washington. Sections 2175, 2176, Ballinger’s Ann. Codes & St It was pursuant to these statutory provisions that Laack on March 25, 1895, filed application to acquire title to abutting lands, including the particular lands affected by this litigation. Thereafter, on September 9, 1896, the Board of State Land Commissioners, referring to the application of Laack, made formal finding that Laack was entitled to purchase certain lands, including these particular lots. Within a few months thereafter, Laack orally agreed to sell to James D. Davidson a right to buy part of the lands which he was entitled to purchase, and Davidson then paid him eighty dollars as a consideration. The understanding seems to have been that Laack should have the first eight shore lots to be obtained, and then Davidson should have eight, *920 if they were there, and if there were any still remaining they were to select lots alternately, with a view to sharing equalfy. They then went to the office of Mr. Bronson, Laack’s counsel, and made a writing of their agreement, whereby Laack bound himself to convey portion of the lots to Davidson. The loss of this contract is unfortunate, but that a written contract of sale existed is clearly proven. There is no failure to prove a writing of sale, but lack of proof of exactly what lots were specified in the writing. But a lack of proof of description should not defeat appellee’s rights, if Davidson’s rights to the lots were acquired under the written contract with Laack, and provided Davidson’s rights thereafter passed to appellee. The statutes of Washington prescribe that where no application for purchase was pending, sales of shore lands should be made as school and granted lands are sold. As it is not contended, however, that Davidson bought a's he would have had to buy if there had been , no application to purchase the lots pending, it follows that he must tie to some application for purchase, or his whole case falls. Now, in the course of events, Laack had directed the release of rights to buy certain of the lots embraced within his original application, so that when title was to be conveyed by the state, there were not as many lots to be divided between Davidson and Laack as were applied for in the application of Laack. Laack and Davidson, however, agreed on a distribution of what there was, and on January 27, 1897, Laack quit-claimed to Davidson his interest in certain parcels applied for, including the lots in question, and assigned all his rights to purchase the same from the state. Meanwhile Davidson had married on January 19, 1897. Laack never asked for, and Davidson never offered, any new consideration for the quitclaim deed. Laack, who seems to have had a high idea of the obligations he was under by his first written agreement, says that the only change between the new and old contracts was “different lots were given to Davidson,” and that this was “because Davidson told me there was nothing left.” The evidence is also that Laack said to Davidson that they would take what was left; and the deed was made. Laack was not very definite in his testimony as to the circumstances under which the quitclaim deed was passed. In part of his testimony he said that he and Davidson had made a new agreement, and in another part he said that the money was paid under the old agreement. The witness was apparently confused by the many questions put to him in the endeavor to elicit from him statements which would justify the conclusion that the old agreement was canceled or abandoned. Toward the close of his examination, when asked whether it was not under the “new bargain” and “new arrangement” that Davidson purchased these lots from the state, the witness replied: “Well, I will tell you. Of course we made a new bargain, but the old bargain was there, and the money was there on the old bargain; the money was right with it, so I don’t know whether it was a new bargain or old bargain.” And, again, when asked if he had not acted under “the old agreement,” the witness said: “It was the same thing. I don’t see what is the difference between the old and the new. It is all the same thing, anyhow, pretty near.” Without quoting further from the testimony *921 of the witness himself, it is plain that his right to purchase was the only basis oí Davidson’s right, and I think that the most reasonable construction to be put upon his evidence, when considered with the record facts, is that the quitclaim deed to Davidson was made in fulfillment of the contract to convey, which was drawn by Mr. Bronson, and for which Davidson paid Baack the eighty dollars paid, which Baack had retained. If the parties had intended to abandon the old agreement, nothing would have been so natural as for Davidson to have paid additional money, or for Davidson to have waited and purchased for a new consideration from Baack, after the state had conveyed to Baack. But he held hard to the preference right of Baack by availing himself of his rights obtained in consideration of the money originally paid to Baack. I am therefore forced to the opinion that in the whole transaction Davidson dealt with Baack in reliance upon his right to purchase, initiated under the lost agreement, and that he received his quitclaim deed in the carrying cut of that agreement.

Believing then that the rights of Davidson to the property are founded upon the first agreement, and that the subsequent deed by Baack to him was but the perfecting of such original rights, and was meant to be such by both parties, and it appearing that Davidson was a single man when these rights were initiated, the law regards the property as separate, and prescribes that title thereto took effect as of a time* before community. I am in accord with the opinion of the court, laying down the doctrine of community property generally, that property acquired by either spouse where “the title or cause of the acquisition” precedes the marriage is separate and not community property; but I would not exclude this case from within the application of the rule.

The preferential right of Baack was valuable and legally assignable, and I cannot agree with the conclusion that there was an abandonment of the contract made by Baack with Davidson, assigning an interest in property, to be acquired under this preferential right.

As a result of what I have said, it should follow, in my judgment, that Davidson’s rights should be held to have initiated before marriage, and though perfected after marriage were not such as were merged into community ownership, but were capable of being passed by him. I think, too, that the evidence shows that he offered the property for sale, received a fair market price therefor, and ought to be held to his contract.