(dissenting). This action is ejectment, and the controversy between the parties turns on the effect of a judgment obtained by the defendant in error Joseph E. Lewis against plaintiff in error Harvey M. Lichty in the state courts of Washington, their respective wives not being parties to the suit. The suit was to quiet title, and ihe titles passed on were the same as involved in this action. 3 Wash. St. 213, 28 Pac. 356 . It is not necessary to quote the pleadings at length. It is enough to say that to the complaint the former judgment was pleaded as a defense, and to this a reply was made, and a demurrer to each was also filed. That to the defense of the judgment was overruled, and that to the reply sustained; and, the plaintiffs declining to plead further, judgment was entered for defendants for costs. At the time Lichty and Lewis derived their alleged titles, the rights of married persons to property were provided for in the following sections of the Washington Code (1881):

Eegarding the lei ter of these provisions, the conveyance to Lichty made the land community property. But if is urged by defendants that they only apply where botli husband and wife are residents of the slate; and that Mrs. Lichty is estopped by her conduct in not living with her husband to assert her rights to the property; and that the law gives the husband the management and control of the community property, and hence he alone is a necessary party to an action concerning it.

The law of community property is not as clearly defined by the decisions of the supreme court of Washington as those seeking precision of views would like, but I think they establish two proposi *114 tions: (1) That the husband has no right to convey community lands; (2) that a wife may be estopped by her conduct from asserting her rights to community property.

The first proposition is established by the cases of Isaacs v. Holland, 4 Wash. 54 , 29 Pac. 976 , and Colcord v. Leddy, 4 Wash. 791 , 31 Pac. 320 ; and the second jiroposition by the same cases, and by Sadler v. Niesz, 5 Wash. 182 , 31 Pac. 630, 1030 , and Nuhn v. Miller, 5 Wash. 405 , 31 Pac. 1031 , and 34 Pac. 152 ; also, Adams v. Black, 6 Wash. 528 , 33 Pac. 1074 . In Colcord v. Leddy, the conveyance passed on was a lease, and it was said that such an instrument might, or might Dot, be void, according as it was taken, or as not taken,- with knowledge of the community; and Holyoke v. Jackson, 3 Wash. T. 235, 3 Pac. 841 , and Hoover v. Chambers, 3 Wash. T. 26, 13 Pac. 547 , were cited. In the other cases supra, the rule is announced that if the record did not disclose the wife’s interest in the property, and a reasonable inquiry did not make known her existence, the party who took in ignorance of her existence and rights would be protected in his purchase. Besides, therefore, the fact that the spouses did not live together, it is necessary to allege and prove an inquiry was made, and the reasonable inability from it to ascertain the existence of the absent spouse.

In the case of Hershberger v. Blewett, 46 Fed. 704 , Judge Hanford held that, prior to the act of 1876, nonresident married persons were not affected by the community property law of Washington territory.

In Gratton v. Weber, 47 Fed. 852 , he, however, held that:

The statute of the territory of which this interpretation was given is now the statute of the state.

It follows from these views that Mrs. Lichty had an interest in the lands which were the subject of the suit in Lewis v. Lichty, and it must be conceded that she was a necessary party to any suit affecting it, unless her husband was, by the statute, made her representative. This is contended by the defendants in error, and seems to have been decided by the circuit court.

Section 2410, supra, provides that:

The words “management and control,” as used in the statute, have little, if any, difference in meaning; and it would be giving a very extensive meaning to both to interpret them as giving a power to the husband which could be used, and would be used, as a means of alienating the community property. It would, indeed, be strange if the law which, with careful provision, prohibited the selling or incumbering of the community property by the husband alone, should *115 enable him to do so by the easy circumlocution of an action or suit at law or in equity.

In Parke v. City of Seattle, 8 Wash. 78 , 35 Pac. 594 , which was an action for damages for the wrongful taking of community real estate, it was held that the wife was a necessary party. The court, by Justice Scott, said:

In Manufacturing Co. v. Miller, 3 Wash. St. 480, 28 Pac. 1035 , it was decided that a wife was a necessary party to a foreclosure of a mechanic's lien, notwithstanding that the statute gives the power to the husband to incur the debt which the lien secured. See, also, Sagmeister v. Foss, 4 Wash. 320 , 30 Pac. 80, 744 ; Collins v. Snoke, 9 Wash. 566 , 38 Pac. 161 ; McDonough v. Craig, 10 Wash. 239 , 38 Pac. 1034 ; Douthitt v. MacCulsky (Wash.) 40 Pac. 185 .

From these views it is a necessary deduction that the judgment as pleaded was not binding on Mrs. Liclity, and it seems, from the authority of the case of Stockand v. Bartlett, 4 Wash. 731 , 31 Pac. 24 , if not binding on her, not even binding on Lichty. The point passed on was the power of a judgment creditor to sell the community property for the individual debts of the husband. It was held that it could not be done. After commenting on the inequality of the rights which would be lefi, the court said:

It is decided, however, by my associates, that the case of Leggett v. Ross, 44 Pac. 111 , is a later declaration of the law of Washington than the cases supra. The case was an action for a specific piece of land, but became limited to a controversy concerning the location of a boundary line. An action to determine such location had been previously brought by the same plaintiffs against the same defendants, and one Alexander Ross, and the line was located so as to give the tract in controversy to defendants. The judgment became a final *116 one, and was offered in evidence, but was received against plaintiffs’ objections. Under instructions of the court, the defendants recovered, and plaintiffs appealed. The supreme court,, by Justice Scott, said:

It will be observed that Justice Scott also delivered tlie opinion of the court in Parke v. City of Seattle, supra. If my associates bave interpreted Leggett v. Ross correctly, it is certainly inconsistent with Parke v. City of Seattle. I am not disposed to assume this inconsistency. I should have to do more, and assume that the court intended; not only to overrule that case, but a number of cases, in a brief and summary opinion, and without anything to indicate a consideration of them, and to interpret a statute without quoting it, or referring to it in any way, and yet giving it a severe effect upon rights which its language could be claimed to confer by a very natural interpretation. The reconciliation of the cases must be in their different subject-matters, and in this difference may be the explanation of the language of Justice Scott which has puzzled my associates, and of which they carefully refuse an indorsement. I might, or might not, consider the difference substantial. At any rate, the reasoning and analogies of the law seem to urge that a wife’s interest in property should be protected by the same safeguards as a husband’s interest in property; that hers, no more than his, should be divested or impaired or affected except by her voluntary act, or, if by law, only in a proceeding in which she is a party. These are times when a wife’s interests (as everybody’s) is best taken care of by herself; and the law which denies this opportunity is a mocking pretense, whatever the letter of its statutes may give her.

To sustain the ruling of the circuit court, the defendants in error urge the noneffect of quitclaim deeds to pass a subsequently acquired title, and that the purchase money of the lands may have been the separate property of Lichty, and hence tlie lands such property. I do not deem it necessary to consider these contentions. They may be of importance in the case — indeed, determinative of it — when the facts upon which they depend are properly pleaded and proved.

I think, therefore, that the judgment of the circuit court should be reversed, and the cause remanded, with directions to take such action as may be necessary from the views herein expressed.