Wallace, J.,
delivered the opinion of the Court:
The appeal in this case is taken from an order denying a motion to dissolve an injunction, which had been granted upon a verified complaint. An answer having been subsequently filed, the motion to dissolve was made upon the pleadings.
The parties were formerly husband and wife; but in May, 1869, a decree was rendered, upon the application of the appellant, by which they were divorced from the bonds of matrimony. In his complaint in the action for the divorce the appellant did not state that there was any property whatever belonging to the community, nor ask for any judgment or determination concerning it. The decree was rendered without the appearance of the respondent, and it was entirely silent as to the distribution to be made of the common property. It was obtained in the Sixteenth Judicial [162]*162District for the County of Kern. The present action was brought by the respondent in the Seventeenth Judicial District for the County of Los Angeles, to recover her share of the community property, of which, it is now alleged, there was a considerable amount; and the injunction was granted to prevent the appellant from disposing of the property pending the cause.
It is urged on behalf of the appellant that the Court below, in entertaining the action, interfered with the jurisdiction of the Court in Kern County, which is co-ordinate with its own, and the cases of Rickett v. Johnson (8 Cal. 34); Chipman v. Hibbard (Id. 268); Gorham v. Toomey (9 Cal. 77), and Uhlfelder v. Levy (Id. 607), are cited. We do not think so. The object of the suit here is the division of the community property; that of the suit in Kern was the dissolution of the marriage tie. So far from there being any conflict between the respective proceedings of these Courts, the action instituted in the Court below rests for its foundation, to a great extent, upon the decree of divorce itself, and, though not brought directly upon that decree in the sense of an action brought upon a judgment, it seeks a division of the common property as a mere consequence of .the rendition of that decree. The decree of divorce furnishes, too, a sufficient answer to the objection made—that the respondent has no capacity to sue the appellant touching the property in question.
Her almost total disability to interfere, by action or otherwise, in the control of the community property during the existence of the marriage arose from the provisions of the statute (Stats. 1853, p. 165), by which her “husband” was vested with its exclusive management. The decree here, however, deprived her of her husband, and, of course, remitted her as being discovert to the use and present control of any property to which she might be entitled.
Nor is there any doubt that as a consequence of that decree she is entitled to a share of the property, if any, acquired by the late matrimonial community of which she was a constituent. The statute has provided (Statutes 1857, p. 199,) that if the marriage be dissolved by decree, she [163]*163shall be entitled to one half of the community property, and it directs the Court rendering the decree of divorce, except ■under special circumstances, to divide the property on that basis. And here it is claimed that because of this provision contained in the statute, it results that no Court, other than that in which the decree of divorce is rendered, is competent to decree a division of property between the parties. We think, however, that this construction of the statute cannot be supported. Undoubtedly the Court granting the divorce, if the question be made before it, may divide the property between the parties by its decree ; and such a decree would be conclusive of that matter, as well as of all others which it determined. If the pleadings presented the question of the rights of the parties to the common property for decision, and the decree as- entered should wholly omit any directions in respect thereto, a question of some difficulty might arise as to the effect of such proceedings.' But in the case at bar this question was never, in any respect, sub judie-,; it was not determined by the decree, neither was it presented for decision, and we have no difficulty in holding that such a decree, being of divorce simply, does not conclude the parties, or either of them, in respect of their claims otherwise existing to the community property.
It is further claimed, however, that though the decree granting the divorce does not in terms deprive the respondent of a share in the common property, yet, as it was rendered against her on the ground of adultery committed by her, it must be considered as importing her exclusion from all benefit of that property. To this proposition several sufficient answers readily suggest themselves. It does not appear that the divorce was granted for the cause of adultery. If it did so appear, however, the consequence sought to be adduced would not follow. Even if the decree had directly fixed upon the respondent the guilt of adultery, the- statute would not on that account forfeit the whole or any part of her share in the common property to which she would have been otherwise entitled. It merely permits the Court in its discretion, under such circumstances, to visit that consequence upon her by its judgment. But here no such judg[164]*164ment was rendered, and, of course, no such forfeiture can be presumed against her in its absence.
Under the provisions of the statute, property which is acquired during the marriage, unless acquired by gift, bequest, devise, or descent, is common property. It belongs to the matrimonial community, and not less to the wife than to the husband. It is true that the interest of the wife therein pending the marriage has been termed “a mere expectancy” (Van Maren v. Johnson, 15 Cal. 311); but while, perhaps, no other technical designation would so nearly define its character, it is, at the same time, an interest so vested in her, as that husband cannot deprive her of it by his will (Beard v. Knox, 5 Cal. 256), nor voluntarily alienate it for the mere purpose of divesting her of her claims to it. (Smith v. Smith, 12 Cal. 226.) The theory upon which the right of the wife is founded (as we said in Galland v. Golland 38 Cal. 265), is, that the common property was acquired by the joint efforts of the husband and wife, and should be divided between them if the marriage tie is dissolved either by the death of the husband or by the decree of the Court, etc. Her mere right in the community property is as well defined and ascertained in contemplation of law, even during the marriage, as is that of the husband. It is true that the law confers upon the latter the authority to manage and control it during the existence of the marriage, and the power to sell it for the benefit of the community, but not, as we have seen, so as to defraud the community of it. In the case at bar, then, the right of the respondent to a share of the property in question, if it be proven to be community property, is clear. It accrued to her, as having been acquired in part by her own efforts, before the decree of divorce was rendered; that decree as rendered did not deprive her of it. The effect of the decree, acting upon her personal status, was to remove from her the disability, theretofore, as we have said, almost total, to sue concerning it, or to interfere in anywise in its control.
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Wallace, J.,
delivered the opinion of the Court:
The appeal in this case is taken from an order denying a motion to dissolve an injunction, which had been granted upon a verified complaint. An answer having been subsequently filed, the motion to dissolve was made upon the pleadings.
The parties were formerly husband and wife; but in May, 1869, a decree was rendered, upon the application of the appellant, by which they were divorced from the bonds of matrimony. In his complaint in the action for the divorce the appellant did not state that there was any property whatever belonging to the community, nor ask for any judgment or determination concerning it. The decree was rendered without the appearance of the respondent, and it was entirely silent as to the distribution to be made of the common property. It was obtained in the Sixteenth Judicial [162]*162District for the County of Kern. The present action was brought by the respondent in the Seventeenth Judicial District for the County of Los Angeles, to recover her share of the community property, of which, it is now alleged, there was a considerable amount; and the injunction was granted to prevent the appellant from disposing of the property pending the cause.
It is urged on behalf of the appellant that the Court below, in entertaining the action, interfered with the jurisdiction of the Court in Kern County, which is co-ordinate with its own, and the cases of Rickett v. Johnson (8 Cal. 34); Chipman v. Hibbard (Id. 268); Gorham v. Toomey (9 Cal. 77), and Uhlfelder v. Levy (Id. 607), are cited. We do not think so. The object of the suit here is the division of the community property; that of the suit in Kern was the dissolution of the marriage tie. So far from there being any conflict between the respective proceedings of these Courts, the action instituted in the Court below rests for its foundation, to a great extent, upon the decree of divorce itself, and, though not brought directly upon that decree in the sense of an action brought upon a judgment, it seeks a division of the common property as a mere consequence of .the rendition of that decree. The decree of divorce furnishes, too, a sufficient answer to the objection made—that the respondent has no capacity to sue the appellant touching the property in question.
Her almost total disability to interfere, by action or otherwise, in the control of the community property during the existence of the marriage arose from the provisions of the statute (Stats. 1853, p. 165), by which her “husband” was vested with its exclusive management. The decree here, however, deprived her of her husband, and, of course, remitted her as being discovert to the use and present control of any property to which she might be entitled.
Nor is there any doubt that as a consequence of that decree she is entitled to a share of the property, if any, acquired by the late matrimonial community of which she was a constituent. The statute has provided (Statutes 1857, p. 199,) that if the marriage be dissolved by decree, she [163]*163shall be entitled to one half of the community property, and it directs the Court rendering the decree of divorce, except ■under special circumstances, to divide the property on that basis. And here it is claimed that because of this provision contained in the statute, it results that no Court, other than that in which the decree of divorce is rendered, is competent to decree a division of property between the parties. We think, however, that this construction of the statute cannot be supported. Undoubtedly the Court granting the divorce, if the question be made before it, may divide the property between the parties by its decree ; and such a decree would be conclusive of that matter, as well as of all others which it determined. If the pleadings presented the question of the rights of the parties to the common property for decision, and the decree as- entered should wholly omit any directions in respect thereto, a question of some difficulty might arise as to the effect of such proceedings.' But in the case at bar this question was never, in any respect, sub judie-,; it was not determined by the decree, neither was it presented for decision, and we have no difficulty in holding that such a decree, being of divorce simply, does not conclude the parties, or either of them, in respect of their claims otherwise existing to the community property.
It is further claimed, however, that though the decree granting the divorce does not in terms deprive the respondent of a share in the common property, yet, as it was rendered against her on the ground of adultery committed by her, it must be considered as importing her exclusion from all benefit of that property. To this proposition several sufficient answers readily suggest themselves. It does not appear that the divorce was granted for the cause of adultery. If it did so appear, however, the consequence sought to be adduced would not follow. Even if the decree had directly fixed upon the respondent the guilt of adultery, the- statute would not on that account forfeit the whole or any part of her share in the common property to which she would have been otherwise entitled. It merely permits the Court in its discretion, under such circumstances, to visit that consequence upon her by its judgment. But here no such judg[164]*164ment was rendered, and, of course, no such forfeiture can be presumed against her in its absence.
Under the provisions of the statute, property which is acquired during the marriage, unless acquired by gift, bequest, devise, or descent, is common property. It belongs to the matrimonial community, and not less to the wife than to the husband. It is true that the interest of the wife therein pending the marriage has been termed “a mere expectancy” (Van Maren v. Johnson, 15 Cal. 311); but while, perhaps, no other technical designation would so nearly define its character, it is, at the same time, an interest so vested in her, as that husband cannot deprive her of it by his will (Beard v. Knox, 5 Cal. 256), nor voluntarily alienate it for the mere purpose of divesting her of her claims to it. (Smith v. Smith, 12 Cal. 226.) The theory upon which the right of the wife is founded (as we said in Galland v. Golland 38 Cal. 265), is, that the common property was acquired by the joint efforts of the husband and wife, and should be divided between them if the marriage tie is dissolved either by the death of the husband or by the decree of the Court, etc. Her mere right in the community property is as well defined and ascertained in contemplation of law, even during the marriage, as is that of the husband. It is true that the law confers upon the latter the authority to manage and control it during the existence of the marriage, and the power to sell it for the benefit of the community, but not, as we have seen, so as to defraud the community of it. In the case at bar, then, the right of the respondent to a share of the property in question, if it be proven to be community property, is clear. It accrued to her, as having been acquired in part by her own efforts, before the decree of divorce was rendered; that decree as rendered did not deprive her of it. The effect of the decree, acting upon her personal status, was to remove from her the disability, theretofore, as we have said, almost total, to sue concerning it, or to interfere in anywise in its control. Under the operation of that decree, too, the appellant, ceasing to be “husband,” was no longer the head of the community, which had itself ceased to exist, and, as a consequence, he lost the exclusive [165]*165control and the somewhat absolute power to dispose of the community property; thenceforth the parties stood upon equal grounds in that respect, and neither could wholly exclude the other from a participation in the property and its present disposition.
We think, therefore, that upon the facts stated in the complaint, the injunction preventing the appellant from disposing of this property, with a view to place its proceeds beyond the reach of the process of the Courts, and to deprive the respondent of its benefits, was properly issued.
It is lastly claimed upon the part of the appellant that his answer fully denies all the equities of the complaint, and that for that reason the injunction should have been dissolved.
A consideration of this point makes it necessary that we should state somewhat more in detail the contents of the complaint than we have up to this point found it necessary to do.
It appears, by the allegations of the bill, that the parties were married in 1862, and that for some years thereafter, and up to May 20, 1869, they were lawful husband and wife. On the last mentioned day the decree of divorce was entered, divorcing the parties, in the Sixteenth Judicial District Court for the County of Kern. The appellant instituted the action in that Court, though at the time of its commencement the parties in fact resided in the County of Santa Barbara, in the Seventeenth Judicial District. He fraudulently brought the respondent into Kern County, for the purpose of having the process served upon her, and the service having been effected, he misinformed her of the purport of the papers so served upon her, and with a view to conceal their true nature from her, he, as soon as the officer making the service had departed, violently took them from her possession and destroyed them. He thereafter returned the respondent to her home in Santa Barbara County, and there kept her restrained of her liberty and secluded from all intercourse with her friends, and in ignorance of the pendency of the action, and thereby deprived, of course, of any opportunity to make her defense, though she had a good one on [166]*166the merits. The appellant is now proceeding to make sale of the whole of the community property, and place the proceeds beyond the reach of judicial process, and will do so unless restrained, etc.
We think it would be easy to show, if it were important to do so, that the answer filed does not, by fair construction, fully or fairly deny the allegations of the complaint.
For instance, it is charged in the bill that the appellant “fraudulently transported plaintiff" into said Kern County for the purpose of having her served with a copy of the summons and complaint” in the action to obtain the divorce. Of course the substance of this charge, in connection with the other allegations of the bill, is that he took her away, from her friends in Santa Barbara County, where she was-living at the time, and where she might have had the benefit of advice and assistance in her distress, and carried her into, the County of Kern, where she seems to have been a stranger personally, to obtain advantage over her. We cannot see why he would have taken her to Kern County to have her served with process, unless it was to obtain an-unfair advantage over her, for the process of the District Court for Kern County might easily have been served upon her in Santa Barbara. But however this may be, the appellant’s only answer to this allegation is as follows: “Defendant denies, and it is not true, that he fraudulently transported the said plaintiff into the said Kern County for the . purpose of having her served with a copy of the summons or complaint in said action aforesaid.” This, of course, is but a palpable evasion of the substance of the charge which it pretended to answer.
In our opinion, the answer, as a whole, is utterly insufficient as a full or fair denial of the equities disclosed in the bill—in fact, the principal matters upon which the bill pro-. ceeds are not denied at all.
But, irrespective of this obvious insufficiency in the answer here, we do not think that it can be maintained that the general rule, that when an answer denies fully the equities of the bill the injunction should be dissolved, is one of universal application, or without exception, or that the dissolu-. [167]*167tion of the injunction must follow the filing of even such an answer by mere legal conclusion.
In Poor v. Carleton (3 Sumner R. 75), Mr. Justice Story, after a review of the authorities on this point, declares that he should have been sorry to find that any such practice had been established, as that an injunction should, at all events, be dissolved upon a mere denial by the answer of the whole merits of the bill. That there are many cases in which such a practice would be most mischievous—nay, might be the cause of irreparable mischief. He says that the question of dissolution, after the coming in of the answer, is one addressed to the sound discretion of the Court, and adds that if the authorities, properly considered, should seem to establish a contrary doctrine, he would hesitate to follow them in a mere matter of practice subversive of the very ends of justice.
The cases of Moon v. Hylton (Dev. Eq. 429); Bank of Monroe v. Schermerhorn (Clark’s Ch. R. 305); Cox v. The Mayor, etc. (18 Geo. R. 735), and numerous other foreign authorities, ■ support this general view, and in Hicks v. Michael (15 Cal. 117), we said that the granting and continuing of injunctions rest very much in the sound discretion of the Court, to be governed by the nature of the case.
And when the Court below has seen proper, in the exercise of its discretion, to continue an injunction in force until the hearing of the cause, its determination, in so far as it rests upon the effect of the denial of the equities of the' bill merely, is entitled to great consideration here, and we ought not to disturb it except, perhaps, under peculiar circumstances, or unless an abuse of discretion should be made to appear. (Morris v. Jersey, 1 Beasl. 227; Id. 542; Dent v. Summerlin, 12 Geo. R. 5; Loyless v. Howell, 15 Id. 554; Doughty v. Summerville, 3 Halst. Ch. 629.)
We see nothing in the circumstances of this case indicating that this discretion has been abused or misplaced.
The order is affirmed.
[168]*168Rhodes, C. J.,
delivered the following dissenting opinion:
The temporary injunction was granted on the complaint alone. The motion to dissolve the injunction was based on the complaint and answer. All the allegations of the complaint, charging that the property mentioned therein was common property, are fully and specifically denied in the answer. Whatever may be the merits of the plaintiff’s case in other respects, unless it appears to the Court that the property mentioned, was the common property of the plaintiff and said Alexis, the injunction should have been dissolved. The equities of the case in respect to the divorce, the means by which it was obtained, and the facts going to show that plaintiff is entitled to a decree of divorce, may all be in her favor; but they throw no light whatever on the question in respect to the common property, and, therefore, should not- be taken into the account in determining whether the injunction should be retained. The plaintiff, in applying for the injunction, might have supported her allegations in respect to the common property by" affidavits, showing— if such were the fact—that the property was common property ; but as she has chosen to rely solely on her own allegations, unaided by any fact in the case, the Court should, in my opinion, have dissolved the injunction, upon the coming in of the answer denying her allegations in that respect.
There is a further objection to the injunction. It appears by the pleadings that persons therein named are indebted to the defendant, Alexis, in divers large sums of money; and by the injunction he is restrained from collecting those sums of money from his debtors, and no provision is made, by the appointment of a receiver or otherwise, for their collection. -No authority in support of this branch of the order is cited, doubtless for the sufficient reason that none can be found. In my opinion the injunction should have been dissolved.