Eield, J.,
delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.
The statute defining the rights of husband and wife, provides in its first section that “ all property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise or descent, shall be her separate property; and all property, both real and personal-, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property ;” and, in the second section, that “ all property acquired after marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property;” and, by the ninth section, the husband is invested with the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.
These provisions of the statute are borrowed from the Spanish law, and there is hardly any analogy between them and the doctrines of the common law in respect to the rights of property consequent upon marriage. The statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. No form of transfer or mere intent of parties can overcome this positive rule of law. All property is common property, except that owned previous to marriage or subsequently acquired in a [252]*252particular way. The presumption, therefore, attending the possession of property by either, is that it belongs to the community; exceptions to the rule must be proved.
The purchase of the premises in question was made by Kinzer in 1851, after his marriage with Rebecca, and the presumption follows, as we have observed, that the property belonged to the community. If the purchase was made with the separate funds of either, that fact should have been affirmatively established by clear and decisive proof. In the absence of such proof the presumption was absolute and conclusive, and it made no difference whether the conveyance was taken in the name of one or the other, or in the names of both. This results, as we have said, from the language of the statute—“All property acquired after marriage by either, etc., shall be common property.” The fact of purchase excludes the supposition of acquisition by gift, bequest, devise or descent.
The Spanish law, so far as the question involved in the present case is concerned, has been adopted in the States of Texas and Louisiana, and in these States the same presumption is indulged that the property belongs to the community from the fact of purchase, as will be perceived by an examination of the adjudged cases in their Courts. Thus in Love v. Robertson, (7 Texas, 11) 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, (8 Texas, 240) 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 of either husband or wife, in which case it remains the separate property of the party whose money was employed in the acquisition.” And again, in Chapman v. Alden, (15 Texas, 278) 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 with the individual money or property of one of the [253]*253parties.” 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 to ascertain its separate character that it be clearly and indisputably traced and identified. See also Lott v. Leach, 5 Texas, 394 ; Hemmingway v. Mathews, 10 Texas, 207 ; Parker v. Chance, 11 Texas, 513 ; Wells and Wife v. Cockram, 13 Texas, 127; Claiborne v. Tanner, 13 Texas, 69.
To the same effect are the decisions of the Supreme Court of Louisiana. In Smalley v. Lawrence, (9 Rob. 211) the plaintiff claimed to be the owner of several tracts of land, by purchase from the United States, against a cession by her husband of his property to his creditors. 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 the plaintiff, and the Court said: “ The land was purchased during the existence 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 given in payment of a debt owing to her hr'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 the 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 raise even a presumption in her favor.” See also Ford v. Ford, 1 La. 201; Davidson v. Stuart, 10 La. 146 ; Dominguez v. Lee, 17 La. 295; Comeau v. Fontenon, 19 La. 406 ; Fisher v. Gordy, 2 La. Ann. 762; Provost v. Delahoussaye, 5 La. Ann. 610; Brendergast v. Cassidy, 8 Ann. 96; Webb v. Peet, 7 Ann. 92; Andrew v. Bradley, 10 Ann. 606 ; Forbes v. Forbes, 11 Ann. 326.
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 specified in the statute, or that it is property taken in exchange for, or in the investment, or as the price of the property so originally owned or acquired. The burden of proof must rest with the [254]*254claimant of the separate estate. Any other rule would lead to infinite embarrassment, confusion and fraud. In vain would creditors or purchasers attempt to show that the particular property seized or bought was not owned by the claimant before marriage, and was not acquired by gift, bequest, devise or descent, or was not such property under a now form consequent upon some exchange, sale or investment. In vain would they essay to trace through its various changes the disposition of any separate estate of the wife, so as to exclude any blending of it with the particular property which might be the subject of consideration.
By a statute of Pennsylvania, passed in 1848, the property owned by the wife previous to marriage, and that accruing to her during coverture, by will, descent, deed or conveyance, or otherwise, are secured to her as a separate estate; and in Gamber v.
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Eield, J.,
delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.
The statute defining the rights of husband and wife, provides in its first section that “ all property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise or descent, shall be her separate property; and all property, both real and personal-, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property ;” and, in the second section, that “ all property acquired after marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property;” and, by the ninth section, the husband is invested with the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.
These provisions of the statute are borrowed from the Spanish law, and there is hardly any analogy between them and the doctrines of the common law in respect to the rights of property consequent upon marriage. The statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. No form of transfer or mere intent of parties can overcome this positive rule of law. All property is common property, except that owned previous to marriage or subsequently acquired in a [252]*252particular way. The presumption, therefore, attending the possession of property by either, is that it belongs to the community; exceptions to the rule must be proved.
The purchase of the premises in question was made by Kinzer in 1851, after his marriage with Rebecca, and the presumption follows, as we have observed, that the property belonged to the community. If the purchase was made with the separate funds of either, that fact should have been affirmatively established by clear and decisive proof. In the absence of such proof the presumption was absolute and conclusive, and it made no difference whether the conveyance was taken in the name of one or the other, or in the names of both. This results, as we have said, from the language of the statute—“All property acquired after marriage by either, etc., shall be common property.” The fact of purchase excludes the supposition of acquisition by gift, bequest, devise or descent.
The Spanish law, so far as the question involved in the present case is concerned, has been adopted in the States of Texas and Louisiana, and in these States the same presumption is indulged that the property belongs to the community from the fact of purchase, as will be perceived by an examination of the adjudged cases in their Courts. Thus in Love v. Robertson, (7 Texas, 11) 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, (8 Texas, 240) 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 of either husband or wife, in which case it remains the separate property of the party whose money was employed in the acquisition.” And again, in Chapman v. Alden, (15 Texas, 278) 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 with the individual money or property of one of the [253]*253parties.” 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 to ascertain its separate character that it be clearly and indisputably traced and identified. See also Lott v. Leach, 5 Texas, 394 ; Hemmingway v. Mathews, 10 Texas, 207 ; Parker v. Chance, 11 Texas, 513 ; Wells and Wife v. Cockram, 13 Texas, 127; Claiborne v. Tanner, 13 Texas, 69.
To the same effect are the decisions of the Supreme Court of Louisiana. In Smalley v. Lawrence, (9 Rob. 211) the plaintiff claimed to be the owner of several tracts of land, by purchase from the United States, against a cession by her husband of his property to his creditors. 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 the plaintiff, and the Court said: “ The land was purchased during the existence 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 given in payment of a debt owing to her hr'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 the 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 raise even a presumption in her favor.” See also Ford v. Ford, 1 La. 201; Davidson v. Stuart, 10 La. 146 ; Dominguez v. Lee, 17 La. 295; Comeau v. Fontenon, 19 La. 406 ; Fisher v. Gordy, 2 La. Ann. 762; Provost v. Delahoussaye, 5 La. Ann. 610; Brendergast v. Cassidy, 8 Ann. 96; Webb v. Peet, 7 Ann. 92; Andrew v. Bradley, 10 Ann. 606 ; Forbes v. Forbes, 11 Ann. 326.
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 specified in the statute, or that it is property taken in exchange for, or in the investment, or as the price of the property so originally owned or acquired. The burden of proof must rest with the [254]*254claimant of the separate estate. Any other rule would lead to infinite embarrassment, confusion and fraud. In vain would creditors or purchasers attempt to show that the particular property seized or bought was not owned by the claimant before marriage, and was not acquired by gift, bequest, devise or descent, or was not such property under a now form consequent upon some exchange, sale or investment. In vain would they essay to trace through its various changes the disposition of any separate estate of the wife, so as to exclude any blending of it with the particular property which might be the subject of consideration.
By a statute of Pennsylvania, passed in 1848, the property owned by the wife previous to marriage, and that accruing to her during coverture, by will, descent, deed or conveyance, or otherwise, are secured to her as a separate estate; and in Gamber v. Gamber, (6 Harris, 383) the Supreme Court of the State said: “ In the case of a purchase by the wife after marriage, the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband. Unless the rigid proof of her title is always required, no one can calculate the amount of injustice which the Act of 1848 -will produce and in Kearney v. Good, (9 Harris, 355) the same Court held this language: “ If the burden of proving that the money was furnished by the husband is thrown upon the creditors, their hope of justice must always be a forlorn one. Thus administered, the Act of 1848 would be the worst one ever passed, and the most poisonous to the morals of the people. It would hold out constant temptations to families in embarrassed circumstances to commit wrongs of the worst kind, and to uphold them by imposture and falsehood.
“ But there is nothing in the Act of 1848 which makes such consequences at all necessary. To bring the property of a married woman under its protection, it is made necessary by the letter, as well as the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or show how she came by it afterwards. Evidence that she purchased it amounts to nothing, unless it be accompanied by clear and full proof that she paid for it with her own separate funds. In the absence of such proof, the presumption is a violent one that her husband furnished the means of payment.”
[255]*255It follows, from the views we have taken and the authorities cited, that no presumption arises, as contended by appellant, of a gift or advancement to the wife, from the fact that the note and mortgage were taken in the name of both. The position of the appellant rests upon the authorities of the common law. By them a conveyance taken in the name of the purchaser, or the joint names of husband and wife, upon a purchase made by the husband alone, would be deemed prima fade a gift or advancement to her. (Kingdom v. Bridges, 2 Vern. 67 ; Glaister v. Hewer, 8 Vesey, 99 ; Christ’s Hospital v. Budgin, 2 Vern. 683.) But even by them, the gift, if the property were personal, would only be effectual in case of her surviving him, and he had not, in his lifetime, disposed of it. Cotes v. Stevens, 1 Y. & C. Eq. 66 ; George v. Bank of England, 7 Price, 646 ; Rider v. Kidder, 10 Vesey, 360 ; Lucas v. Lucas, 1 Atk. 270 ; Drummer v. Pitcher, 5 Lun. 35 ; Low v. Carter, 1 Beav. 426.
The common law authorities are entirely inapplicable under our system. The statute prescribes the effect of the acquisition of property by either spouse, and its operation cannot be defeated or evaded by the form of the conveyance, or the intention of the husband, in taking it in the name of his wife. In every form the community character of the property continues. See Parker v. Chance, 11 Texas, 515.
As the case at bar stands, it is clear that the note and mortgage were subject to the disposition of the husband as fully and absolutely as if made to him individually. The note was given for part of the purchase money of the land, and the mortgage was executed as security for the note. This change in the form of the common property could not affect the control of the husband over it. The signature of the wife would have added nothing to the validity of the transfer.
Judgment affirmed.