
    [No. 4412.
    Decided March 26, 1903.]
    Mary C. Ross, Respondent, v. Henry Howard et al., Appellants.
    
    COMMUNITY PROPERTY-EQUITABLE INTEREST IN LAND-LIABILITY POR SEPARATE DEBT OP QNE SPOUSE.
    Equitable interests in land, held by a husband and wife as community property, are not subject to sale on an execution issued on a judgment rendered for the separate debt of either spouse.
    SAME-DISTINCTION BETWEEN REAL PROPERTY AND REAL ESTATE-CONSTRUCTION OP STATUTE.
    Bal. Code, § 4491, which provides that the husband has the management and control of the “community real property,” but shall not sell, convey, or incumber the “community real estate,” unless the wife join with him, does not recognize a distinction as existing between “real estate” and “real property,” in view of the fact that those terms are used indiscriminately in the several sections of the statute relating to the acquisition and disposition of real property.
    CONVEYANCE AS MORTGAGE-PAROL EVIDENCE.
    An absolute deed of conveyance, whether in form a warranty or quit-claim, may be shown by parol evidence to be a mortgage.
    Appeal from Superior Court, Spokane County. — Hon. George W. Bei.t, Judge.
    Affirmed.
    
      R. L. Edmiston (William T. Birdsall, of counsel), for appellants.
    
      William S. Lewis, for respondent.
   The opinion of the court was delivered by

Fullerton, C. J.

— On June 6, 1898, the respondent and her husband, E. S. Ross, being then the owners of certain real property situate in Spokane county, executed and delivered to one F. E. R. Linfield an instrument in the form of a warranty deed, purporting to convey the property to her for the consideration of one dollar. On the 15 th of June following, the appellant Howard recovered a judgment in the superior court of Spokane county against E. S. Ross, on which he caused a writ of execution to issue, and to he placed in the hands of the other appellant, who was then sheriff of Spokane county, for execution. The sheriff, under the direction of the judgment creditor, levied upon the real property above mentioned, and was proceeding regularly to sell the same when this action was brought to restrain him from' so doing. The question of the respondent’s right to maintain the action, and the question of the sufficiency of the complaint, were before this court and determined in a former appeal. 25 Wash. 1(64 Pac. J94). After the remittitur went down on the determination of that appeal, issue was joined on the merits of the action, and a trial had, which resulted in a finding to the effect that the deed to the property mentioned was intended to be, and was in fact, a mortgage; that the property was the community property of the respondent and her husband ; that the judgment recovered by the appellant Howard was the separate debt of E. S. Ross, and not a lien upon the real property of the community. A judgment restraining the sale of the property, and quieting the title thereto against the apparent lien of the judgment, was thereupon duly entered.

The appellants do not deny that the real property in question was, prior to the execution of the deed from the respondent and her husband to E. E. R. Linfield, the community real estate of the respondent and her husband. Uor do they deny that the debt on which the judgment of the appellant Howard was founded was the separate debt of E. S. Ross. But the contention is, as we understand it, that the statute makes a distinction between community real estate and community real property, protecting the former from sale under execution on a judgment for the separate debt of either spouse, but rendering the latter liable when the separate debt is the debt of the husband. The particular section of the statute which is thought to make this distinction is § 4491 of Ballinger’s Code, and reads in part as follows: “The husband has the management and control of the community real property, but shall not sell, convey, or encumber the community real estate, unless the wife join with him' in executing,” etc., the instrument of conveyance. It is said that “chattels real, equitable interests in land, etc.,” are meant by the term “community real property,” while legal title in fee in either spouse constitutes “community real estate”; that as the husband has the management and control of the former, and is forbidden to incumber the latter only, it must follow, analogous to the ruling of this court to the effect that community personal property is subject to sale on execution issued on a judgment rendered on the husband’s separate debt, that community real property is also subject to sale; and, further, that the deed from the respondent and her husband to Mrs. Linfield changed their estate in the lands from a legal to an equitable estate, or, as the appellants would have it, from real estate to real property, and thereby rendered it subject to sale to satisfy the husband’s separate debt. Calhoun v. Leary, 6 Wash. 17 (32 Pac. 1070), is said to maintain this principle. But what we held in that case was that the community’s equitable interest in real property could be sold on execution to satisfy a judgment for a community debt, not that it could be so sold to satisfy a judgment for the separate debt of either spouse. This is far from holding that there is a distinction between community real property and .community real estate, or that an equitable interest of a community in real, property can be sold to-satisfy, a separate debt of the husband. Treating the question, therefore, as one of first impression in this court, the distinction sought to be made is, in our opinion entirely unfounded. Aside from the fact that the section of the statute relied on would in itself hardly be consistent if different meanings were to be given to these different terms, the several sections of the statute relating to the acquisition and disposition of real property, and the tenure by which the same is holden, where one or .the other of these terms is used, do not leave the matter in doubt. While it would too unduly extend this opinion to set these sections out in detail, their perusal will plainly show that in the legislative mind the. terms community real property and community real estate had the same meaning, and that it was the intent of the legislature that the equitable interests in land held by a husband and wife as community property, as well as the legal interest, should not be subject to sale on an execution issued on a judgment rendered for the separate debt of either spouse.

The remaining errors assigned go. to the right of the respondent to show that the deed from herself and husband to Mrs. Linfield was a mortgage, and the sufficiency of the evidence to justify the finding that it was a mortgage, if the right exists. These questions are material here only in so far as they affect the right of the respondent to maintain the action, and it may be that the court will not for that reason look so closely into the proofs as it would were the contest between a grantor and grantee. But, be this as it may, it is the settled rule of this court that an absolute deed of conveyance, whether in form a warranty or quit-claim, may be shown by parol evidence to be a mortgage. Wiss v. Stewart, 16 Wash. 376 (47 Pac. 736); Anderson v. Stadlmann, 17 Wash. 433 (49 Pac. 1070); Ross v. Howard, 25 Wash. 1(64 Pac. 794). And tbe evidence here abundantly justifies the finding that the deed in question was intended as security for money loaned by the grantee to the grantors.

The judgment is affirmed.

Mount, Dunbar and Anders, JJ., concur.  