The record-union., 1894-03-14
SUPREME COURT DECISIONS.
lnsolvents Cannot Prefer Creditors
Under the Homestead Plea.
A Nevada County Partnership Case
Disputed Jurisdiction of
Marin County Case.

The Supreme Court has decided the
case of Moses La Point, assignee of
Thomas NJ. Boulare, an insolvent, ap-
| pellant, VS.. G.. S. L. Blanchard, respond
ent.
Boulare was declared an insolvent in
the Superior Court of Butte County on
December 10, 1892, and La Point was
duly elected assignee and qualified as
such. Ten days before filing his petition
Boulare transferred to Blanchard certain
real estate worth $500, and the complaint
charges that he did so to give Blanchard
preference over the other creditors, and
that the defendant knew it to be so at the
time.
The Superior Court found that the
premises had been lived in by the defend
ant with his wife and children, and also
found, as conclusion of law, that the
property could and would have been set
apart as homestead for the defendant.
although as a matter of fact no declara-
ton OF homestead had been filed by
either husband or wife. and the property
could have been attached by the creditors.
1t was not, therefore, exempt from exc
cution.
The decision holds that all the facts are
found to exist which constitute a fraudu-
lent transfer, except that it is not found
that II was made TO prevent ratable dis
trlbution of the property among the cred
ltors. The court could not know that this
| precise property would have been set
! apart for homestead, and could not we'll
! set 1t apart unless the owner desired it..
! by conveying it to Blanchard the de-
] fendant put it out of his power 70 have it
declared homestead.
! The Judgment is reversed and the court
below directed to enter Judgment upon
the findings for the plaintiff.
SURVIVING PARTNER MUST CARRY OUT
| FIRM CONTRACTS.
1t also decides the case of Little VS..
Caldwell, Nevada County case. 1t was
an appeal from judgment in favor of the
defendant.
! Plaintiff is the widow of L. B. Little.
who was lawyer in partnership with
| Spaldlng. They contracted with parties
claiming TO he heirs of William Wester-
| field, deceased, to prosecute an action for
establishing the helrship of such claim
ants for 10 per cent. OF the amount OF
property involved, the heirs to pay all
expenses OF the suit. Little died after
! proceedings commenced, and the heirs,
running short of money, made an addi-
/ tional contract with Spalding by which
they allowed him DO per cent. on condi-
! ton he should advance the money for the
expenses
he did so ana ..won the suit. getting
$4,000. of which he proposed to pay Mrs
| Little only 500, as her husband had died
/ so soon after commencing the action.
| The decision recites the law and rul-
ings governing partnerships where one
| partner dies, TO the effect that the other
partner must carry out ali contracts in
force at the time. unless the client refuses
TO allow him TO do so. 1t further decides
that Mrs. Little is entitled to her hus-
| bands share of the Is per cent. specified
| IN the original Judgment, and therefore
reverses the judgment of the Superior
Court and directs it to overrule the de-
murrer to the complaint
QUESTION OF JURISDICTION IN ANNULL-
ING a MARRIAGE.
A decision is also rendered in the mat
ter of the estate of Gustave Eichoff. de-
ceased-George Eichotf (appeliant) VS..
Magdalena Eichoff (respondent), San
Joaquin County case.
Upon the. death of Gustave Eichoff,
Magdalena, claiming to be his widow.
applied for letters of administration and
WAS resisted by the appellant, his son,
who also made application. The court
granted her application and denied his.
Deceased and Magdalena were married
on May %, 1882, ana lived together till his
death, in February, 1898. In 1868 he had
married Milceon Winike, and they had
lived together in Stockton as man and
wife until 1876, during which time appel
liant and tive other children were born to
them.
In 1876 she was committed to the Stock
ton Asylum, and is still an inmate there.
In April, 1882, the deceased commenced
an action against her in the Superior
Court of Marin County to procure de-
cree annulling his marriage on the ground
that she committed fraud upon him in
concealing from him the fact that she was
insane at the time of their marriage, and
decree was entered to that effect by
the court in July, 1882.
The appellant claims that the Judgment
roll does not show that the marriage be-
tween deceased and his mother was ever
annulled. and also questions the jurisdic-
tion of the court. The roll shows that the
complaint was filed on April q, 1882; that
on the same day summons was issued
thereon, and that it was returned April
18th, without any proof of service, and on
July I7th the court declared the marriage
annulled.
In an elaborate opinion the decision
states that the presumption must be, in
accordance with rule, that the court full
filled its duty in the matter, and that it's
first duty was to ascertain if it had
jurisdiction over the defendant. AS it
annulled the marriage, therefore it is pre-
sumed that it ascertalned that fact. The
order granting the application of Magda-
lena is affirmed.