The record-union., 1896-05-02
WEINRlCH Wins Hts SUIT.
Judgment Against the Estate Of the Late
Calvin P. HenSley.
Judge Catlin's Adjudication OF Several
Very Important Questions That
Were Involved.

Judge Catlin yesterday rendered his
decision in the case of ii. Welnrlch
against Mary A. Hensley and others,
which was taken under Amusement
some weeks since He finds for the
plaintiff in the entire sum sued for.
The case has attracted a great deal of
interest among lawyers, as II involved
many important issues that may be en-
countered by future litigantS. Welnrlch
holds a mortgage against the estate OF
Calvin P Hensley, deceased, for S9,-
337 AZ, and S., 2S3 40 for reclamation as
sessments paid by him, and brought
suit last June to foreclose. 1t was found
on the trial that the record failed to re-
veal any order by the court showing
that due notice to creditors had been
given when the administration of the
estate was in progress.
Counsel for the estate and Mrs. Hens
ley then moved to have such an order
inserted in the record, the publication
having been proven. The motion was
denied by Judge Johnson, and an appeal
was taken to the Supreme Court, which
overruled the lower court and directed
the insertion in the record, nunc pro
tune, as prayed for.
Weinrichs claim against the estate
had been held out from the administra-
tion by request, and his suit was con-
tested chiefly on the ground that his
claim was not presented to the admins
traitor in the time fixed by law.
There were five 'sets" of lawyers en-
gagged in the trial of the case. Albert NJ.
and Hiram w. Johnson were attorneys
for Weinrich, E. H. Stearns and A. H.
Elliott appeared for Mrs. Hensley, w. A.
Gett looked after the interests of Rec
lamation District $50, L. T. Hatfield was
Mebius & Drescher's attorney, and
Driver & Sims represented John Elliott.
CHRONOLOGY OF THE CASE.
Preliminary to the decision proper,
Judge Catlin makes summing up of all
the facts, in their chronological order,
as follows:
Calvin P. Hensley made application to
purchase the land survey No. 361 on
June 8, 1859. The survey was made
August 11th and the application ap-
proved on August 10Th of that year.
The first payment of 20 per cent was
made on August 9th. Hensley was
married on September 1st following. The
certificate of purchase of the land was
isused on March II, 1860; payment in
full was made on December 81 1868
and the patent was issued to Calvin P
Hensley on May 1, 1869 Hensley and
wife executed mortgage to H. Vein
rich on June 26, 1888, for 5000, pay
able in one year, and on August 22d fol-
lowing made another mortgage for
$1,000, payable in one year. Mary A
Hensley filed a homestead on November
s, 1881, and a second one on May 9, 1884
Calvin P Hensley died on July 26
1889, and letters testamentary to Mary
A. Hensley were issued September 13
1889, and notice to creditors (the first
publication appeared on the 10Th of
that month.
Mary A. Hensley gave Mebius & Dres-
cher mortgage for 1919 06 on June 20.
1892, on which $3.50 was paid the 9TH of
September following. AS executrix Mrs.
Hensley filed a petition in the Superior
Court on April 26 1893, for leave to
mortgage the real estate. The court
made the order to mortgage and note
for $4,000 on June > 1893, and the note
and mortgage for $4,000, with interest
at per cent payable in two years was
executed on June IA, 1893. Reclama-
ton District 800 levied an assessment
of SI,296 GA in May, 1894. and Vein
rich paid 3,2S3 40 of the same, the bal
ance due being S4,013 10.
Then follows, in regular order a state
ment of the pleadings, showing the filing
of Weinrich's complaint on June IS.
1898, and the various answers thereto
of the parties interested in the action as
co-defendants with Mrs. Hensley The
court then says:
THE DECISION.
The defaults of Ada Hensley, Florence
P. Freeman, Virginia Howell, Calvin p.
Hensley, William l.. Hensley and p II
Gardner were each duly entered. De-
fendant De Martini filed a disclaimer.
The status of this property, as to
whether 1t was community property or
the separate estate of the husband.
should first be determined. though it
is not clearly apparent that the result
would be different if it were community
property.
The husbands title had it's inception
prior to the marriage. He made his ap-
plication to purchase the land of the
State. had it surveyed, had his applica-
tion approved, paid 20 per cent of the
purchase money, all in due form of law.
and acquired the actual possession be-
fore the marriage. This vested him with
the equitable title, and the patent after
ward issued perfected the title and re-
lated back to the equitable title On re
Lamb, % Cal. 397; Morgan VS.. Lones,
50 Cal. 311; Harris VS. Harris, II Cal.
314; Lake VS.. Lake, % Cal. 429) 1t
does not appear that the remainder of
the purchase money came from the
community funds; but if it were so, it
would not change the character of the
title. In Morgan VS.. Lones, the court
said:
THE wife being the owner. of the
equitable estate as her separate prop
erty, the husband could not turn it into
community property by advancing
from his own funds the sums necessary
to obtain the legal title from the munic-
ipal authorities" citing Fuller VS.. Fer
guson (26 Cal. $500. In Harris VS..
Harris, where the plaintiff claimed a
moiety of the land patented to the de-
fendant, on the ground that the money
paid for the Government title belonged
to the community. the court said: Even
If it appeared that the money was paid