95 Tenn. 598 | Tenn. | 1895
The bill and cross bill in this cause were filed to set aside, for fraud, a deed made by Harbin to Hague. The Chancellor sustained the bill and cross bill, and set aside the deeds, and Hague, the vendee, alone appealed and assigned errors. The cause has been heard by the Court of Chancery Appeals, and ■ two of the members of that Court have signed a written finding that there was no fraud in the transaction, and that Court reversed the decree of the Chancellor, and the attacking creditors have appealed to this Court.
It is insisted that there was error in the Court of Chancery Appeals pronouncing a decree on the rights of the parties, based on a finding of facts concurred in by only two members of that Court. The gist of the contention is that, under Art. VI., Sec. 2, of the Constitution of Tennessee, it is provided that the concurrence of three of the Judges of the Supreme Court shall, in every case, be necessary to a decision, and, hence, the Court of Chancery Appeals, exercising the jurisdiction of a Court of last resort, has no power to decide the facts of a case unless it is concurred in by all three of the members of that Court; that the Act creating the Court does not provide that the decision of a ma
Looking to the decree of the Court of Chancery Appeals, we find that it recites that the cause was heard by the three members of the Court. ' The opinion filed, however, shows that it was signed by only two members of the Court. There is no intimation that the other member dissented, but it appears that he simply failed to sign the report of finding and the opinion, as presented and reduced to writing.
It is proper to remark that if .the contention of appellant is well taken, and it is necessary for it to appear that three Judges signed the written finding, then it follows that the opinion and finding is incomplete and the decree upon it is not final and .the appellant’s appeal is premature and the' cause must be remanded for the action of all the Judges of the Court of Chancery Appeals.
We are, however, of opinion that the contention is not grounded upon a sound basis. There is nothing in the Act which requires the written findings and opinion to be signed by anyone, and the decree shows a hearing by all the members. The constitutional provision referred to, and the statute passed in accord therewith, applies alone to the Suprenje Court, and it is only when cases come before the
It is next insisted. that the Court of Chancery
It is next said that, conceding the facts to be as found, the Court erred in finding the conveyance to be fraudulent and void as a matter of law. The Court of Chancery Appeals held that, as to Harbin, the grantor, there could be no question but that the deed was fraudulent, because it was made by him with fraudulent intent, but they also held that Hague, the vendee, paid a full consideration and was ignorant of the indebtedness of the grantor, Harbin, and it is objected that the Court of Chancery Appeals did not find whether Hague, the grantor, had notice of Harbin’s fraudulent intentions, or had knowledge of such facts as would have enabled him to ascertain such facts and put him on inquiry as to them, and that the facts are such that Hague must have known of Harbin’s fraudulent intentions in disposing of his property. The Court of Chancery Appeals was of opinion that the facts were
On the other hand, it is insisted that Harbin Avas a broken country merchant; that Plague bought his farm, though he had never seen it, and Harbin was a stranger; that he left 'Harbin in possession, as his tenant; and other sirspicious facts are cited, all of which the Court of Chancery Appeals fully considered and passed upon in rendering their finding and opinion.
We can see no question of Hav involved in this matter, but purely questions of fact and inferences from facts, upon which that Court’s conclusion is final. The Court of Chancery Appeals was of opinion that Hague, the vendee', did not participate in the fraudulent intentions of Harbin, and did not collude with him to defraud his creditors, and this is the pivotal point in the case. It is objected that the Court of Chancery Appeals did not find, in express terms, that Hague acted Iona fide in the matter, and Avithout notice of Harbin’s fraudulent
We see no error in the decree of the Court ofi Chancery Appeals, and it is affirmed.