Chavez v. Myers, 11 N.M. 333

11 N.M. 333 | N.M. | 1902

OPINION OP THE COURT.

MILLS, C. J.

In deciding this case we cannot go outside of tbe issues made by tbe pleadings. Tbe pleadings are confined to a bill and answer, and tbe issue as framed in the court below, and wbicb was tried, was simply whether or not Nieves Sarracino', one of tbe defendants below, bad conveyed certain real property, without any consideration, to tbe appellant herein, Me-liton Chavez, for tbe use of Piedad Armijo de Baca, said conveyance being made with tbe fraudulent intent of preventing certain judgment creditors of said Piedad Armijo de Baca and her husband, from levying on tbe property and subjecting tbe same to tbe payment of tbe balance due and unpaid on certain judgments held by them.

1 Tbe case comes to us on appeal with different counsel appearing for tbe appellant, than those who tried it below, and tbe reasons assigned for its reversal are mostly urged for tbe first time in this court, and were not considered when tbe trial was bad before tbe master, nor when tbe bearing was bad by tbe judge below.

It is true that in equity cases, on appeal tbe whole record is before tbe court, but section 3139, of tbe Compiled Laws of 1897, provided that, “no exception shall be taken in an appeal to any proceeding in tbe district court, except such as shall have been expressly decided in that court,” consequently we will not reach out and consider in this appeal, any matter wbicb was not directly decided in tbe district court. On appeals tbe appellant cannot change tbe whole theory of bis defease, but is bound by that wbicb be adopted below.

On tbe bearing before tbe master no attempt was made to keep out evidence that tbe creation of tbe alleged trust was made by parol, on tbe ground that it was against tbe statute of frauds, wbicb requires trusts to be made in writing, so an objection that tbe trust was not in writing, can not be raised for tbe first time on appeal ; nor can tbe question of tbe sufficiency of tbe complaint, if not raised in tbe lower court be assigned as error in tbe Supreme Court. Carney v. Street, 41 Ind. 396; Nasley v. Milford, 41 Ind. 413; Kennedy v. Railroad, 45 Mo. 255; Terre Haute & L. R. Co. v. City of South Bend, 42 N. E. 812. Tbe case at bar was tried upon tbe question .of fact as to whether or not a trust was fraudulently created in favor of Piedad Armijo de Baca and not as to whether such trust was created in accordance with tbe statute of frauds.

2 It is a well-settled principle of law that appellate courts have jurisdiction to decide onlyquestions affecting litigants who are before them, and that- parties to a suit who do not appeal or join in an appeal can not be beard to allege error - if a party to an action acquiesces in a judgment against him be thereby waives tbe right to have such judgment reviewed by an appellate court, and is-presumed to be satisfied with tbe judgment rendered; 2 Cyc. 644; 2 Ency. P. & P. 514; and an appellant can complain only of errors wbicb affect himself and can not take advantage of errors affecting a co-party’s interest, where such coparty does not appeal. 2 Encyl. P. and P. 515. Tbe only exception to this rule is where tbe interests of coparties are joint, and an error has been committed jointly affecting them.

In tbe case at bar neither Nieves Sarracino, tbe grantor of tbe property in controversy in this suit, nor Santiago Baca, nor Piedad Armijo de Baca appeal, and they are consequently presumed to be satisfied with tbe judgment rendered by tbe trial judge below. Charlton v. Sloan, 76 Iowa 288. Tbe only party who appeals is Meli-ton Chavez, to whom tbe property was fraudulently conveyed as trustee for Piedad Armijo de Baca, as found by the master and tbe court below. This brings the issues involved in this appeal within very narrow limits, and involves only the single question as to whether or not the court below was justified in finding from the evidence that the property in controversy was conveyed by Nieves Sarracino to Meliton Chavez, charged with a secret trust to the use and benefit of Piedad Armijo de Baca, and in fraud of the creditors of said Piedad Armijo de Baca.

The evidence as it appears in the printed transcript of record now before us, bearing on this point, is not as full and satisfactory as we would like to have it, and possibly from the very nature of the case, for fraudulent conveyances are usually made quietly and under cover, it may have been impossible to get such evidence. The-master who took the testimony realized that the proofs were not as convincing as he would have liked them to-have been, for at the very beginning of his report he says: i

“The master is confronted in this case at the outset with the fact that there is an unequivocal and flat contradiction between the witnesses for plaintiff and defendant. The two witnesses for plaintiff swear positively that certain facts as alleged in the bill of complaint are true. The three witnesses for the defendants swore as positively that they are not true. Under such circumstances we are forced to look into and ascertain the relative positions and interests of the parties to the matter in controversy in order to determine what weight should be given to their testimony.” The master then proceeds to give the reasons which caused him to make the findings of fact and conclusions of law which are contained in. •his report. There certainly is ample evidence in the record, particularly that of Nieves Sarracino, the mother of Piedad Armijo de Baca, who conveyed the property, whose testimony, to quote from the master’s report “not only could not benefit herself, but is directly against her interest and desires, as it would take the property and its benefits away from ber daughter and sons-in-law and permit creditors to levy on the same.”

We did not hear the witnesses testify, and did not note their manner, actions and conduct while on the witness stand giving their evidence, and consequently we are not as well qualified as the master who heard them, to judge what weight should he given to the testimony of each of them.

3 The errors assigned on this appeal are carefully and skillfully drawn, and reflect great credit upon the skill and legal acumen of the learned counsel who prepared them. If they had been presented during the early stages of the case and had been pressed with only a small part of the vigor with which they have been urged on the hearing of this appeal, this case would if before us at all, probably be in a very different shape than that in which it has been presented to us. The learned counsel however, who tried it below, had a different theory of what the defense should be, and tried the case on that theory. Had the other defendants appealed, different issues would have been presented to us for consideration, than those which we are now considering. Thus had Nieves Sarracino appealed, she might well have contended as claimed by the counsel for appellant, that if the deed from her to Meliton Chavez did not convey the title to him, that the same still remained in or should revert to herself, but as she did not question the correctness of the decree, and has not appealed, presumably she is satisfied with it, and the disposition which it makes of the land. Meliton Chavez being divested of the property by the decree, can not question the disposition which the court may make of it, for if he no longer has any interest in it, either in his own riglit or as trustee, it is nothing to him what becomes of it.

We have not the slightest doubt but that Nieves Sar-racino might have lawfully conveyed to a trustee the property in question, or any other property, which she owned in fee, by properly-drawn instruments in writing, far the benefit of whoever she saw fit, nor have we any doubt but that if the deed of trust had been properly drawn, that the property and its income would have been beyond the reach of any creditor of the cestui que trust, but such a state of facts is not disclosed by the record before us, as the deed to Meliton Chavez has no covenants in it creating a trust, and the grantor testified in substance that she had conveyed the land to Chavez in order to have it safe for Mrs. Baca and to prevent its being taken away by Santiago Baca’s creditors."

There is no reversible error apparent in the record, and the judgment of the court below is therefore affirmed, and it is so ordered.

Parker, McFie and McMillan, JJ., concur.