102 P. 574 | Mont. | 1909
delivered the opinion of the court.
Counsel for both plaintiffs and defendants have filed elaborate briefs and have discussed many questions which are not presented by the record. Most of them arise upon rulings upon the admission and exclusion of evidence and the allowance of certain amendments to the pleadings during the course of the trial. The motion for new trial was made upon the minutes of the court. In his certificate authenticating the record the trial judge states that the motion “was heard on the minutes of the court on the following grounds only: (1) That the evidence fails to support the judgment; (2) that.Mrs. Foster allowed Winstanley to hold himself out as owner, by insertion of his name in the deed; (3) that plaintiffs, other than Mrs. Foster, were not principals, and Winstanley not their agent.”
Whatever merit there may be in the contentions of appellants with reference to the rulings referred to, since they were not submitted to the trial court on the motion for a new trial, and an opportunity thus afforded to it to correct any of the errors-alleged upon them, in the absence of a bill of exceptions making them a part of the judgment-roll, they are not reviewable by this court. By failing to bring them into the record by a separate bill of exceptions, and omitting to submit them to the trial court for review on the motion based upon the minutes only, and by presenting the record to this court with a certificate attached showing this fact, it must be conclusively presumed that they waived all such alleged errors. Counsel for respondents make this contention, and it must be sustained.
We have set out in the foregoing statement the facts about which there was no real controversy on the trial. There were but three questions as to which there was any conflict in the evidence, to-wit, whether Hall had knowledge of Winstanley’s relations to plaintiffs at the time the contract of sale was made, and his intention to use his position to his own profit; whether the consideration of $2,500 paid by him to Winstanley was adequate, and whether Strong was a purchaser in good faith for value. Upon the first two of these the court found in favor of the defendants; upon the third the finding was that the transfer was intended as a mere security for a pre-existing debt. A great deal of evidence was introduced by the plaintiffs tending to show that Hall, either by information obtained from Winstanley or through Tn's attorney, was fully informed of the fact that Winstanley was not dealing with him as the owner, but merely as the agent of plaintiffs. This was controverted by Hall, Wigginton, and their attorney, all of whom, while admitting that they knew that the title was defective, and had Winstanley to procure the deed of June 7, together with the affidavits of plaintiffs showing that they were the sole heirs, and that there were no debts due from the estate, and thereafter instituted and conducted the probate proceedings, stated that they supposed Winstanley was the owner
No question is made but that, as against Winstanley, the findings are substantially correct. He was, upon the record, the apparent owner. According to the testimony of the defendants, he held himself out to Hall as the owner, and, having availed himself of the means at his disposal to make himself appear as such, the finding that he was a fraudulent purchaser, whereas he was only the trusted agent of plaintiffs, does not affect the position of the other defendants. Whether the court drew the correct conclusion of law from the facts found, and entered the proper decree, we may not decide. Among the assignments of error we find nothing on this point, though counsel devote to it a part of their argument under the head of insufficiency of the evidence to sustain the findings, and cite some authorities in support of their view that, since the court found that Hall made the purchase, and paid an adequate consideration for the property, without knowledge of Winstanley’s relations to the plaintiffs, the plaintiffs are not entitled to have the sale rescinded. The court evidently entertained the view that, though Hall was innocent of any wrongdoing, yet since the purchase price had not been fully paid, the plaintiffs were, notwithstanding his innocence, entitled to rescind the sale. Under the application of the rule that review by this court will be confined exclusively to the matters properly assigned in the brief, we must forego consideration of the action of the court in granting relief to the extent it did.
We have been precluded, in a great measure, from an examination of this cause on the merits. Were the record in a condition to permit such an examination and a determination of the questions of fact involved under the provisions of the Code applicable (Revised Codes, sec. 6253), we should feel impelled to a different conclusion from that arrived at by the district court as to the conduct of Hall. The evidence indicates to
The judgment and order are affirmed.
Affirmed.