1 Nev. 253 | Nev. | 1865
full Bencli concurring.
Tliis was a suit in tbe nature of an action of ejectment, to recover tbe possession of a certain piece of- real estate and tbe improvements thereon, consisting, among other things, of a quartz mill driven by water power. The mill was constructed by a company conducting business under tbe firm name of Sperry & Oo. J. A. Sperry and Thomas McFarland owned between them a half interest in tbe mill property. N. Shiv-erich and E. P. Whitmore owned tbe other half. It does not appear very clearly from tbe testimony whether "Whitmore had an absolute interest in the property, or only a mortgage on the one-half held by Shiverich. When the enterprise was first started, one-half interest in the real estate stood in the name of J. A. Sperry; but it is clearly shown by the testimony that the half of this half interest was held in trust by Sperry for McFarland. Whilst the mill was being constructed, the firm of Sperry & Co. became greatly embarrassed, and indeed utterly insolvent, as was afterwards shown. Whilst the firm was thus embarrassed, Sperry conveyed his half interest — or rather that half interest which appeared by the record of deeds to be his — to Thomas McFarland. McFarland very soon conveyed the same interest to the plaintiff, Henry Gregory. The defendants in this suit being creditors of Sperry & Co., obtained judgment against them. They also became the purchasers of other judgments and claims against Sperry & Co. They finally became the purchasers of the property in dispute under some of the judgments. These judgments were all obtained after the conveyance to Gregory of a half interest in the mill site, etc., by McFarland. The defendants, under their Sheriff’s deed, entered into possession of the premises in dispute. The plaintiff brought his suit for possession of an undivided half of the property. The defendants aver that the deed from McFarland was only made to hinder and delay creditors, and was therefore fraudulent and void as against them, they being creditors.
In the judgments had there was no service except on Sperry. The judgments were against him and against the joint property of J. A. Sperry and his associates in the firm of Sperry
Upon the trial of the case the plaintiff showed his chain of title from Sperry and McFarland. The defendants introduced evidence to show their judgments, and their purchase and deed of the Sheriff thereunder — to show who were the parties composing the firm of Sperry & Co., the insolvency of that company, and the illegality of the sale from McFarland to Gregory. The case was submitted to the jury, under the instructions of the Court, who brought in the following verdict : “We, the jury, viewing the deed in the form of a mortgage, find the defendants entitled to recover generally.” •
Upon this verdict a judgment was rendered for the defendants. The plaintiff moved for a new trial, which was granted by the Court below. The defendants appeal from the order granting a new trial, and assign as error that the Court below erred in granting that order. The plaintiff contends that the Court below committed at least three errors in the progress of the trial, which could only be corrected after the discharge of the jury by granting a new trial, and therefore the Court below did not err in so ordering. It was hardly contended in the argument that the evidence in the case would not have justified a verdict for the defendants, or that the Court would have been justified in granting a new trial, if there had been no erroneous rulings as to evidence, and the verdict of the jury had been in the usual form of a general verdict.
The errors in the progress of the trial complained of by respondents are these:
First — Admitting the declarations of A. S. Sperry [J. A. Sperry] made against plaintiff and in favor of his own interest.
¡Second — Admitting the declarations of McFarland, made prior to his conveyance to Gregory, evidencing his fraudulent intentions.
The third ground of complaint on the part of respondent is that the verdict found by the jury is contradictory and could not sustain the judgment against the plaintiff. This third ground of complaint, as we have stated it, is not by any means in the language of the respondents, but it clearly shows the point made by them on the argument.
The plaintiff (respondent) in making his statement on motion for new trial, seems to have embodied the evidence of the witnesses therein, but in stating the facts of the case omitted to make any mention of the exceptions taken in the progress of the case, to the rulings of the Court, in admitting and excluding evidence.
Appellants, in their amendments to the statement, asked that the notes of a short-hand reporter, who was employed to report the evidence in the case, should be substituted in the place of the testimony as stated by respondent. The amendment proposed that the reporter’s notes of the testimony onkj (thus omitting his notes of the exceptions as taken to the rulings of the Court), should constitute that part of the statement which was amended. The Court settled the statement on motion for new trial, so that it only contained % statement of the testimony and not of the rulings of the Court on the admission and rejection of the testimony. Nevertheless, as appears by the minutes of the Court made during the argument of the motion for new trial, the Court did, in deciding that motion, consider all the exceptions which aj>peared by the reporter’s notes to have been taken during the progress of the trial.
To the ruling of the Court in considering these points of exception appellants excepted.
Much time was consmned on the argument of this case in discussing the question as to whether these exceptions in regard to admission of testimony should have been considered in the Court below, and whether we can, in this Court, consider them as affording any ground for the action of the District Court in deciding this motion for a new trial.
Our Practice Act (section 195) provides what shall be done by the party moving for a new trial. It not only provides for the making and settling of a statement, but further provides that “ on the argument reference may also be made to the pleadings, depositions and documen
Por the written evidence, rulings of the Court, exceptions, proceedings during the trial, etc., the party is allowed to refer to the pleadings, depositions, exhibits on file, minutes of the Clerk, notes of the Judge as to exceptions, etc.
The 248th section, in regard to appeals, provides that on appeals from a final judgment the appellant shall furnish this Court with copies of the “ notice of appeal, the judgment roll and the statement annexed (if there be one), certified by the Clerk to be a correct copy.” "Whilst on appeals from an order the appellant is only required to'furnish a copy of “the notice of appeal, * * * order appealed from, and a copy of the papers used in the hearing of the Court below, such copies’to be certified by the Clerk to be correct.” It would seem, then, that the code does not contemplate a statement on appeal when the appeal is from an order sustaining or overruling a motion for a new trial. Consequently a statement on appeal, which should contain only a part of the papers referred to on the motion for new trial, would not preclude us from examining those not contained in or referred to in such statement. When the Clerk certifies that a transcript contains copies of certain,
But the law does not require or expressly sanction such statement, and when it is made without notice to the respondent it will not exclude him from the use in this Court of any paper referred to in the argument in the Court below. In settling such statements, but one common sense rule could be adopted to let into the statement or transcript every document, order of Court, minute of the Clerk, or note of the fudge, which either party might deem material to the protection of the interests of his client. Under such a rule, lawyers will no doubt, in their anxiety to omit nothing that could by possibility be useful to their clients, frequently insert useless matter. But it is better this should happen than that parties should be deprived of the privilege of showing those facts which they and their counsel believe important and essential to protect their rights. We have expressed these opinions about a matter of practice, in the hope that they may serve as a guide to practitioners hereafter in making up transcripts. The principles we have settled here do not, however, remove all the difficulties of this case. The statute provides for a reference “ to the minutes of the Court.” Do the reporter’s notes constitute minutes of the Court? Bouvier defines minutes to be “a memorandum of what takes place in Court, made by authority of the Court.” The order made in this case seems to have been to appoint a reporter to take down the evidence. He did, however, take down not only the evidence, but the rulings of the Court in relation to admission and exclusion of evidence and the exceptions of counsel. Whether these notes should,
The first point of respondent is that the Court below erred in the progress of the trial in admitting evidence of the declarations of J. A. Sperry. Assuming for the present that we may look into this alleged error, let us see what was the nature of the evidence, and under what circumstances it was admitted. Sperry, as we have seen, held one-half the property in his name, but as is shown by the most satisfactory and uncontra-dieted evidence, he held one-half of this half interest for McFarland.
When the company is embarrassed and insolvent he deeds this half to McFarland. After the deed he remains in possession and exercises the same control over the property that he did before, and whilst he was thus in possession exercising control (Tver the property, he made certain declarations about how he held the property, that is, that he held it as part owner with McFarland. The fact that he did continue to occupy it, was in itself a suspicious circumstance. When one sells real estate and retains possession temporarily to gather crops, to remove furniture, or in case of a dwelling house, store, or warehouse, or other property which could be applied to a useful purpose, should even rent it6from the vendee, the circumstance might not be very suspicious; but if one sells his entire interest in an unfinished mill, which cannot be applied to any beneficial purpose, and retains possession just as before sale, the circumstance is suspicious. If he retains possession and goes on with the work at the mill, and declares himself still interested, it is very strong evidence of the fact that the sale was only colorable, and we think his declarations in connection with his possession may'be received as a part of the res gestee to show what was the nature of his possession and interest in the property. We think the Court below did not err in admitting the proof for that purpose. This fact in itself did not amount to anything. There was no question before the jury as to fraud or ionajides of the sale from Sperry to McFar
The next complaint in regard to the admission of evidence is that the Judge below should not have permitted defendants to prove the declarations of McFarland that he intended to make and was negotiating a mere colorable sale of the half interest in order to obtain time to meet his liabilities or those of the firm. "Wo think this evidence was properly admitted. To prove fraud you must prove the motives and intentions of two parties. These declarations were legitimate evidence to prove the intentions of McFarland. Gregory’s motives had to be proved by other circumstances with which he was connected. As to the rule of admitting the declarations and acts of the vendor made and done before the sale to prove his fraudulent intent, see the case of Landecker v. Houtaling, 7 Cal. p. 392, and authorities there cited.
This leaves for our consideration the question as to how the verdict of the jury should be construed. We think the verdict is a good general verdict, and the words “ viewing the deed in the form of a mortgage,’’ are mere surplusage, and do not affect the verdict in any way. Striking out these words the verdict reads: “We, the jury, find the defendants entitled to recover generally.” This, though not exactly in the usual form of a verdict for defendants, is certainly a good verdict. Surplusage in a verdict does not vitiate it. If that surplusage showed clearly that the jury had reasoned incorrectly, or that they had come to their conclusion from false premises, then, indeed, would it present to the Court a strong reason for setting aside the verdict. But even then, if it was apparent beyond all question that the verdict was itself right, though the reasoning on which it was based was absurd, we should doubt extremely
If they were in all cases required to give a good reason for their action, it would, we fear, lead to many new trials and endless litigation. . In this case the evidence is very strong in support of the verdict found by the jury. As to the language used by the jury in attempting to explain their verdict, literally construed, it is nonsense. They say, “ viewing the deed in the form of a mortgage.” The deed is in the transcript, and is not in theform of a mortgage, but in th%form of an ordinary deed of bargain and sale. So the jury did not mean what they say — -that the deed was in the form of a mortgage. Then if we wish to know what they did mean, we must look at the history of the case, and at the evidence before them. Gregory professed to have bought the property. He did not pretend to have paid a dollar, but to have settled indebtedness due to himself to the amount of about two thousand eight hundred and fifty dollars, and to have executed his notes to McEarland for seven thousand one hundred and fifty dollars. These notes soon after the transaction, or indeed at the very time almost that they were delivered to McFaidand, came back into the hands of Gregory (for safe keeping, he says), and were after-wards again delivered by Gregory to McFarland, if we are to take Gregory’s word for it. But Gregory admits that he has not seen or heard of these notes since he delivered them to McFarland the second time. He has not paid, or been called on to pay, a cent since that time on these notes. It is also in proof, by one witness at least, that McFarland declared his intention to put this property in the hands of some one to hold for him until he could get time to pay or arrange with his creditors. It is also proved by the same witness that propo-' sals were made to defendants to accept such a trust, and he was told that by so doing he could secure his debts (which were otherwise of doubtful value) against Dye & Smith and McFarland.
With all these facts before them, we think the jury came to the very sensible conclusion that Gregory only accepted the deed for the purpose of trying to secure his two thousand eight hundred and fifty dollars of doubtful debts; that the notes
We think that the language complained of does not indicate that the jury misunderstood the facts, or reasoned falsely from the facts proved; but when they attempted to give a reason for their verdict, they failed to express themselves with clearness and precision. For this we think the verdict should not have been set aside. The order of the Court below, granting 'a new trial, is set aside and reversed. The original judgment of the Court below in favor of defendants is reinstated and affirmed.
