14 P. 671 | Nev. | 1887
Lead Opinion
The facts are stated in the opinion of the Court. This is an appeal from an order denying plaintiff's motion for a new trial in an action to enforce an alleged vendor's lien. Defendant Kinkead is the executor of the last will and testament and estate of R. H. Crocker, deceased, the grantee mentioned in the deed of conveyance, and the other defendants are legatees and heirs at law of said Crocker, deceased, who claim an interest in the real estate upon which the lien is claimed. In the answer it is alleged that "said conveyance was not made for any good or valuable consideration, but with intent and for the express purpose to hinder, delay, and defraud the creditors of said Philip Reese, of their lawful suits, debts, and demands, at the time due and owing by the said Reese. Defendant further avers that, at the time said conveyance was made, it was upon the express agreement that said R. H. Crocker should not pay any sum of money in consideration thereof."
I. The first assignment of error is that "the court erred in admitting the letter offered by the defendant, over the objection of the plaintiff." The letter was from R. H. Crocker to Philip Reese, and it was offered in support of the assertion in the answer, and one of the defenses in the case, that the conveyance by Reese to Crocker was made for the purpose and with the intent to hinder, delay, and defraud the creditors of said Reese. Counsel for plaintiff objected to the introduction of the letter for the purpose of showing fraud between Crocker and Reese, on the ground that no issue had been made or tendered on that ground; that no allegation in the answer presented or tendered an issue upon any question involving fraud in the execution of the deed by Reese to Crocker; that the answer, in substance, recited the statute on the subject of fraud, without pleading any fact showing fraud between said Crocker *68 and Reese. The court overruled plaintiff's objections, and the letter was admitted in evidence. No exception was taken to the court's ruling, and it follows, therefore, that we cannot consider the alleged error.
II. The finding of fraud, and the entry of judgment in favor of defendants on the ground of fraud, are also assigned as errors, for the reasons stated above, against the admission of the letter in evidence, and the further reason that there was no evidence showing, or tending to show, that the plaintiff was in debt at the time of his conveyance to Crocker, with the exception of the demands upon which Crocker was liable as surety for Reese. It is undoubtedly the general rule that the findings and judgment of the court must be warranted by the pleadings; but it does not follow, necessarily, that the pleadings in this case do not justify the findings and judgment, even though a demurrer to the answer setting up fraud ought to have been sustained, if one had been interposed. After trial upon the merits, as though the issue of fraud had been properly made, there is a marked distinction between a general allegation of fraud, although defective, and an entire absence of an issue upon that question. In King v. Davis,
It is true that plaintiff objected in this case to the admission of the letter in evidence, on the ground that the issue of fraud had not been made, for the reason that the facts showing fraud had not been set up in the answer; but failing to except to the court's ruling, the error, if any, was waived, the objection went for naught, and the result is the same as though no objection *69 had been made. We express no opinion upon the sufficiency of the answer upon the question of fraud, except to say that, upon the facts shown by the record, it sustains the finding of fraud, and the judgment in favor of defendants on that ground.
Counsel for appellant is mistaken in saying there was no evidence showing or tending to show that plaintiff owed debts other than the demands upon which Crocker was liable as surety for him. The sister of Crocker testified as follows: "I don't think my brother was on the note from which Reese feared trouble; it was another note I had in mind. Mr. Crocker said that Mr. Reese was indebted to the parties in Virginia, who would, in all probability, proceed against him, and that the deed was made to prevent that, to protect my brother. * * *" In view of the letter and other evidence admitted in the case, we cannot say that the finding of fraud was error. The most favorable view that can be taken of the evidence is that there was a conflct. The order overruling motion for new trial is affirmed.
Concurrence Opinion
I concur in the judgment. *70