58 P. 53 | Nev. | 1899
The facts sufficiently appear in the opinion. We are asked to dismiss the appeal upon the ground that the notice of motion for a new trial was not filed within the time required by law. *119
The proceeding is one in equity, and the trial court called a jury, to which was submitted one special issue of fact, and the finding of the jury upon this question was adopted by the court. Assuming that the trial was within the rule requiring notice of motion for new trial to be given within five days after the rendition of the verdict, or requiring that any order extending the time within which such motion might be made should be obtained within five days after the rendition of such verdict, the respondents, not having waived their right to make the motion in this court to dismiss upon the grounds above stated, contend that the order extending the time in which to make the motion was not made within the time required, and is therefore void, and, the notice of motion not having been given within the time, the trial court had no power or authority to act in the proceeding.
This court has decided that the rule relied upon by the respondents does not apply to proceedings of this character. It has been said by the court that: "In a chancery suit the action is not tried until the verdict has been sanctioned and established by the chancellor. In this case it was not tried until after the argument of counsel as to what the judgment should be. There is nothing in the transcript showing that the court submitted to the jury anything but the special issues stated, and, it being a case of purely equitable cognizance, we cannot presume the court called the jury for any other purpose except to be advised by it. Certainly, the fact that the jury found against the plaintiff upon the issues submitted to them was necessarily no proof that the court would finally so find after argument, or that the court would find against him in any respect. We think this cause was tried by the court. If we are correct in the conclusions already expressed, the court should have filed his findings within ten days after the trial, either adopting or rejecting the findings of the jury. By its acts it did so in effect. Our opinion is that the plaintiff not only had a right to think he had ten days after findings were filed by the court in which to give his notice, but that he in fact had that length of time after the court rendered its judgment for costs against him on the 3d day of December." (Duffy v. Moran,
Under the rule just quoted the order extending the time and the notice of motion for a new trial were within the time required, and the motion to dismiss will therefore be overruled.
This action was instituted by the appellants to set aside certain conveyances to real estate in Washoe county, Nevada, made by one E. Crane to his daughters, Mrs. Amelia Howard and Mrs. A. G. Stiles, and subject the same to the payment of a judgment in favor of the appellants and against the said E. Crane. It is claimed by the appellants that these conveyances were made without any consideration, and for the purpose of cheating and defrauding the creditors of the said E. Crane, including the appellants. Judgment by default was taken against the respondents Mrs. Howard and Mrs. Stiles, which was afterward, upon their motion, set aside, and an appeal taken by Stanton, Thompson Co. from the order vacating and setting the same aside. This court, upon such an appeal, affirmed the order of the district court, and upon a trial of the issues subsequently had therein findings and a decree were entered in their favor. A motion for a new trial was interposed. The same was denied, and from the decree and order denying the new trial this appeal has been taken.
The material facts, briefly stated, and not disputed, are that on February 19, 1876, E. Crane conveyed to his daughters, the respondents in this appeal, two forty-acre tracts of land, then constituting a part of a ranch then owned and occupied by him in Washoe county, Nevada. The tracts of land so conveyed were held by Crane under a contract of purchase from the Central Pacific Railroad Company, the lands being within the twenty-mile limit of the grant to that company, and in odd-numbered sections. Subsequently the purchase money was paid to the railroad company, and on the 15th day of December, 1876, the patent of the United States for these lands was issued to the company, and on October 26, 1888, the company gave its deed therefor to the said E. Crane. On the 10th day of May, 1892, E. Crane became surety on an agreement of guaranty with the plaintiffs upon which a judgment was entered against him on the 8th day of October, 1892, in favor of the plaintiffs for the *121 sum of $3,217 59 and costs. On July 7, 1892, E. Crane made a grant, bargain, and sale deed to Mrs. Howard of the same lands; the deed of February 19, 1876, to her being a quitclaim deed. Upon the judgment rendered against E. Crane in favor of the appellants execution was issued and returned unsatisfied.
Upon the trial of the action the court submitted to a jury the following question: "Was the deed of E. Crane to Mrs. Amelia H. Howard of the S. E. ¼ of the S. E. ¼ of sec. 21, dated. July 7, 1892, made with the intent on the part of said E. Crane to hinder, delay, or defraud his creditors, including the plaintiffs herein?" to which question the jury answered, "No." In its findings of facts the court adopted the verdict of the jury, and specifically found in favor of the respondents upon all issues made.
Under the assignment of errors counsel for appellants contend that the evidence shows that these conveyances were made for the purpose of defrauding E. Crane's creditors, including appellants; that they were without consideration — mere voluntary conveyances; that there was never any change in the possession of the lands after the execution of the conveyances; that the grantor, E. Crane, continued after the conveyances to hold the lands adversely to any claim of right of the respondents from the time of the conveyance until the commencement of the action; that the execution of the conveyances practically stripped E. Crane of all property subject to execution, and therefore, as a matter of law, were void as against existing and subsequent creditors, and should be set aside.
These facts were not undisputed, and upon the trial the court specifically found upon the issues all the facts in favor of the respondents and adversely to appellants' claim. The record discloses evidence both in favor of and against the contention of the appellants. It was the duty of the trial court to find the true facts from the evidence, and where such findings have been made upon a record showing a material conflict in the evidence, this court will not disturb such findings or a decree founded thereon. It therefore becomes unnecessary to discuss the rules of law controlling such cases, so exhaustively presented in the briefs. *122
But one other question remains to be considered. The appellants claim that the second conveyance, under date of July 7, 1892, to Mrs. Howard, for the same lands contained in the quitclaim deed of February 9, 1876, is shown to have been voluntary, and without any consideration, and, as the quitclaim deed did not convey the after-acquired title of E. Crane from the Central Pacific Railroad Company to the lands, that the lands were therefore subject to the payment of appellants' judgment, and the court should have so found and decreed. At the time of the execution of the quitclaim deed, in 1876, E. Crane had a contract for the purchase of the lands from the Central Pacific Railroad Company, they being within the twenty-mile limit of the grant to that company, and the odd-numbered sections.
While it is true that the Central Pacific Railroad Company did not receive the United States patent for the lands, yet, as a matter of law, the title thereto had passed to the company at the date of the grant, and became vested at the time the route of the road was definitely fixed — a long time prior to the execution of the quitclaim deed to Mrs. Howard. (Deseret Salt Co.
v. Tarpey,
A transfer which the law would compel a party to make is not voluntary. (Bump, Fraud. Conv. 249.) Neither is the transfer by the holder of the legal title to the equitable owner, although without pecuniary consideration, a voluntary conveyance, and therefore fraudulent as to creditors. (Schreyer v. Scott,
The judgment and order appealed from will therefore be affirmed. *123
