68 P. 1081 | Kan. | 1902
The opinion of the court was delivered by
This was an action to set aside a conveyance of lands made by Vickers to Maxson, on the ground of fraud. The allegations of fraud raised the only controverted questions in the case. Upon the defendants’ request, a jury was impaneled to try the issues and make special findings of facts. ■ Instructions on the law of the case were given, and on the part of the defendants requests for instructions were made and refused. The defendants also requested
“Ques. 1. Did C. C. Vickers and Mary P. Vickers convey to Perry B. Maxson, by their deeds dated June 30, 1894, all the real estate at that time owned by C. C. Vickers? Ans. Yes.
“Q. 2. Was C. C. Vickers, on the 30th day of June, 1894, able to meet all the liabilities of the firm of W. L. Vickers & Co., of which he was a member? A. No.
“Q. 3. How much money did Perry B. Maxson pay to C. C. Vickers or to Mary P. Vickers for the lands in question? A. $1000 on July 18, and about $1600 thereafter.
“Q. 4. Did the defendant C. C. Vickers, and wife, convey the real estate described in the petition to Perry B. Maxson with the intent to hinder, delay or defraud the creditors of W. L. Vickers & Go. or C. C. Vickers? A. No.
“Q. 5. If you answer question No. 4 in the affirmative, then did Perry B. Maxson, before he parted with his money and notes for such conveyance, know of such fraudulent intent, or did he have knowledge of facts sufficient 'to excite the suspicion and put an ordinarily prudent man upon inquiry as to the intent and purpose of C. C. Vickers and wife in making such conveyance? A. -
“Q. 6. Did Perry B. Maxson, at the time he took the conveyance of th'e lands in question, know that W. L. Vickers & Co. were in failing circumstances? A. No.
' “ Q. 7. Did Perry B. Maxson, in his purchase of the land in controversy from C. C. Vickers and wife, act in good faith and without intent to hinder, delay*99 or defraud the creditors of'W. L. Vickers & Co. or C. C. Vickers? A. Yes.”
The record then shows the following proceedings :
“And thereupon the plaintiffs filed a motion for judgment and decree as prayed for in their petition, the findings of the jury to the contrary notwithstanding.
“And afterwards, and on the 8th day of December, a. d. 1899, said motion came- on to be heard, and after hearing the arguments of counsel for the respective parties and duly considering the same, the court finds that the findings of the jury ought to be ignored and disregarded, and that the court itself ought to determine and decide the issues by and from the evidence submitted on the trial of this cause.
“And thereupon the said defendants requested permission to present said case to the court as upon a trial to the court, which the court refused, and to which refusal the defendants then and there duly objected and excepted.”
After the occurrence of the above proceedings, the court made a general 'finding that the deeds in question were “fraudulent and void as against the rights of the plaintiff and the other creditors of the defendant C. C. Vickers.”- Judgment in accordance with the court’s finding was thereupon rendered, and a motion for a new trial was made and overruled. From evidence offered in support of the motion, it appeared that the case had been twice before tried to juries in the same court and before the same judge. One of the grounds of the motion for a new trial was ‘‘ abuse of discretion on the part of the court by which the defendants were deprived of having a fair trial.” A court is not bound to submit any of the questions arising in-equity cases to a jury. It may, however, do so, but, if it does, the jury’s findings are advisory only. They may be adopted in whole or in part, or
As before said, the court, if dissatisfied with the jury’s findings’, should not be required to try the case de novo, but in all particulars in which a trial to the court differs from a trial to the jury — that is, in all particulars in which the presentation to the jury could not be made effective as a presentation to the court — the parties are entitled to a hearing before the latter. In what particulars the defendants ■ in this case desired a hearing before the court the record does not show. They were denied the right to pre
The judgment of the court below is reversed and a new trial ordered.