Burgess v. . Simonson

Grover, J. The facts found by the referee fully sustain his legal conclusions. It is insisted by the counsel for the appellant that some of the material facts so found were not shown- by any evidence, and hence a legal error was committed by the referee in so finding, which may be corrected by this court. If the counsel is correct in his premises, he is in his conclusion. The rule upon this subject has been so often stated that it is hardly necessary to reiterate it. That i^ule is that it is a legal error to find a material fact unsupported by any evidence, but that when such evidence is given, showing the probable truth of the fact, it must be assumed by this court to have been correctly found, irrespective of any rebutting evidence given by the opposite party, no matter what the weight of such rebutting evidence may be. ■ This results from the consideration that no appeal upon questions of fact can be taken to this court, only in certain excepted cases, within which the present does not come. An appeal both‘upon the law and fact may be taken to the General Term of the Supreme Court in the mode furnished by the Code, and' hence it follows that that court has not only the power, but that it is its duty to determine whether the controverted fact was-correctly found, by an examination of all'the evidence. Applying to the present case the rule adopted by this court, it is impossible to conclude that the referee .committed a legal error in finding any of the facts. That the grantor was in failing circumstances at the time of the conveyance was fully proved. That the grantee was aware of this fact was shown by her testimony taken upon the supplemental proceedings *229 against the grantor. That the conveyance was made upon an inadequate consideration was supported by the fact that all that was paid, or agreed to be paid, by the grantee was about eleven hundred dollars, which was paid by surrendering up to the grantor his note for that amount, which she had held for some years, for which she received a conveyance of real estate which, from testimony given by the plaintiff, the referee was authorized to find was worth forty thousand dollars, subject to incumbrances of about thirty thousand. That the witness may have been influenced in estimating the value of the real estate at the time of the conveyance by its subsequent rise, is entitled to no weight in -this court. That the conveyance was made with intent to hinder, delay and defraud creditors, was an inference not only from the preceding facts, but was further sustained by the proof that the grantee was the sister of the grantor. That the grantor, subsequent to the conveyance, actively interposed in negotiating for an extension of a mortgage upon the real estate then due, and that the grantee, upon a subsequent sale of a parcel of the real estate, received in part payment therefor from the purchaser, a note of $2,000 held by him against the grantor and his former partner, which the evidence tended strongly to show was worthless. Several exceptions were taken by the appellant to the rulings of the referee as to the admissibility of evidence, but the grounds of objection were not specified so as to make the exceptions available. I have, however, examined them, and none to which exception was taken was erroneous. The testimony given by the grantor and grantee upon the supplemental proceedings against the former, was admissible against each, and to this extent only was it offered' and received. The judgment recovered by the plaintiff against the grantor was conclusive evidence of his indebtedness in this action in the absence of any fraud, and therefore the evidence offered to controvert the existence of the debt was properly rejected. The statement of the grantor as to the amount of rents received, was competent evidence as to the value of the real estate as against him, and it was competent *230 for the witness, who had made an entry by his direction upon his boobs of such amount at the time of the statement, to testify from such entry. There was no objection made to his using a copy of such entry, made by him from the books, instead of the books themselves, and no question arises therefore in respect to this. The reservation made in the stipulation of Charles Simonson, upon his being substituted as a a party defendant, that the evidence previously taken should be received as to him, subject to all legal exceptions, secured to him the benefit of such exceptions only as had been taken thereto, and such as should be thereafter taken by him during the trial. The judgment appealed from must be affirmed with costs. All the judges concurring except Allen, J., who did not sit. Judgment affirmed.