Cope v. Kidney

Mr. Justice Trunkey delivered the opinion of the court, March 28th, 1887. The first and second assignments of error are not well taken. As the cause was tried, the only controverted question of fact was, whether Eliza Cope conveyed the land to Zeno Cope with intent to defraud the plaintiff, who was her creditor. It was competent to prove the declarations of both of them tending to establish such purpose, and, if the jury believed the testimony, they could hardly have avoided finding that the deed was executed for that purpose. The defendant did not deny the validity of the plaintiff’s title on any ground other than that his deed was prior to the judgment which was the foundation of the sheriff’s sale. He did not attempt to defeat recovery for any cause, save that his deed was older than the judgment, and that he was a Iona fide purchaser. If he believed the plaintiff’s title was fatally defective, he should have objected to its admission in evidence, or prayed instruction that the plaintiff’s evidence did not entitle him to recover. Had he done so, and there was a defect, the plaintiff might have adduced other evidence. But, be that as it may, lie cannot object to a title here which he did [233] not controvert in the court below, and the fourth assignment, will not be considered. The plaintiff’s recovery depended on his satisfying the jury that the defendant’s deed was void as against the purchaser at sheriff’s sale. It is obvious that the jury heard little, if anything, besides the dispute about the alleged scheme to prevent collection of the plaintiff’s debt, owing by Mrs. Cope, which amounted to $1,435.79. They rendered, “Verdict for plaintiff, $1,435.79.” Nothing but nominal damages was warranted by any claim or testimony in the cause. That the verdict is good for the land described in the writ or declaration, is clear. Had there been claim and proof of- mesne profit, judgment could have been entered on the verdict as rendered. We are of opinion that the court properly entered judgment for the land, which implies amendment of the verdict by striking off “ $1,435.79 ” as surplusage. The words, “ without prejudice to the right of the plaintiff, to bring suit for mesne profits,” are not prejudicial to the defendant's rights, for it does not appear that mesne profits were claimed, proved or recovered in the triaLof the ejectment. Judgment affirmed.