Marshall's Ex'rs v. Marshall's Ex'rs

JohnsoN, President, announced the opinion of the court : After carefully examining the depositions in the ease at the time the issues were ordered it appears to us, that there was such a conflict of the evidence, that the decree directing .the issues in this cause was proper. It is not contended by either party, that it was not. The precise issues ordered in this cause under the pleadings and proof were also proper. The question of fraud presented to the jury struck at the very [399] foundation of the claim of the defendant, William A. Marshall, and was a very pertinent enquiry. So as to the second issue ordered ; because, while the bond might not by reason of fraud be the property of William A. Marshall, it. might not be the property of Phineas P. Marshall. The appellant does not complain of the issues ordered, but he does complain, that the verdict of the jury is not responsive to the first or second of said issues, and claims,that for that reason anew trial ought to have been granted. In Nease et al. v. Capehart’s ex’r, 15 W. Va. 299, it was held, that after a verdict is rendered upon an issue properly directed, the court cannot look at the record for the facts submitted in the issue, nor to the facts or evidence certified upon the trial of the issue, but must accept the verdict of the jury for such facts, unless under the rule governing courts of equity in such cases it should set aside the verdict and grant a new trial. This being true, the verdict must be responsive to the issue directed, otherwise the court has not before it the very facts, to ascertain which the issues were directed. Where the issue is properly directed, and the verdict of the jury is not responsive thereto, the verdict ought to be set aside and a new trial granted. The main question submitted in the first issue was, whether the assignment to W. A. Marshall of the $1,000.00 bond was fraudulent, and consequently inoperative to give title to the said W. A. Marshall. The jury did not respond to the question of fraud at all;- they only said, that the said agreement was inoperative to give title to said W. A. Marshall. For what reason they regarded it as inoperative, we are left to conjecture. The jury clearly did not respond to the said issue. Neither did the jury respond to the second^issue : Whether if said assignment was fraudulent, the bond was the property of Phineas P. Marshall as a gift from his late uncle Phineas Marshall. The jury found simply, that the bond was the property of Phineas P. Marshall; they do not pretend to say, whether by gift or otherwise. From the pleadings, and from the conflicting testimony, so conflicting that the court could not undertake to ascertain the fact, whether said bond was a gift from the uncle to the nephew, the court had the right, and under the circumstances it was its duty, to direct the issue [400] to tbe jury to ascertain, whether there was such gift. To this issue the jury did not attempt to respond. The decrees of the circuit court must be reversed with costs; and the verdict of the jury must be set aside, and a new trial had upon the issues directed, the costs of the former trial to abide the event of the suit. Judges Haymond asd GkeeN Concurred. Decrees Reversed. Cause Remanded.