Vandall v. Vandall

Baldwin, C. J. It is claimed by the counsel for the appellants, that the court erred in submitting the questions of fact arising in said suit to a jury, there being no question of fact therein involved in doubt, in which the court desired the finding of a jury. It appears from the record, that four questions of fact were submitted to the determination of a jury as arising out of the evidence and pleading in the cause. It is not denied by counsel but that a chancellor may submit, under our chancery practice, certain issues of fact for the special finding of a jury; but it is claimed that from the pleadings and evidence as before the court when this cause was ordered to be so submitted, the [249] equities were so clearly with the respondent that no such reference was necessary. There are two objections to this position of the appellants’ counsel, that meet us at the very threshold of his argument. First. No objections were made to such submission by the counsel at the time. The party was present when such order was made, and, nothing appearing of record to the contrary, his consent to such order is presumed to have been given at the time. A party cannot sit by and consent to the action of the court, and afterwards avail himself of an objection that should have been made at the proper time. Second. We cannot determine from the record before us what the evidence was upon which the court made the reference objected to now for the first time. There is a record before us, purporting to be the evidence taken in this cause. It is, however, detached from the transcript of the cause, and not certified to as either a part or all the evidence before the court when it ordered the reference, or rendered the final decree. There is, however, a statement made by counsel for the appellants, of the evidence upon which the decree was entered, to which no exceptions were taken by the counsel for the appellee; and assuming that it would be proper to determine the cause upon this statement alone, we are unable to conclude that there was any error in the finding of the jury, or in the judgment of the court. The complainant seeks to set aside a sale of certain real estate by the respondent, Vandall, to her father, Foueh, made for the purpose, as it is alleged, of defrauding the complainant, her creditor. The respondents are called upon to answer certain interrogatories, propounded to them in the petition, in relation to the sale. The answers are fully responsive, and deny all collusion and fraud, and aver that such sale was made in good faith and for a valuable consideration Had the cause been submitted upon the [250] answers of the respondents, without further evidence, as was the case in Culbertson & Reno v. Ludcey et al., ante, there could have been no doubt as to the duty of the court to have found for the respondents. It appears that other evidence was introduced to controvert these answers, and from the circumstances surrounding the transaction, such as the relation of the parties; the express desire of-the respondent to avoid the payment of the debt; the sale on the day the note was asked to be secured; the haste to procure the officer to take the acknowledgment, and to place the deed on record; the fact that the father had to 'borrow all the purchase money, and the same money was’ returned to the person who loaned it, in a few days thereafter ; the fact that the property sold was all the respondent had subject to sale under execution; and many other matters as detailed by the witnesses, all combined, tend to raise such presumptions of fraud, as to contradict the answers and,justify the court in its decree. Affirmed.-