Coons v. Lemieu

Collins, J. This was an action brought to set aside certain conveyances of real property, and to have surrendered and canceled certain notes and mortgages upon the same, alleged to have been made in. fraud of creditors of defendant John Lemieu, in order to subject the property to the lien of plaintiff’s judgment. Such of the defendants as were served with the summons answered separately, denying any fraudulent intent when procuring the conveyances mentioned in the complaint, and affirmatively alleging their good faith in the transactions. After a trial by the court, findings of fact ánd conclusions of law were made and filed, upon which a judgment was entered in plaintiff’s favor, and from which defendants appeal. The case comes here on a bill of exceptions containing simply the pleadings, the findings of fact, conclusions of law, and judgment, as entered by the clerk. 1. Several of the assignments of error are directed to some discrepancies of description appearing between the complaint — and the answers, for that matter — and the findings. Counsel for defendants cites a number of cases in support of his contention that these differences are fatal to the judgment. But, whatever the rule may be in other jurisdictions, it has been iterated and reiterated in the opinions of this court that error in the proceedings must be made to appear; that the proceedings on a trial are presumed to have been regular. The presumption obtains that by consent the parties-litigated all of the facts found by the court, whether within or in consonance with the pleadings or not. On the trial of this case the [103] defendants may have waived any objection to what now seems palpable, — that the property in dispute was not accurately described in the complaint, — or they may have made a formal stipulation, or admission amounting to an amendment of the pleading, to conform to what now appears to be the fact. The presumption is that they did, or the court would not have found the description of the property as stated in the findings. The defendants have made no effort on appeal to overcome the presumption, and it must prevail. 2. With the presumption just mentioned, the question next arising is whether the conclusions of law, and the judgment entered in accordance therewith, were warranted by the facts as found. That they were as to lot seventeen (17) in block eight (8) in the addition to West Duluth cannot well be questioned. Nor should there be much doubt as to the lots in block eighteen of the same addition, although a mistake of description was made in one part of the findings. The court found as a fact that on April 4, 1893, the debtor, Lemieu, owned lots thirteen (13) and fourteen (14) in block eighteen (18) of said addition, on which was a mortgage of $250. It then found that on said day he sold lots thirteen (13) and fourteen (14) in block sixteen (16) in said addition to defendant Brouillette, subject to said mortgage of $250, with the design and purpose of defrauding his (Lemieu’s) creditors. As a conclusion of law the court found that the deed of date April 4, 1893, executed by the debtor, Lemieu, and his wife, to defendant Brouillette, purporting to convey to the latter lots thirteen (13) and fourteen (14) in block eighteen (18) in said addition, should be annulled, canceled, and set aside. Judgment was so entered and rendered. The mistake consisted solely in designating block eighteen (18) as block sixteen (16), in the finding as to the fraudulent design and purpose of the deed dated April 4, 1893, and it so clearly appears that this was simply a clerical error that it should not and cannot be permitted to overturn the judgment. A mere casual examination of the findings would clearly indicate that block eighteen (18), instead of block sixteen (16), was intended. 3. It is urged that, as the court did not find upon all the material issues made by the pleadings, the judgment must be reversed. We are unable to discover a material issue that was not covered by the [104] findings. If any of them were not sufficiently specific, an application should have been made to the trial court to make them so. The record fails to show that this was done. 4. It is further urged that the conclusions of law and the judgment were improper, in any view of the case. It must stand admitted that the plaintiff had the right to have the conveyances canceled, annulled, and set aside, in so far as they obstructed the collection of his judgment, and that this was the limit of his right. But a judgment is to be read as a whole, in order to ascertain its force and effect; and, from an examination of the one now before us, it is palpable that it is only as to the plaintiff’s money judgment against Lemieu that the conveyances are annulled, canceled, and set aside. This judgment is in terms made a specific lien upon the property, which may be sold in satisfaction of an execution; the defendants having the right of redemption, as in ordinary cases. The force and effect of it was simply to render the property subject to a lien for the amount of plaintiff’s claim, which might be enforced in the usual way. In any event, if the judgment was not quite as clear and specific as it should have been, defendants’ remedy was by first applying to the court below. We think other features of the case need not be mentioned particularly. Judgment affirmed. Buck, J., did not sit. (Opinion published 59 N. W. 977.)