Foster v. Winstanley

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Counsel for both plaintiffs and defendants have filed elaborate briefs and have discussed many questions which are not presented by the record. Most of them arise upon rulings upon the admission and exclusion of evidence and the allowance of certain amendments to the pleadings during the course of the trial. The motion for new trial was made upon the minutes of the court. In his certificate authenticating the record the trial judge states that the motion “was heard on the minutes of the court on the following grounds only: (1) That the evidence fails to support the judgment; (2) that.Mrs. Foster allowed Winstanley to hold himself out as owner, by insertion of his name in the deed; (3) that plaintiffs, other than Mrs. Foster, were not principals, and Winstanley not their agent.” Whatever merit there may be in the contentions of appellants with reference to the rulings referred to, since they were not submitted to the trial court on the motion for a new trial, and an opportunity thus afforded to it to correct any of the errors-alleged upon them, in the absence of a bill of exceptions making them a part of the judgment-roll, they are not reviewable by this court. By failing to bring them into the record by a separate bill of exceptions, and omitting to submit them to the trial court for review on the motion based upon the minutes only, and by presenting the record to this court with a certificate attached showing this fact, it must be conclusively presumed that they waived all such alleged errors. Counsel for respondents make this contention, and it must be sustained. — 324 — The notice of intention includes errors of law occurring during the trial, yet, if the certificate of the judge is to be taken as a correct statement of the contentions made in support of the motion, the only question which we may properly consider upon the appeal from the order denying it is that the evidence is insufficient to support the findings or decision. The statement that “the evidence fails to support the judgment” is not one of the grounds for new trial enumerated in the statute (Revised Codes, sec. 6794); but, since counsel for appellants make the statutory assignment in their brief that the evidence is insufficient to justify the court’s decision, and counsel for respondents have argued this assignment on the merits, we shall assume that the judge intended to state in his certificate that the question of the insufficiency of the evidence to support the decision was properly submitted and decided by him. We have set out in the foregoing statement the facts about which there was no real controversy on the trial. There were but three questions as to which there was any conflict in the evidence, to-wit, whether Hall had knowledge of Winstanley’s relations to plaintiffs at the time the contract of sale was made, and his intention to use his position to his own profit; whether the consideration of $2,500 paid by him to Winstanley was adequate, and whether Strong was a purchaser in good faith for value. Upon the first two of these the court found in favor of the defendants; upon the third the finding was that the transfer was intended as a mere security for a pre-existing debt. A great deal of evidence was introduced by the plaintiffs tending to show that Hall, either by information obtained from Winstanley or through Tn's attorney, was fully informed of the fact that Winstanley was not dealing with him as the owner, but merely as the agent of plaintiffs. This was controverted by Hall, Wigginton, and their attorney, all of whom, while admitting that they knew that the title was defective, and had Winstanley to procure the deed of June 7, together with the affidavits of plaintiffs showing that they were the sole heirs, and that there were no debts due from the estate, and thereafter instituted and conducted the probate proceedings, stated that they supposed Winstanley was the owner — 325 — by purchase of the Foster interest, and had no knowledge of his relations to plaintiffs, or that they were the real owners, until their attention was called to the fact by the inquiry produced by the advance bid made by Leggat. Looking to the whole of the evidence on this point, it may well be questioned whether the court should not have found otherwise; even so, appellants have no right to complain, because the finding is really in their favor. So, also, upon the issue as to the adequacy of the price paid by 'Hall. .The evidence would have justified a finding that it was entirely inadequate. No question is made but that, as against Winstanley, the findings are substantially correct. He was, upon the record, the apparent owner. According to the testimony of the defendants, he held himself out to Hall as the owner, and, having availed himself of the means at his disposal to make himself appear as such, the finding that he was a fraudulent purchaser, whereas he was only the trusted agent of plaintiffs, does not affect the position of the other defendants. Whether the court drew the correct conclusion of law from the facts found, and entered the proper decree, we may not decide. Among the assignments of error we find nothing on this point, though counsel devote to it a part of their argument under the head of insufficiency of the evidence to sustain the findings, and cite some authorities in support of their view that, since the court found that Hall made the purchase, and paid an adequate consideration for the property, without knowledge of Winstanley’s relations to the plaintiffs, the plaintiffs are not entitled to have the sale rescinded. The court evidently entertained the view that, though Hall was innocent of any wrongdoing, yet since the purchase price had not been fully paid, the plaintiffs were, notwithstanding his innocence, entitled to rescind the sale. Under the application of the rule that review by this court will be confined exclusively to the matters properly assigned in the brief, we must forego consideration of the action of the court in granting relief to the extent it did. — 326 — The only other assignment requiring notice is that the complaint does not state a cause of action. Special emphasis is laid upon the fact that it is not alleged therein that defendant Strong had any knowledge of Winstanley’s wrongdoing. Since it was practically admitted during the trial that the transfer to him by Hall was without present consideration, and merely for the purpose of securing an antecedent debt, he did not occupy the position of an innocent purchaser. The court at the close of the trial permitted an amendment alleging this fact. This made the complaint sufficient as against him, without regard to his connection, or lack of connection, with the dealings between Hall and Winstanley. His right to retain the title acquired from Hall rested upon the validity of Hall’s title,- and, inasmuch as he had parted with nothing of value, the setting aside of the sale and the cancellation of the deed resulted in no loss to him. A bona fide purchaser is “one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive, of any adverse rights, claims, interest, or equities of others in and to the property sold.” (5 Cyc. 719; see, also, 2 Pomeroy’s Equity Jurisprudence, sec. 749, 1 Perry on Trusts, sec. 239; Schilling v. Curran, 30 Mont. 370, 76 Pac. 998; Reed v. Brown, 89 Iowa, 454, 48 Am. St. Rep. 406, 56 N. W. 661; Alden v. Trubee, 44 Conn. 455; Woolridge v. Thiele, 55 Ark. 45, 17 S. W. 340.) Strong does not fall within this definition. Upon a careful consideration of the pleading as a whole, we find no infirmity in it, in this or other respects, justifying appellants’ criticism. We have been precluded, in a great measure, from an examination of this cause on the merits. Were the record in a condition to permit such an examination and a determination of the questions of fact involved under the provisions of the Code applicable (Revised Codes, sec. 6253), we should feel impelled to a different conclusion from that arrived at by the district court as to the conduct of Hall. The evidence indicates to — 327 — us that Hall knew of Winstanley’s relations to plaintiffs, and, to say the least, was willing that he should profit by a betrayal of the trust reposed in him by the plaintiffs. Hall, therefore, has no reason to complain that he has been wronged by the requirement that he and Strong surrender the property as soon as the purchase money paid by him has been refunded. Rehearing denied October 6, 1909. The judgment and order are affirmed. Affirmed. Mr. Justice Smith and Mr. Justice Holloway concur.