Swearingen v. Newman

• Decision Date: 31 October 1836
• Citation: 4 Mo. 456
• Parties: SWEARINGEN v. NEWMAN, ADM'R.
• Court: Missouri Supreme Court

4 Mo. 456

SWEARINGEN

v.NEWMAN, ADM'R.

Supreme Court of Missouri.

October Term, 1836.

SPALDING, for Appellee. The appellee relies on the following points: 1. That those points intended to be raised, are not presented by the record. No exception is taken to any decision of the court except the decree; and there is no motion for a new trial. The court in lieu of the jury, found the issues, and the issues being found as they were, the decree must inevitably follow. All the error committed, if any was, in finding the issues, that is in discharging the functions of a jury. In order to take advantage of such error, exceptions must be taken to the acts of the court in refusing or admitting testimony, &c., or in refusing to grant a new trial. The new Code in these respects, has put trials in chancery on the same footing, as trials at law. New Rev. Code, p. 511, art. 3, and p. 522, § 31, to the end. 2. If, however, this court can now act as an appellate jury and enter into the merits of the issues tried below, the appellee then contends that the deed of assignment was not fraudulent in law, (for no fraud in fact is pretended), 2 Kent's Com. 420; 7 Wheaton, 557, (5 Cond. Rep. 345); 11 Wheaton, 78, (6 Cond. Rep. 223); 7 Peter's Rep. 608; Bashear v. West et al.; Oliver's Conveyancing; appendix--opinion of Judge Story reviewing the decisions and concluding that a release required in order to a dividend and a reservation of the surplus, do not make a deed of assignment fraudulent. 3 Mo. Rep. 252, Deaver v. Savage et al.; Acts of Assembly of 1830, page 42, regulating executions. The above citations show that a debtor has a right to make preferences; to assign his property to trustees for that purpose; to make a release, a condition to the reception of any dividend. And that his stating in the deed, that the surplus shall be returned to him, does not make the deed fraudulent. 5 T. R. 235 and 3 M. and Selwyn, 371, to show that such assignment is not fraudulent, because it hinders or delays any particular creditors, or was intended to do so.

MCGIRK, J.

Swearingen brought a suit in chancery, against the appellees. Several issues were made up by the parties, and found by the court sitting as a jury. Testimony was also taken; and on the hearing, the court made a decree against the plaintiff, dismissing his bill. The testimony is preserved on the record; no motion was made to grant a new trial, of any issue found against the complainant; nor was any point of law made to the court, except that the decree was excepted to. The appellant has assigned for error, the finding of the court on the evidence; and he has also assigned for error, that the decree is erroneous. The other party moved this court to strike out all the...