Still v. Saunders

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The plaintiff, John H. Still, owned certain premises, which he conveyed by deed on the thirteenth of November, 1853, to one Burgess, and Burgess, on the thirteenth day of November, 1853, conveyed the same 'to the defendant Teschiera. At the time the deed was made'to Burgess, Still was a married man, and he and his wife boarded and lodged on the premises with a tenant, to whom they were rented. On the thirteenth day of November, 1854, Still and wife conveyed the premises by'a joint-deed to defendant Saunders, who afterwards conveyed to Teschiera. After the delivery of the deed, and while Saunders was about to commence counting out the purchase-money, (except fifty dollars agreed to be pay by Saunders to another person by direction of Still,) the same was attached by the sheriff under an attachment at the suit of Teschiera v. Still. Still and wife then brought this suit to cancel the deed to Saunders, and also the deed from him to Teschiera.

They allege that the deed from them ,to Saunders was obtained by a fraudulent device; that they had the right of homestead, and that Teschiera was cognizant of, and aided in, the fraud. The case was tried before a jury, who found generally for the plaintiffs; judgment was given for them, and the defendants appealed.

The defendants objected in the Court below to the introduction of certain testimony, and to the giving of certain instructions. The trial was had before a jury, upon the issues generally, and not upon special issues.

In the case of Smith v. Rowe, (4 Cal. R., 6,) it was decided that in a chancery case the Court had the right to direct special issues of material facts to be framed and submitted to a jury, although objection was made by one of the parties. It has been repeatedly held that in chancery cases the parties were not entitled to a jury. Walker v. Sedgwick, 5 Cal. R., 192.

In the same ease it was held that this Court had to examine the facts, and is not concluded by the findings of the Chancellor. In the case of Gray v. Eaton, (5 Cal. R., 448,) it was held that the granting of a new trial is entirely discretionary with the Chancellor, and his’action is not revisable. •

This being a chancery case it would seem legitimately to follow from the principles settled by former decisions, that the alleged errors of the Court below in admitting improper testimony, and in giving improper instructions to the jury, cannot be [287]