Titus and another v. Orvis and another

Titus and another v. Orvis and another. Upon the trial, by the court, of the validity of an assignment for the benefit of creditors, it was found in the Case, as matter of fact, that the assignment was made with intent to hinder, delay and defraud creditors, and the Case did not show affirmatively that there was no fraudulent intent established by evidence dehors the assignment; Held; that, on appeal, the question is not brought up for examination whether the instrument is void upon its face, by reason of a provision contained therein, though it appears from the opinion of the judge who tried the cause that his decision turned upon that question. Appeal from a judgment of the Supreme Court, at general term in the fourth district, affirming a judgment at special term, upon a trial by .the court, without a jury. The action was brought to set aside an assignment made by the defendant Orvis to the defendant Fenton, with intent, as the complaint charged, to hinder, delay and defraud creditors. The cause was submitted to this court on printed arguments. William C. Brown, for the appellants. Morris fy Vary, for the respondents. [MAJORITY — Comstock, J.] Comstock, J. The question litigated at the trial was, whether a general- assignment made 'by the defendant Orvis to' the defendant -Úériton was fraudulent "and void as to creditors; The "'cause was' tried. át - a" special term of the .. Supreme Court, wShoutla" jury, -and> .case was made for ■ appeal-,':■ Theuase'-'sqttiiade, "After settingiúut the evidence, states'that “ thereupon the said causé was .submitted to the ,Ba;Íd""justie'e,:'%ho "after\yai'ds filed liis decision - as follows.” Then follows"the- decision, signed .and file'd,;fas;the authority for' the judgment,: in which” it is stated', ás a conclusion of fact, that- the' assignment was made “with"' intent and for the purpose to hinder, delay and defraud creditors;” and, as a conclusion of law from this fact, the assignment was pronounced void. There is also printed, at the close of the appeal book, an opinion of the justice of the Supreme Court who tried the cause, in which the question is discussed, whether the assignment is void, on its face, by reason of a provision respecting the compensation of the assignee. We have repeatedly held that we can only look into the Case, prepared according to the Code, for the facts and conclusions on which the judgment is based. The written opinion of the judge is no part of the case, and is not a proceeding upon which an appeal lies. • The Case has a reference to the decision filed by the judge, which may therefore be considered as forming a part of such Case. In this finding the assignment is declared to have been made with intent to defraud creditors. That fact being found, there is no question of law for our consideration. In order to present, on appeal, the question of law discussed in the opinion before referred to, the Case should show affirmatively that there was no fraudulent intent established .by evidence, dehors the assignment, thus leaving the decision to turn wholly upon the provisions which it contains on its face. The judgment must be affirmed. All the judges concurring, Judgment affirmed.