Burt v. C. Gotzian & Co.

Citations

• 102 F. 937
• 43 C.C.A. 59
• 1900 U.S. App. LEXIS 4622

Syllabus

<p>1. ArPEAT, — Pleading isd Pkoof — Vaiuattce—■IIaioii.kss Error.</p> <p>Where Hie ultimate facts which warrant a decree for plaintiff are clearly alleged in the bill, a variance between the evidential facts alleged and those proved, which has not misled or surprised defendant, nor prevented a fair trial of the issue presented by the proofs, is not fatal to the decree, and will not require its reversal.</p> <p>2. Assignment of Error — Construction.</p> <p>A specification of error that the court erred in admitting any testimony under the bill merely challenges the sufficiency of ihe facts siated in the bill to constitute a cause of action, and, where the ultimate facts pleaded are proved, it does not reach the objection that there was a variance between the evidential facts charged and those established by the evidence.</p> <p>3. Fraudulent Conveyances — Assignment op Sheriff's Certificate.</p> <p>A. was the real owner of about 6,000 acres of land and some stock and machinery thereon, which appeared of record in the name of his brother B., but which had been conveyed by the latter to a sham corporation which A. controlled; and the deed and bill of sale were in A.’s possession, but were not recorded. A. then purchased goods of O., a corporation, and of other merchants, whom it represents, in the name of his brother B., and on the credit of his title to this property, with the intent never to pay for them, and caused B. to further cover it up with fraudulent mortgages. Other creditors of B. fastened the lien of their judgment upon these lands before some of the fraudulent deeds and mortgages were recorded, sold the land under an execution on their judgment, and obtained a sheriff’s certificate from which the owner of the laud could redeem by the payment of about $800, while the title maturing under it was worth more than $30,000. Three days before the expiration of the year of redemption, A., who still controlled and really owned the lands, subject to this sheriff’s c