Harkins v. Cooley

Citations

• 5 S.D. 227
• 58 N.W. 560
• 1894 S.D. LEXIS 44

Syllabus

<p>1. Where, in an action by one claiming to be the owner of land to restrain a sheriff from selling the same under an execution against plaintiff’s grantor, the answer alleges that the deed from plaintiff’s grantor was fraudulently made with the knowledge of plaintiff, for the purpose of placing the property beyond the reach of the grantor’s creditors, and the abstract shows, by setting out the pleadings in full and all amendments thereto, that the case was tried and submitted upon that issue, the evidence not being returned, a finding of the trial court that such deed constitutes a mortgage in favor of the plaintiff to secure him for the amount which the court finds was paid by him to his grantor is outside of, and foreign to, the issues litigated and submitted'to the court for decision.</p> <p>2. A judgment based upon such finding cannot be sustained.</p> <p>3. The presumption in favor of the regularity and validity of the proceeding and judgment of the trial court, and that the questions decided were duly presented, cannot prevail as to any question which the abstract shows affirmatively was not presented.</p> <p>(Syllabus by the Court.</p>