Wife also relies in part on a decision that this Court rendered under a prior version of § 36-5-103(c), Allison v. Hagan, 211 S.W.3d 255 (Tenn. Ct. App. 2006). Wife cites Allison as an example "in which the prevailing party who raised the enforcement of a marital dissolution agreement [has] been permitted to recover attorney's fees pursuant to [§ 36-5-103(c)] ...."
The entire series of instructions given are to be read together, as a whole; and if, when so read, they state the law correctly, there is no error, although some of them omit some proper limitations or qualifications, elsewhere stated in the instructions. ( Caples v. C. P. R. R. Co., 6 Nev. 265, 273-4; Allison v. Hagan, 12 Nev. 38-60; Solen v. V. T. R. R. Co., 13 Nev. 106-138.) Lastly, it is error for a judge to charge the jury as to a matter of fact; and it is therefore proper to refuse such an instruction when requested.
It is sufficient for the present purpose to say that their grantors, being innocent purchasers for a valuable consideration, notice to the Cheeleys would not be available to re-establish complainant's equity as against the land in their hands, unless it was also shown that they were parties to the original fraud; and this has not been done. 1 Story, Eq. Jur. par. 409; 2 Pom. Eq. Jur. par. 754; Mills v. Smith, 8 Wall. 27-32; Commission v. Clark, 94 U.S. 278-286; Dorsey v. McFarland, 7 Cal. 342-346; Allison v. Hagan, 12 Nev. 38-55. The decree is affirmed.
Likewise, "settlement agreements . . . in contemplation of litigation are enforceable contracts." Allison v. Hagan, 211 S.W.3d 255, 260 (Tenn. Ct. App. 2006). Under both state and federal law, "[a] cardinal rule of contract interpretation is to ascertain and give effect to the intent of the parties."
A "'condition precedent in the law of contracts may be a condition which must be performed before the agreement of the parties shall become a binding contract or it may be a condition which must be fulfilled before the duty to perform an existing contract arises.' As such, no liability arises under the contract until such time as the condition precedent is fulfilled." Allison v. Hagan, 211 S.W.3d 255, 260 (Tenn. Ct. App. 2006) (emphasis in original) (citations omitted). It is unclear why R&M decided to go through with the sale without assuring that this condition precedent was met or why the Landlord did not engage in the bankruptcy proceedings to protect its interest.
"In determining whether an instruction is erroneous, the whole charge relating to the same subject must be taken together and considered as an entirety." State v. Pritchard, 15 Nev. 74; Allison v. Hagan, 12 Nev. 38; State v. Raymond, 11 Nev. 98; State v. Donovan, 10 Nev. 36. Counsel on this appeal state that defendant's trial attorney patently had no plan of defense whatsoever.
Considered together, the two instructions correctly state the law on this phase of the case. It is well settled by a line of decisions dating from the earliest history of the court that all of the instructions must be taken together by the jury and considered together. Caples v. Central P.R. Co., 6 Nev. 265; Allison v. Hagan, 12 Nev. 38; Solen v. Virginia Truckee R. Co., 13 Nev. 106; Cutler v. Pittsburgh Silver Peak Gold Min. Co., 34 Nev. 45, 116 P. 418. Moreover, the court instructed the jury not to select a single instruction, or a portion of an instruction alone, but to consider all of the instructions together in determining any issue in the case.
Considered together, the two instructions correctly state the law on this phase of the case. It is well settled by a line of decisions dating from the earliest history of the court that all of the instructions must be taken together by the jury and considered together. Caples v. Central P.R.R. Co., 6 Nev. 265; Allison v. Hagan, 12 Nev. 38; Solen v. Virginia Truckee R.R. Co., 13 Nev. 106; Cutler v. Pittsburg S.P.M. Co., 34 Nev. 45, 116 P. 418. Moreover, the court instructed the jury not to select a single instruction, or a portion of an instruction alone, but to consider all of the instructions together in determining any issue in the case.
Laws, secs. 3427-3432), regulating and providing for the filing, serving, amending, settling, and certifying of statements, this court, following the rule in other code states, has often held that, where there is no statement properly authenticated, only errors appearing on the face of the judgment roll can be considered on the appeal. ( McCausland v. Lamb, 7 Nev. 238; State v. Manhattan S. M. Co., 4 Nev. 318; Thompson v. Bank, 19 Nev. 293, 9 Pac. 883; Corbett v. Job, 5 Nev. 201; Hanson v. Chiatovich, 13 Nev. 395; Allison v. Hagan, 12 Nev. 38; White v. White, 6 Nev. 20; Klein v. Allenbach, 6 Nev. 159; Mining Co. v. Dodds, 6 Nev. 261; Flannery v. Anderson, 4 Nev. 437; Fleeson v. Mining Co., 3 Nev. 157; Bryant v. Lumbering Co., 3 Nev. 313, 93 Am. Dec. 403; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dee. 550; Nesbitt v. Chisholm, 16 Nev. 39; Sherman v. Shaw, 9 Nev. 148; Irwin v. Samson, 10 Nev. 282; Boynton v. Longley, 19 Nev. 69, 6 Pac. 437, 3 Am. St. Rep. 781: Earles v. Gilham, 20 Nev. 49, 14 Pac. 588; Streeter v. Johnson, 23 Nev. 199, 44 Pac. 819; Peers v. Reed, 23 Nev. 404, 48 Pac. 897; Becker v. Becker, 24 Nev. 477, 56 Pac. 243.) Any fact necessary to support the order is presumed to have been proven in the absence of an affirmative showing to the contrary.
This court will not indulge in presumptions against the regularity of the proceedings of the trial court. It has repeatedly held that all presumptions favor the regularity of the proceedings of that court, and that where error is alleged it must be affirmatively shown by the record before this court will reverse an order or judgment of the lower court. ( Champion v. Sessions, 2 Nev. 271; Nosler v. Haynes, Id. 53; Lady Bryan Gold Silver Min. Co. v. Lady Bryan Min. Co., 4 Nev. 414; Mitchell v. Bromberger, 2 Nev. 345; Allison v. Hagan, 12 Nev. 38; Nesbitt v. Chisholm, 16 Nev. 39; Leete v. Sutherland, 20 Nev. 71, 15 Pac. 472.) The fact that the court refused to find as requested does not show that the court did not find at all.