Opinion
Decided February 9, 1934.
New trial — Matters happening after trial not newly discovered evidence — Cumulative evidence — Real property — Father's deed to son not conveyance in fraud of mortgagee — "Fraud" defined.
1. Matters happening after trial cannot be considered as "newly discovered evidence" on which to justify granting of new trial.
2. New trial because of newly discovered evidence held properly refused where such evidence at best was merely cumulative.
3. Facts held to show that father's conveyance of his realty to son was not in fraud of mortgagee so as to entitle mortgagee to set aside conveyance.
4. "Fraud" such as would justify setting aside of conveyance because made in fraud of creditors means surprise, trick, cunning, covering up, and any other unfair way used to cheat any one.
ERROR: Court of Appeals for Stark county.
Mr. H.J. Shoemaker, for plaintiff in error.
Mr. Christian R. Wingerd, for defendants in error.
The defendant in error Emanuel J. Young is the father of defendant in error Ellsworth Young. On April 1, 1925, plaintiff in error, Emma Hutt, sold and conveyed to the defendant in error Emanuel J. Young a certain farm located in Nimishillen township, Stark county, Ohio, for an agreed consideration, for a part of which the said Emanuel J. Young executed and delivered to her his certain promissory notes secured by first mortgage on the premises so sold. For several years the said Emanuel J. Young owned and possessed said farm laid a part thereof out into city lots, sold certain portions of the allotment, and met his mortgage payments to the said Emma Hutt as they became due.
Along about the year 1931, the said Emanuel J. Young became in default on the payments of his mortgage obligation, and said Emma Hutt then found it necessary and did, on the 9th day of June, 1931, institute in the Common Pleas Court of Stark county, Ohio, her proceedings for foreclosure of said mortgage. As a result thereof, Emma Hutt did, on the 18th day of July, 1932, recover a judgment against Emanuel J. Young on said mortgage notes in the sum of $6,148, with interest, and secured a decree of foreclosure and order for sale. Said mortgaged premises were then three times offered at public sale, but were not sold for want of bidders. Then by mutual agreement the said Emanuel J. Young conveyed said mortgaged premises by deed to Emma Hutt; and by their mutual agreement, carried in a journal entry, which entry was entered on the journal of the Common Pleas Court January 5, 1933, the said Emma Hutt recovered on said mortgage indebtedness a deficiency judgment against the said Emanuel J. Young in the sum of $1,041.43.
On the 1st day of June, 1932, while said action for judgment and foreclosure of mortgage was pending, the said Emanuel J. Young transferred by warranty deed to his son, Ellsworth Young, all of his real property, consisting of five separate and distinct tracts of real estate. Said deed was thereafter, on the 19th day of July, 1932, filed for record in the recorder's office of Stark county, Ohio, and thereupon on the 16th of January, 1933, the said Emma Hutt, the plaintiff in error here, finding no other property of the said Emanuel J. Young subject to the satisfaction of her said judgment, filed her petition in the Common Pleas Court of Stark county, Ohio, in the instant case, alleging that said conveyance by Emanuel J. Young to his son, Ellsworth Young, covering his five separate and distinct tracts of real estate, was made to defraud his creditor, this plaintiff in error, and for the purpose of preferring one creditor over another, wherefore this plaintiff in error prays the court for an order, first, to set aside said premises so conveyed, and, second, that said property so conveyed be administered for the benefit of this creditor, and for such other relief to which she may be entitled.
This cause was heard in the Court of Common Pleas, and a finding and judgment were rendered in favor of defendants. A motion for new trial was overruled and a petition in error was filed in this court by Emma Hutt to reverse the finding of the court below.
The petition in error sets forth several grounds of error, but the two grounds principally relied upon in brief and oral argument are: First, the court erred in overruling the motion for new trial filed by the plaintiff in error; and, second, that said judgment was contrary to the law and against the weight of the evidence.
On the first proposition, the plaintiff in error contends that the court below committed error in overruling her motion for a new trial, claiming that she was entitled to a new trial upon the ground of newly discovered evidence. We note from the record that the matters claimed by the plaintiff in error to have been newly discovered evidence referred to happenings which took place after the trial of this cause in the Court of Common Pleas. It is plain and clear to our minds that matters and things which happened after the trial of the cause in the Common Pleas Court cannot be considered as newly discovered evidence. Such evidence as presented by the record is shown at its best to be cumulative and does not present such matters as would reasonably cause this court or any other court to reverse the decision of the court below.
Plaintiff in error has made some complaint on the matter of fraud entering into the transfer from father to son. The testimony in this case, as shown by the record, is to the effect that Emanuel J. Young purchased this original farm for approximately $18,000; that it was all paid save and except the sum of approximately $6,000; and that as a result of the foreclosure sale, and of the payment of taxes and interest accumulated, a deficiency of something over $1,000 was obtained against Mr. Young by the original mortgagee, who is the plaintiff in error in this cause.
The record shows that the defendant Ellsworth Young, the son of the defendant in error Emanuel J. Young, never had received any consideration for the advancements he made his father in the amount of approximately $6,000. The record clearly shows that this amount was due the son from the father, and that the son held no security for the same, and there is nothing in the record before us to indicate that there was any fraud or collusion between the father and the son in the transfer of the property in question. Fraud, such as claimed in this case, would mean surprise, trick, cunning, covering up, and any other unfair way that is used to cheat any one. The plaintiff in error was not cheated when she got a farm which was sold for $18,000 in payment for a claim of $6,000, and in addition thereto obtained the deficiency judgment hereinbefore referred to.
Finding no error in this case, the finding and judgment of the court below will be and the same is hereby affirmed.
Judgment affirmed.
SHERICK, P.J., and MONTGOMERY, J., concur.