
    Alexander H. Spangler v. Daniel Brown et al.
    1. Where there is evidence fairly tending to support the finding or judgment of the court, its judgment will not be reversed on the ground that it is contrary to the evidence, unless a motion for a new trial on that ground has been made and overruled, as provided by the statute (2 S. & C. 1155, sec. 4).
    2. This rule applies as well to cases in the nature of bills in equity, as to cases in the nature of common law actions.
    3. It also applies equally to cases where the finding of the court is based, in whole or in part, upon its inferences drawn from circumstances established by the evidence, but which do not give rise to any presumption of law, as it does to cases where there is a conflict of evidence as to such circumstances.
    Error to the District Court of Miami couuty.
    The original case was an action by Spangler to set aside a conveyance of real estate made by Brown to his wife, and to subject the same to the payment of a judgment which-had been recovered against Brown as principal and Spangler as surety, and which Spangler had been compelled' to pay. From the record it appears that the debt for which the judgment was recovered accrued after the date of the-conveyance; but the petition alleges that, at the date oí the-conveyance, Brown was about to embark in a doubtful and hazardous speculation in the stock of a coal company, which subsequently proved disastrous, and rendered him-bankrupt; and that the conveyance to his wife was secretly made, in anticipation of such a possible event, and without consideration, for the purpose of defrauding his creditors.
    The answer denies that there was any intention to defraud, and alleges that at the time of said conveyance-Brown had sufficient other property left with which to pay all his creditors and carry on his business. It also alleges that the conveyance was made upon a sufficient valuable-consideration.
    On hearing, the court found that the conveyance to Mrs. Brown was without any valuable consideration, but was not made with any actual intention to defraud creditors, and thereupon gave judgment for the defendants. A bill of exceptions, containing all the evidence, forms part of the record; and Spangler now seeks to reverse the judgment on the ground that it is not supported by the evidence. But the record does not show that any motion was made by Spangler for a new trial on the ground 'that the finding of the court was contrary to the evidence, and a preliminary question is raised by the defendants in error as to the power of the court to review this evidence, in the absence of such a motion. As this is the sole question decided by the court, it is only necessary to say of the evidence that it tended to prove or to disprove an intention on the part of Brown and and his wife, in the making of said conveyance, to defraud creditors. It consisted mainly of testimony as to the consideration of the conveyance ; as to the amount of Brown’s property at the date of the conveyance; its subsequent disposition by him to his relatives, and otherwise; con-' versations between Brown and his wife at and before the time of making the conveyance ; alleged alterations of the deed after its execution ; the withholding of the deed from record, etc. There was but little conflict in the testimony as to the principal facts and circumstances relied on as evidence of fraud, the main question being as to the inference of fraud, or otherwise, to be drawn from these facts and circumstances.
    
      H. G. Sellers and James Murray, for plaintiff in error :
    It will be observed that these actions were in the nature of suits in equity to set aside alleged fraudulent conveyances, and that upon the issue joined there is no disputed, matter of fact, upon which the court were required to or did find, which is sought,to be reviewed in this court. The entire evidence is set out, and the court is asked to say whether upon the evidence thus set out the conveyance in question is as matter of law to be adjudged fraudulent as against the creditors of the grantor. True, the evidence must be examined by the court, not for the purpose of determining what weight the court below ought to have given to it, but for the sole purpose of determining whether the court erred in its application of the law to the facts whieh the evidence tended to prove ; and in this position we are clearly sustained by the case of Powers v. Reed, 19 Ohio St. 207.
    In reality, so far as the case at bar is concerned, there was no fact found by the court below. There was no finding as to what were the acts and conduct of Brown and his associates, or their object in causing these conveyances to be made ; on the contrary, the whole entire inquiry is as to what was the legal effect and consequences of the acts and conduct which the evidence tended to prove.
    It is to our minds clearly apparent that in a case like the one at bar, where the decision of the court depends upon the application of certain principles of the law to the facts found from the evidence, and not to the result of the findings of fact alone, or the weight of testimony by which such facts were established, the rule requiring a motion for a new-trial because the verdict or finding was against the weight of evidence does not and can not apply; and to this extent the case of Turner v. Turner (17 Ohio St. 452), is clearly and decisively in point.
    
      Gf. D. Burgess and. J. T. Janvin, for defendants in error.
   Welch, O. J.

We are asked to reverse this judgment, on the ground that the court erred in its finding upon the question of actual fraud. There certainly is evidence tending to support that finding. Where such is the case, the judgment wall not be reversed, unless a motion for a new trial upon that ground has been made and overruled, and exceptions taken thereto, as provided by the statute (2 S. & C. 1155,1156). And this rule applies as well to appealable -cases, or cases in the nature of bills in equity, as to those which are triable by jury, or in the nature of common-law actions. It also applies equally to cases where the finding of the court consists, in whole or in part, of its inferences drawn from facts or circumstances established by the evidence, but which do not give rise to any presumption of law, as it does to cases where there is a conflict of evidence as to such circumstances. It is quite evident in the present case, however, that there is some conflict of evidence as to the ultimate facts or circumstances on which the inference of fraud, or no fraud, is to be based. Suffice it to say that witnesses disagree as to whether there was any actual and valuable consideration for the conveyance. True, it appears quite plainly that if there was any such consideration, it was inadequate, and therefore the conflict is not very material. Witnesses also disagree as to other minor facts which, taken separately, amount to but little, but which taken together might well serve to turn the scale in a doubtful case. But we put the case upon the ground that we have no right, sitting as a court of error, in a case like this, to review the findings of the court below, either as to the existence of such facts and circumstances, or as to the conviction which they ought to produce on the mind. To do so would be to retry the case on the evidence, instead of reviewing it on questions of law, which is all that a court of error, in the absence of statutory provision, can rightfully do.

Judgment affirmed.

White, Rex, Gilmore, and McIlvaine, JJ., concurred.  