Baily v. Baily ( 1871 )

Buskirk, J.

The appellee filed her complaint in the court below, setting up that she had obtained a divorce and decree for twelve hundred and fifty dollars alimony against one Sylvester Baily, which was unsatisfied; that Tilford Baily had, prior to the decree for alimony, executed to said Sylvester a deed for a tract of fifty acres of land described in the complaint ; that said Sylvester enlisted in the army and delivered the deed, for safe-keeping, to the said Tilford, the father of the said Sylvester; that the said Tilford agreed to have the deed recorded for the use of Sylvester; that Sylvester deserted the army, was guilty of high crimes, and fled the country to parts unknown; that Tilford then, to cheat said Josephine out of her alimony, destroyed the deed, and refused to have it recorded, and sold the land to Pearcy, who, it is averred, had notice of the execution and destruction of the deed from Tilford Baily to Sylvester Baily. Prayer that the deed from Tilford Baily to Jacob Pearcy be set aside, the title to the land be declared in said Sylvester, and the land subjected to the decree for alimony.

W. R. Harrison and W. S. Shirley, for appellants.

The defendants answered by a denial. Trial by a jury; finding for plaintiff against both defendants; motion for new trial overruled, and exception taken. The appellants have assigned for error that the court erred in overruling the motion for a new trial. We have examined the evidence, and are of the opinion that the verdict as. to Tilford Baily was justified by the evidence, but we are equally clear that there was an entire failure of proof to show that Pearcy had any notice of the execution and destruction of the deed from Tilford to Sylvester, or that he was in any manner cognizant of, or a party to, any fraud. He seems to have been a purchaser in good faith, and for a valuable consideration. The court erred in overruling the motion for a new trial..

The j'udgment is reversed, with costs; and the appellee having waived a petition for a rehearing, the clerk will immediately certify this opinion; and the cause is remanded for further proceedings, in accordance with this opinion.