The plaintiff, John H. Still, owned certain premises, which he conveyed by deed on the thirteenth of November, 1853, to one Burgess, and Burgess, on the thirteenth day of November, 1853, conveyed the same 'to the defendant Teschiera. At the time the deed was made'to Burgess, Still was a married man, and he and his wife boarded and lodged on the premises with a tenant, to whom they were rented. On the thirteenth day of November, 1854, Still and wife conveyed the premises by'a joint-deed to defendant Saunders, who afterwards conveyed to Teschiera. After the delivery of the deed, and while Saunders was about to commence counting out the purchase-money, (except fifty dollars agreed to be pay by Saunders to another person by direction of Still,) the same was attached by the sheriff under an attachment at the suit of Teschiera v. Still. Still and wife then brought this suit to cancel the deed to Saunders, and also the deed from him to Teschiera.
They allege that the deed from them ,to Saunders was obtained by a fraudulent device; that they had the right of homestead, and that Teschiera was cognizant of, and aided in, the fraud. The case was tried before a jury, who found generally for the plaintiffs; judgment was given for them, and the defendants appealed.
The defendants objected in the Court below to the introduction of certain testimony, and to the giving of certain instructions. The trial was had before a jury, upon the issues generally, and not upon special issues.
In the case of Smith v. Rowe, (4 Cal. R., 6,) it was decided that in a chancery case the Court had the right to direct special issues of material facts to be framed and submitted to a jury, although objection was made by one of the parties. It has been repeatedly held that in chancery cases the parties were not entitled to a jury. Walker v. Sedgwick, 5 Cal. R., 192.
In the same ease it was held that this Court had to examine the facts, and is not concluded by the findings of the Chancellor. In the case of Gray v. Eaton, (5 Cal. R., 448,) it was held that the granting of a new trial is entirely discretionary with the Chancellor, and his’action is not revisable. •
This being a chancery case it would seem legitimately to follow from the principles settled by former decisions, that the alleged errors of the Court below in admitting improper testimony, and in giving improper instructions to the jury, cannot be *287revised in this Court. The case comes before us upon the pleadings, testimony, and decree, and we must look into the whole record, and see if there be any error in the final decree rendered by the Chancellor. As the verdict of the jury was but advisory, and not conclusive upon the Chancellor, or upon this Court, the improper testimony and the erroneous instructions, can do the party no injury, if justice has been rendered him in the final result. And whether justice has been correctly administered or not, will depend entirely upon the facts as admitted and proved, and not at all upon the verdict of the jury.
Taking this view of the case, it will not be proper or necessary to consider the errors assigned in reference to the admission of improper testimony, the giving of improper instructions, or the refusal to grant a new trial.
The only error assigned that would see3n material to the case is, that the plaintiffs, before bringing the suit, did not offer to return the fifty dollars paid to Still by Saunders, and demand a reconveyance of the property. This, objection is met by the counsel of plaintiffs, by assuming that the payment to Still was not authorized by Mrs. Still, and was, therefore, a matter of personal trust—Still being individually liable to the defendants for a return of the money. But this answer seems to be entirely insufficient. The possession of the deed by the husband, already executed and acknowledged by both husband and wife, was prima facie evidence of his authority to receive the purchase-money. Besides this, the complaint alleges that “ the said John H. Still, at the request of his said wife, took said deed for the purpose of delivering the same to the said Saunders, and receiving the money which she had been pi’omised.”
But there is nothing in the testimony to show that the fifty dollars were paid before, or at the time, the deed was made. It appears that John H. Still was indebted to another person, and that it was agi-eed between him and defendant Saunders, that the latter should pay this debt, and that this payment should constitute a portion of the purchase-money. It lay upon the defe3idant to show when and how this payment was made. But it would seem clear from the testimony, that it was made after the delivery of the deed, and the fraudulent attachment of the purchase-money. The debt not having bee3i paid at the -time the deed was delivered, and the money fraudulently attached, any payment afterwards made by Saunders to a creditor of Still’s, was made in his own wrong, and as a voluritary payment.
Taking all the testimony together, it was a clear case of fraud, and the judgment of the Court below is, therefore, affirmed.