A finding that the plaintiff's claims had no foundation in fact, unless corrected, is decisive of the case, whether the conclusions of law reached by the trial court were correct or not. The rule that the law will not aid one to regain property which he has conveyed away in fraud of creditors, obviously has no application unless it appears that he had creditors. The defendants claimed that the plaintiff's laches precluded him from asserting his right to the real estate in question, and also that he had waived such right. Held that upon the finding these were not even arguable points. In a suit to recover damages for the wrongful refusal of a voluntary grantee to reconvey the premises to the grantor upon demand, the measure of damages is the value of the premises at the date of the demand with interest thereon to the time of judgment; and therefore a judgment based simply upon the amount paid for the property, with interest, is erroneous. In such a situation there is no occasion to retry the entire case. The value of the premises at the time of the demand should be found on a rehearing, and judgment should be rendered for such sum with interest.
WHEELER, C. J.
The finding of facts in Vollaro v. Gargano required the judgment which was rendered, regardless of whether the conclusions of law reached by the court were correct or not.
The assignment of errors in the appeal in Gargano v. Vollaro may be reduced to four: that Gargano cannot sustain his action because, (1) the property for the refusal to transfer which he seeks to recover damages, was transferred to avoid an attachment on a tort claim against his deceased wife; (2) his laches precludes him from asserting his right to this half of these premises; (3) the circumstances found estop him from making claim to this half and constitute on his part a waiver of his right to make such claim; and (4) the measure of damages adopted by the court was wrong.
It is not found that when Gargano transferred these premises he had any creditors, consequently the rule invoked has no application.
The claims of laches and waiver are not, upon the finding made, even arguable points.
The only serious question in the case is as to whether the court adopted a measure of damages which can be upheld by our law. The court took one half of the amount paid by Gargano for this property in 1916, and added to this sum the interest thereon from the date defendants wrongfully refused to retransfer this half of the premises. Upon the facts found, the plaintiff would have been entitled to a reconveyance of these premises had his prayers for relief contained such claim. As he merely claimed money damages, he was entitled to the value of the half of these premises from the date of his demand for a reconveyance, together with interest thereon from the date of demand. The amount paid for the premises may or may not measure this value.
The finding fails to find the value of this half interest at any time so that, so far as the record discloses, there was no basis of value before the court from which it could render a money judgment. The plaintiff likens the rule of damage to that in a case of conversion which had occurred at the date of transfer. There is no similitude. The finding does not show that Mrs. Vollaro received the premises or held or used them in any way wrongfully, until she refused to meet plaintiff's demand for a reconveyance. There is no occasion to retry the case. A finding of the value of the premises on November 4th, 1919, should be made, and judgment thereupon rendered for plaintiff for such sum with interest from such date.