¶1 This is a submission, without action, under section 372 of the Code of Procedure. As by that section, the parties to the question in difference are required to agree upon a case, containing the facts upon which the controversy depends, it follows that the court is to determine nothing but the questions of law arising upon the facts thus presented. (Neilson v. Com. Ins. Co., 3 Duer, 455.) See also, the first report of commissioners of practice and pleading to the legislature (1848, p. 233). “This provision,” they say in the comment upon the proposed section 325, which agrees verbatim with the present section 372, “ it is believed, will be useful in many cases where a question as to a legal right exists between fair and honorable men, there bevng no dispute About the facts." In the statement of facts in this- case however, there is no agreement of what was the actual mental intent of the defendants, or either of them, in the transfer of the property from Wise to Horton. But such intent is to be found as a question of fact (2 R. S., 137, §4; Matthews v. Rice, 31 N. Y., 457; Vance v. Phillips, 6 Hill, 433); and is to be determined as such only by the jury.
¶2 It must be then, as the court cannot find the intent as a matter of fact, that the only question presented which the court can decide is, whether from the facts not in dispute, the law will of necessity conclude an actual fraudulent intent. We are of the opinion that it will not. We do not say that *615 a jury may or may not from the facts agreed upon, find that there did exist a fraudulent intent. But it would be erroneous to instruct a jury that, upon the proof of the facts here agreed upon and no other, they were shut up' to that verdict.
¶3 It follows, that the parties have not agreed upon all the facts upon which the controversy depends, and which- are necessary to give ground for a conclusion of law. A case is not presented in which there is “ no dispute about the facts.” The very vital fact is in dispute. The court cannot pronounce the practical judgment desired by the parties, of whether the sale and transfer was or was not in fact, fraudulent and void.
¶4 The result would be, that if we were to give a final judgment, it would be against the plaintiff and in favor of the defendants. But this might preclude the plaintiff from any trial of an action in which the fact here lacking might be established perhaps, in his favor. So it seems most just and proper, while it is legal, to reverse the judgment of the court below and to dismiss this proceeding.
¶5 All concur. Judgment accordingly.