Moffitt v. Rosencrans

[417]

SMITH, C.

These appeals, though presented by separate transcripts, are in the same case, the one being from the judgment, the other from an order denying the defendant’s motion for a new trial-. The former will be first considered.

The suit was brought to recover the passession of the land, known as the Robinson Ranch, described in the complaint; of which, it is alleged, “the said estate has been [at the times mentioned in the complaint], and now is, the owner,” and that the defendant unlawfully detains and withholds the same from the plaintiff. The answer admits the withholding, but denies that since the first day of April, 1898, the estate has owned, or that it now owns, the land in question. The findings of the court are, that the estate is now, and at the times mentioned in the complaint was, and that plaintiff at such times was, and now is, “upon the conditions hereinafter' expressed, entitled to the possession of” the. property in question; and, in effect, that the defendant was in possession under a contract of sale, executed to him by the plaintiff as executrix, but not authorized or ratified by the probate court; and that he had made improvements on the land, of the value of $514.60, and paid on the purchase price five hundred dollars; and, as conclusions of law, it is found that the plaintiff is entitled to judgment against the defendant for the possession of the property upon her paying him the sum of $942.60 (the value of his improvements and the money paid by him, after deducting the value of the use and occupation) ; and that until such payment be made, the defendant is entitled to a lien upon the property for the amount named, and to retain possession until the lien be satisfied. The judgment is to the same effect.

These findings, it is obvious, are insufficient to support the judgment. There is no finding on the issue of ownership, or that the plaintiff is entitled to possession. The finding is, that she is entitled to it only “upon the conditions hereinafter expressed,”—that is to say, that she will be entitled to it when she pays to the defendant the amount named in the findings and judgment. Until then, it is adjudged, the defendant is entitled to possession. The judgment must therefore be reversed for insufficiency of the findings.

On the other hand, the findings are insufficient to justify a judgment in favor of the defendant. For not only are they