Lyons v. Leimback

By the Court, Rhodes, J. This is an action of ejectment which was tried by the Court, and the defendants had judgment. The appeal is taken from the judgment, and the cause comes before us upon the judgment roll alone, there being neither a statement nor a bill of exceptions annexed to the record.

The plaintiff claims under a patent from the United States, issued to him in 1860; and the defendants claim under a certificate of sale, issued to J. H. Barton by this State, on the sale of the premises as a portion of the lands selected by the State under the Act of the Legislature, passed April 23d, 1858, in part satisfaction of the grant of five hundred thousand [140]acres of land, made to the State by the eighth section of the Act of Congress of the 4th of September, 1843.

The points made by the appellant are presented for the purpose of establishing the proposition, that there was not a compliance by the defendant’s grantor with the laws of the United States or of this State, in relation to the selection and sale of lands under the grant of Congress, and therefore no title passed to him from the United States ; but those points cannot be made on the record before us. The complaint is in the form usual in actions of ejectment, and all the facts alleged therein are put in issue by the general denial in the answer. The finding does not respond distinctly to the several issues, either specifically or generally, and is composed mainly of evidence, and contains but few of the facts of the case. Previous to the passage of the Act of 1861 to regulate appeals (Stats. 1861, p. 5S9), it was intended that a Court trying a cause without a jury, should state in the finding all the facts that might be necessary, in addition to those admitted by the pleadings, to constitute a basis for the judgment—that is to say, if the finding was for the plaintiff, that the facts found and those admitted should constitute a complete cause of action within the allegations of the complaint; and, if for the defendant, that the facts found and those admitted should constitute a defense to the action. A finding containing less than we have stated, would answer no conceivable purpose, for if it lacked one fact essential to the sujoport of the judgment it was as radically defective as if lacking all of them.

Finding of facts.

The statute of 3861, which we have referred to, has obviated the necessity of preparing the finding with the precision we have mentioned, and, indeed, of filing any finding, unless objections are made in the Court below on account of a defective finding, or for the want of a finding. The Act declares that the judgment shall not be reversed “for want of a finding, or for a defective finding of the facts, unless exceptions be made in the Court below to the finding or the want of a