Merrill v. Chapman

By the Court, Rhodes, J.: A brief statement of the facts and some of the proceedings in the cause will materially aid in disposing of this appeal. The plaintiff claimed under a patent, issued in 1861 by the United States, under the public land system. The defendant, through his lessor, claims title under a Mexican grant and the proceedings in the national tribunals for its confirmation, the last step in which was the confirmation of the [252]survey by the District Court. The Court below found that the defendant was in possession, claiming under his lessor, and found the value of one third of the rents and profits of the premises. The only fact settled in respect to the title is : “ That plaintiff deraigns title under a patent from the United States Government issued to Hathan W. Richardson, and holds as tenant in common with two of the members of the firm of De Witt, Kittle & Co.”

Ho fact was stated in the finding respecting the defend- • ant’s claim of title. Under the rule so frequently announced by this Court in construing the statute of 1861, (Stats. 1861, p. 589,) and section one hundred and eighty of the Practice Act, as amended in 1866, it will be presumed that the Court found the title to the premises in the plaintiff, and that he was entitled to the possession. (See Henry v. Everts, 30 Cal. 426; Sears v. Dixon, 33 Cal. 326.) As the facts recited in the written findings are, undoubtedly, sustained by the evidence, it would be useless for the defendant, in his motion for a new trial, to state as the grounds of his motion that such findings were contrary to the evidence, and, under the operation of section one hundred and eighty of the Practice Act, he is driven to the necessity of attacking the implied findings. This, we must hold, was done in .this case, for several of the specifications under the general grounds “ that the evidence is insufficient to justify the findings and decision,” point to findings that were not expressed.

The defendant, as is suggested by the plaintiff’s counsel, might have excepted to the findings as defective, but he was not compelled to that course.

Had the request been made for findings in respect to the facts, upon which the defendant relies for title, doubtless the Court would have complied. That, most certainly, is the better practice in actions of ejectment, where the parties claim through different chains of title. When title is found in one party, the Court is not required to find the facts constituting the title of the opposite party, for both cannot hold the same title; but, as such a finding would greatly facilitate