Goodnow v. Griswold
Synopsis
Appeal from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.
The action was brought to correct a mistake in two deeds- made by tenants in common in partitioning their land. The complaint alleged that at the time the deeds were made, the defendants O. E. Parker and W. H. Troop were the owners of the land in dispute; that in pursuance of an agreement between them to divide the land equally, they each deeded to the other certain portions of the land, but by a mistake the land was not correctly described in the deeds. The plaintiff is the successor in interest of Troop, and the defendant Helen M. Griswold was the successor of Parker at the time of the commencement of the action, but during its pendency she reconveyed to him. Judgment was rendered for the defendants. The further facts are stated in the opinion of Mr. Justice Thornton.
The Court. — The court below found: “The court finds that the several allegations of said complaint not in conflict with the foregoing findings are true.”
We are not informed which of the -other findings were, in the opinion of the court below, in conflict with the findings referred to as the “foregoing findings.”
In Harlan v. Ely, 55 Cal. 340, a finding “all and singular the allegations of the amended answer are untrue, except so far as the same accord with the foregoing facts,” was held insufficient. This court there said: “The court below should have assumed the labor of comparing the allegations of the answer with the facts by it found; as it is, we are not informed which of the allegations of the answer were, in the opinion of the court below, true, which untrue. We cannot assume the function of determining for the first time the truth or falsity of any of them, either by reference to the testimony, or to the facts actually found.”
The finding here is subject to a like objection, and on the authority of Harlan v. Ely the judgment and order should be .reversed.
[601]Judgment and order reversed, and cause remanded for a new trial.
Thornton, J., concurring. — I concur in the judgment.
The findings in this cause are as follows:-—
“The court finds that it is untrue,—
“That O. E. Parker and W. H. Troop ever agreed to an equal division of that portion of lot or block Ho. 2 of William Gordon’s subdivision of rancho Canada de Capay, lying within said rancho, by a line drawn in the center thereof so as to divide said tract into two equal parts, or that they ever employed a surveyor for that purpose, or caused any survey for such purpose to be made, or that they or either of them executed or delivered any deed or deeds for such purpose.
“That it is not true that the deed from O. E. Parker to W. H. Troop was made through or in consequence of mutual or other mistake by said Parker or Troop, or that it describes or conveys any property not intended by said Troop and Parker to be conveyed thereby, or that it was intended to convey any property not described therein.
“ That it is not true that the deed from W. H. Troop to O. E. Parker was made through or in consequence of mutual or other mistake of said Parker or Troop, or that it describes or conveys any property not intended by said Troop and Parker to be conveyed thereby, or that it was intended to convey any property not described therein.
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