McCarthy v. Brown
Before: Vancliff
Synopsis
Findings — Ultimate Facts.—Findings should state the ultimate facts pleaded, and not probative facts, and findings which follow the pleadings in the statement of ultimate facts are sufficient.
Id.—Ejectment—Finding as to Ouster—Surplusage—Conclusions on Law.—In an action of ejectment a finding that the defendant ousted the plaintiff is the finding of an ultimate fact; and a further finding-that at a specified date the defendant ousted and ejected the plaintiff from the premises in controversy, and wrongfully and unlawfully withheld said possession from plaintiff, is a sufficient finding as to the fact of ouster and withholding of possession, the qualifying words “wrong, fully and unlawfully” being harmless surplusage, nor is such finding of fact impaired by its having been placed under the heading of conclusions of law.
Id.—Landlord and Tenant—Tenancy at Will—Notice to Quit—Denial of Title.—Where the averments of seisin and right of possession in the plaintiff in an action of ejectment are denied in the answer, and a distinct claim of ownership by the defendant is therein alleged, the defendant, having disclaimed the plaintiff's title, cannot invoke the protection and advantages of the relation of landlord and tenant, or insist that he was in possession as a tenant at will, and was entitled to service of notice to quit; but the effect of the denial of plaintiff’s title is to make the defendant a trespasser, and he is not entitled to notice to quit.
Id.—Finding as to Right of Possession—Wrongful Withholding.— Findings which show a paramount source of title, with mesne conveyances to plaintiff therefrom, antedating the commencement of the action, discloses title in the plaintiff, carrying with it the right of possession, and the withholding of the possession from one who is seised of the premises is presumptively adverse to his right and is wrongful.
Vancliff, C. .Ejectment. Judgment for plaintiff.. Appeal from judgment on judgment-roll.
Appellant claims that the findings do not support the-judgment, because: 1. The finding (No. 16) that defendant “ ousted the plaintiff” is a conclusion of law, in that it does not find the facts constituting the ouster; 2. That there is no finding “ that plaintiff, at the time of commencing the suit, was entitled to the possession” of the demanded premises.
1. In the case of Smith v. Mohn, 87 Cal. 497, it was said: “ They [findings] should be statements of the ultimate facts, and not of the probative facts. (Mathews v. Kinsell, 41 Cal. 512.)”
In Hihn v. Peck, 30 Cal. 286, the court said: “It has been uniformly held that it is not necessary for the court in its findings to present the results of last analysis, but, on the contrary, that it would be sufficient if the court found the facts entering as terms into the legal proposition upon which the prevailing party based his right of recovery. The ‘ facts’ which the court is to find, and the ‘ facts’ which a pleader is to state, lie, ac[18]cording to the decisions in this state, in the same plane —that is, in both connections, facts are to be stated according to their legal effect.” "
In Murdock v. Clarke, 90 Cal. 435, the court said: “A finding which follows the pleading is sufficient. In this, as in other cases, it is sufficient to find the ultimate facts.”
Therefore, to determine the sufficiency of a finding of fact, it is only necessary to ascertain what statement of that fact is required in the pleading.
In Payne v. Treadwell, 16 Cal. 243, the court said: ‘“Now, what facts must be proved to recover in ejectment? These only: that the plaintiff is seised of the premises, or of some estate therein, in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action.....It is the ultimate facts—which could not be struck out of a ¡pleading without leaving it insufficient—and not the -evidence of these facts, which must be stated.”
In Garrison v. Sampson, 15 Cal. 95, proof of holding over of premises by defendant was objected to by defendant, on the ground that such proof was inadmissible under the general allegation of the complaint, and could only be admitted under specific averment of the facts. The court, on appeal, said: “We do not think this point well taken.....A holding over by the defendant is, in effect, an ouster, and may be so charged.”
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