Brown v. Houser

WALLACE, J. — This was an action of ejectment tried before the court without the intervention of a jury. J. J. Bryant was the admitted owner of the premises in 1850. The appellant derives his claim through a conveyance by Bryant to Reuben Clark, made November 19, 1853, a conveyance of an undivided interest from the latter to George in 1855, a sheriff’s deed to Treadwell in 1858, sufficient to convey to him all the title of Clark and George, and another conveyance from Treadwell to the appellant, made about March 24, 1863, when this action was commenced. These several conveyances vested the appellant with the legal title to the premises, unless it had, previously to 1853, passed from Bryant to the respondents. In order to show that it had, the respondents relied only upon the effect of a sheriff’s sale of the premises in controversy upon proceedings had in the cause of Starkey, Janion [579]& Co. v. Bryant, and being tbe same wbicb we have lately had under consideration in Clark v. Sawyer. We held in that case that those proceedings were ineffectual to pass the legal title of Bryant to purchasers at that sale. There, however, the only issue arising on the pleadings concerned the legal title to the premises in controversy, while here the respondents, besides setting up their alleged title in fee, have interposed an equitable defense.

At the trial no witnesses were sworn or examined by either party, but the case was submitted upon what is styled in the record here a “written statement of facts agreed to, upon which the ease was submitted.” Such a statement is authorized by section 180 of the Practice Act, and, when agreed to in due form, has the effect of a special verdict, which is that by which the jury find the facts only, “leaving the judgment to the court .... and those conclusions of fact must be so presented, as that nothing shall remain to the court, but to draw from them conclusions of law.”

If there were, indeed, such a statement here, it would become our duty, in connection with the reversal of this judgment, to indicate the character of the judgment to be entered by the court below on the return of the cause. This could only be done, however, when the record makes it absolutely certain that the facts, upon which that court acted, are precisely those upon which we are proceeding here. On examination of the so-called ‘ ‘ agreed statement, ’ ’ we discover that a considerable portion thereof (and which is very important as affecting the equitable defense here made) was not absolutely and definitely admitted as constituting a part of the facts before the court below, but was. only to be considered by that court “if the court shall judge that the testimony, or any part of it, would be competent and admissible, if offered by the defendants and duly objected to by the plaintiff, [then] it, or so much of it as would be adjudged competent and admissible is to be taken as a further statement of agreed facts.” It could not be determined until the court had ruled on the objections of the plaintiff whether any, or which, of the facts thus conditionally admitted became part of the facts of the case, the consideration of which would constitute an element in the judgment.