Chaffee-Miller Land Co. v. Barber

Young, C. J. This is an action to determine adverse claims to 640 acres of agricultural land situated in Cass county, and for the possession of eight acres thereof, with the buildings situated thereon, which plaintiff alleges are wrongfully occupied and withheld by the defendants. The complaint is in the form prescribed by section 5907, Rev. Codes, as amended by chapter 5, p. 9, Laws 1901, — 482 — and alleges that the plaintiff has an estate in the land, towit, that it is the owner in fee of the entire tract; that the defendants claim certain estates therein adverse to plaintiff, and that defendants are in the wrongful occupancy and possession of a certain eight-acre tract, which is described by metes and bounds, including the house, barn, and other structures situated thereon; and concludes with the statutory prayer for judgment, “that defendants be required to set forth their claims,” etc. The defendant Lottie E. Barber made default. Edward W. Barber, the other defendant, served and filed an answer in which he denied plaintiff’s ownership of the land; admitted that he is in possession of the eight-acre tract and buildings, and that he claims an estate and interest in the land adverse to the plaintiff; and set forth the source of his alleged title. The answer further alleged by way of estoppel, that the plaintiff’s grantor instituted an action “of unlawful detainer against him in justice court to recover the possession of the entire tract; that the defendant answered in the case, placing title in issue; that the action was thereupon certified to the district court and tried, and judgment entered against the defendant for the recovery of only a part of the premises, and not including the eight-acre tract and buildings. By order of court the plaintiff filed a reply to the foregoing answer, in which it set forth copies of the complaint, answer, and judgment in the forcible detainer action, and, among other things, alleged that there was no evidence or testimony of any kind whatsoever introduced by either side upon the trial of said action in any wise affecting or bearing upon, or having to do with, the matter of the title of said premises, or any part thereof; that the only issue upon which any evidence whatever was introduced, and the only issue which was tried or determined in said action, was the question of the right of the plaintiff therein to the possession of those portions' of said land which were under cultivation; and that the matter of the title to said land, or any part or portion thereof, was not in any manner whatsoever drawn in question or litigated in said action; that the defendant E. W. Barber introduced no evidence or testimony whatsoever upon the trial of said action. The judgment in the forcible detainer action was for “the possession of all those portions * * * under cultivation,” and for costs. Upon the evidence introduced upon the issues thus framed, the trial court found the following facts: (1) That the plaintiff is the owner in fee simple of the entire 640 acres; (2) that the defendant — 483 — Edward W. Barber has heretofore claimed some estate or interest in said land adverse to the plaintiff, and that he is now in possession of 'the eight-acre tract, and unlawfully withholds the occupancy and possession thereof, together with the house, barn, and other structures situated thereon; (3) that the defendant Barber has no claim to, interest in, or lien or incumbrance upon, said land, or any part thereof, or right of possession thereto; (4) that plaintiff is entitled to recover the possession of that portion now occupied by the defendant. As conclusions of law, the court found that the plaintiff is entitled to a decree quieting title in it as against the defendant Barber, and for possession and costs. From the judgment entered in accordance therewith, the defendant appeals. The case was tried under section 5630, Rev. Codes, but it- is not here for review under that section. Error is assigned upon the judgment roll proper. The errors assigned as grounds for reversal are that, “(1) the court erred in refusing to find on the points presented by defendant’s proposed findings; (2) the findings of fact do not cover al'l the facts involved in the issues as presented by the pleadings; (3) the findings of facts are insufficient to support any judgment; (4) the findings of fact, conclusions of law, and judgment are contrary to, and not warranted by the pleadings, in so far as they award the eight acres of uncultivated land, and structures thereon, to the plaintiff, in this: That the pleadings conclusively show that plaintiff is estopped to claim title to, and right to possession of, that part of the land. We are of opinion that none of the assignments of error is well founded. The judgment must therefore be affirmed. The first and second assignments are based upon the assumption that the alleged refusal and failure of the trial court to make findings of fact upon all of the issues raised by the pleadings in an action tried under section 5630, Rev. Codes 1899, constitutes reversible error. This is a mistake. This section, among other things, expressly provides that, “in actions tried under the provisions of this section, failure of the court to make findings upon all the issues in the case shall not constitute a ground for granting a new trial or reversing the judgment.” Findings of fact are not abolished by this section, but it declares that the failure of the court to make findings upon all the issues shall not constitute reversible error. The chief purpose of the practice created by section 5630 is to secure a speedy and final determination of cases. To accomplish — 484 — that purpose, a party who is aggrieved because of the failure of the trial court to find upon any issue is deprived of the power of securing a reversal upon appeal or a new trial in the district court, and is compelled to avail himself of the right given by this section to bring up the evidence on his appeal, and have the error corrected in this court, where a new and final judgment may be ordered without the delay incident to a new trial in the district court. Neither do we agree with appellant’s contention that the findings of fact are insufficient to sustain the judgment. The provisions of our statute governing the making and filing of findings of fact (sections 5450-5453, Rev. Codes) are substantially the same as the provisions in the California Code (sections 632-635, Deering’s Code of Civil Procedure). This court, in passing upon the sufficiency of findings of fact, has adopted the liberal rule of the California courts. It was held by this court in Brynjolfson v. Thingvalla Township, 8 N. D. 106, 77 N. W. 284, that a finding “that all the allegations in the complaint are true” was sufficient, although the practice was not commended. See Hayne on New Trial, pp. 723, 724. In this case the trial court found that the plaintiff is the owner in fee simple of the premises; that the defendant has no claim or interest to any portion.of it, or right of possession. This disposes of all the issues in favor of plaintiff and against the defendant. The criticism made by counsel for the appellant is that the findings are not sufficiently specific. The issues in this case were ownership and right of possession. Both were found for plaintiff and against defendant. They are findings of the ultimate facts, and therefore sufficient. In Daly v. Sorocco, 80 Cal. 367, 22 Pac. 211, it was held, in an action to quiet title, that, “where the plaintiff alleges ownership of real estate in an action to quiet title, a finding upon the issue of ownership is a finding of fact, and the evidence going to prove such ownership need not and should not be pleaded or found.” In that case the trial court found that the plaintiff was not the-owner of the property, and was not entitled to possession. It was contended that the finding thatthe plaintiff was not the owner of the property was a conclusion, and that the facts showing that he w-as not the owner, should have been found. The court said: “If so, then the plaintiff’s complaint is bad also. It alleged the ownership as a fact, and the finding is as broad and specific as the allegation of the appellant’s pleading. But the finding was sufficient. Where.a party alleges his ownership of real estate in an action of this kind, a finding that he — 485 — was or was not sue., owner is a finding of a fact, the fact in issue, and the evidence going to prove such ownership need not and should not be pleaded or found. Payne v. Treadwell 16 Cal. 247; Smith v. Acker, 52 Cal. 217; Frazier v. Crowell, 52 Cal. 399; Murphy v. Bennett, 68 Cal. 528 (9 Pac. 738).” The same court also held in the case of Smith v. Cushing, 41 Cal. 97, that “where there are findings of facts the presumption is that the court has found all the facts in issue in favor of the party in whose favor the judgment is rendered, unless the contrary appears from the findings themselves.” And further, “Whether there are findings of fact, or not, and, if there are findings, whether they cover all the issues, or no1-, the appellate court will not disturb the judgment unless the appellant can show that the facts found, or some of them, are inconsistent with the judgment.” It is also held that, “when the ultimate fact is found, no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence can overcome the principal finding.” Smith v. Acker, 52 Cal. 217; Perry v. Quackenbush, 105 Cal. 299, 38 Pac. 740. In the case last cited it was said that “findings of probative facts wil'l not, in general, control, limit, or modify the finding of ultimate fact. The province of the trial court is to find the ultimate facts, and not probative facts. If, from a consideration of the probative facts, this court should determine that they did not justify the finding of the ultimate fact, it would determine that the evidence was insufficient to justify the decision. This, it has been repeatedly held, cannot be don? in this mode.” See, also, Gill v. Driver, 90 Cal. 72, 27 Pac. 64; Pico v. Cuyas, 47 Cal. 174; Barrante v. Garratt, 50 Cal. 112; Jones v Clark, 42 Cal. 180; Mathews v. Kinsell, 41 Cal. 512; Downing v. Graves, 55 Cal. 544. Likewise, the fourth assignment of error tunrshes no ground for reversing the judgment, and for reasons already stated. The contention under this assignment is that the pleadings show that the plaintiff is estopped by a former adjudication from asserting title or right of possession in the eight-acre tract. The question as to whether or not the forcible detainer action, when certified to the district court, became one in which title could or should have been litigated, and whether it was in fact in issue in that action, is discussed by counsel for both parties at length. Upon this question we need not express an opinion. The ultimate facts in issue, towit, title and right of possession, were expressly found against the defendant — 486 — in favor of the plaintiff. The facts alleged as an estoppel are merely probative facts, and, even if they had been expressly found, as we have seen, they would not have controlled the finding upon the ultimate facts, which are adverse to the claim of an estoppel. The judgment rests upon the findings, and they are sufficient to sustain it. The findings rest upon the evidence. They may or may not be supported by the evidence. The findings are conclusive, if' not attacked in the mode prescribed by the statute. Hayne on New Trial & App. section 244. In this state, under our present practice, where a party is aggrieved by findings of fact which sustain the judgment, or by a failure to find upon material issues, his remedy under section 5630, Rev. Codes, is by an appeal from the judgment, and a retrial upon thé evidence in this court. (97 N. W. Rep. 850.) Judgment affirmed. All concur.