Kane v. Rippey

Strahan, C. Upon a second appeal, the opinion of the court upon the former appeal, so far as the same facts appear, becomes the law of the case and governs and controls the parties and the court in every subsequent step in the cause. (Powell v. D. S. & G. R. R. Co. 14 Or. 22; Bloomfield v. Buchanan, 14 Or. 181; Budd v. Multnomah St. Ry. Co. 15 Or. 404; Thompson v. Hawley, 16 Or. 251.) When this case was formerly before us, the court, per Lord, J., said: “The plaintiff was not endeavoring to show that the abstract conveyed title, but that the abstract of such title furnished the plaintiff by the defendants did not exhibit the good title free from incumbrances that the defendants had agreed to convey. His position, in substance and effect, was that the defendants had agreed by their contract to assure him a good title, and to furnish him an abstract thereof from which its validity and marketable quality might he ascertained and determined; but that the abstract furnished him by them for that purpose, and which the plaintiff offered in evidence, and the court rejected, showed that the title was defective, or not such as would be in accordance with the terms of such contract.” Further on, in commenting on the contract, the court observes: “The object of the abstract is plain. It is to enable the purchaser or his counsel to pass readily on the validity of the title.” Finally the court placed a construction upon the [302] contract, then as now before the court, as follows: “In the case at bar, the contract is written, and the defendants agree to convey a good title free from all incumbrances whatsoever, and to furnish an abstract of such title. What was the object of this abstract? Plainly to enable the plaintiff and his counsel to determine readily on the sufficiency of the title agreed to be conveyed by the contract— in a word, an abstract which would disclose such evidence of title as would show the title free from all incumbrances whatsoever, and defeat any action to recover the land. * * * When, therefore, the abstract was offered in evidence, it was not for the purpose of proving title by the abstract, but of showing that the abstract furnished did not disclose evidence of such title as the defendants had agreed to convey.” Words could not be plainer. The defendants had agreed to convey a fee simple title, and to furnish an abstract showing such title. This is the construction placed upon the contract on. the former appeal, and cannot now be departed from. In such case the furnishing of such abstract is a condition precedent, and, to bind the other party, must be complied with. (1 Warvelle, Vend. 292.) The seventh finding recites that the title is good, and the eighth, that the abstract furnished to plaintiff does not show any legal defects or incumbrances, and there are none in fact. These are not findings of fact but naked legal conclusions. The court cannot deduce from them any legal consequences, because they are in themselves legal conclusions. What deeds there are in the chain of title, and their form and manner of execution, are questions of fact; whether or not they vest in the defendants a good title, is. a question of law. So, what was contained in the abstract, is a question of fact; whether those facts showed any legal defects or incumbrances, are questions of law. These principles are so elementary that they need no citation of authorities to fortify them. From the record before [303] us it is impossible to determine on wbat legal theory the court below proceeded in the trial; but it is manifest that proper attention was not given to the former opinion of this court in this cause. For that reason, and because the findings of fact are entirely defective and insufficient to justify the judgment rendered, the same must be reversed and the cause remanded for a new trial.