No. 4,058 | Cal. | Jul 1, 1874
Concurrence Opinion
delivered the following concurring opinion in which Mr. Justice McKinstry concurred:
One of the issues under the cross-complaint and the answer thereto was, whether the Register and Receiver were deceived and imposed upon by the affidavit of Sanger, which the Court finds was false and fraudulent; and the finding on this issue was that “no evidence was offered by either party that the Register, Receiver, or other officers of the United States Land Office, were or were not misled or deceived by the representations or affidavit of Sanger in this behalf made.” This is not a finding, in terms, of the fact whether the Register and Receiver were misled and imposed upon by the false affidavit. The Court below expressed no opinion on that point, unless it is to be inferred from the fact that no evidence was offered by either party on that issue, that the Court found it in favor of the plaintiff. But when a fact is directly put in issue, it is the duty of the Court to find upon it expressly, one way or the other; and a statement by the Judge that no evidence was offered on that point is not the finding of a fact put in issue.
Moreover, this finding is consistent with the ninth finding, which is to the effect that all the averments of fact as set forth in the cross-complaint are true, except as otherwise specially found. On referring to the cross-complaint we find an averment that on the 8th of October, 1866, Sanger, the agent for the railroad company, filed with the Register and Receiver a verified list of lands (which included the land in controversy), in which he stated that all the lands included in the list were vacant, unappropriated, and not reserved, and were of the character contemplated by the grant to the company. The Court finds that this statement was false and fraudulent in respect to this particular tract. The cross-complaint then avers that on the same day on which the list was presented the Register and Receiver approved and certified it, and afterward forwarded it to the General Land Office. There is nothing in the findings to show that when the Register and Receiver approved and certified the list they had any notice or in
It was important to the defendant to have an explicit finding on this issue. If found in his favor, a grave question would have arisen, whether it would not have been the duty of the Court to stay further proceedings in the action, until his application to pre-empt the land had been finally decided by the Land Department.
I think the ends of justice require that there should be a new trial.
I concur that the judgment be reversed and cause remanded for a new trial.
Mr. Justice Rhodes did not express an opinion.
Lead Opinion
delivered the following opinion, in which Mr. Justice Niles concurred:
Sanger, agent for the railroad company, in making the application to the Land Department for the patent, upon which the plaintiff now relies, is found by the Court below to have “falsely and fraudulently stated, and represented that all of the lands in said list contained (including the premises in controversy), were vacant, unappropriated and not reserved,” etc., and'an important question of fact put in issue by the pleadings was as to whether the officers of the Land Department were deceived and misled thereby into the approval of the application.
Had it been found that they were, a very serious question would have arisen as to whether this action, based upon the patent obtained by such means, should not have been stayed until the determination of the defendant’s pending application to be allowed to pre-empt the land in controversy. No express finding is made by the Court below upon this question of fact, and the trial having occurred since the taking effect of the Code, no finding can be implied in support of the judgment. The statement inserted among the findings of fact, to the effect that no evidence upon this point was given- by either party, cannot, under the Code, be accepted as a virtual finding in the negative. Besides, the very facts set forth in the other findings tend, in some degree at least, to support a contrary conclusion. The evidence upon this point, such as it was, should have been weighed by the Court below, and the question of fact determined.
Judgment reversed, and cause remanded for a new trial.