68 Cal. 642 | Cal. | 1886
— The motion to dismiss the appeal is denied.
Conceding that the contract made before the patent was issued was void as against the states of the United States, it appears from the findings that after the patent was issued in November, 1879, another agreement was entered into between the parties, which is not void. This last agreement is as follows: —
“ That afterward, to wit, on or about the twenty-fifth day of December, 1882, in said Ventura County, defendants again demanded that said deed of conveyance should
It is objected that the finding is not within the issues. As the record shows nothing to the contrary, we must presume that testimony was introduced to establish the facts found by this finding.
It does not appear that any objection was made by the plaintiff to the evidence that it was inadmissible under the pleadings, as not being within the issues joined. As the record stands, it appears that the cause was tried as if the agreement found was put in issue. Under such circumstances, we cannot permit the objection to be now made that this finding is of matters outside of the issues joined in the cause. It should not be permitted that the plaintiff should allow the cause to be tried as if issues are
The judgment must be affirmed. So ordered.
Myrick, J., and Sharpstein, J., concurred.