22 Or. 299 | Or. | 1892
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
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
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.