| Cal. | Jul 1, 1869
The ease has been brought here upon the judgment roll, and the only point made by the appellant is, that the pleadings and findings are repugnant to the judgment. This point • assumes that the Court below made a written finding of the facts in issue, and filed them in the case ; but we are of the opinion that the matter or thing called a “finding of facts ” in the transcript, and assumed by counsel to be one,
“In support of this claim, plaintiff proves that John Mc-Clory, in his lifetime, in conversation had concerning the nature of his ownership in the land, stated that he held it for plaintiff, and that the moneys paid were advanced by plaintiff. He also shows that he had been in possession of the land, occupying for himself, receiving the proceeds since the purchase in 1861.
11 On behalf of defendant, the proof is :
“ First—That the title is in name of decedent.
“ Second—That the plaintiff, on the 6th day of May, 1861, to enable the said John McClory to purchase the land, made oath before G. W. Colby, Locating Agent, that there was at the time no valid claim existing upon the land now in controversy, advei’se to the claim of said decedent; and that he (plaintiff), at that time, neither had, or expected to have, any interest, directly or indirectly, in the claim his brother John was then proceeding to locate.
“ Third—That after the death of his brother John, plaintiff made an oath.before J. A. Hutton, Probate Judge, in a proceeding to obtain letters of administration of the estate of John McClory, deceased, to the effect that the land in controversy was of the estate of said decedent.
“The affidavits of plaintiff are in writing, directly to the point, and will govern me in finding the facts herein. He made them with full knowledge, under circumstances which preclude the possibility of mistake; whilst the words of John McClory, relied on by the plaintiff to prove the trust, rest only in the memory of witnesses ; or, if accurately remembered, may apply to a transaction where he paid the money out of his own funds, which would vest the title, and then made his arrangements with plaintiff to sell to him, and that when the conversation reported occurred, he stated it according to the understanding he then had of their business.
“Besides, conversations with third persons do not call for*577 that accuracy of statement which must obtain in official documents. And so I find, that, the affidavit made by plaintiff, on the 6th of May, 1861, was strictly correct, and the land was entered by John McOlory, for his own benefit.
11 There is no remembrance in writing of any agreement to transfer the land to plaintiff; and the defendant, as administrator, must be regarded as entitled to the possession of the title papers, and possession of the land.”
It is a gross misnomer to call this a “finding of facts,” within the meaning of the Practice Act—it is merely an opinion by the Judge, in which he states his reasons why, in his judgment, the finding of facts ought to be against the plaintiff and in favor of the defendants. We cannot regard it as a finding. To do so, would be to countenance a practice which we have repeatedly denounced as wholly at variance with the meaning and intent of the Practice Act in relation to findings. (Hidden v. Jordan, 28 Cal. 305; Jones v. Block, 30 Cal. 229" court="Cal." date_filed="1866-07-15" href="https://app.midpage.ai/document/le-roy-v-rogers-5436053?utm_source=webapp" opinion_id="5436053">30 Cal. 229; James v. Williams, 31 Cal. 211" court="Cal." date_filed="1866-07-01" href="https://app.midpage.ai/document/james-v-williams-5436182?utm_source=webapp" opinion_id="5436182">31 Cal. 211.)
But waiving this consideration, and accepting this opinion as a finding also, it is, at least, but a finding of a single fact only—that “John McClory entered the land for his own benefitwhich fact, instead of being repugnant to the judgment, is entirely consistent with it. If counsel considered that this fact was found contrary to the evidence, the remedy was by motion for a new trial.
If the defendants have united inconsistent causes of action (a point we do not decide) in their cross-complaint, the plaintiff waived the objection by not demurring upon that ground.
Judgment affirmed.