The record-union., 1891-03-12

IN earnest OF said agreement, said defend
ant then and there paid plaintiff the sum
OF S25, part of said 81 800, payable to
plaintiff under said agreement
Plaintiff AYERS that he has in all re-
spects fully performed on his part all the
Obligations OF the agreement of purchase
and sale above stated. That on or about
the 18th day of January, 1889, he exc
cuted, acknowledged and delivered to
said defendant his (plaintiH's) deed con-
veying the land above mentioned in ac-
cordance with, and pursuant to- said
agreement of sale" That said deed was
a deed of grant, bargain and sale, and
was prepared us he is informed and be-
lieves, under the direction of the defend
ant, and was recorded by request OF the
defendant on the day of its date.
/ Plaintiff AYERS that Notwithstanding
the recital of full payment on said deed,
that no part of the said 81 500 due and
payable by defendant to plaintiff under
the aforesaid agreement of sale and pur-
chase has ever been paid plaintiff. ex-
cepting the sum Of S25 hereinbefore mem
toned, and that the balance of said con-
sideration, to wit: The sum of 81 ,475 is
still due and unpaid to plaintiff from said
defendant, who has neglected and re-
fused, and still neglects and refuses to
pay the same. or any portion thereof, al
though requested to pay said sum-"
For want of information or belief, the
defendant in his answer. denied that the
value OF the land was not less than $500.
The answer then proceeds as follows:
Denies that the deed mentioned in the
amended complaint herein was prepared
under direction of defendant.
DENIES that no part of the 81 500 due
and payable by defendant has ever been
paid plaintiff, except the sum of twenty
live dollars, and AYERS that he has paid to
plaintiff the full amount of the purchase
price OF said land.
"Denies that the sum of 81 l,475, or any
sum, is due or unpaid to plaintiff from
defendant.
Wherefore defendant demands judg-
ment that plaintiff take nothing by this
action and for his costs"
After finding the value of the property
to have been $500 at the time of the pur-
chase, and at the time OF the trial, as al
legged in the complaint the court made the
following findings:
2. THAT on or about the 25th day of
January. 1889. the plaintiff agreed to sell
to the defendant, and the defendant
agreed to buy OF the plaintiff the plaint-
ifs one-third interest in said land
for the sum Of Sl,5o0, and the
plaintiff thereupon executed. ac-
deed of grant. bargain and sale, convey
ing to the defendant his said one-third in
tereSt ia said land, and the consideration
stated in said deed was l,500.
g. That the defendant has fully paid to
plaintiff said sum Of $1,000 and there is
no part thereof now due or unpaid; that
said sum of 81 500 was paid in the follow
ing manner; the defendant liquidated and
discharged debts due by plaintiff to vari-
ouS persons amounting to 81 ,625. said
debts being paid by consent of plaintiff.
4. That the defendant did not at any
time agree to pay or give to plaintiff any
consideration other than said sum of
$3.50 for his said one-third interest in
said land.
''As a conclusion of law from the fore
going facts, the court finds that the de-
terdant is entitled to judgment against
the plaintiff, that he take nothing by
this action, and for his costs of suit, and
it is ordered that judgment be entered ac-
cordingiy.''
The appellant makes the point that the
findings OF fact are inconsistent with, and
contradictory of, the facts admitted and
established by the pleadings; and this
point seems to be well taken.
The agreement as stated in the COM
plant is not denied or in any way quail
fled by the answer; nor is any other
agreement set up in the answer; yet, the
fourth finding of fact fatty contradicts a
material part ofthe agreement as alleged
in the complaint.
BY the agreement established by the
pleadings, the defendant was to pay debts
Vi iIidiiitli W -i,tUU, tlIt Ill
addition thereto, was to pay directly to
plaintiff $1,000; but the fourth finding,
read in connection with the third, is, that
defendant never agreed to pay any other
consideration for the conveyance than to
pay debts of plaintiff amounting to 81 800
This contradicts the admitted allegation
of the complaint that the defendant
agreed to pay directly to plaintiff 81, 500
in addition to the payment of 81 400 to
plaintiffs creditors.
So far as the second finding sets forth an
agreement of a different date and consid-
Grafton from that alleged in the COM
plaint, it is entirely outside of the issues
made by the pleadings. The agreement
to convey for consideration of 81 800, re-
ferred to in the second finding seems to
have been inferred from the recital ofthat
consideration in the deed of January 25th,
executed in pursuance of the agreement
alleged in the complaint. But no such
inference was justifiable, since it was
averred in the complaint, and not denied
in the answer, that the deed did not recite
the full consideration.
In Burnett VS.. Stearns (33 Cal. 469), it is
said: 'The findings should be confined
to the facts in issue. The province of the
court in respect to facts, is to determine
but not raise issues. 1t is insisted on the
other side, that it will be presumed the
court found the fact in question from
competent evidence. The answer is, it
would not be presumed that evidence
was introduced to contradict the admis-
sion of record" This case is emphatic
ally affirmed in Gregory VS.. Nelson al
Cal. 279) where, among other things, it is
said: This court cannot presume that the
trial court required or permitted evidence
to be introduced on the trial for the pur-
pose of establishing or rebutting allega-
tions of the complaint not denied by the
answer; nor can it be presumed that any
| nvl6nnra rppai ypH Inv tho tria ~
except such as was pertinent to the issues
made or rendered by the pleadings, and
evidence tending to rebut such legitimate
evidence" To the same effect are the
following cases: Hicks VS.. Murray (43
Cal. 515), Bradley VS.. Cronise (46 Cal. 2S7).
aid VS.. Homestead Assn (51 Cal. 2l0),
Hill vs.. Den (54 Cal. 20l, Tracy VS.. Craig
(55 Cal. 81, Silvey VS.. Neary 80 Cal. g75.
Campo VS.. Lassen (67 Cal. 570).
In the matter of the estate of Doyle (73
Cal. 500 the court, py Mr.. Justice Nc
kinstry, said: when a trial is had by
the court without jury, fact admitted
by the pleadings should be treated as
found If the court does find
adversely to the admission, such finding
should be disregarded in determining the
question whether the proper conclusion
of law was drawn from the facts found
and admitted by the pleadings.
In such case the facts alleged must be as
sumed to exist. Any finding adverse to
the admitted facts drops from the record,
and any legal conclusion which is not up
held by the admitted facts is erroneous"
See also Reinhart VS.. Lugo, (75 CAL 639)
and Gould VS.. Stafford az Cal. 66).
The class of cases cited by counsel for
respondent, such as White VS.. s. r. IL s.
@. X. r. Co. go Cal. 40, Tevis VS.. Hicks
al Cal. 123l, Smith VS.. Penny IA Cal. 1911
and Horton VS.. Domingues (6S Cal. 642)f
has no proper application to the facts OF