Bates v. Bower

• Decision Date: 31 March 1853
• Citation: 17 Mo. 550
• Parties: BATES, Respondent, v. BOWER, Appellant.
• Court: Missouri Supreme Court

17 Mo. 550

BATES, Respondent,

v.BOWER, Appellant.

Supreme Court of Missouri.

March Term, 1853.

1. Under the code, where the trial is by the court without a jury, the judgment will be reversed, unless the court finds and states on the record the facts on which its judgment is based, and unless the facts found support the judgment.

2. A deed which described the land conveyed as “part of lot number three, which is more particularly known as the lot or part of lot on which the Hannibal hotel stood,” was held to pass all the land on which the hotel stood, although it covered part of lot three, and part of an adjoining lot.

Appeal from Hannibal Court of Common Pleas.

This was a petition filed by Bates to foreclose a mortgage executed by Ann Lowes, November 1, 1845, on real estate described as follows: “Thirty feet off of the north side of lot number three, in block number ten, on second street, and running back to the alley in said block, one hundred and forty-two feet; also five and a half feet off from the south side of lot number four, in said block; being the same ground on which is now erected the brick building known as the city hotel, in the city of Hannibal.”

The defendant, Bower, claimed the premises under a title from Mrs. Lowes, older than the mortgage. It appeared that Mrs. Lowes, on the 5th of April, 1845, executed an agreement to sell and convey to James G. Caldwell property which was described in the agreement, as follows: “Part of lot three, in block number ten, in the town of Hannibal, on which said Ann Lowes is now finishing a large brick house, which is more particularly known as the lot or part of lot on which the Hannibal hotel stood.”

On the 29th of January, 1847, Mrs. Lowes, under the agreement, executed to Caldwell a deed for the property, in which it was described the same as in the mortgage from Mrs. Lowes to Bates. Afterwards Bower and one Johnston acquired the title of Caldwell. It appeared in evidence that the Hannibal hotel covered thirty feet on the northern side of lot three, and five and a half feet on the south side of lot four.

The cause was tried before the court without a jury. The plaintiff had judgment as to the five and a half feet, and the defendant as to the remaining thirty feet, but the court did not find the facts on which its judgment was based, as required by the new code of practice. The defendant appealed.

Richmond, for appellant.

Glover & Richardson, for respondent.

GAMBLE, Judge, delivered the opinion of the court.

1. There has been much embarrassment experienced by the court in the decision of cases which come from the circuit and other courts, where the trials have been by the courts without juries. In a very large number of cases, the courts have entirely failed to find the facts as required by the fifteenth article of the code, and in others the finding of the facts is very imperfect. In very many cases, where the court has found the facts and the party has sought a review of the finding, or a review of the law, there has been but a very imperfect compliance with the provisions of the code relating to applications for review. Such has been the danger to suitors of losing their rights by a failure to conform to the requirements of this article, that this court has thought it proper to warn parties of the danger of submitting any really disputed case to the court for trial. We cannot see the sacrifice of right to the mere forms of practice without regret. It is proposed now to give a brief summary of the practice which is to be observed under the fifteenth article of the code.

The second section of the article requires, that where a question of fact is tried by the court, its decision shall be given in writing, and in such decision the facts shall be first stated and then the conclusion of law upon them.

In several cases which have been before this court, the circuit courts have entirely neglected this provision of the code, and have found general verdicts for the plaintiff or ...