by the answer, or not denied. The rule is well settled that where the facts admitted by the answer and the findings made by the court sustain the judgment, the judgment will 33; and lots 7 and 8 in block 31; all of said | allegations of the complaint were admitted lots and blocks being situated in the town of Parma, as designated by the plat of said townsite now on file in the office of the county recorder of Canyon county, Idaho." This appeal was taken by Bates; the Par- not be set aside because the findings alone do ma State Bank did not appeal. Counsel for respondent has interposed a motion to strike out the bill of exceptions containing the order appointing a referee and the proceedings before the referee, for the reason that said bill of exceptions is not relied upon on this appeal and does not affect the questions raised on appeal in any manner. It is provided by section 4818, Rev. Codes, that on an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll and of any bill of exceptions or statement in the case upon which the appellant relies. As the bill of exceptions sought to be stricken out was settled before the case was tried, it became a part of the judgment roll under the provisions of subdivision 2 of section 4456, Rev. Codes. That subdivision provides that the judgment roll shall consist of the pleadings, a copy of the verdict of the jury or the findings of the court or referee, all bills of exception taken and filed, and a copy of any order made on demurrer or relating to a change of parties, and a copy of the judgment. Since, under the provisions of said section 4818, the appellant is required to furnish the court, among other documents, the "judgment roll," it requires the appellant to furnish all the papers of which the judgment roll is constituted. However, in the case at bar, the bill of exceptions sought to be stricken out consists of about 26 pages of printed matter and has no bearing upon this appeal whatever, and could have been excluded from the transcript by stipulation of counsel without affecting the questions relied upon on this appeal. As it was not so excluded it was the duty of the appellant under the statute above cited to include it in the transcript, and for that reason, it will not be stricken out on motion. In limine, it will be observed from the issues made by the pleadings as above set forth, that plaintiff claims to be the owner of the real estate in dispute, and the defendant by his answer also claims to be the absolute owner of the same. The errors assigned are to the effect that the decree is inconsistent with and not supported by the findings of fact; that the findings and decree are uncertain and indefinite and do not cover the issues raised by the pleadings; that the decree is contrary to the facts found; that the ninth finding of fact, charging Bates with $1,236 for rental of house, office, shop, pasture, orchard, etc., is contrary to other findings made by the court, and to the alleged agreement between the parties. It must be conceded that the findings are not as full and complete as they might have been made, and also that a number of the not sustain the judgment, as findings are not necessary when the facts are admitted in the pleadings; that is, when the answer admits the allegations of the complaint, there is no issue of fact made by the pleadings, and no finding of fact is necessary in such case. Fox v. Fox, 25 Cal. 588; Walker v. Brem, 67 Cal. 599, 8 Pac. 320; Taylor et al. v. Central Pac. R. R. Co., 67 Cal. 615, 8 Pac. 436: Miller v. Luco, 80 Cal. 257, 22 Pac. 195. There is no necessity for findings upon immaterial issues, nor as to material facts alleged in the complaint and not denied by the answer. Findings should be of the ultimate facts, and not of the probative facts; still, a finding of probative facts is sufficient, if the court is enabled to say that the required ultimate facts necessarily result therefrom. Miller v. Luco, supra. Some question is raised as to the effect of the return of the deed in January, 1900, by respondent to Bates, which deed was executed by Bates and wife to respondent. It is contended that the great weight of authority is to the effect that the return of a deed by a grantee to the grantor, even with the intention to reinvest the grantor with title, does not reconvey any title to the grantor. That may be true as a rule of law, but this case was not tried upon that theory, but was tried upon the theory that Bates held the legal title, and we shall decide it upon the theory on which it was tried. Some of the objections raised by appellant are with reference to matters which are either admitted by the answer, or concerning which no issue is raised by the pleadings. There is no issue raised by the pleadings as to whether or not the Parma State Bank has been paid in full the amount borrowed by Bates from the bank. The complaint alleges that the amount due said bank is a debt of the defendant Bates, and that no part of it is the debt of the plaintiff. That allegation is admitted by the answer, and it is now too late for the appellant to contend that possibly the bank has been paid in full. While the court did not find specifically the amount due the bank from Bates, from the findings made it is clear that Bates was still owing the bank a part, if not all. of that indebtedness, and directed the appellant to pay thereon the amount of $893.95 found by the court to be due from the respondent to Bates. While no specific finding was made in rezard to the indebtedness to the bank, there was no issue in that regard made by the pleadings. The bank admitted all allegations of the complaint by failure to answer. It is contended that the findings of fact are indefinite and uncertain and do not cover the issues made by the pleadings in that they fail to show what part of the property, which | cipally upon the ground that the findings are has been conveyed to Bates by respondent, contradictory and not sufficient to support has been sold by Bates and the bank. As we the judgment. understand it, the list and description of property so sold was set out in the complaint in paragraphs 10 and 13. The tracts of land set out and described in the complaint as having been sold are all admitted to have been sold, except lot 8 in block 35. There then was no issue raised on that question, except as to lot 8 in block 35. It is also contended by counsel that the description of the property in the decree does not follow any description in the complaint. We find that the property referred to in the decree is particularly described as above set forth in this opinion, and specifically excepts certain lots and blocks from the operation of the decree, and is the property described in the complaint. While the lots referred to as having been conveyed to Mansell and the Oregon Short Line Railway Company are not specifically described in the decree, from the conveyance to those parties the description of those tracts may be made specific and certain, and the decree is to the effect that respondent and Bates are each an owner of an undivided one-half interest in and to the property described in the decree, except the portions thereof that had been sold, as stated in the decree and excepted from its operation. It is not contended that any of the property of which Bates and respondent are decreed to be the equal owners has been sold or conveyed by Bates, and if the court has failed to include in its decree land that ought to have been included, Bates will not be permitted to complain for that reason. If he is not required to convey to respondent some of the property which it is admitted in the answer should be conveyed, respondent is the only man injured. After a careful review of the whole case, we are of the opinion that the judgment and decree are sustained by the admissions of the answer and the findings of fact. It is contended that the court erred in charging appellant Bates with $1.236 for rental value of the house, office, shop, pasture, and orchard connected with said premises. There is nothing in this contention, since it is apparent from the record that respondent turned the property over to Bates under a contract that the net proceeds should be divided between the respective parties. If there were $1,236 realized from said premises for rental on the house, etc., that certainly was a part of the profits from the premises and came within the provisions of the contract. We have not taken up and discussed each of the specific errors assigned, but have examined them all and are satisfied that the judgment of the trial court ought to be sustained, and it is so ordered. Costs are awarded to the respondent. AILSHIE, J., concurs. (18 Idaho, 345) BROWN et al. v. BROWN. (Supreme Court of Idaho. June 21, 1910.) (Syllabus by the Court.) 1. ADVERSE POSSESSION (§ 13*)-OCCUPANCYSTATUTORY PROVISIONS. Under the provisions of section 4043, Rev. Codes, to obtain title by adverse possession, the land is deemed to have been possessed and occupied in the following cases only: "(1) Where it has been protected by a substantial inclosure; (2) Where it has been usually cultivated or improved. Provided, however, That in no case shall adverse possession be considered established under the provisions of any sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land according to law." [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 65-76; Dec. Dig. § 13.*] 2. BOUNDARIES (§ 37*)-ESTABLISHMENT-ACQUIESCENCE-EVIDENCE. sufficient to support the findings of fact to the Held, that the evidence in this case is not effect that the division line fence has been regarded by all of the parties concerned or interested in said boundary line as the true and correct boundary line, and acquiesced in as the true and correct boundary line. [Ed. Note.-For other cases, see Boundaries, Dec. Dig. § 37.*] 3. CASE DISTINGUISHED. Held, that the facts of this case do not bring it within the rule laid down in the case Pac. 1066. of Bayhouse v. Urquides, 17 Idaho, 286, 105 4. BOUNDARIES (§ 48*)-ESTABLISHMENT-PRESUMPTION FROM ACQUIESCENCE IN MAINTENANCE. fence for a great length of time may be preAcquiescence in the maintenance of a line sumptive evidence of an agreement as to a boundary line, but is not conclusive evidence, and will not overcome a positive agreement or understanding that after the true line is established, the fence will be made to conform to it. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dec. Dig. § 48.*] 5. ADVERSE POSSESSION (§ 114*)—SUFFICIENCY OF EVIDENCE. quiescence or adverse possession. he must establish his right by clear and satisfactory evidence. Where one seeks to procure title to anUnder the well-established rule that find-other person's land under the rule of long acings should be liberally construed in support of the judgment, we find they are sufficient in this case. There is no question raised as to the sufficiency of the evidence to sustain the findings, but the contention rests prin [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. § 114.*] Action by Otis Brown and others against E. B. Brown. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial. Good & Adams, for appellant. W. B. Davidson and Harry Keyser, for respondents. Appeal from District Court, Ada County; | and Dobson thereafter conveyed it to Harris, Fremont Wood, Judge. and Harris to the respondent, E. B. Brown. There is no question but that the land in dispute is a part of the N. 1⁄2 of the S. E. 14 and lot 3 of said section 24, as per government survey, which land was originally entered and patent procured from the government thereto by the said Rhodes, and the claim of respondents thereto is based upon the fact that the division fence between said land of Brown on the south and east, and on the north and west, of the Rhodes land was from 9 to 12 feet in on the north side of the Rhodes land, and 122 feet in on the west side of the Rhodes land, making an area of 1.81 acres in dispute. SULLIVAN, C. J. This action was brought to quiet the title to about 1.81 acres of land situated in Ada county. The complaint is in the usual form of one to quiet title and prays that the defendant be required to set forth the nature of his claim and that the title be quieted in plaintiffs. It is alleged in the complaint that there had been maintained a division fence between the lands of plaintiffs and defendant for 30 years, and that said division fence was constructed by one Peter Brown, the prede cessor of plaintiffs, and one G. F. Rhodes, one of the predecessors of the defendant, and at the time it was so constructed, was established by said Brown and Rhodes as the true and correct boundary line between their respective lands; and it is also alleged that said line fence has been regarded by all of the parties concerned or interested as the true and correct boundary line between said lands for 30 years. The defendant in his answer denies the material allegations of the complaint on information and belief, and by way of crosscomplaint, alleges that he is the owner and entitled to the possession of the land in dispute as a part of the N. W. 4 of the S. E. 4, and also of other lands in the N. W. 1/4 of the S. E. 14 and a part of lot 3, all in section 24, township 4 N., R. 1 E., B. M., in Ada county, which described land includes the land in dispute. Upon the issues thus made the cause was tried by the court without a jury and judgment entered in favor of the plaintiff, as prayed for in his complaint. The court thereafter denied a motion for a new trial, and this appeal is from the judgment and order denying a new trial. The errors assigned go to the sufficiency of the evidence to sustain the findings and that the court erred in entering judgment for the plaintiff. It appears from the evidence that one Peter Brown, the husband of the plaintiff Caroline Brown, became the owner of the S. 1⁄2 of the N. W. 4 and all that part of the S. W. 4 of the N. E. 4 lying south and west of what is known as the Valley road, and lot No. 4, of section 24, Tp. 4 north of Range 1 E., B. M., as early as 1882. In 1870, G. F. Rhodes became the owner of the N. W. 4 of the S. W. 4 and a part of the N. W. 4 of the S. E. 4 and lot No. 3 of said section 24, consisting of 126 acres of land, and continued to own it until about July, 1906, when he sold and conveyed it to one Len Dobson In support of their contention, the respondent Mrs. Caroline Brown testified that she had resided on the land claimed by the respondents since 1883; that she is acquainted with the Rhodes ranch now occupied by the appellant, E. B. Brown; that there was a division fence between the Peter Brown ranch and said Rhodes ranch at the time she first became acquainted with it, part of which was wire, and part brush; that that fence had never been changed from that line, but there had been a new fence put on the line, built in the same place the old fence was built, and that is the fence that is now situated there; that it is in the same place the fence was in 1883 when she first knew the land; that her deceased husband, Peter Brown, in his lifetime farmed the Peter Brown ranch up to that fence; that it was cultivated in 1883 and has been continuously since; that Rhodes lived on the adjoining ranch up to five or six years prior to the trial of this action, when he sold the land to one Dobson; that there was never any dispute between said Rhodes and said Peter Brown as to the boundary line between said lands; that each party was occupying up to that time the land on the respective sides of said fence; that the fence was kept in repair by both of the parties. Another witness testified on behalf of the respondents that he had known said ranch since 1882; that he was employed on that ranch in 1882 and continued to be employed there off and on for about 10 years; that he was acquainted with the Rhodes ranch adjoining the Brown ranch; that at the time there was a division fence between said ranches; that it consisted of a wire, a worm. and a brush fence; that it was a complete division fence between said ranches; that it looked as though it had been there four or five years; that the division fence now between said ranches stands in the same position and on the same line as the old fence when he first knew the land in 1882, that is, that it looked to the witness to be in just the same place, and testified as follows: "Any more than, of course, a wire fence, you know. backs up about four feet, I judge"; that the Rhodes ranch was cultivated up to the line fence; that Peter Brown kept up a part of the fence and that Rhodes kept up the other part. Otis Brown testified on behalf of the re spondents that he was the son of Peter Brown; that he was 25 years of age and that he had lived on the Peter Brown ranch all his life; that he is acquainted with the division line fence; that said fence has been in the place where it now is for 12 or 13 years, or as far back as witness could remember; that it had not been changed since that time; that the Brown ranch had been cultivated continuously up to the line fence, and that the Rhodes ranch had been cultivated up to the said line fence. Another witness testified on behalf of the respondents that he had known said ranches since 1882; that he had worked for Peter Brown along in 1882 or 1883, about a month or two and had worked for him a few times since; that at the time he went to work for Brown there was a division fence between said ranches; that said fence consisted of wire and brush; that in 1882 said fence was an old fence; that witness had been on the ranch but very little since 15 or 16 years before Brown's death. That was substantially all of the evidence offered by the respondents. G. F. Rhodes testified, by deposition, on behalf of the appellant. He testified that he became the owner of the Rhodes land referred to in 1870 and had owned it until about six years prior to July, 1909; that he was well acquainted with the Brown land adjoining on the north and west of the Rhodes land; that witness owned the land mentioned at the time there was a partition fence erected between said ranches. The partition fence running north and south was erected 15 or 16 years prior to the trial. When the construction of that fence was arranged for, the only persons present were the witness Rhodes, his son, and the said Peter Brown. At that time the son was between 15 and 17 years old. That Brown came to Rhodes and wanted to put up a fence and build it on the line, or as near the line as they could; that Brown informed the witness Rhodes that he had seen D. O. Stevenson, a surveyor, in regard to his establishing said division line, but that Stevenson had not the time to do it and told him that if he would go at noon and run it by the shadow of some one who would stand on the corner, that that would give the north and south line; that they did not know where the corner was, but that they guessed at where it was and the boy stood on the corner, or where Brown and the witness thought it was, and they ran the line by the boy's shadow; that that was the way they arranged to construct the north and south fence; that neither Brown nor witness knew where the line was; that they did not establish the line for the fence running east and west; that Brown put up his part of the that neither of them knew where the true line was; that they just put the fence there; that witness paid all taxes on the land in dispute during all of said time, including the entire 126 acres in said ranch. Witness also testified that he did not object to the construction of the east and west fence where it was placed; that they did not know where the true line was; that so far as he was concerned, he gave his permission to have the fence erected at that place for the time being; that neither the plaintiffs nor their predecessors in interest at any time paid any taxes on the land in dispute but that witness had paid all such taxes; that they agreed to put the fence where it was placed; that their understanding was they would put it on a true line when the survey was made; that was the understanding between witness and Brown; that so far as witness knew, until recently the line had never been surveyed; that there never was any talk or agreement between witness and Brown that he was to have and receive any portion of the land belonging to Rhodes by reason of the erection of said fence; that they simply agreed to place the fences where they were, and the understanding was that they would have a survey made some time; that Brown stated he was not satisfied; that he thought the fence was over on his land, but was satisfied to let it remain until a survey could be made. On cross-examination he testified that the east and west line was probably run between 15 and 18 years before Peter Brown died; that witness did not regard the line between the respective lands as the true line, but thought it was somewhere near the line; that there was present when the north and south line was run by the boy's shadow, Brown and witness, and the fence was erected by the line staked out by the boy's shadow and from that time on witness left the fence stand on that line; that during all of that time they used that as a division fence between their farms; witness never made any objection to the fence being where it was and never demanded any survey; that he did not claim any of the land lying within the inclosure of Brown's field, because he did not know it was there; that when the said fences were erected, he supposed they were somewhere near the line; that the east and west line was run by the Green Meadow ranch, which some one had informed them was on the true line; that neither of them believed at the time said fence was erected that it was upon the true line, but that it was somewhere near it; that they just put the fence there until a survey should be made; that neither of them objected to having the fence put where it was; that there was nobody present that the witness knew of when the east and west line was established; that witness was not there; that there was a rail fence there and that wit its present position since that time; that it was established by said Brown and Rhodes as the true and correct boundary line between their respective premises; that said fence had been regarded by all the parties concerned or interested as the true and correct boundary line between said premises for 25 years, and had also been so regarded since it was originally constructed, and that said fence during all of said period had been acquiesced in as the true boundary line between said premises; that the plaintiffs and their predecessors had been in open, notorious, continuous, and adverse possession of the land in dispute since said fence was established or originally constructed, and on said findings entered judgment in favor of the plaintiffs, quieting the title in them. that he put his wire fence back a little; that to the trial of this cause, and had been in witness "hooked on" to Brown's fence and made his part of the east and west division fence; that Rhodes at all times claimed all of the land included in the description of his patent from the government and claimed all of the land that said patent called for. The son of the last-mentioned witness also testified by deposition that he was 30 years of age; that he was acquainted with the 126 acres of land known as the Rhodes ranch, and also the Peter Brown ranch adjoining; that he remembered when there was a fence erected between the land owned by his father and that owned by Peter Brown; that he was present and assisted in the establishment of the fence; that there was present at that time Peter Brown, witness, and his father; that witness remembered seeing them run the line; that witness stood on what was supposed to be the corner, and that they ran the line by his shadow, and that the north and south fence was erected between his father's ranch and the Brown ranch in that way; that they built the fence as near as they could, and if a survey was made, if it was not on the true line, it was the understanding that the division line fence would be erected upon the true line; does not remember who built the first part of the east and west fence; that witness was 15 or 16 years old when the north and south fence was built. It was stated there that when a survey should be made, they would erect the fence on the correct line. On cross-examination the witness stated that he did not know anything about when the east and west fence was built, and that there was a rail fence upon the east and west line at the time the north and south fence was erected; that as near as witness could remember, it was about 60 feet in on his father's land, and that they moved his father's fence out on Mr. Brown's land; that as near as he could remember, the old rail fence was over on Brown's land; that they did not establish the east and west line, and that he did not know when the old rail fence was put there; that they did not establish the north and south fence as being on the true line; that they put up that fence at that time with the understanding that when the true line was established, if the fence was not on it, they would move the fence to the true line; that that arrangement was satisfactory to Mr. Brown until a survey should be made. The above and foregoing is the substance of all the evidence introduced, except that of a surveyor who had surveyed the lines and made a plat of his survey, which plat was introduced in evidence. Upon the evidence the trial court found that the plaintiffs and their predecessors for more than 25 years, had had possession of and cultivated the strip of land in dispute; that the division fence was constructed by said Peter Brown and Rhodes more than 25 years prior The court evidently did not base its decision upon the ground of title by adverse possession, as under the provisions of seetion 4043, Rev. Codes, to constitute adverse possession and obtain title thereby, the land is deemed to have been possessed and occupied in the following cases only: "1. Where it has been protected by a substantial enclosure. 2. Where it has been usually cultivated or improved. Provided, however, That in no case shall adverse possession be considered established under the provisions of any sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land according to law." Under the provisions of that section, one cannot obtain title by adverse possession, unless it shall be shown that the land has been occupied and claimed for a period of five years continuously, and that the party or persons, their predecessors and grantors, have paid all taxes, state, county or municipal, which shall have been levied and assessed upon such land according to law. In the case at bar, it appears from the evidence that the respondents have never paid any taxes whatever upon the land in dispute, and that the appellant and his grantors have paid all the taxes legally assessed against said land for more than 25 years last past. There is no evidence whatever to sustain the finding of the court to the effect that it was stipulated and agreed between the parties that said partition fences were on the divid ing lines between their tracts of land. In fact, all of the evidence upon that question is directly contrary to that finding. Rhodes testifies positively that it was never stipulated and agreed, or understood, that said fences should be the boundary lines marking the land owned by each. The witnesses for respondents were evidently testifying in regard to the east and west fence when they stated that that fence |
