Bohn

The petition for rehearing is addressed to the proposition that the finding of the lower court to the effect that plaintiff is entitled to the fee, subject to the right of defendant to the possession and use of the property during his life, is not within the pleadings and is unsupported by the evidence.

It is, no doubt, true, as claimed by appellant, that “the plaintiff’s ease cannot be better as proved than it is as stated. A party cannot travel out of the matter alleged in his pleading to make a ground of relief. A finding is useless and idle unless the facts found are within the issues and a judgment based upon such facts cannot be sustained. ’ ’ And we have no fault to find with the cases cited in support of the doctrine, but they involve a different situation from what we have here. It seems plain on principle that, in legal procedure as well as in physics, the whole includes a part, and that it cannot be said that this finding is entirely without the matter alleged in the pleadings.

In the Zihn case, 153 Cal. 405 , [ 95 Pac. 868 ], the principle is recognized, where the supreme court approved a finding of the lower court awarding the plaintiff therein a life estate under a…

The record contains evidence of the following facts: In 1853 the defendant left Germany, his native land, and, coming to the United States, located in the city of Cleveland, Ohio. There he became well acquainted and friendly with another German by the name of Bodenstein, the grandfather of Ida Bohn, the plaintiff herein. She and her parents since birth had lived in Cleveland. Defendant came to California in 1858, and, in 1860, located on the land in dispute, known as Gunther’s Island. Upon returning to Germany in 1893 he stopped at Cleveland for the purpose of visiting his friend, Bodenstein, and there he became acquainted with Mr. and Mrs. Bohn and their daughter Ida, plaintiff herein. He formed an attachment for the girl and he concluded that it would be a good plan to get the Bohns to permit him to take Ida to California and to make her home with him, his purpose being to adopt her as his child and thereby enable her to inherit his property. He was a bachelor, and there was no one about him for whom he had any special fondness. Prior to 1900 some friendly correspondence passed between him and Mrs. Bohn in which he expressed his desire to have her daughter Ida come to California…