Folsom

(dissenting.) I dissent from the opinion of the majority of the court in this case. I think our former decision correct. I think it clearly appears from the record that the plaintiff had neither title nor possession. It is agreed by all the members of the court that he had no title, but the majority of the court say we must presume that he had the actual possession, because the court of First Instance rendered judgment in his favor. That is a doctrine to which I might perhaps assent, if the *378 court of First Instance Lad simply given judgment for the plaintiff. We have often held, where a case comes up solely on the pleadings and judgment, without any evidence, we would presume that sufficient evidence was given to warrant the judgment.

But this case is widely different. The complaint, although it alleges in general terms that the plaintiff had been in possession of the premises, does not pretend that he had ever been ousted by the defendants. The answer, though informal and loose, substantially denies the allegations of the complaint, by denying that the plaintiff had any right in the premises. Then the court, sitting as a jury, finds the facts which had been established. I…

*375 By the Court,

This case is in almost all respects the same as the case of Woodworth v. Fulton, decided at the last term. The plaintiff claims title under a grant made by an American Alcalde, during the continuance of the war between the United States and Mexico, and the defendants derive their title from a justice of the peace. It clearly appears from the judgment of the court of First Instance, that the plaintiff was permitted to recover solely upon the assumption of the validity of his title, and not upon the ground that he had ever been in the actual possession of the premises, arid had been ousted by the defendants. In Woodworth v. Fulton it was held, that a title of precisely the same character as that upon which the plaintiff recovered in this suit, was void and of no effect. The defendants having been in actual possession at the time of bringing suit, they should have been protected in such possession, until some better title than their own was adduced against them. Such was not the title under which the plaintiff recovered. The judgment should, therefore, be reversed, and the defendants be restored to the possession and the rights which they respectively enjoyed at…