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 case 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 P. 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 deed absolute in form, notwithstanding that there was no specific averment in any of the pleadings as to such life estate.
In Pennie v. Hildreth, 81 Cal. 133, [22 P. 400], which was an action to quiet title, the supreme court said: "If the plaintiff claims a fee simple, he may show that he has nothing more than a lien or any interest less than he claims, and that he, the defendant, has an interest also, either paramount or subordinate to that of the plaintiff, and the decree of the court should declare the rights of the parties in the property accordingly. *Page 201 If the defendant had an equitable title to one-half of the property in controversy, whether that interest was subject to the mortgage of the plaintiff or paramount to it, he had a right to have it so decreed and the interest of the plaintiff declared."
As to the evidence to support the finding, we think there can be no kind of doubt. Much of it we deemed unnecessary to set out in the former opinion, but we called attention to certain facts and circumstances which appeared to us sufficient rationally to justify the court's conclusion. In her answer to appellant's petition for rehearing, respondent points out in the transcript unequivocal testimony to the effect that it was the purpose and understanding of appellant that he should retain the life interest in the property. We quote simply from one of the witnesses as to a conversation with Mr. Gunther: "I said, I see you have deeded your island away. He said, yes, and in a moment he said he wanted his property to go where he wanted it to go while he was alive. He said in that conversation that he had a life lease in the property. . . . He simply said he had reserved a life estate, a life lease."
Some asserted circumstances are mentioned by appellant concerning which the record is entirely silent. We need not, of course, remind the able counsel for petitioner that we are controlled by the record as we find it.
Appellant seems to misconstrue the spirit of an expression found in the concluding paragraph of the former opinion and, as it is unnecessary to the decision, the said paragraph is stricken out and there is substituted therefor the following: "It is sufficient to say in conclusion that, accepting the facts as we must under the well-established rule applicable to appellate tribunals, the judgment of the lower court is not only amply sustained but is eminently just and equitable."
The petition for rehearing is denied.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 8, 1912. *Page 202