Plaintiff asks, by petition, for a modification of the opinion filed herein "by striking therefrom the last paragraph thereof, and inserting in lieu thereof an order directing the trial court to enter judgment on the findings in favor of appellant, pursuant to appellant's motion." Attention is called to the pleadings from which it appears that plaintiff in his complaint simply alleged ownership in himself and the assertion of an adverse claim, without right by defendant, to the land in controversy. It is hence suggested that the complaint did not show an equitable right in defendant, or a duty from plaintiff to defendant, upon which the maxim — He who seeks equity must do equity — can be invoked. Buck v. Canty, 162 Cal. 226, 237, 238, [121 P. 924, 929], is cited, wherein the court said: "The equity of the defendant not being apparent on the face of the complaint, the only other way by which it could be presented would be by setting it up in the answer." But the answer in the case here did not allege a purchase by defendant or his predecessor at a tax-sale, and only referred to the payment of taxes for five years as an element in his title by adverse possession. As in the case cited, it is apparent, from the answer as well as from the proceedings at the trial, that there is no claim made by defendant that plaintiff should reimburse defendant for any taxes *Page 645 and charges paid by him or that he relied upon the maxim of equity referred to. In this condition of the record we think the matter referred to in the opinion and the order heretofore made should be modified. We do not, however, see how we can order judgment for plaintiff on the findings. Conceding the finding numbered eleven to be insufficient and hence there is no finding of ownership in defendant, there is no finding in favor of plaintiff, and this court cannot make findings. The lower court found that he had a patent to the land from the United States dated June 30, 1887, but this is not a finding that when the action was commenced or at its trial he was such owner. The most we can do is to reverse the judgment and remand the cause for a new trial. It is further ordered that the last paragraph of the opinion filed on August 28, 1913, dealing with the question of taxes and the duty of plaintiff in relation thereto, be stricken out.
The judgment is reversed.
Burnett, J., and Hart, 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 October 27, 1913.