delivered the following opinion, in which Mr. Justice Niles concurred:
Sanger, agent for the railroad company, in making the application to the Land Department for the patent, upon which the plaintiff now relies, is found by the Court below to have “falsely and fraudulently stated, and represented that all of the lands in said list contained (including the premises in controversy), were vacant, unappropriated and not reserved,” etc., and'an important question of fact put in issue by the pleadings was as to whether the officers of the Land Department were deceived and misled thereby into the approval of the application.
Had it been found that they were, a very serious question would have arisen as to whether this action, based upon the patent obtained by such means, should not have been stayed until the determination of the defendant’s pending application to be allowed to pre-empt the land in controversy. No express finding is made by the Court below upon this question of fact, and the trial having occurred since the taking effect of the Code, no finding can be implied in support of the judgment. The statement inserted among the findings of fact, to the effect that no evidence upon this point was given- by either party, cannot, under the Code, be accepted as a virtual finding in the negative. Besides, the very facts set forth in the other findings tend, in some degree at least, to support a contrary conclusion. The evidence upon this point, such as it was, should have been weighed by the Court below, and the question of fact determined.
Judgment reversed, and cause remanded for a new trial.