¶1(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 *378court 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.
¶2But 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 look upon that finding of facts in the same light as I would look at a special verdict of a jury; and the judgment of the court, which is nothing but the conclusion of the court deduced from these facts, being palpably erroneous, I think it should be reversed.