¶1This was an appeal from an order denying plaintiffs’ motion to set aside the findings made by the court, and for a new trial. As the order must be reversed for reasons hereinafter stated, it is proper, in view of another trial, to discuss very briefly appellants’ first and second assignments of error.
¶21. The plaintiffs were not entitled, as a matter of strict right, to the verdict of a jury upon specific questions of fact. Waiving all in*310quiry as to the pertinency or materiality of the questions proposed by plaintiffs, it was within the sound discretion of the trial court to determine whether issues of fact should or should not be submitted to-a jury.
¶32. The court did not err in its rulings in respect to the admissibility of the proposed testimony as to what inscriptions were tobe found upon several of the tombstones in the graveyard on the tract of land in dispute. Granting the law relative to entering upon, setting apart, and asserting an exclusive right to a plat of land as a family burial-ground to be exactly as plaintiffs claim, it is obvious that, had the testimony embraced in the offer been received, it would have simply tended to make it the clearer that this plat was not a family burial-ground, and that the Roussains had never asserted an exclusive right-to it as such, — a fact already established by the plaintiffs’ testimony. Between 50 and 75 bodies had been interred there, 11 being those of members of the plaintiffs’ family. According to the offer there appeared upon the monuments and tombstones the names of eight persons, — three being Roussains; four of another family, the Durfees;. and the eighth of still another family. Such testimony would, if of any importance, indicate that this was a public, and not a family, burial-ground.
¶43. It is undisputed that Morrison reeonveyed the premises in controversy to Francis Roussain, Sr., in the year 1872, but the deed was-not placed upon record until March 25, 1890, a few days prior to the-commencement of this action. It was in Roussain’s possession from the day of its delivery to him in 1872 until he died, 10 years thereafter ; and from that time on until filed for record was in the keeping of some member of his family. Meantime, in the year 1887, Morrison conveyed the property to defendant Johnson by quitclaim deed, and the latter sold and by warranty deed conveyed the same to defendants Newton and Patten. These deeds were jiromptly recorded. The later conveyances to defendants Dickerman, Mattison, and Emery were also made and placed upon record before March 25, 1890, and therefore anterior to the recording of the old deed from Morrison to the senior Roussain. As this conveyance was not on record when Johnson obtained a quitclaim deed from Morrison, nor at *311the time of the subsequent sales and conveyances, it is void as to such of these defendants as had purchased in good faith and for a valuable consideration, (Gen. St. 1878, c. 40, § 21,) and the burden of proof was upon the defendants to show that they were such purchasers. This was one of the principal issues upon the trial, and an affirmative finding on it was absolutely essential in order to warrant the conclusion of law in their favor and against the plaintiffs. There was no such finding, and none which could be treated as an equivalent, and a new trial must be had.
¶5Order reversed.
¶6Note. A motion for a reargu'ment of this case was denied June 16, 1891.