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that the decd was valid, obtained a patent, session of, said undivided one-eighth interest and subsequently conveyed to defendant, who in the Yellow Jack mining claim, describing took with notice. Held, that plaintiff's cotenants, when they obtained the patent, became

the claim; that on said day Schwab, Oumconstructive trustees of plaintiff's undivided mings, Hauser, and Fitchen were also owninterest, and their grantee with notice occupies ers, and, for the purpose of conveniently no better position. Per Harwood, J. 3. Plaintiff, by a void deed, conveyed an

obtaining patent for the premises, agreed undivided interest in a mining claim to its co- with P. A. Largey, superintendent of the tenants, who applied for and obtained a pat- plaintiff, that if plaintiff would convey its ent. In a suit against them and their gran

interest to them they would hold it in trust, tee to quiet title it was not pleaded or shown that plaintiff was an owner or claimant when

and on demand reconvey to plaintiff; that the patent was applied for. Held, that plaintiff P. A. Largey executed to those defendants was not estopped, under Rev. St. U. S. 8

the deed above mentioned; that this deed 2326, because it did not_file an adverse claim

was executed and delivered without any conto the application. Per De Witt, J. 4. The grantee of grantees of a corpora

sideration whatever, with the intention betion, in a suit by the latter to quiet title, can- tween Largey and those defendants that they not claim that it had no power to acquire and hold land, as any title he may have is derived

should hold said property as trustees for the from it. Per De Witt, J.

Butte Hardware Company; that Largey had 5. Even though a corporation claiming title no authority to sell or convey said propto land may not have had the right to acquire

erty to defendants, or any one, and that said and hold the same, the question cannot be raised by a stranger' asserting an unwarranted

deed was executed without authority; that claim of ownership. Per Harwood, J.

the property was worth $10,000; that plain6. In an action to quiet title to an undi- tife is now in possession. The complaint vided interest in land, a finding that defend. ant had built a foundation for a house partly

further alleges that on the 18th and 26th apon a portion of the premises is not a finding days, respectively, of October, 1889, the dethat plaintiff was not in possession when the fendant procured said Schwab and Cumaction was brought. Per De Witt, J.

mings to execute to him deeds for all their Appeal from district court, Silver Bow interest in the claim. It is alleged that Cob county; John J. McHatton, Judge.

ban did this with full knowledge of the alAction by the Butte Hardware Company | leged trust pleaded above, and with full against Benedict Schwab, George A. Cobban, knowledge that said Schwab and Cummings and others to quiet title. From a judgment bad no ownership or title in or to the said for plaintiff, defendant Cobban appeals. Af- one-eighth interest. Said deeds are recordfirmed.

ed in the county of Silver Bow, and are a Statement of the case by the justice de cloud upon plaintiff's title. The complaint livering the opinion:

prays that Schwab, Cummings, Hauser, and This action is to quiet title as to the two Fitchen be decreed to be the trustees of thirty-seconds undivided interest in the Yel- plaintiff as to said one-eighth interest, and low Jack mining claim. The defendants be required to reconvey the same to it, and Schwab, Cummings, Hauser, and Fitchen that said Cobban be decreed to have no tiwere owners of the claim, and made appli- tle in said one-eighth interest. cation for patent therefore The Butte Hard- Schwab, Cummings, Hauser, and Fitchen ware Company, the plaintiff, bought one defaulted. Cobban alone answered. The eighth interest in the claim from Schwab answer of Cobban denies the material averMay 5, 1884. December 27, 1884, a deed ments of the complaint specifically. It furwas made, purporting to be by the Butte ther sets up that plaintiff is a commercial Hardware Company, to Schwab, Cummings, corporation organized under the laws of MonHauser, and Fitchen, for said one-eighth in- tana for the purpose of engaging in merterest. The execution clause of that deed cantile business, and cannot hold or acreads as follows: "In witness whereof the quire the real estate or mining claim desaid party of the first part doth hereunto scribed in the complaint; that the holding set its hand and seal the day and year first of said ground is not necessary in the busiabove written. (Signed] Butte Hardware ness of plaintiff. The inswer alleges that Co. By P. A. Largey, Supt. Signed, sealed, said defendant Cobban purchased the Schwab and delivered in the presence of Jos. H. Har- and Cummings alleged interest in good faith, per." On December 30, 1884, the receiver's and for a valuable consideration. receipt was issued from the land office to The case was tried by the court without Schwab, Cummings, Hauser, and Fitchen. a jury. The court found that Largey, asOn October 18, 1889, Schwab executed and suming to act as superintendent of plaindelivered to defendant Cobban a quitclaim tiff, made the deed above described; that deed of all his interest in the premises. On the same was duly recorded in Silver Bow October 26, 1889, defendant Cummings ex- county on December 27, 1884; that there ecuted and delivered a similar deed to de- was no declaration of trust, or instrument fendant Cobban. The plaintiff contends that in writing, showing that the two thirty-secthese deeds to Cobban are void, and a cloud onds interest so conveyed to Schwab and upon its title.

The complaint alleges that Cummings was to be reconveyed to plaintif. on December 27, 1884, the plaintiff was, and It was also found that the receiver's receipt for a long time had been, the owner of, and was issued to said Schwab and Cummings in the possession and entitled to the pos- for said two thirty-seconds interest, and that they have never conveyed that interest to that at the time of application for patent any one except Cobban. It was found that the Butte Hardware Company had or claimCobban, at the time the action was com- ed any interest in the Yellow Jack mining menced, had built a foundation for a house, claim, or that its grantors had an interest which was partly upon the Yellow Jack upon which they failed to file an adverse claim. The court found that the plaintiff claim. The pretended deed from the Butte corporation was entitled to purchase and Hardware Company to Schwab et al. was hold the one eighth interest in said mining made December 27, 1884. The Butte Hardclaim. The judgment decreed that the deed ware Company acquired its title to the one made in the name of Largey, superintend- eighth interest in May, 1884. If the notice of ent of plaintiff, to defendants Schwab, Cum- application for patent had been admitted, it mings, Hauser, and Fitchen, is null and void, would have appeared that the Butte Hardand that it conveyed no title; also, that the ware Company did not own an interest in the deed made by Schwab to Cobban, and the claim when advertisement occurred. But, it deed made by Cummings to Cobban, are not being allowed in evidence, it nowhere apabsolutely void against plaintiff; that plain-peared, nor, indeed, was it pleaded, that the tiff is the lawful owner of the property Butte Hardware Company, at the time of addescribed in the complaint; and that its ti- vertisement for patent, was an owner or tle thereto is adjudged to be quieted against claimant in the premises, or could thereby be all claims of the defendants, or either of estopped by virtue of not filing an adverso them. The decree further recites that, it claim to the application for patent. appearing that said void deed made by Again, is the Butte Hardware Company es Largey was used in the land office as part topped from claiming its title in two thirtyof a chain of title, and that by the use of seconds of the Yellow Jack mining claim by that deed the land office had issued a re- virtue of Cobban buying the two thirty-secceiver's receipt for the property described onds interest from Schwab and Cummings, in that deed to Schwab, Cummings, Hauser, grantees in the pretended deed of Butte and Fitchen, and that that property belongs Hardware Company, to Schwab, Cummings, to the plaintify, it is ordered that said four Hauser, and Fitchen, of December 27, 1884? defendants execute and deliver a deed con- Added to the fact that that was a void deed, veying to plaintiff the title to the property absolutely, we are of opinion that Cobban described in its complaint, which they ac- was not an innocent purchaser for value. It quired by virtue of the receiver's receipt. sufficiently appeared that, before Cobban From this judgment the defendant Cobban bought from Schwab and Cummings, he was appeals. The other facts are stated in the informed that, if Schwab and Cummings had opinion below.

an apparent title to the two thirty-seconds

interest on record, they had none in fact. Chas. R. Leonard and E. W. Toole, for ap

Fitchen testified to this effect, although he pellant. George Haldorn and F. T. McBride,

was disputed by Cobban. Schwab and Cumfor respondent.

mings each deposed that he told Cobban that

he had no claim to this two thirty-seconds inDE WITT, J., (after stating the facts.) It terest. Cobban, however, said he would take is pleaded, it is adjudged by the court, It is a deed. He obtained quitclaim deeds from not specified as error, and it is relied upon in Schwab and Cummings He paid five dollars argument on both sides, that the deed made for each,-a grossly inadequate consideration, by Largey, purporting to be the deed of the under the evidence. Cummings deposed that Butte Hardware Company, was and is void. Cobban promised to give him more if he got We will therefore start with the foundation anything out of the claim. Under all these that that deed was a nullity. When that facts, it is apparent that Cobban was not pretended deed was made, the Butte Hard- an innocent purchaser for value, and that he ware Company owned a one-eighth interest in had the amplest facts to put him on inquiry. the Yellow Jack mining claim. The deed, be | Therefore, we arrive at this situation: By ing to Schwab, Cummings, Hauser, and the receiver's receipt, December 30, 1884, Fitchen, without describing the shares which whatever right passed from the United States the grantees were supposed to take, there (and we will call it a title, for the purpose of fore purported to give Schwab and Cum- this decision) passed to Schwab, Cummings, mings two thirty-seconds of the Yellow Jack Hauser, and Fitchen. But at that time the mining claim. The deed being a nullity, Butte Hardware Company owned one-eighth Schwab and Cummings took nothing thereby. of the possessory title, as against Schwab, If that be true, Schwab and Cummings con- Cummings, Hauser, and Fitchen, and still veyed nothing to Cobban in October, 1889. owns it. These four persons concede this. This is clear enough, unless there is some Cobban disputes it. But his grantors are estoppel.

Schwab and Cummings. They concede it, It is contended that the Butte Hardware and Cobban is in no position superior to Company is estopped because it did not file them, because he is not an innocent purchas in the United States land office an adverse er for value. Therefore, every oneSchwab, claim (section 2326, Rev. St. U. S.) to the ap- Cummings, Hauser, and Fitchen, in fact, and plication for patent. But it does not appear | Cobban, in effect-concedes that the first tour persons named hold in their names the re- anything, (which, as we have seen, cannot ceiver's receipt for the Butte Hardware Com- be said,) he owned it from plaintiff as granpany's one eighth interest of the Yellow Jack tor behind Schwab and Cummings. Bank v. mining claim. Under those circumstances, Roberts, 9 Mont. 331, 23 Pac. Rep. 718. The why should they not convey it? It is not judgment is affirmed. a question of proving a trust, by parol or otherwise. The simple situation is, four per- PEMBERTON, O. J., having been counsel sons have in their names title to real estate in this case, does not participate in the which belongs to another. They admit that decision. fact, and Cobban is not a person to controvert it. It is our opinion that they are HARWOOD, J., (concurring.) My concurtrustees, and should be, as they were, de rence in affirming the judgment of the trial creed to convey to their cestui que trust. court proceeds upon the ground that the There seems to be no occasion for the cre- facts shown give rise to a trust in the granating or declaring of a trust, or offering evi- tees of the patent, in favor of the plaintiff, dence that it was created or declared, or re- for the eighth interest which it owned in lying upon the deed from the Butte Hard- said property when patent was issued thereware Company to Schwab, Cummings, for, and that appellant, Cobban, acquired Hauser, and Fitchen. The existence of the his alleged claim thereto with knowledge of trust is uncontroverted.

the equities existing in favor of plaintiff. The action is to quiet title, and remove For the purpose of this review the receiver's a cloud. Appellant claims that plaintiff was final receipt has been regarded by both parnot in the possession of the premises, the two ties as equivalent to a patent, and therefore thirty-seconds undivided interest in the min- the case is considered as if patent had issued. ing claim, at the commencement of the ac- It is not disputed that after patent was aption. Section 366, Code Civil Proc. His plied for, and notice had run, plaintiff came specification in this regard, on motion for into ownership of an eighth interest in said a new trial, is as follows: "The evidence lode claim, nor that the Largey deed, puris insufficient to sustain the decision and porting to convey plaintiff's interest to the decree of the court, for the reason that Schwab, Cummings, Hauser, and Fitchen was the evidence establishes the fact that the void. But through the appearance of said defendant George A. Cobban was in pos- void deed the United States government was session of a portion, at least, of the prem- induced to convey the whole of said claim to ises in controversy at the time of the in- the other co-owners above named, thereby stitution of said action, as was found by carrying the legal title of plaintiff's interest the court in its special finding No. 8.” Find- to the grantees in the patent. Now, the title ing 8 is as follows: "Did said defendant to plaintiff's interest in said claim having Cobban, in pursuance of his purchase of passed away from it by the circumstance said two thirty-seconds of said mining claim, of said void deed being recognized as valid, enter upon a certain portion thereof, and the grantees of that interest became trustees construct and erect a house thereon? And thereof, holding the same for the use and was such house so upon said premises cov- benefit of the real owner, the same as if ered by it at the time that this action was the title, by mistake, had been conveyed and commenced? Answer. He had built a foun- recorded in the name of a stranger. That dation for a house, which foundation was trust is implied by operation of law upon the partly upon a portion of said premises.". circumstances mentioned, and does not deAppellant contends that this is a finding pend upon the alleged express agreement for that respondent was not in possession of reconveyance claimed to have been made by the premises, the subject of the action. Largey, on behalf of plaintiff, at the time The subject of the action was two thirty- the void deed was executed, nor upon any seconds undivided interest in a mining claim. action of Largey, because his attempted conThat defendant had put a foundation for a veyance was void, as all parties admit, and house partly upon the mining claim, we in fact did not divest plaintiff of its interthink, is not a finding that defendant was est. The void deed figured in the transacin possession of plaintiff's claimed two thir- tion as the mere circumstance which misled ty-seconds undivided interest in the prem- the government to grant plaintiff's Interest, Ises, or, in effect, that plaintiff was not in along with the rest of the lode, to the gransuch possession.

tees above named. Plaintiff did not own or It is contended that plaintiff, as a com- claim an interest adverse to any other claimmercial corporation, is not empowered to ants in said lode, but it owned an interest hold or claim an interest in a mining claim. in conjunction with, and recognized by, the It appeared that plaintiff was occupying other claimants and patentees of said lode. a portion of the surface of the claim with Hunt v. Patchin, 35 Fed. Rep. 816. And & warehouse which it was using in its busi- plaintiff having come into ownership after ness. The defendant Cobban is not an ap- application for patent, for the sake of con. propriate person to raise that question. venience in obtaining the patent, it was What Cobban claims as to title comes from thought expedient, by those assuming to act, plaintiff. I Cobban could be said to own that plaintiff's interest should be deeded over It ap

to the other grantees in the patent, in order no cases have been cited, and probably can to make it appear to the government's agents not be found, where strangers have been that the persons to whom the patent was heard to raise such a defense to their unwar. issued were the owners of the whole of said ranted claims upon the property of a corpo claim. But that deed was void, and there. ration. To the contrary may be cited the fore when the patent was issued the legal following cases: Bank v. Roberts, 9 Mont title of plaintiff's interest, which it had not 331, 23 Pac. Rep. 718; Bank v. Matthews, parted with, was conveyed to the grantees 98 U. S. 621; Bank V. Whitney, 103 U. named in the patent. It appears that the S. 99; Fortier V. Bank, 112 U. S. 439, 5 grantees in the patent, although made par- Sup. Ct. Rep. 234; Mining Co. v. Clarkin, ties to this action, have never come in and 14 Cal. 544; California State Tel. Co. v. Alta denied the foregoing facts; and the record Tel. Co., 22 Cal. 398. I concur in affirming shows that Cobban obtained such convey- the judgment of the trial court. ance for a mere nominal sum as consideration, and with knowledge of the facts upon which the law raises a trust in the patentees of said land, in favor of plaintiff, to the ex

STATE ex rel. NEWELL 1. NEWELL. tent of its interest. 2 Pom. Eq. Jur. $ 1048.

(Supreme Court of Montana. Sept. 5, 1893.) So that Cobban is in no position to claim

Costs-SPECIAL PROCEEDINGS-HABEAS CORPUS. equities in his behalf which the grantees of

A habeas corpus proceeding by a mothsaid patent could not have invoked.

er against a father to obtain possession of pears to me to be a case of constructive their child is a “special proceeding in the natrust, arising by operation of law, and should ture of an action," within the meaning of Code be executed, as directed by the judgment of

Civil Proc. § 495, providing that costs shall be

allowed in such proceedings to plaintiff on a the trial court. Hunt V. Patchin, supra; judgment in his favor. Lakin v. Mining Co., 25 Fed. Rep. 337;

Appeal from district court, Gallatin counHardy V. Harbin, 4 Sawy. 536; Wilson v. Castro, 31 Cal. 421; Salmon v. Symonds, 30 ty; F. K. Armstrong, Judge.

Habeas corpus, on the relation of Evalena Cal. 301. The point is raised that plaintiff was not

Newell, against George F. Newell. From & competent to receive and hold said interest judgment for relator, defendant appeals. Af

firmed. in the mining claim, because the acquisition of such property was not specially within E. P. Cadwell, for appellant. Luce & the scope of the object and purpose of the Luce, for respondent. corporation, as expressed in its articles of Incorporaticn. I do not think that point

DE WITT, J. This appeal is from the could be maintained, so as to avoid the title judgment of the district court made upon of plaintiff to said property, in favor of a

the hearing of the application of Evalena stranger. A corporation organized for spe- Newell for a writ of habeas corpus. The procial purposes, specified in the articles of in

ceeding was brought by the relator to obtain corporation, might, in transacting that busi

possession of he infant child, of the age ness, necessariiy come into the ownership of of nine months. The respondent is relator's property of a class not within the objects husband. They were living separate and for which it was incorporated. The collec- apart, the wife being at the home of her partion or enforcement of obligations due the

ents. The district court, by its judgment, corporation might necessarily, in the course

gave the custody of the child to the mother, of the transaction of its business, bring it but with the condition that she should alinto ownership of property, the acquirement

low the father to visit the child twice a of which is not within the special object

week. The judgment also taxed the costs and purpose for which the company was or against the respondent. Upon the hearing, ganized, as expressed in its articles of in

the court took the testimony of a number of corporation. But it would hardly be serious- witnesses. It appeared th the child was ly urged, in such event, that the title of the

between nine and ten months of age, and not corporation, as to such property, was void, in robust health. It would seem that it in favor of a stranger, who undertook, un- had been weaned, but that the mother was lawfully, to assume and hold the property

engaged, as she said, in the care and nursin question. Of course, cases arise where

ing and rearing of the infant. Her parents, agents of a corporation have been held liable with whom she was living, were supplying to the stockholders or others interested and

the wants of the mother and child, and were injured by a departure from the scope and

able and willing to continue so to do. There purpose of the company in its transactions,

was testimony by relator and respondent as but such complainants are not strangers, or to the cause of their separation, each claimwithout interest in the conduct of the corpo- ing the other to be in fault, but there was no ration. And the commonwealth may also in- claim made, and no attempt whatever to terfere, and forfeit the charter, and wind up show, that the mother was a person of imthe affairs of the corporation, in certain moral character, or in any way unfit to care cases, for abuse of its charter privileges by for the infant. We are of opinion that the unlawful use or departure therefrom. But district court exercised a perfectly sound dis cretion in giving to the mother the custody | But the true meaning of the term 'suit of the child of such tender years, and so has been given by this court. One of the apparently in need of a mother's attention. questions in Weston v. City Council of CharlesIndeed, there is no very serious contention ton (2 Pet. 449) was whether a writ of by the appellant upon this part of the case. prohibition was a suit; and Chief Justice He urges, however, that the court erred in

Marshall says: "The term is certainly & taxing against him the costs of the proceed comprehensive one, and is understood to aping.

ply to any proceeding in a court of Justice The Code of Civil Procedure provides, in by which an individual pursues that remedy reference to costs, as follows: "Costs may which the law affords him.' Certainly, be allowed, of course, to the plaintiff, upon Milligan pursued the only remedy which the a judgment in his favor, in the district court, law afforded him. Again, in Cohens v. Virin the following cases: .. Fourth, in ginia (6 Wheat. 264] he says: 'In law lanspecial proceedings in the nature of an ac- guage, a suit is the prosecution of some detion." Section 495, Code Civil Proc. "A mand in a court of justice;' also, 'to comjudgment is the final determination of the mence a suit is to demand something by the rights of the parties in an action or pro- institution of process in a court of Justice, ceeding." Section 238, Id. The disposition and to prosecute the suit is to continue that by the district court of the application for a demand.' When Milligan demanded his rewrit of habeas corpus was a judgment. It lease by the proceeding relating to habeas was the final determination of the rights of corpus, he commenced a suit; and he has the parties. That judgment was in favor of since prosecuted it in all the ways known to the relator. The question, then, is, whether the law. One of the questions in Holmes v. this is a judgment in a special proceeding Jennison (14 Pet. 540) was whether, under the in the nature of an action. Section 495, 25th section of the judiciary act, a proceedsupra If such, it would seem that the costs ing for a writ of habeas corpus was a suit. should be allowed to the relator. We are of Chief Justice Taney held that, '11 a party opinion that the proceeding upon habeas cor- is unlawfully imprisoned, the writ of habeas pus is in the nature of an action. There corpus is his appropriate legal remedy. It are parties to the proceeding. In practice is his suit in court to recorer his liberty.' they are not usually called "plaintifr" and There was much diversity of opinion on “defendant," but “relator" and "respondent;" | another ground of jurisdiction; but that, in but we do not consider that this matter of the sense of the 25th section of the judiciary the names of the parties in the title of an act, the proceeding by habeas corpus was a action is important. Anderson's Law Dic- suit, was not controverted by any except tionary defines an action as follows: “The Baldwin, Justice, and he thought that 'suit' lawful demand of one's right (3 Bl. Comm. and 'cause,' as used in the section, mean the 116) in a court of justice. McBride's Ap- same thing." Ex parte Milligan, 4 Wall. peal, 72 Pa. St. 483.” Another definition in 112, 113. Under these views of the word "acthe same dictionary is: "An action or suit tion," and especially the opinion of the United is any proceeding for the purpose of obtain- States supreme court as to a habeas corpus ing such remedy as the law allows." The proceeding, we are satisfied that subdivision definition cites Harris v. Insurance Co., 35 4 of section 495 of our Code of Civil ProceConn. 310. In that case the court, speaking dure is applicable to the inquiry in hand; of "suit" or "action," says: “But by a suit, that is to say, that this habeas corpus matwithin the meaning of this provision of the ter is a special proceeding in the nature of policy, (of insurance,) is more clearly meant an action. It is a proceeding to determine beany proceeding in the court for the purpose tween these parties the right to the custody of obtaining such remedy as the law allows of their infant child. Referring to one of tho à party under the circumstances.” Black's definitions above cited, it is a "proceeding Law Dictionary, under the title of “Action,” for the purpose of obtaining such remedy gives this definition: “The legal and formal as the law allows." The result of the proceeddemand of one's rights from another person ing is the judgment which we are reviewing, or party, made and insisted on in a court and section 495 says that upon such judg. of justice.” In the Milligan Case, which was ment, in such special proceedings, costs shall a habeas corpus proceeding, Mr. Justice Da- be allowed to the plaintiff. We cannot bevis, delivering the opinion of the court, said: lieve that the fact that the prevailing party "In any legal sense, 'action,' 'suit,' and 'cause' is called “relator" instead of "plaintiff" is are convertible terms. Milligan supposed he of any importance. The sense of the word had a right to test the validity of his trial “plaintiff” is that the person so called is and sentence, and the proceeding which he the complaining party,-the party who is set in operation for that purpose was his coming into court asking for rights which cause or suit. It was the only one by which he claims. That is what the relator does he could recover his liberty. He was pow- in this proceeding, and we believe that the erless to do more. He could neither instruct spirit and intention of section 495, when it the judges, nor control their action, and uses the word "plaintiff," is to include such should not suffer because, without fault of complaining and demanding party as the rebis, they were unable to render a judgment. I lator in a habeas corpus proceeding, even

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