that the decd was valid, obtained a patent, and subsequently conveyed to defendant, who took with notice. Held, that plaintiff's cotenants, when they obtained the patent, became constructive trustees of plaintiff's undivided interest, and their grantee with notice occupies no better position. Per Harwood, J.

3. Plaintiff, by a void deed, conveyed an undivided interest in a mining claim to its cotenants, who applied for and obtained a patent. In a suit against them and their grantee to quiet title it was not pleaded or shown that plaintiff was an owner or claimant when the patent was applied for. Held, that plaintiff was not estopped, under Rev. St. U. S. § 2326, because it did not file an adverse claim to the application. Per De Witt, J.

4. The grantee of grantees of a corporation, in a suit by the latter to quiet title, cannot claim that it had no power to acquire and hold land, as any title he may have is derived from it. Per De Witt, J.

5. Even though a corporation claiming title to land may not have had the right to acquire and hold the same, the question cannot be raised by a stranger asserting an unwarranted claim of ownership. Per Harwood, J.

6. In an action to quiet title to an undivided interest in land, a finding that defendant had built a foundation for a house partly apon a portion of the premises is not a finding that plaintiff was not in possession when the action was brought. Per De Witt, J.

Appeal from district court, Silver Bow county; John J. McHatton, Judge.

Action by the Butte Hardware Company against Benedict Schwab, George A. Cobban, and others to quiet title. From a judgment for plaintiff, defendant Cobban appeals. Affirmed.

Statement of the case by the justice delivering the opinion:

This action is to quiet title as to the two thirty-seconds undivided interest in the Yellow Jack mining claim. The defendants Schwab, Cummings, Hauser, and Fitchen were owners of the claim, and made application for patent therefor The Butte Hardware Company, the plaintiff, bought oneeighth interest in the claim from Schwab May 5, 1884. December 27, 1884, a deed was made, purporting to be by the Butte Hardware Company, to Schwab, Cummings, Hauser, and Fitchen, for said one-eighth interest. The execution clause of that deed reads as follows: "In witness whereof the said party of the first part doth hereunto set its hand and seal the day and year first above written. [Signed] Butte Hardware Co. By P. A. Largey, Supt. Signed, sealed, and delivered in the presence of Jos. H. Harper." On December 30, 1884, the receiver's receipt was issued from the land office to Schwab, Cummings, Hauser, and Fitchen. On October 18, 1889, Schwab executed and delivered to defendant Cobban a quitclaim deed of all his interest in the premises. On October 26, 1889, defendant Cummings executed and delivered a similar deed to defendant Cobban. The plaintiff contends that these deeds to Cobban are void, and a cloud upon its title. The complaint alleges that on December 27, 1884, the plaintiff was, and for a long time had been, the owner of, and in the possession and entitled to the pos

session of, said undivided one-eighth interest in the Yellow Jack mining claim, describing the claim; that on said day Schwab, Cummings, Hauser, and Fitchen were also owners, and, for the purpose of conveniently obtaining patent for the premises, agreed with P. A. Largey, superintendent of the plaintiff, that if plaintiff would convey its interest to them they would hold it in trust, and on demand reconvey to plaintiff; that P. A. Largey executed to those defendants the deed above mentioned; that this deed was executed and delivered without any consideration whatever, with the intention between Largey and those defendants that they should hold said property as trustees for the Butte Hardware Company; that Largey had no authority to sell or convey said property to defendants, or any one, and that said deed was executed without authority; that the property was worth $10,000; that plaintiff is now in possession. The complaint further alleges that on the 18th and 26th days, respectively, of October, 1889, the defendant procured said Schwab and Cummings to execute to him deeds for all their interest in the claim. It is alleged that Cobban did this with full knowledge of the alleged trust pleaded above, and with full knowledge that said Schwab and Cummings had no ownership or title in or to the said one-eighth interest. Said deeds are recorded in the county of Silver Bow, and are a cloud upon plaintiff's title. The complaint prays that Schwab, Cummings, Hauser, and Fitchen be decreed to be the trustees of plaintiff as to said one-eighth interest, and be required to reconvey the same to it, and that said Cobban be decreed to have no title in said one-eighth interest.

Schwab, Cummings, Hauser, and Fitchen defaulted. Cobban alone answered. The answer of Cobban denies the material averments of the complaint specifically. It further sets up that plaintiff is a commercial corporation organized under the laws of Montana for the purpose of engaging in mercantile business, and cannot hold or асquire the real estate or mining claim described in the complaint; that the holding of said ground is not necessary in the business of plaintiff. The answer alleges that said defendant Cobban purchased the Schwab and Cummings alleged interest in good faith, and for a valuable consideration.

The case was tried by the court without a jury. The court found that Largey, assuming to act as superintendent of plaintiff, made the deed above described; that the same was duly recorded in Silver Bow county on December 27, 1884; that there was no declaration of trust, or instrument in writing, showing that the two thirty-seconds interest so conveyed to Schwab and Cummings was to be reconveyed to plaintiff. It was also found that the receiver's receipt was issued to said Schwab and Cummings for said two thirty-seconds interest, and that

they have never conveyed that interest to any one except Cobban. It was found that Cobban, at the time the action was commenced, had built a foundation for a house, which was partly upon the Yellow Jack claim. The court found that the plaintiff corporation was entitled to purchase and hold the one-eighth interest in said mining claim. The judgment decreed that the deed made in the name of Largey, superintendent of plaintiff, to defendants Schwab, Cummings, Hauser, and Fitchen, is null and void, and that it conveyed no title; also, that the deed made by Schwab to Cobban, and the deed made by Cummings to Cobban, are

that at the time of application for patent the Butte Hardware Company had or claimed any interest in the Yellow Jack mining claim, or that its grantors had an interest upon which they failed to file an adverse claim. The pretended deed from the Butte Hardware Company to Schwab et al. was made December 27, 1884. The Butte Hardware Company acquired its title to the oneeighth interest in May, 1884. If the notice of application for patent had been admitted, it would have appeared that the Butte Hardware Company did not own an interest in the claim when advertisement occurred. But, it not being allowed in evidence, it nowhere ap

tiff is the lawful owner of the property described in the complaint; and that its title thereto is adjudged to be quieted against all claims of the defendants, or either of them. The decree further recites that, it appearing that said void deed made by Largey was used in the land office as part of a chain of title, and that by the use of that deed the land office had issued a receiver's receipt for the property described in that deed to Schwab, Cummings, Hauser, and Fitchen, and that that property belongs to the plaintiff, it is ordered that said four defendants execute and deliver a deed conveying to plaintiff the title to the property described in its complaint, which they acquired by virtue of the receiver's receipt. From this Judgment the defendant Cobban appeals. The other facts are stated in the opinion below.

Chas. R. Leonard and E. W. Toole, for appellant. George Haldorn and F. T. McBride, for respondent.

DE WITT, J., (after stating the facts.) It is pleaded, it is adjudged by the court, it is not specified as error, and it is relied upon in argument on both sides, that the deed made by Largey, purporting to be the deed of the Butte Hardware Company, was and is void. We will therefore start with the foundation that that deed was a nullity. When that pretended deed was made, the Butte Hardware Company owned a one-eighth interest in the Yellow Jack mining claim. The deed, being to Schwab, Cummings, Hauser, and Fitchen, without describing the shares which the grantees were supposed to take, there fore purported to give Schwab and Cummings two thirty-seconds of the Yellow Jack mining claim. The deed being a nullity, Schwab and Cummings took nothing thereby. If that be true, Schwab and Cummings conveyed nothing to Cobban in October, 1889. This is clear enough, unless there is some estoppel.

It is contended that the Butte Hardware Company is estopped because it did not file in the United States land office an adverse claim (section 2326, Rev. St. U. S.) to the application for patent. But it does not appear

Butte Hardware Company, at the time of advertisement for patent, was an owner or claimant in the premises, or could thereby be estopped by virtue of not filing an adverse claim to the application for patent.

Again, is the Butte Hardware Company es topped from claiming its title in two thirtyseconds of the Yellow Jack mining claim by virtue of Cobban buying the two thirty-seconds interest from Schwab and Cummings, grantees in the pretended deed of Butte Hardware Company, to Schwab, Cummings, Hauser, and Fitchen, of December 27, 1884? Added to the fact that that was a void deed, absolutely, we are of opinion that Cobban was not an innocent purchaser for value. It sufficiently appeared that, before Cobban bought from Schwab and Cummings, he was informed that, if Schwab and Cummings had an apparent title to the two thirty-seconds interest on record, they had none in fact. Fitchen testified to this effect, although he was disputed by Cobban. Schwab and Cummings each deposed that he told Cobban that he had no claim to this two thirty-seconds interest. Cobban, however, said he would take a deed. He obtained quitclaim deeds from Schwab and Cummings. He paid five dollars for each,-a grossly inadequate consideration, under the evidence. Cummings deposed that Cobban promised to give him more if he got anything out of the claim. Under all these facts, it is apparent that Cobban was not an innocent purchaser for value, and that he had the amplest facts to put him on inquiry. Therefore, we arrive at this situation: By the receiver's receipt, December 30, 1884, whatever right passed from the United States (and we will call it a title, for the purpose of this decision) passed to Schwab, Cummings, Hauser, and Fitchen. But at that time the Butte Hardware Company owned one-eighth of the possessory title, as against Schwab, Cummings, Hauser, and Fitchen, and still owns it. These four persons concede this. Cobban disputes it. But his grantors are Schwab and Cummings. They concede it, and Cobban is in no position superior to them, because he is not an innocent purchas er for value. Therefore, every one-Schwab, Cummings, Hauser, and Fitchen, in fact, and Cobban, in effect-concedes that the first four

persons named hold in their names the receiver's receipt for the Butte Hardware Company's one-eighth interest of the Yellow Jack mining claim. Under those circumstances, why should they not convey it? It is not a question of proving a trust, by parol or otherwise. The simple situation is, four persons have in their names title to real estate which belongs to another. They admit that fact, and Cobban is not a person to controvert it. It is our opinion that they are trustees, and should be, as they were, decreed to convey to their cestui que trust. There seems to be no occasion for the creating or declaring of a trust, or offering evidence that it was created or declared, or relying upon the deed from the Butte Hardware Company to Schwab, Cummings, Hauser, and Fitchen. The existence of the trust is uncontroverted.

The action is to quiet title, and remove a cloud. Appellant claims that plaintiff was not in the possession of the premises, the two thirty-seconds undivided interest in the mining claim, at the commencement of the action. Section 366, Code Civil Proc. His specification in this regard, on motion for a new trial, is as follows: "The evidence is insufficient to sustain the decision and the decree of the court, for the reason that the evidence establishes the fact that the defendant George A. Cobban was in possession of a portion, at least, of the premises in controversy at the time of the institution of said action, as was found by the court in its special finding No. 8." Finding 8 is as follows: "Did said defendant Cobban, in pursuance of his purchase of said two thirty-seconds of said mining claim, enter upon a certain portion thereof, and construct and erect a house thereon? And was such house so upon said premises covered by it at the time that this action was commenced? Answer. He had built a foundation for a house, which foundation was partly upon a portion of said premises." Appellant contends that this is a finding that respondent was not in possession of the premises, the subject of the action. The subject of the action was two thirtyseconds undivided interest in a mining claim. That defendant had put a foundation for a house partly upon the mining claim, we think, is not a finding that defendant was in possession of plaintiff's claimed two thirty-seconds undivided interest in the premises, or, in effect, that plaintiff was not in such possession.

It is contended that plaintiff, as a commercial corporation, is not empowered to hold or claim an interest in a mining claim. It appeared that plaintiff was occupying a portion of the surface of the claim with a warehouse which it was using in its business. The defendant Cobban is not an appropriate person to raise that question. What Cobban claims as to title comes from plaintiff. If Cobban could be said to own

anything, (which, as we have seen, cannot be said,) he owned it from plaintiff as grantor behind Schwab and Cummings. Bank v. Roberts, 9 Mont. 331, 23 Pac. Rep. 718. The judgment is affirmed.

PEMBERTON, C. J., having been counsel in this case, does not participate in the decision.

HARWOOD, J., (concurring.) My concurrence in affirming the judgment of the trial court proceeds upon the ground that the facts shown give rise to a trust in the grantees of the patent, in favor of the plaintiff, for the eighth interest which it owned in said property when patent was issued therefor, and that appellant, Cobban, acquired his alleged claim thereto with knowledge of the equities existing in favor of plaintiff. For the purpose of this review the receiver's final receipt has been regarded by both parties as equivalent to a patent, and therefore the case is considered as if patent had issued. It is not disputed that after patent was applied for, and notice had run, plaintiff came into ownership of an eighth interest in said lode claim, nor that the Largey deed, purporting to convey plaintiff's interest to Schwab, Cummings, Hauser, and Fitchen was void. But through the appearance of said void deed the United States government was induced to convey the whole of said claim to the other co-owners above named, thereby carrying the legal title of plaintiff's interest to the grantees in the patent. Now, the title to plaintiff's interest in said claim having passed away from it by the circumstance of said void deed being recognized as valid, the grantees of that interest became trustees thereof, holding the same for the use and benefit of the real owner, the same as if the title, by mistake, had been conveyed and recorded in the name of a stranger. That trust is implied by operation of law upon the circumstances mentioned, and does not depend upon the alleged express agreement for reconveyance claimed to have been made by Largey, on behalf of plaintiff, at the time the void deed was executed, nor upon any action of Largey, because his attempted conveyance was void, as all parties admit, and in fact did not divest plaintiff of its interest. The void deed figured in the transaction as the mere circumstance which misled the government to grant plaintiff's interest, along with the rest of the lode, to the grantees above named. Plaintiff did not own or claim an interest adverse to any other claimants in said lode, but it owned an interest in conjunction with, and recognized by, the other claimants and patentees of said lode. Hunt v. Patchin, 35 Fed. Rep. 816. And plaintiff having come into ownership after application for patent, for the sake of convenience in obtaining the patent, it was thought expedient, by those assuming to act, that plaintiff's interest should be deeded over

to the other grantees in the patent, in order to make it appear to the government's agents that the persons to whom the patent was issued were the owners of the whole of said claim. But that deed was void, and therefore when the patent was issued the legal title of plaintiff's interest, which it had not parted with, was conveyed to the grantees named in the patent. It appears that the grantees in the patent, although made parties to this action, have never come in and denied the foregoing facts; and the record shows that Cobban obtained such conveyance 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 extent of its interest. 2 Pom. Eq. Jur. § 1048. So that Cobban is in no position to claim equities in his behalf which the grantees of said patent could not have invoked. It appears to me to be a case of constructive trust, arising by operation of law, and should be executed, as directed by the judgment of the trial court. Hunt v. Patchin, supra; Lakin v. Mining Co., 25 Fed. Rep. 337; Hardy v. Harbin, 4 Sawy. 536; Wilson v. Castro, 31 Cal. 421; Salmon v. Symonds, 30 Cal. 301.

The point is raised that plaintiff was not competent to receive and hold said interest in the mining claim, because the acquisition of such property was not specially within the scope of the object and purpose of the corporation, as expressed in its articles of incorporation. I do not think that point could be maintained, so as to avoid the title of plaintiff to said property, in favor of a stranger. A corporation organized for special purposes, specified in the articles of incorporation, might, in transacting that business, necessarily come into the ownership of property of a class not within the objects for which it was incorporated. The collection or enforcement of obligations due the corporation might necessarily, in the course of the transaction of its business, bring it into ownership of property, the acquirement of which is not within the special object and purpose for which the company was or ganized, as expressed in its articles of incorporation. But it would hardly be seriously urged, in such event, that the title of the corporation, as to such property, was vold, in favor of a stranger, who undertook, unlawfully, to assume and hold the property in question. Of course, cases arise where agents of a corporation have been held liable to the stockholders or others interested and injured by a departure from the scope and purpose of the company in its transactions, but such complainants are not strangers, or without interest in the conduct of the corporation. And the commonwealth may also interfere, and forfeit the charter, and wind up the affairs of the corporation, in certain cases, for abuse of its charter privileges by unlawful use or departure therefrom. But

no cases have been cited, and probably can not be found, where strangers have been heard to raise such a defense to their unwarranted claims upon the property of a corporation. To the contrary may be cited the following cases: Bank v. Roberts, 9 Mont. 331, 23 Pac. Rep. 718; Bank v. Matthews, 98 U. S. 621; Bank v. Whitney, 103 U. S. 99; Fortier v. Bank, 112 U. S. 439, 5 Sup. Ct. Rep. 234; Mining Co. v. Clarkin, 14 Cal. 544; California State Tel. Co. v. Alta Tel. Co., 22 Cal. 398. I concur in affirming the judgment of the trial court.

STATE ex rel. NEWELL ▼. NEWELL. (Supreme Court of Montana. Sept. 5, 1893.) COSTS-SPECIAL PROCEEDINGS-HABEAS CORPUS. A habeas corpus proceeding by a mother against a father to obtain possession of their child is a "special proceeding in the nature of an action," within the meaning of Code Civil Proc. 495, providing that costs shall be allowed in such proceedings to plaintiff on a judgment in his favor.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Habeas corpus, on the relation of Evalena Newell, against George F. Newell. From & judgment for relator, defendant appeals. Af

firmed.

E. P. Cadwell, for appellant. Luce & Luce, for respondent.

DE WITT, J. This appeal is from the Judgment of the district court made upon the hearing of the application of Evalena Newell for a writ of habeas corpus. The proceeding was brought by the relator to obtain possession of her infant child, of the age of nine months. The respondent is relator's husband. They were living separate and apart, the wife being at the home of her parents. The district court, by its judgment, gave the custody of the child to the mother, but with the condition that she should allow the father to visit the child twice a week. The judgment also taxed the costs against the respondent. Upon the hearing, the court took the testimony of a number of witnesses. It appeared that the child was between nine and ten months of age, and not in robust health. It would seem that it had been weaned, but that the mother was engaged, as she said, in the care and nursing and rearing of the infant. Her parents, with whom she was living, were supplying the wants of the mother and child, and were able and willing to continue so to do. There was testimony by relator and respondent as to the cause of their separation, each claiming the other to be in fault, but there was no claim made, and no attempt whatever to show, that the mother was a person of immoral character, or in any way unfit to care for the infant. We are of opinion that the district court exercised a perfectly sound dis

cretion in giving to the mother the custody of the child of such tender years, and so apparently in need of a mother's attention. Indeed, there is no very serious contention by the appellant upon this part of the case. He urges, however, that the court erred in taxing against him the costs of the proceeding.

The Code of Civil Procedure provides, in reference to costs, as follows: "Costs may be allowed, of course, to the plaintiff, upon a judgment in his favor, in the district court, in the following cases: Fourth, in special proceedings in the nature of an action." Section 495, Code Civil Proc. "A judgment is the final determination of the rights of the parties in an action or proceeding." Section 238, Id. The disposition by the district court of the application for a writ of habeas corpus was a judgment. It was the final determination of the rights of the parties. That judgment was in favor of the relator. The question, then, is, whether this is a judgment in a special proceeding in the nature of an action. Section 495, supra If such, it would seem that the costs should be allowed to the relator. We are of opinion that the proceeding upon habeas corpus is in the nature of an action. There are parties to the proceeding. In practice they are not usually called "plaintiff" and "defendant," but "relator" and "respondent;" but we do not consider that this matter of the names of the parties in the title of an action is important. Anderson's Law Dictionary defines an action as follows: "The lawful demand of one's right (3 Bl. Comm. 116) in a court of justice. McBride's Appeal, 72 Pa. St. 483." Another definition in the same dictionary is: "An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows." The definition cites Harris v. Insurance Co., 35 Conn. 310. In that case the court, speaking of "suit" or "action," says: "But by a suit, within the meaning of this provision of the policy, [of insurance,] is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances." Black's Law Dictionary, under the title of "Action," gives this definition: "The legal and formal demand of one's rights from another person or party, made and insisted on in a court of justice." In the Milligan Case, which was a habeas corpus proceeding, Mr. Justice Davis, delivering the opinion of the court, said: "In any legal sense, 'action,' 'suit,' and 'cause' are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence, and the proceeding which he set in operation for that purpose was his cause or suit. It was the only one by which he could recover his liberty. He was powerless to do more. He could neither instruct the judges, nor control their action, and should not suffer because, without fault of his, they were unable to render a judgment.

But the true meaning of the term 'suit' has been given by this court. One of the questions in Weston v. City Council of Charleston [2 Pet. 449] was whether a writ of prohibition was a suit; and Chief Justice Marshall says: "The term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him.' Certainly, Milligan pursued the only remedy which the law afforded him. Again, in Cohens v. Virginia [6 Wheat. 264] he says: 'In law language, a suit is the prosecution of some demand in a court of justice;' also, 'to commence a suit is to demand something by the institution of process in a court of justice, and to prosecute the suit is to continue that demand.' When Milligan demanded his release by the proceeding relating to habeas corpus, he commenced a suit; and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jennison [14 Pet. 540] was whether, under the 25th section of the judiciary act, a proceeding for a writ of habeas corpus was a suit. Chief Justice Taney held that, if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty.' There was much diversity of opinion on another ground of jurisdiction; but that, in the sense of the 25th section of the judiciary act, the proceeding by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that 'suit' and 'cause,' as used in the section, mean the same thing." Ex parte Milligan, 4 Wall. 112, 113. Under these views of the word "action," and especially the opinion of the United States supreme court as to a habeas corpus proceeding, we are satisfied that subdivision 4 of section 495 of our Code of Civil Procedure is applicable to the inquiry in hand; that is to say, that this habeas corpus matter is a special proceeding in the nature of an action. It is a proceeding to determine between these parties the right to the custody of their infant child. Referring to one of the definitions above cited, it is a "proceeding for the purpose of obtaining such remedy as the law allows." The result of the proceeding is the judgment which we are reviewing, and section 495 says that upon such judg ment, in such special proceedings, costs shall be allowed to the plaintiff. We cannot believe that the fact that the prevailing party is called "relator" instead of "plaintiff" is of any importance. The sense of the word "plaintiff" is that the person so called is the complaining party,-the party who is coming into court asking for rights which he claims. That is what the relator does in this proceeding, and we believe that the spirit and intention of section 495, when it uses the word "plaintiff," is to include such complaining and demanding party as the relator in a habeas corpus proceeding, even