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lien of $2,000, the balance of the purchase price for said claim still due N. 0. Hultberg from William Kidston.
Such an abandonment of the ground of defense could never be permitted by a court in the midst of a trial, and I fail to see why defendants have any better right to set it up afterwards by the way of a resubmission of the case. Nor am I persuaded that if the answer were amended as proposed the defendants could prevail in a new trial. They could only prevail by showing the court conclusively that N. O. Hultberg had a grantor's or vendor's lien upon the mortgaged claim, and that Lindbloom's lien under the mortgage was acquired subject thereto.
The defendants assume as law that vendors of realty in Alaska acquire an equitable lien for the deferred and unpaid part of the purchase price of realty after a delivery of an absolute deed to the purchaser. In Oregon the Supreme Court of that state sets at rest all controversy as to what the law of Oregon is on this subject by its decision in the case of Frame et al. v. Sliter et al., 45 Pac. 290, 34 L. R. A. 690, 54 Am. St. Rep. 781, delivered in 1896, wherein the court (Chief Justice Bean delivering the opinion) entered into a thorough review of the line of previous decisions relating to the existence of such liens in that state. The court, also, in that opinion, discusses the question upon principle, and the conclusion is reached therein that such liens have never been recognized authoritatively as forming a part of the law of real property in that state. I can see no provision of our Code by which such a lien is referred to either expressly or by implication, nor does counsel for the motion cite the court to any provision which does.
While such liens are recognized and enforced in some states, yet the doctrine of equitable liens is not favored by the courts, inasmuch as to recognize them is to uphold secret liens, to the ensnaring oftentimes of innocent purchasers and creditors. "The lien," as is said by Chief Justice Marshall in Bayley v.
Greenleaf, 7 Wheat. (U. S.) 51, 5 L. Ed. 393, "is a secret, invisible trust, known only to the vendor and vendee and to those to whom it may be communicated in fact. To the world the vendee appears to hold the estate divested of any trust whatever, and credit is given to him in the confidence that the property is his own, in equity as well as in law. A vendor relying upon this lien ought to reduce it to a mortgage, so as to give notice to the world.” Such liens are inconsistent with the spirit and intent of the registration laws of our Code, a trap for the unwary, and a means put in the hands of a dishonest vendor, by which he may trammel the free and easy subsequent conveyance of realty from which he gives up his title.
The motion cannot be granted, in fine, for two reasons, each conclusive of the main question :
(1) The defendants are not entitled to the resubmission, no error appearing to have been committed by the court in the former trial, and none being imputed either in the papers or in counsel's argument for the motion.
(2) If the case were resubmitted for trial, the court could not adjudge upon the evidence admitted or offered at the trial already had that any equitable lien arose in favor of the defendants, or any of them.
The motion to vacate the late submission of the case to the court and to permit the proposed amendment of the answer is now denied. Accordingly, findings of fact and conclusions of law may be prepared, to the end that judgment for the claim in suit, with the interest, attorney's commission of $250, and costs, etc., may be entered thereon in favor of the plaintiff.
WINDMULLER V. CLARKSON et al.
(Third Division. Valdez. November 21, 1904.)
No. 91. 1. MINES AND VINERALS-LOCATION OF PLACER CLAIN-RIGHTS AC
When a miner has (1) marked, (2) recorded, and (3) discovered, in accordance with the law and the local rules and regulations, he acquires a fixed property right and title to a placer mining claim, good against the world, though the paramount title and fee thereto remains in his trustee, the United States.
[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Mines and
Minerals, 88 66, 68.) 2. MINES AND MINERALS-PARTNERSHIP CREATION.
Plaintiff and defendants were prospectors and companions on the same stampede. They sledded their grub together from Valdez to the Sushitna river, camped and cooked at the same fire, and when they separated on the Sushitna to prospect for creeks agreed to locate for each other in case they found any. Defendants found a mineral-bearing creek, and jointly located a group of placer mines, which proved to be valuable. They also located a separate claim on the same creek for the plaintiff, which proved to be worthless. Held, that such agreements and acts did not give the plaintiff any interest in defendants' claims; that he had no contract for any interest therein, and his prayer for relief was denied.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 222.]
This is a suit to enforce specific performance of a contract for the joint location of placer mining claims, and to declare the defendants trustees for the plaintiff's interest in four placer mines on the Sushitna river, so located by them, under the contract whereby plaintiff claims a one-fifth interest therein.
Brown & Smith, for plaintiff.
WICKERSHAM, District Judge. When a miner has made a discovery of gold on his claim, has marked its boundaries
so that they can be readily traced, and recorded the notice of location, all prior to the attaching of intervening rights, he has acquired a fixed property right and a title thereto good and complete against all the world, though the paramount title and fee thereof is in his trustee, the United States. His title can only be defeated by a failure on his part to comply with the mining laws, regulations, and rules. His title may be sold, conveyed, mortgaged, and will descend to his heirs by will or the law of descent in the same way as if it were patented. Copper River Min. Co. v. McClellan, supra, p. 134.
The defendants in this case located the mining claims in dispute by a joint location notice. Four or more—not exceeding eight-persons may combine, and take each a full placer mining claim by a joint location notice; they did so in this case. The plaintiff alleges that, prior to the location by the defendants, he became a partner with them in the location of claims in that vicinity, and that by reason of their oral contract and the acts of the parties he became, and now is, in equity the owner of a one-fifth interest in the claims so located by them.
The defendants deny that they entered into any contract with the plaintiff whereby he was to have any interest in their claims. Their evidence shows, and the court finds, that after all parties reached the Sushitna river, where all had gone on a stampede, they agreed among themselves and with plaintiff that whenever any of the party should locate a creek, that each member of the party should be staked in on the locations by the discoverers. It appears that the plaintiff, accompanied by Barney and McLaren, went down stream on a prospecting trip. They took the names of those who went up stream. The defendants went up stream, taking the names of plaintiff and his companions. Each party agreed that if a creek was located the other party should be staked on the creek. The defendants, going up stream, located Valdez creek, discovered gold thereon, and staked the joint location for themselves, and also staked another claim for plaintiff. Defendants' claims proved to be of value; that staked for the plaintiff worthless. There was also some testimony that the plaintiff remained at the party's cache to watch it while the defendants washed up a quantity of gold, and that they divided this gold with plaintiff, giving him an equal portion with each of them. This is all the evidence of a contract relied upon by plaintiff.
It is not sufficient. Before the court would be justified in entering a decree for plaintiff, he must establish his contract by clear, convincing, and satisfactory evidence, and that he does not do. A court of equity will not adjudge the locator of a placer mining claim, who is in peaceable possession thereof under a clear record title, to be a trustee of that title and property for another, upon an alleged prior oral contract to locate it for the other, or to give him an interest therein, unless the case is established by full, clear, and satisfactory evidence. Hopkins v. Grimshaw, 165 U. S. 342, 17 Sup. Ct. 401, 41 L. Ed. 739, citing with approval Prevost v. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 511 ; Slocum v. Marshall, 2 Wash. C. C. 397; Fed. Cas. No. 12,953; Smith v. Burnham, 3 Sumn. 435, Fed. Cas. No. 13,019.
It is true that plaintiff and defendants were mining prospectors on the same stampede from Valdez to the Sushitna ; they sledded their grub together; they camped and cooked at the same fire; they were "pardners” in the sense of being companions. But such acts do not constitute a contract of partnership in the eye of the law, nor do they constitute a contract which would justify the court in decreeing them all to be interested in the titles to placer mining claims located in their individual names. Conceding that defendants jointly located four claims in their joint names and interest by one and the same location notice, it cannot help the plaintiff. He was not included in that notice, and he cannot be held to be an equitable owner therein, in the absence of a specific contract made by