34 Colo. 417 | Colo. | 1905
delivered the opinion of the court.
Action was brought by Ballard in the district court to recover a one-sixth interest in the Ballard lode, situated in Lake county, for an accounting, and for his proportionate share of the net profits realized from the operation of the said property as a mine. The complaint was filed in the month of June, 1901; demurrer was interposed and sustained; judgment rendered dismissing the action; and the plaintiff has appealed. We shall set forth the allegations of the complaint in substance only. The plaintiff says that in the month of March, 1879, he, W. D. Larremore and N. J. Ballard located the Ballard lode, each of said locators having a one-third interest therein; that the location certificate was duly recorded; that the plaintiff, in the year 1880, executed a deed for a one-third interest in said lode to certain persons who, under contract with him, had sunk the shaft on the .lode to a depth of about two hundred feet; that prior to the execution of this deed he had acquired by purchase from his brother, Newton J. Ballard, the one-third interest of said Newton J. Ballard in said lode; that prior thereto Larremore had conveyed his interest in said lode to one Jasper Moon, and that said Moon had conveyed an undivided one-sixth interest in said lode to one Charles P. Gilbert; that prior to the making of the last mentioned deed from Moon to Gilbert he and Jasper Moon, being the sole owners of
The affidavits and notice of forfeiture are set out at length in the complaint, and show that the notice of forfeiture is directed “To Charles Walker, A. Ballard, or Whom It May Concern;” that it was published for ninety consecutive times in the Leadville Daily Herald, that the first publication was on the
He furthermore states that the labor performed in 1881 upon said lode in addition to that performed by himself was performed, if at all, at the instance of Wilmot, Kopplemeyer and Walters, hereafter mentioned, and not at the instance' of C. P. Moon. He. furthermore alleges that the affidavit of the editor of said newspaper is not true, in that said notice was not published for the period of ninety days, as stated therein; and that at no time subsequent to October 24, 1879, did the plaintiff by any conveyance transfer or convey a one-sixth interest in said Ballard lode, which he then and ever since has owned, and that no proceeding or judgment, tax sale or any other adverse proceeding of any kind has been had or commenced by virtue of which this plaintiff has been divested of his one-sixth interest in said lode; that afterwards, on October 12, 1885, under said proceedings for patent based upon said application of Jasper Moon and himself, a United States patent for said Ballard lode was issued to C. P. Moon, L. H. Wilmot, A. W. Gilbert and H. G. Kopplemeyer; that he did not know until January, 1899, that his name did not appear as one of the entrymen for said patent, and did not know until then that his name had been omitted from said patent; that said patent was delivered to L. H. Wilmot at Deerfield, Illinois, and that it was not recorded in the recorder’s office of Lake county until December 24, 1898. He further alleges that after the year 1881 and up to the month of August, 1897, none of plaintiff’s co-owners in said Ballard lode were in actual possession thereof or any part thereof, or performed any labor or expended any money upon its improvement or development; that the only taxes paid on said Ballard lode since said application for patent
Separate demurrers were filed. They all set forth the same grounds, and are as follows: ‘ ‘ First, that defendants were purchasers for value and without notice. Second, that defendants held and occupied the premises under claim and color of title and paid taxes for thirteen years. Third, that plaintiff’s cause of action accrued in 1882, and is barred by the five years’ statute; Fourth, that the cause of action, which is to enforce a trust, is barred by tire five years’ statute. Fifth, laches and negligence of the plaintiff.”
The proceedings instituted did not have the effect of divesting plaintiff of his interest in the
It was said by Mr. Justice Brown in Turner v. Sawyer, 150 U. S., at page 586: “It is well settled that cotenants stand in a certain relation to each other of mutual trust and confidence; that neither will be permitted to act in hostility to the other in reference to the joint estate; and that a distinct title acquired by one will inure to the benefit of all. A relaxation of this rule has been sometimes admitted in certain cases of tenants in common who claim under different conveyances and through different grantors. However that may be, such cases have no application to the one under consideration, where
And this court has held, following the rule announced by Mr. Justice Brown, that “Obtaining patent from the government for mineral land, by a cotenant, in his own name, is not the purchase of an outstanding adverse title by the cotenant, as that expression is ordinarily used; but rather the perfection of the common title, which inures to the benefit of the cotenants of the patentee, to which the above rule of cotenancy applies, for the reason that cotenants stand in that relation of mutual trust and confidence toward each other that the title thus acquired by patent, the patentee holds as trustee for his co-owners in the premises.” — Mills v. Hart, 24 Colo. 508.
Moon, Gilbert, Wilmot and Kopplemeyer were cotenants of Ballard; they each held undivided interests in the property; and when they took title from the government in their own name they took a one-sixth interest therein in trust for Ballard. This proposition is not open to dispute, but the defendants claim in' their argument upon the demurrer that the complaint shows that they have been in the possession of the property under claim and color of title made in good faith, and that they have paid taxes thereon for the period of five years, and under the statute of this state they should be adjudged to be the owners of the said property, and that even though they have not been in the actual possession of the premises, that another statute requires that
Again, the complaint does not show that the taxes were paid for five successive years by a “person in the peaceable and undisputed possession” of the property, “under claim and color of title,” as required by section 29-23; nor does it appear from the complaint that the taxes were paid for five successive years by “a person having color of title,” as provided by section 2924. The complaint, on the contrary, shows that the taxes first paid were those for the year 1888 and that they were paid by .John Moon; that the taxes for the following four years-were paid by L. H. Wilmot; that the taxes for the year 1893 were paid by W. J. Moon, and that the property was sold for the taxes of 1894 and 1895. There, is no allegation in the complaint that John Moon ever owned or claimed an interest in the property, and according to the averments- of the complaint W. J. Moon did not acquire an interest therein until the year 1895. Therefore, even though we assume that sections. 2923 and 2924 apply to- the interests in mining claims acquired through forfeiture procedure under the provisions of the federal statute, the complaint is not demurrable, because it does not appear
But it is said that this is an action brought for relief upon the ground of fraud, and that section 2911 of the statutes requires that such complaints shall be filed within three years after discovery by the aggrieved party of the facts constituting such fraud, and not afterwards. This court, in the case of Morgan v. King, 27 Colo. 559, speaking of sections 2911 and 2912 of the statutes, says: “These two sections must be construed together, and when so read it is evident that where the relation of trustee and cestui que trust exists it was the intention of the legislature to give to the latter the right to bring an action against the former which involved a trust at any time within five years after his right to do so accrued; but in other cases based upon fraud, where the subject-matter of the action did not involve a trust, the action must be brought within three years. In brief, the former section applies to frauds perpetrated by those not bearing a fiduciary relation to the party defrauded, the latter to cases where the trust relation exists between the parties to the action. ”
Under this decision, we must hold that section 2911 is not applicable to this ease. But it is claimed that if section 2911 does not apply, that section 2912 does. This latter section provides that “Bills of relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within five years after the cause thereof shall accrue, and not after.” We do not think that it appears from the complaint that this section is applicable. The trust, such as occurred by the taking of a patent by one co-owner in his own name, is an express
It is urged that notwithstanding the fact that the action is not barred by the statute of limitations, that the plaintiff has been guilty of such laches and negligence, and that the same appears from the complaint, that a court of equity for this reason should not entertain his complaint. A great number of authorities have been cited on this branch of the case, including the case of Patterson v. Hewitt, 195 U. S. 309, in which case Mr. Justice Brown says:
*428 "It thus appears that the right of action accrued to the appellants in April, 1885, and that the suit was not begun until eight years thereafter — in 1893. * * * There is no doubt from the findings that appellants had no share in the subsequent development of the mine or the discovery of the ore in 1890, and that it was through the efforts and perseverance of the defendants and the aid they received from Fergusson that they were put in possession of this valuable property. If appellants had expected a share in this property they should either have brought a bill promptly to enforce their rights, or at least contributed their proportionate share to the subsequent work and labor, and the expenses then incurred. To- award them now a deed to their .original interest in the property would be greatly unjust to the defendants, through whose exertions the value of the property was discovered and the mine put upon a paying basis. * * * There is no class of property more subject, to sudden and violent fluctuations of value than mining lands. A location which to-day may have no salable value may in a month become worth its millions. Years may be spent in working such property apparently to no purpose, when suddenly a mass of rich ore may be discovered, from which an immense fortune is realized. Under such circumstances, persons having claims, to such property are bound to the utmost diligence in enforcing them, and there is no class of cases, in which the doctrine of laches has been more relentlessly enforced.”
The case was brought from New Mexico., and in that territory there is a statute to the effect that no action for the recovery of lands shall be commenced after a lapse of ten years. The action was brought within the ten years. The title was held in trust by one of the owners under certain conditions for the
For the reasons given, the judgment is reversed.
Reversed.
Chief Justice Gabbert and Mr. Justice Campbell, concur.