1 Alaska 509 | D. Alaska | 1902
Lead Opinion
A mining claim is real property. By the provisions of section 62, Civ. Code, p. 367, Carter (a re-enactment of the Oregon Code in force at the time of the agreement in question), joint tenancy is abolished, and all persons having an undivided interest in real property are to be deemed and considered tenants in common. The parties to the agreement of April 26,1898, if at all interested in the Anny claim, were co-tenants, and not mining partners. Sections 788 and 796, 2 Findley on Mines. Real property descends directly to the heir upon the death of the ancestor '‘subject to his debts.” Section 168, Civ. Code, p. 384, Carter. The heir obtains title by descent, and not through the process of the probate court. His title vests immediately upon the death of the ancestor, and the only jurisdiction through probate lies to enforce the lien of the ancestor’s debts against the real property. If there are no debts, the heir becomes vested at once with a complete title. Lohmann v. Helmer (C. C.) 104 Fed. 178. If the ancestor was a co-tenant, the heir stands in his place. Speer’s sale of an undivided half interest was valid, and Marcy became, a co-tenant in the mine. A tenant in common may maintain an action for the recovery of a mining claim without joining his co-tenant. Morenhaut v. Wilson, 52 Cal. 263; Weise v. Barker (Colo. Sup.) 2 Pac. 919. As to the right of the plaintiffs, as co-tenants, to enjoin the defendants from extracting and converting the gold to their exclusive use, Lindley says:
“It may be generally conceded, particularly in the precious metal bearing states where the reformed procedure has been adopted, that Where a co-tenant in possession, who either works in so unskillful a*512 manner as to amount to destructive waste, or, being in possession under an unequivocal hostile assertion of exclusive title, seeks to appropriate the entire product to his own use, an injunction will lie at the instigation of the injured co-tenant. The remedy at law by an action of trespass or trover for rents and profits, or one sounding in damages only, might he wholly inadequate.” 2 Lindley, § 790.
The demurrer will be overruled.
Opinion on the Merits
On the Merits.
This is an action by the plaintiffs, as partners with Samuel Henninger, one of the defendants, to recover their alleged partnership interests in a mining claim located by the defendant, and described in the complaint. It appears that the defendant Henninger, together with Binswanger and others of the plaintiffs, entered into a written agreement of partnership on the 26th day of April, 1898, for the purpose of-prospecting for mines, both placer and quartz, in Alaska, from that date until the 1st day of October, 1899. The complaint sets out the contract, and alleges that it was recorded on the 4th day of October, 1900, in the commissioner’s office in Nome; that, in pursuance of the contract, the parties all came to Alaska, and engaged in the business described in their articles of copartnership; that on July 7, 1899, the defendant Henninger located the mine in question in his own name; that he remained in possession of it until about July 5, 1901, when he sold the same to the other defendants in this action, except the Alaska Banking & Safe Deposit Company, in whose hands the deed from Henninger to the other defendants was placed in escrow. The plaintiffs allege their interest in the property under their articles of copartnership, and the insolvency of the defendants, and then ask for a judgment that they be decreed to be the owners of the interests to which they would be entitled in their articles of copartnership.-
The defendants, answering, admit the making of the arti
An application was made by the defendants for a continuance, and the affidavit filed in support thereof alleged that Henninger and Collins, two of the partners, were without the District of Alaska, and sets out that, if they were present, they would testify to the facts alleged in the answer, to wit, to the dissolution and settlement of all partnership affairs prior to the location by Henninger on July 7, 1899. Rather than permit a continuance in the case, the plaintiffs admitted that those two partners would so testify if present, and the court denied the continuance, upon the agreement that the affidavit should stand as their evidence in the case. Upon the trial, Binswanger and Coburn, two of- the partners, testified and denied positively that there was any such settlement or dissolution of the partnership property in question. The testimony of Collins and Henninger, taken in the matter of the estate of Albert Speer and A. J. Lawrence, two of the partners, who were drowned off the Alaskan coast, was introduced in evidence by consent. The articles of copartnership in this case are particularly against the defendants. The first clause, after naming the parties, continues: “Agree to and do hereby become partners in the business of prospecting for mines, both placer and quartz, in Alaska, from this date until the first day of October, 1899/'' The next clause in relation to this particular branch of inquiry reads as follows:
*514 “No member of this co-partnership can withdraw prior to the 1st day of October, 1899, and in the event either of the partners hereto should desire to sell his interest in said co-partnership, he shall give to the remaining partners, or whichever of the partners shall desire, the preference right to purchase his interest in said copartnership for the period of thirty days after notice has been given by him of his intention to withdraw and of his desire to sell his interest therein.”
The agreement provides in detail for the death of members, and the manner of conducting the business in case of the death or retiring of any member, as provided in the section last quoted, and then the next'clause reads:
“The copartnership hereby formed shall terminate on the 1st day of October, 1899, unless the copartnership is by the consent of all the parties hereto, then surviving, continued beyond the last-named date.”
It then goes on to provide a method for continuing the ■ partnership from year to year after the said 1st day of October, 1899. A method is provided for settling all their difficulties' and limiting the right of any partner to sign obligations 'without the consent of a majority. The agreement provides that:
“All mining claims, whether placer or quartz, and all properties or property acquired in Alaska by either of the parties hereto, during the continuance of this contract, shall be and become the property of said copartnership; and all claims or other property located or acquired by either of the parties hereto, during the life of this contract, or any period of time which the same may be extended, shall be located and acquired in the name of all the members of the said copartnership,” etc.; “and in the event either of the parties hereto should acquire in his own name any such mining claims, the same are nevertheless to be and become the property of said copartnership; and such member shall, upon request so to do, duly transfer and convey the legal title thereto to said copartnership. Each member of this copartnership has an equal interest therein, and in the profits and property thereof, and shall' bear equally all the expenses thereof.”
My conclusion from the evidence in the case is that the co-partnership was not dissolved at the time Henninger made his location; that his location was made for the benefit of all"; and that they are entitled to their share, as shown by the contract.
It is alleged that the other defendants who purchased their rights from Henninger are in possession, and threatening to extract the substance of the estate, in violation of the rights of the plaintiff partners, and an injunction is asked restraining them from' so doing, oh the ground of their insolvency.
