85 F. 67 | 8th Cir. | 1898
This suit involves a one-sixth interest in the same mine and products in question in the case of Kelley v. Boettcher, 85 Ped. 55. It is here upon an appeal from a decree sustaining demurrers to the amended bill, and dismissing the suit. The questions it presents are very similar to those raised by ithe demurrer in Kelley v. Boettcher, and the two cases were argued and submitted at the same time. The purpose of. the suit was to obtain the cancellation of a deed of of the mine, and to recover V<¡ of the mine and of its products. The original bill was filed on September 16, 1895. On November 5, 1895, a demurrer to this bill was sustained, and leave was given to the appellants to amend. The bill was amended; the appellees interposed demurrers to the amended bill; and on July 7, 1896, the decree sustaining the demurrers and dismissing the suit, which is challenged by ¡this appeal, was rendered. The amended bill discloses these facts: Prior to August 19, 1890, John Curran was the owner of the undivided one-sixth of the Little Johnny lode mining claim, which is situated near Leadville, in the state of Colorado. On that day he died, intestate, and his interest in this'mine descended to his father, Michael Curran, who died, intestate, on April 19,1891; and this interest descended to the appellants, so that the appellant Bridget Curran owned one-half, and each of the appellants Michael Curran, the son of the deceased Michael, and Margaret Curran, Katie Curran, Sarah Horan, Mary Walsh, and Bridget Polley, his daughters, owned one-twelfth, of that interest. In the summer of the year 1893, all of the appellants except Michael Cur-ran gave to Thomas J. Horan a power of attorney to sell and convey their interest in this mine. Horan lived at Grand Island, in the state of Nebraska, and none of the appellants lived nearer the mine than the state of Wisconsin. None of them knew anything about the history, condition, or value of the mine, or anything about the business of mining for gold and silver, and Horan was equally ignorant. The appellees A. V. Hunter and John P.. Campion had been profitably working this mine for several years prior to March 5,1891, when they organized the appellee the Ibex Mining Company, a corporation, the majority of the stock of which they have always held, and conveyed their interests to it. Since that time they have operated the mine in the name of this corporation. In 1893 these appellees conspired together to obtain from all the appellants except Michael Curran a conveyance of their interest in this mine, by false
The positive allegations of misrepresentation and concealment which are found in this bill are sufficient:, if standing alone, to entitle appellants to a cancellation of the deed, a discovery, and an accounting. These allegations are supported by an averment that the appellants
The answer to tbe plea of laches is that tbe suit was brought within tbe time prescribed by tbe statute of limitations of tbe state of Colorado for tbe commencement of actions at law of this character, and tbe bill discloses no such extraordinary circumstances as demand tbe application of that doctrine to this.suit in any briefer period.
Tbe objection that there was a misjoinder of causes of action, in that tbe appellant Michael Curran has no interest in tbe cancellation of tbe deed, and that tbe appellees Campion and Hunter are liable to account for tbe products of tbe mine before, and not after, March 5, 1891, while tbe mining company is liable to account for those products subsequent to that date, is .met by tbe proposition that no bill is multifarious which presents a common point of litigation, tbe decision of which will affect tbe whole subject-matter, and will settle tbe rights of all tbe parties to tbe suit, and that it is not indispensable that all tbe. parties should have an interest in all tbe matters contained in tbe suit, but it is sufficient if each party has an interest in some material matters involved in tbe suit, and they are connected with tbe others. Hayden v. Thompson, 36 U. S. App. 361, 17 C. C. A. 592, and 71 Fed. 60; Brown v. Deposit Co., 128 U. S. 403, 412, 9 Sup. Ct. 127; Kelley v. Boettcher, 85 Fed. 55. Tbe title of the appellants to tbe one-sixth interest in tbe mine before tbe deed was made is a common point of litigation, which will determine tbe rights of all tbe parties if decided against tbe appellants. The right to tbe products of tbe one-sixth of the mine from 1883 to tbe present time is a material subject of tbe litigation in this case, in which all tbe parties are interested, and which is connected with tbe title to tbe mine, and with every other material matter in tbe suit.
Tbe conclusion that tbe bill is sufficient to warrant relief entitles tbe appellants to a discovery of tbe facts within tbe knowledge of tbe appellees, which will aid them to establish their title and to maintain their suit. Tbe reasons and authorities for the conclusions we have so briefly announced in this case will be found in that portion of tbe opinion of this court in Kelley v. Boettcher, 85 Fed. 55, which relates