88 P. 778 | Mont. | 1907
delivered the opinion of the court.
This action was brought for the purpose of obtaining a decree declaring the defendants trustees, for the benefit of the plaintiff, of an undivided three-eighths interest in the Sarah quartz lode (patented) claim, situated in Summit Talley mining district, Silver Bow county.
The original complaint was filed on July 2, 1901. The Sarah claim was located by one Bartholomew Piva on January 1, 1883. The plaintiff became the owner of the undivided interest in
It appears from the amended complaint that the plaintiff and Horst, as tenants in common, applied to the United States, through the land office at Helena, for patent on August 12, 1890. The application was made in the name of Horst; he acting on behalf of himself and the plaintiff. He took entire charge of the proceedings, and plaintiff relied upon him to conduct them to a successful termination. It is alleged “that subsequently to the application by plaintiff and the said Horst for the patent as aforesaid, and during the progress of the said application through the said land office, the said Horst, for the purpose of defrauding and cheating this plaintiff out of his undivided three-eighths interest in the said Sarah lode claim, did willfully, falsely and fraudulently represent to the officers of the said land office that he was the sole owner of the said Sarah lode claim; that he well knew then, when he made such false and fraudulent representations, that this pláintiff was the owner of an undivided three-eighths of the said Sarah lode claim, and that all representations that he, the said Horst, was the sole owner of the said Sarah lode claim, were false and fraudulent; and that all representations that the said Horst was the owner of more than five-eighths of the said Sarah lode claim were false and fraudulent, and without any foundation in fact.”
It is further alleged in substance, that thereafter, on October 5, 1894, in pursuance of the application so made and based solely upon the location made by Piva, the said Horst, by reason of his false and fraudulent representations as to his title so made to the officers of the Land Department, and under an erroneous construction of the law by said officers, secured a patent from the United States purporting to convey to him, as sole owner,
. • The defendants, by their answer, put in issue all the allegations of the complaint, showing a trust relation between the plaintiff and the defendants as successors of Horst, as well as all the facts and circumstances alleged therein tending to show that Horst had committed a fraud upon the plaintiff. It is then alleged affirmatively that the application for patent was made on August 12, 1890, as alleged in the complaint; that pending
The defendants challenge the integrity of the judgment upon alleged errors of law in admitting and excluding evidence, and the insufficiency of the evidence to sustain the findings. They also insist that it is apparent from the pleadings and proof that the plaintiff has been guilty of laches, and should not be permitted to recover on that ground.
1. The plaintiff, having been sworn as a witness, was permitted, over the objections of defendants, to testify as to matters of fact occurring before the death of Horst, and particularly as to conversations between him and Horst as to the patent proceedings, settlements of accounts between them tending to show a ■ balance in favor of the plaintiff, and declarations of Horst as to whether the plaintiff was named as one of the grantees in the patent; Horst then having the patent in his possession, but not at hand so that he could show it to plaintiff, who had requested to see it. The objection made was that, under section 3162 of the Code of Civil Procedure, as amended by the Act of 1897 (Laws, 1897, p. 245), plaintiff was not a competent witness as to such matters. This section, so far as it is pertinent here, provides: “The following persons cannot be witnesses: * * * (3) Parties or assignees of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor-or administrator, upon a claim or demand
There is a conflict of opinion among the courts as to the application of the statute; the conflict being due to a difference of opinion as to the meaning of the terms “claim” and “demand.” Section 1880 of the statute of California (Deering’s Code) is identical with the above section, except that in the latter the term ‘ assignor ’ ’ is used instead of the term ‘ ‘ assignee. ’ ’' This substitution of terms, however, does not substantially affect the object or meaning of the provision, and for present purposes it may be treated as identical with the above provision of our Code.
In the case of Myers v. Reinstein, 67 Cal. 89, 7 Pac. 192, an action against the personal representative of a deceased trustee to establish a resulting trust in land, the title to which had been taken by deceased, the court held that the cestui que trust was a competent witness to establish the trust, on the ground that the action was not upon a claim or demand against the estate within the meaning of the statute. This case was cited with approval in the later case of Tyler v. Mayre, 95 Cal. 160, 27 Pac. 160, 30 Pac. 196, wherein it was held that the plaintiff was a competent witness to establish and enforce a trust against the personal representative, even though it incidentally tended to establish a contract beween the plaintiff and the deceased during his lifetime.
In Moore v. Schofield, 96 Cal. 486, 31 Pac. 532, a case in which the plaintiff sued to recover upon a joint obligation against two defendants, and one of whom died after suit brought, it was held that neither the plaintiff nor the other defendant was a competent witness. The court, after remarking that the question in the case of Myers v. Reinstein was whether certain property belonged to the estate of the deceased, says: “It [Myers v. Reinstein] was an action or proceeding, then, against an executor to recover property which the executor claimed against the estate. It would, indeed, seem to be a claim or demand against the estate. But that was the very question upon which the decision was made to turn, and it was held that it was not. Whether
Upon consideration of a similar statute, however, the supreme court of Utah.reached the opposite conclusion. Wood v. Fox, 8 Utah, 380, 32 Pac. 48, was an action against Fox as executor of one Lawrence, deceased, to establish a trust in certain mining property and stock, and for an accounting. The plaintiff offered himself as a witness as to matters of fact occurring during the lifetime of the deceased. The evidence was excluded, and the appellant assigned error. Speaking for the court, Blackburn, J., said: ‘ ‘ This testimony comes clearly within the terms of the statute. It is not only a claim against the estate, but one for many thousand dollars; and I think the trial court held rightly on that point.” On appeal to the supreme court of the United States, that court held that the Utah court was right. It criticises the ease of Myers v. Reinstein, and declares the reasoning-upon which it proceeds unsound, saying: “The supreme court of Utah properly rejected the suggestion that such claim or demand was not against the estate of Lawrence. To say that the only issue here was whether the real property and stock described in the petition constituted a part of Lawrence’s estate, and that no claim or demand was asserted against the estate,
The supreme court of Idaho in the comparatively recent case of Rice v. Rigley, 7 Idaho, 115, 61 Pac. 290, after a review of the cases, held that an action against a personal representative to establish a trust in lands claimed by the estate was the assertion of a claim or demand against the estate within the meaning of the statutes, and brought the parties and their assignors clearly within the disability prescribed by it. The court repudiates the rule of the California court, as giving too narrow a meaning to the terms “claim” and “demand.” After defining the word “demand,” and holding that it includes causes of action of all kinds, it says: ‘Therefore, if plaintiffs had no claim or demand against the estate of said deceased, they cannot evade the intent and purpose of said statute by attempting to ingraft a trust thereon, whereby they can secure a large share of said mining claims, the legal title to which is in the name of said deceased.”
The word “claim” is comprehensive. “It is in a just, juridical sense a demand of some matter as of right made by one person upon another, to do, 'or to forbear to do, some act or thing as a matter of duty.” (Prigg v. Pennsylvania, 16 Pet. (U. S.) 539, 10 L. Ed. 1060; Anderson’s Law Dictionary.) The term “demand,” according to Lord Coke, “is the largest word in law, except ‘claim’; and a release of all demands discharges all sorts of actions, rights, titles, conditions before and after breach, executions, appeals, rents of all kinds, covenants, annuities, contracts, recognizances, statutes, commons,” etc. (Bacon’s Abridgment, title “Release,” 283. See, also, Vedder v. Vedder, 1 Denio (N. Y.), 257.) And these are the ordinary, popular meanings assigned to these terms. So that it seems clear that both terms are used in the statute in their broad, comprehensive sense and apply to all sorts of causes of action against the estates of dead men, whether for money claims or for property which, but for the establishment of the claim or demand, would belong to the estate.
It seems to us that the California court, in holding as it does, overlooks the plain purpose and intent of the provision, and permits the very wrong that it was intended to prevent, to-wit, the establishment of claims or demands of any kind against estates by interested persons whose statements cannot be contradicted. And it seems to be begging the question when the court states, as it does, in the Reinstein Case, in referring to the claim sought to be established therein: “If it was a part of his estate, then no trust existed; if the trust existed he [deceased] held it in trust in his lifetime, and the interest passed to his successors to the legal title, clothed with the trust. To hold that the claim or demand here attempted to be enforced was a part of the estate, and thus render the witness incompetent, would be to determine in advance the very question to be determined on the trial of the action. By so holding we would assume the very question to be tried and settled by the contestation between the parties.” While our statute was doubtless adopted from the Code of California, the construction given to it by the courts of that state does not seem reasonable. We decline to follow it under the rule usually applied in such cases.
But, while the testimony referred to was improperly admitted, we are of the opinion that the judgment should not be reversed for that reason. As we shall hereinafter point out, there was ample evidence in the case to support the findings of the court, even though this testimony ought to have been excluded.
Several witnesses were permitted, over objection by the defendants, to testify to declarations made by Horst in his lifetime, and after the issuance of patent, that plaintiff was still the owner of an undivided three-eighths interest in the claim, and also to the fact that Horst joined with the plaintiff in two leases
The plaintiff was permitted in rebuttal to introduce in evidence, over objection, the judgment-roll in a cause entitled “Rueger et al. v. Horst et al.,” from the records of the district court of Silver Bow county. The action had been brought in 1891 in pursuance of section 2326 of the United States Revised Statutes (U. S. Comp. Stats. 1901, p. 1430), for the purpose of establishing an adverse claim by Rueger et al. to a portion of the ground covered by the Sarah lode, and judgment had gone for the defendants. The evidence was introduced to show that in 1892 an application for patent had been made and was then pending. The theory of plaintiff was that after the application for patent had been made and notice thereof had been published, the doing of the annual representation work upon the claim was not required, and hence his right as cotenant with Horst could not be forfeited, under the provisions of section 2324 of the Revised Statutes (U. S. Comp. Stats. 1901, p. 1426). The record, however, shows that this same judgment-roll was introduced as a part of plaintiff’s case in chief, and without objection. For what purpose it was so introduced does not appear. The objection made upon the second offer was general, and no motion was made to strike it from the record. Under such circumstances, even if the objection to the second offer had been sustained, the evidence would still have been left in the record. We think there was no error, even upon the assumption that the evidence was obnoxious to the general objection..
Just here we notice the contention of the parties as to the effect of the forfeiture proceedings by Horst and the issuance of patent to Horst exclusively, in pursuance thereof. It is argued by appellants that the proceedings in the land office became final and conclusive upon the respondent, and that the court could not inquire into the question whether the work had actually been done by Horst in 1892. The respondent assumes the position that the whole matter was still open for investigation, and that the forfeiture proceedings could be of no avail to shut out the respondent if the work had not, in fact, been done; for since, though the work was necessary after application had been made, no forfeiture would become effective in favor of a third person who did not comply with the law touching the relocation of the claim, it could not for the same reason become effective in favor of a co-owner who had not in fact done the work, no matter what notice may have been given. With this view we agree. We do not see how ex parte proceedings by a co-owner under the statute, if the work had not actually been done, could have any more force or effect than a forged deed. If, instead of falsély representing to the Land Department that the plaintiff had forfeited his interest, Horst had forged a deed in the name of the plaintiff and presented it to the department, the patent would have issued. Nevertheless, no one would contend that under these circumstances the plaintiff could not successfully avoid the deed, have it set aside, and thus recover his interest. The statute upon which the defendants rely is one of forfeitures. It must be strictly construed. (Brundy v. Mayfield et al., 15 Mont. 201, 38 Pac. 1067; Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189.)
2. Appellants contend that the plaintiff’s cause of action is barred by the provisions of section 518 of the Code of Civil Procedure, which provides that an action for relief not theretofore provided for must be commenced within five years from the time it has accrued. It is said that the plaintiff’s cause of action accrued at the time the patent issued, and since this action was begun in July, 1901, the court should have sustained this defense. It is sufficient answer to this contention to say that this section does not apply, for the reason that if any of the limitations touching the actions other than for the recovery of real property, to which class section 518 belongs, apply, the limitation provided for a case of this kind is found in the Act of 1893 (Session Laws, 1893, p. 50), which, under the provisions of sections 5184 and 5186 of the Political Code of 1895, was con
If the cause of action stated be construed as one for relief on the ground of fraud or mistake, then it is clearly not barred. That it must be so construed, we think, there is no question. The very gist of the action is the fraud perpetrated by Horst in his false representations to the Land Department of the United States, whereby he secured the patent for himself, to the exclusion of plaintiff, and in concealing thereafter the fraud thus successfully accomplished. The purpose of the action is to make his estate yield up to the rightful owner the property wrongfully obtained by his fraud and compel a recognition of plaintiff’s title, with which he has never parted. It appears clearly from the proof that the application for patent was made by Horst for himself and plaintiff, and that after the judgment was rendered in favor of the defendants in the adverse suit of Rueger et al. v. Horst et al., Horst conceived the idea, and carried it out, of excluding the plaintiff from his interest. After having obtained the patent, he did not put it on record, and by his acts in conjunction with the plaintiff in connection with the property thereafter, until as late as 1899, tacitly informed the plaintiff that he was still the owner of his interest, as he had a right to expect, under the patent.
Counsel for plaintiff contends, however, that this is an action for the recovery of an interest in real estate or growing out of the title thereto, and that sections 483 and 484 of the Code of Civil Procedure provide the limitation within which actions for the recovery of real property and for actions arising out of the title to real property shall be begun. He cites Murphy v. Crowley, 140 Cal. 141, 73 Pac. 820, and makes a plausible argument in
3. The next contention is that upon the pleadings and the evidence the plaintiff cannot recover. There is no assignment of error in the brief of counsel challenging the sufficiency of any of the pleadings. We shall not, therefore, consider the argument that the complaint is insufficient. We shall assume that it is sufficient, and consider the question whether the evidence is sufficient to sustain the findings of the court, since this assignment is properly made.
Without undertaking an analysis of the evidence in detail, we find that it conclusively establishes these facts: That at the time the application for patent was made, in 1890, the plaintiff was the owner of an undivided three-eighths interest in the Sarah lode by deed from a common source of title with Horst; that the application for patent was made by Horst for himself and plaintiff, Horst having exclusive charge of the proceedings; that the adverse suit instituted by Rueger et al. in 1891 was finally determined by a judgment in favor of Horst and the plaintiff on February 15, 1893, by a stipulation of all the parties to the suit, including the plaintiff; that in the month of May of that year Horst published notice of forfeiture of plaintiff’s interest; that the proof of publication was filed in the land office at Helena on April 25, 1895, nearly a year afterward; that patent was issued to Horst on October 5, 1894; that the patent was never put on record until after this action was brought; that Horst and the plaintiff on two occasions after the date of the patent joined in executing leases to different parties for the patented property, one executed as late as 1899, containing also an agreement for a sale of the property; that during none of the negotiations connected with these transactions did Horst elaim to be the exclusive owner, but repeatedly declared, in effect, to those
The court found these facts, and, further, that the representation work was not done in 1892, as claimed by Horst, and that no work was done during that year upon the claim to exceed in cost $35, and that, owing to the relations of the plaintiff and Horst, the plaintiff was prevented from making inquiry as to the condition of the title and thus discovering the fraud perpetrated by Horst.
These findings are amply supported by the evidence. Indeed, as to the work done in 1892, the evidence would have sustained a finding that Horst neither did nor caused to be done any work at all on the claim during that year, but that such as was done was done by Rueger and his associates, for it was done on the conflicting area between the Sarah lode and the Rueger location; and the preponderance of the evidence shows that Rueger and his associates did the work. In our opinion, not only does the evidence not preponderate against the findings of the court, express and implied, but it is clear and convincing that Horst acted with a deliberate intent to defraud the plaintiff, and purposely lulled any suspicion the plaintiff might have entertained imder ordinary circumstances, and thus prevented the inquiry which an ordinarily prudent man would have been expected and required to make to protect his rights. The case falls within the rule that this court will not, under the statute applicable to equity cases (Act of 1903 [2d Extra. Session], p. 7), disturb the findings of the trial court when the evidence does not clearly preponderate against them. (Bordeaux v. Bor
4. Finally, it is said that the plaintiff has slept upon his rights, and that a court of equity should not now hear him complain. The rule invoked is well stated in Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134. This case, however, does not call for an application of the rule. The situation of-the parties has not changed. The value of the property does not appear to have changed since patent was issued. Knowledge of the conditions did not come to the plaintiff until after Horst died. The inquiries which the defendants insist plaintiff was bound to have made as to the condition of the title were prevented by Horst himself, for, since he was the active agent and was managing the patent proceedings, the plaintiff must have put trust in him. Besides, after the patent issued, they still dealt with the property as if they were joint owners; and under these circumstances, it was but natural that an ordinary man, such as plaintiff seems to have been, would forego inquiry. Especially is this so since the property was not developed by Horst during his lifetime. If he had taken exclusive possession and its value had been demonstrated through expenditures and effort by him, the plaintiff being silent in the meantime, the lack of inquiry would doubtless have convicted the plaintiff of laches. As soon, however, as he found out the betrayal of his trust by his associate, the plaintiff acted promptly; and this fact, coupled with the additional fact that he had no greater inducement to act then than he would have had at any earlier date, in the light of all the other facts in the case, relieves him of this charge.
Many other errors are assigned; but upon examination of the record and the contentions made by counsel in support of them we have concluded that they are without merit.
The judgment and order are affirmed.
Affirmed.
