167 F. 106 | 9th Cir. | 1909
(after stating the facts as above).
The appellant contends that the oral agreement alleged in the bill is not proven by such clear and satisfactory evidence as to justify the court in decreeing a specific performance thereof. As to some of the material questions involved, the testimony of the two parties to the suit was directly contradictory. But the following is not disputed: Prior to the location of the claim they had been jointly interested in other mining property, and on the morning of June 12th, they were living together in a cabin on the
The principle contention of the appellant is that the agreement is within the statute of frauds. Authorities are cited to the proposition that an agreement to locate a mining claim in the name of one, the same to be held for his benefit and the benefit of the other party to the agreement, is an agreement to create a co-tenancy in real estate, and is therefore within the statute, that all agreements to convey or hold real estate in trust are within the statute, and that while agreements to form a partnership to acquire mining claims by location or by purchase with partnership assets and to operate the same or to deal in such properties are not within the statute so far as the right to share in the profits is concerned, there was in the case at bar no partnership agreement and no partnership, and no agreement to operate the mining claim or to obtain joint profits therefrom. The appellee, on the other hand, contends that there was a mining partnership sufficient to take the case out of the operation of the statute of frauds, that the parties agreed to locate the claim, that they did jointly locate it, and jointly worked together to make discovery, and prospected it for a period of two weeks, and, in so doing, they used a common stock of provisions and common tools and implements, and each contributed equally to the expenses incurred — citing cases such as Shea v. Nilima, 133 F. 209, 66 C.C.A. 263; Gore v. McBrayer, 18 Cal. 582; Setiembre v. Putnam, 30 Cal. 490; Moritz v. Lavelle, 77 Cal. 10, 18 P. 803, 11 Am.St.Rep. 229; Hirbour v. Reeding, 3 Mont. 15; Raymond v. Johnson,
While we agree with the appellant that there was no relation of partnership between the parties, we are clearly of the opinion that the proven facts are sufficient to impose upon the appellant’s title to the mining claim a resulting-trust for the benefit of the appellee to the extent of his one-half interest therein, and that the case comes within the class of judicial exceptions created by equity to prevent the use of the statute of frauds in support of inequitable and fraudulent schemes. The'facts show a joint venture to acquire the ownership of a specific mining claim. In all its essential features it is the case of a joint purchase of property in which each of the two persons interested advances one-half of the purchase price, and the title is taken in the name of one for the benefit of both. The title to the mining claim, so far as there was title, was acquired by appropriation under the mining laws. To appropriate it, it was necessary to stake the claim and mark its boundaries and make a discovery of mineral. To do these acts was to pay the purchase price. In doing them, each of the parties to the agreement contributed one-half, and in equity each is entitled to one-half of what was acquired thereby. Every principle of equity on which are sustained resulting trusts and grub-stake contracts is applicable to such a case. In Gore v. McBrayer, 18 Cal. 583, where the plaintiff, the defendant, and others verbally agreed to prospect for quartz and to be equally interested in claims 'taken up, and the defendant discovered a lead, and located it by putting up a written notice with the names of the plaintiff and others on it, it was held that the plaintiff’s right attached by these proceedings, and could not be divested by the mere act of the defendant in taking down the notice and putting up other notices with other names. The court said: “It is as if Gore had made McBrayer his agent to take up the claim for him and in his name; and, upon performance of the act, Gore’s title, so to speak, vested, and he was the owner, subject to the rules of the vicinage, of the claim, or his share of it. We do not see what the statute of frauds has to do with such a case.”
In Doyle v. Burns, 123 Iowa, 488, 99 N.W. 195, it was held that an agreement by which each of two parties
The decree is affirmed.