35 F. 816 | U.S. Cir. Ct. | 1888
This is a bill in equity to establish a trust in three mining claims in favor of complainant, and to compel a conveyance to him of the .undivided .fifty-one sixtieths parts. For some years prior, and down .to,. January. 1, 1883,. the complainant, the defendant, and one James were owners as tenants in common of three silver mining claims in eastern Nevada, of which complainant held thirty-one sixtieths, James twenty sixtieths and defendant nine sixtieths. These proportions were fixed by a mutual interchange of conveyances. Tha interest of James, whatever it is, has become vested in complainant, making his interest now, if he has any, fifty-one sixtieths, and that of defendant, nine sixtieths. During the year 1882 the parties found it inconvenient to raise money enough to pay the taxes and do the amount of work on the claims
The Civil Code of California embodies the rule as it before existed, under the common law in equity jurisprudence, and as it now exists in Nevada, without a code, in the following language:
“One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful acts, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. ” Civil Code, § 2224.
Here was fraud, for the complainant, who resided nearly a thousand miles away, was induced, by defendant’s action, to believe that the claims would be forfeited and relocated for the benefit of all, and by these means the defendant in violation of his faith relocated, or he claims to have done so, for his own benefit alone. He stood in a confidential relation to complainant, being an associate owner intrusted with the management of the property. His duty, certainly, was to deal fairly by his associates. In my judgment there was fraud, also a violation of trust. If not, then defendant surely got the title to these claims by “ other wrongful acts.” The acts were not rightful, and, if not, they must have been wrongful. In Lakin v. Mining Co., 11 Sawy. 238, 25 Fed. Rep. 337, a case similar, but not exactly like this, it was held that “where one party, wrongfully, obtains the legal title to land, which in equity and good conscience, belongs to another, whether he acts in good faith, or otherwise, he will be charged in equity as a constructive trustee of the equitable owner.” Can it be doubted on the facts as they appear in the pleadings and evidence, that defendant got whatever title he has to the interest of complainant and James in the mines in question, through a breach of faith and confidence? It seems to me not. He must therefore be charged as trustee of their interests.
It is next insisted that the provision of the statute of limitation of Nevada, limiting the time to two years for commencing an action to recover, a mining claim, is applicable, and that the suit is barred. Conceding,. for the purposes of this case, that the two-years clause applies, the question then arises, when did the statute begin to run? The complainant says, from the time of relocating, January 1, 1883, the act of relocation in the name of defendant alone being of itself a hostile act, manifesting an intention to repudiate the rights of defendant’s associates and to claim for himself alone. I do not think so, as we have seen the forfeiting of the old title and relocation was not an adverse proceeding, but one taken by the mutual understanding of the parties for the benefit of all. Defendant did not announce to his associates in this proceeding that he took action for himself alone, but, on the contrary, all his correspondence and
But one other point has sufficient plausibility to require notice. After this bill was filed defendant applied to enter the land as mining ground, advertised in pursuance of the statute, and, no protest having been made, in due time he paid the purchase money, and a certificate of entry was issued to him. It is now insisted, that, as complainant did not protest, and then bring-suit to establish his right within the time prescribed by statute, he waived all adverse claim, and the entry is conclusive. But it was on this very title which defendant in part holds in trust, that he obtained his certificate of entry. It was on these relocations, which defendant held in trust, that he proceeded, and the entry gives effect to the relocation, with the trust attached. This suit was pending at the time of application for purchase, to establish, not the legal title, but a trust in it. This claim by complainant of a trust was not adverse to the possessory title upon which the entry was made, but a part of that title, and the trust which had attached before the entry, followed the title upon the entry based upon the possessory title of which it was a part. See Lakin v. Mining Co., 11 Sawy. 238, 25 Fed. Rep. 337. The complainant is entitled to the benefit of this entry to the extent of the trust.
There must he a decree for fifty-one sixtieths of the mining ground in question, in pursuance of the prayer of the bill, with costs, and it is so ordered.