11 Colo. 451 | Colo. | 1888
Counsel for plaintiffs in error contend that this cause was tried on an erroneous theory in the court below, and that the proper issue involved was not submitted to the jury; that the issue tried was which party had the better right in the premises, or whether the plaintiff was entitled to possession as against the defendants’ ancestor, whereas the jury should have been required to find whether either party was, under the local rules of miners, the acts of congress and the laws of the state, entitled to a patent from the United States; citing McGinnis v. Egbert, 8 Colo. 41; Gwillim v. Donnellan,
We are of opinion that the point made by plaintiffs in error is well taken and must be sustained. In McGinnis v. Egbert, supra, in construing the foregoing sections of the acts of congress, we say: “ This section (2326) makes it the duty of a person to file an adverse claim against the issuance of a patent within thirty days thereafter, and to commence proceedings in a court, of competent jurisdiction to determine the question of the right of possession. As the law then stood, the party in whose favor the judgment was rendered became entitled to a patent. But the section was so amended by the act of March 3, 1881, that neither party was entitled to a judgment in his favor unless he was at the time of the adjudication entitled to a patent for the premises in controversy by virtue of a compliance with the mining laws. If neither party establishes such a right, the jury is required to find that fact, and the proceedings in the land office are stayed until a title is perfected.” Technically speaking, neither party, in actions of this character, is possessed of the legal title, for that is in the United States. A possessory title is all that is possible under the circumstances. To entitle a party to a judgment in his favor it must appear that he has not only the right of possession, but that he has made a valid location of the premises in controversy, and, by virtue of a compliance with all the requirements of the mining laws, is entitled to a patent from the government. To this effect are the cases of Gwillim v. Don
The issues, as submitted to the jury in the present action, appear from the following instruction: “ The jury is further instructed that it is for you to determine — First, who had possession of the premises in controversy at the time of the commencement of this action; second, who had the right of possession of the premises in controversy at the time of the commencement of this action; and should you find from the evidence that neither the plaintiff nor the defendant was entitled to possession of the ground in controversy at the time of the commencement of this suit, you should so indicate by your verdict. ”
The verdict returned by the jury was as follows: “We, the jury, find the issues for the plaintiff, that he was in possession of the Mountain Boy mining claim at the time of the commencement of this action, and is now entitled to possession thereof. W. P. Coleman, Foreman.” As we said of the verdict in McGinnis v. Egbert, this verdict conveys no information whether it was returned because the plaintiff had established his title to the lode in the manner required by law, or because the other party failed to establish his title thereto. It is clear that the proper issues were not submitted to the jury. But it is contended on behalf of the defendant in error that this is a chancery proceeding under the pleadings, and that the verdict of a jury in such a case is only advisory, and may be disregarded by the court; that since the court found the issues for the plaintiff, Strehlow, and that he was “ the owner of the premises against all the world except the United States,” the proper issues have been adjudicated. The position is not maintainable. This is not an action under the state statute to determine the mere question of the right of possession, but an action authorized by the laws of congress to determine the right of a party to be invested with the fee. The main question to
Two other objections to the proceedings below are made by counsel for plaintiff in error, which, in our judgment, are not sustainable. One is that the plaintiff, Strehlow, was not entitled to recover, for the reason that he had parted with his interest in the premises by a conveyance to his wife, Marie Strehlow, prior to the commencement of the action. The deed executed to the wife did not purport to convey the Mountain B6y lode, but the Hirst National lode. It does not appear that any lode was ever located by the latter name, but that the Mountain Boy lode, many years prior to the commencement of this ac
The other objection referred to above is that certain allegations of the defendants’ answers had been stricken out by the court, setting up that plaintiff had been wholly divested of his title to the premises in controversy by virtue of certain sheriffs’ sales thereof made against him from which he had not redeemed, and that the time for redemption had expired. It was not alleged that any deed for the property had been executed by the sheriff to the purchaser. This objection comes within the rule laid down in Hayes v. Mining Co. 2 Colo. 273, that title to real estate is not divested by sale under execution, but remains in the debtor until the execution and delivery of the sheriff’s deed. The striking out of these paragraphs of the answer, therefore, and the refusal of the court on the trial to permit the allégations to be proved, did not constitute error.
For the errors above noted, however, the judgment must be reversed and cause remanded, which is accordingly done.
Reversed.