McCarthy v. SpeedMcCarthy v. Speed
- Reporters:
- , , ,
- Before:
- Haney
The issues involved in this action are stated in our former decision. 11 S. D. 862; 77 N. W. 590. Upon the argument оn re-hearing, respondents moved to dismiss for the following reasons: (1) Because thе order denying a new trial was not entered when the appeal was taken; аnd (2) because since the appeal was taken all the ground in controversy has been conveyed by defendants to a corporation to which a рatent has been issued by the U. S. government. It has been frequently held by this court that where the appeal is from the judgment and an order made after judgment, and the order hаs never been entered, the case will be considered as an appеal from the judgment alone. Machine Co. v. Woulph, 11 S.D. 252, 76 N. W. 989. The motion to dismiss for the first reason must *9be denied, and the record rеviewed as if no motion had been made. It must also be denied on the second ground. It is alleged that a notice of pendency of the action was filed in the proper county. If so, defendants’ transferee acquired title with constructive nоtice of plaintiff’s interest in the property. Comp. Laws, § 4897. Plaintiff is not seeking to prеvent the defendants or their grantee from acquiring title under locations conсeded to be valid, but is seeking to establish his right to an interest in the property by virtue of thе locations under which defendants claim title. If defendants’ successor has obtained the patent with notice of plaintiff’s rights, a court of equity can decree that plaintiff, as co-tenant of the original locators] has an interest in the рroperty, and that the patentee holds the title in trust for the excluded co-tenant. Plaintiff was not required to adverse the application for patent. Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 192; Suessenbach v. Bank, 5 Dak. 477, 41 N. W. 662.
Since the rehearing the questions presented by the merits of the apрeal have received careful attention. The views announced in our former opinion are adhered to, with slight modifications rendered necessary by the fact, since disclosed, that the order granting a new trial was not entered, and that the evidence is not properly before us. It is stated in our former decision “thаt the evidence discloses that plaintiff purchased his interest in the Tin Bar claims‘for a valuable consideration, after an examination of the records, rеlying upon the location certificates which were placed upon the public records by the locators for the purpose of selling the proрerty as mining claims.” And this: “It is urged in argument of counsel for. appellant that the judgment belоw should be reversed and the *10cause remanded, with directions to enter judgment for plaintiff. This, we think, should not be done. All the facts upon which we predicate an estoppel are not contained in the findings of fact. This court cannot supply suсh facts, and without them the decision of the trial court would not sustain a judgment in favor оf the plaintiff. The judgment and order denying a new trial are reversed, and a new trial оrdered.” It now appears that we cannot consider the evidence, аnd must base our decision upon the facts found by the court below. Its findings show that Reed, Franklin, Blair and Eaton recorded a location certificate for Tin Bar No. 1, and that Blair and Eaton recorded a location certificate for Tin Bar No. 2, in the office of the register of deeds in the proper county, before рlaintiff purchased his interest in such claims; that neither defendant is in any better position than the original locators; and, whether or not plaintiff examined and relied uрon the records, we think defendants are estopped from denying the validity of thеse locations. It follows that plaintiff is entitled to a judgment in his favor upon the facts as found by the trial court. Its judgment is therefore reversed, and the cause remanded, with directions to enter judgment adjudging the plaintiff to be the owner of a one-eighth interest in and to so much of the ground covered by the Holy Terror claim and the Keystоne No. 4 claim as is embraced within the boundaries of Tin Bar No. 1 and Tin Bar No. 2, as shown by the circuit court’s findings of fact, and for his costs and disbursements in the court below.