| N.Y. Sup. Ct. | Jun 20, 1890
This action was brought to recover an unpaid balance alleged to be due the plaintiff upon a written agreement bearing date July 21, 1881, by which the plaintiff agreed to sell to the defendants certain mining property in ¡San Juan county, Colo., known as the “John Lode,” for the sum of $8,000, to be paid, one-half in cash, and the other half in certain syndicate shares of stock of a company thereafter to be organized for the operation of this and another mine. This agreement was followed by a delivery of a deed or grant by the plaintiff to the defendants, though the last-named instrument bears date the 16th day of July, 1881. This instrument conveys “all of that certain mining lode or claim known as the ‘John,’ situate, lying, and being in the Uncompahgre mining district, in the county of San Juan, and state of Colorado, about half a mile from Mineral Point in Lake Park, and which was located by George W. McIntyre and Addison Bice, October 8, 1875, and recorded in Book 5, page 61, of the Becords of said county, at Silverton, (Ho. 10,209.)” The deed recites the fact that one-half of said lode was conveyed to the plaintiff by one Addison Bice in the month of September, 1878, by a good and sufficient deed, properly recorded, to which reference was made in the conveyance to the defendants for a more particular description of the silver-bearing lode. This deed also conveyed all the dips, spurs, and angles, and metals, ores, gold and silver bearing quartz and rock and
The learned trial judge held that the quitclaim to Hannah B. McIntyre was simply of the surface ground, and did not convey any part of the metals, ores, and silver-bearing quartz, rock, and earth, as mining deeds used in Colorado usually do. In this we are inclined to think he was correct, and that the same did not impair the property purchased by the defendants from the plaintiff, as stated in the contract, and as described in their deed. The parties contracted in view of the condition of the property in the mining districts of Colorado, and with knowledge that a vein of ore, situate as this is described in the contract and deed, may be held by one party, and the surface of the ground by another, and that a grant of the lode or vein may not include the surface, like the deed to the defendants. Sedgw. & W. Tr. Title Land, § 115; Wolfley v. Mining Co., 4 Colo. 114; Eighmie v. Taylor, 98 N.Y. 288" court="NY" date_filed="1885-03-03" href="https://app.midpage.ai/document/eighmie-v--taylor-3582106?utm_source=webapp" opinion_id="3582106">98 N. Y. 288.
But there is another reason why the judgment should be sustained, even though the quitclaim of the surface ground to Hannah B. McIntyre did convey some part of the property contracted to be sold and conveyed to these defendants. There is no proof that Hannah B. went into possession of the land under this deed, but the case rests solely upon the production of the deed itself. The plaintiff testifies that he has no recollection of ever executing such a paper. There is no evidence that any claim has ever been made to any portion of this property under it. There is no evidence that the defendants have been in any way injured, or their rights jeopardized, by the existence of this paper. They have sold and conveyed the property ata large advance, and without regard to any claim that might be made under the quitclaim to Hannah B. McIntyre. There is no warranty or covenant in the deed to the defendants. There has been no ouster, or even a threat of ouster. Under these circumstances, the mere production of the deed and a minute of its record is not sufficient to defeat an action brought for the unpaid balance of the purchase price of the land conveyed to them. Treating the defense set up in the answer as proceeding solely upon the ground of false and fraudulent representations, and not upon a false warranty in respect to the title of