Metcalf v. Prescott

10 Mont. 283 | Mont. | 1891

He Witt, J.

We will discuss the points in the order outlined in the foregoing statement of the case.

1. Tlie Crucible claim was situated in Jefferson County. Its notice of location was recorded in Jefferson County. Its location description names corner No. 4 of the survey No. 889,, which corner defendant alleges , lies wholly within Jefferson County; and further alleges that the described courses and distances, when run by reference to this survey corner No. 4, locate the claim wholly in Jefferson County. It is not for the court to say, from an inspection of the location notice, whether or not this survey corner was a permanent monument. This is a matter for proof. (Russell v. Chumasero, 4 Mont. 317; O’Donnell v. Glenn, 8 Mont. 248.) Then, if defendants had been allowed to attempt to prove this, as they had the right to do, and had succeeded, they would have been in this position : they would have shown where their claim was by reference to a permanent monument; they would have shown thereby that it was in Jefferson County, the county in which they had properly made their record. Are they to lose their claim because they stated in their notice that the premises were in Lewis and Clarke County? The statement of the county in the notice is not required by law, nor does it appear that it was required by any rules of miners consistent with the laws of the United States, or the theu Territory, nor is it necessary, in this case, iu order to find or identify the claim. It was surplusage. Does this surplusage vitiate an - otherwise good description and a legal recording? Falsa demonstrate non noaet. (See cases in 2 Parsons on Contracts [5th ed.], 555, n. d., and p. 514.) The rule applies the more forcibly in a case, as that before us, where the false description is surplusage. “So much of the description as is false is rejected, and the instrument will take effect, if a sufficient description remains to ascertain its application." (1 Greenleaf on Evidence, § 301, and cases cited; also Wade on Notice, §§ 184,185; Partridge v. Smith, 3 Biss. 183; Worthington v. Hylyer, 4 Mass. 195; Jackson v. Loomis, 18 Johns. 31; Reamer v. Nesmith, 34 Cal. 624.)

There can be no doubt that if defendants be successful in proving what they allege to be the fact as to a permanent monument, the description is sufficient., and the error in stating the county under the circumstances of this case is harmless. "We are satisfied that the District Court erred. The notice of location is competent, and proof whether the corner No. 4 of survey No. 889 be a permanent monument is competent. Upon the subject of description of mining claims see Gamer v. Glenn, 8 Mont. 371; Flavin v. Mattingly, 8 Mont. 246; Upton v. Larkin, 7 Mont. 449; Garfield M. & M. Co. v. Hammer, 6 Mont. 53.

The foregoing is sufficient for the decision of this appeal, but as the case goes back for further proceedings, we will express our views upon the additional points raised as a guide to the District Court in the further consideration of the case, and, therefore,—

2. The next point is whether the location notice of the New Brunswick claim is defective, by reason of the condition of the verification. This court, after incidentally doubting the validity of the law of the territory requiring a location notice to be verified (Wenner v. McNulty, 7 Mont. 30), afterwards, in O’Donnell v. Glenn, 8 Mont. 248, met the proposition squarely, and held the law to be good. While we can conceive doubts as to this power of the territorial legislature, we do not feel it our duty to disturb the rule in O’Donnell v. Glenn, and the practice established upon that rule. We therefore sustain the law, which is as follows: —

“Any person or persons who shall hereafter discover any mining claim upon any vein or lode, etc., .... shall, within twenty days thereafter, make, and file for record in the office of the recorder of the county in which said discovery or location is made, a declaratory statement thereof, in writing, on oath made before some person authorized by law to administer oaths describing such claim in the manner provided by the laws of the United States.” (§ 1477, p. 1054, Comp. Stats.)

The question then arises, is the location notice of the New Brunswick, with its attachment, “a declaratory statement in writing on oath?” It is “a declaratory statement in writing;” and if it is properly “ on oath,” the verification by Cole, one of the locators, is sufficient, without his co-locators joining with him. (Wenner v. McNulty, supra.)

An affidavit is one method of taking an oath. An affidavit is “a statement or declaration reduced to writing, and sworn or affirmed to before some officer who had authority to administer an oath.” (Bouvier’s Law Dict.)

Appellant cites Shelton v. Berry, 19 Tex. 154; 70 Am. Dec. 336; Jackson v. Virgil, 3 Johns. 540; Millius v. Shafer, 3 Denio, 60; Ede v. Johnson, 15 Cal. 57; Burns v. Doyle, 28 Wis. 460; and Crist v. Parks, 19 Tex. 234, to the effect that the affidavit need not be signed. But the want of signature to this paper is not its most serious defect, if it be attempted to view it as an affidavit. There is no jurat thereto. It does not appear by the hand of the notary that the paper was either subscribed or sworn to, or that the party was ever present before the officer. We are not cited to any authority, or given any reason that would warrant us in holding this paper to be an affidavit. In all the cases presented by appellants (last supra), there appeared some sort of authorization or certification from the notary, which evidenced the oath having been taken. In the paper before us there is nothing but the notary’s name and official title. It does not appear that the party took an oath, or was ever present before the officer. We cannot call this an affidavit, or an oath by virtue of an affidavit, or by virtue of any certification. But appellants urge that an affidavit is not required, but only a statement on oath. Granted for the argument’s sake; but have we any statement on oath? We have no notarial evidence of such fact. If the notary had officially certified, attested, or declared, in any manner, that the locator made the statement on oath, we would be inclined to view the matter more favorably. Certainly there is nothing whatever on the paper to remotely indicate that Charles E. Cole, the locator, made the statement on oath.

In Murray v. Larabie, 8 Mont. 212, there appeared at the end of a deposition an alleged certificate. It was signed by the deponent, and then followed: —

“Sworn to and subscribed before me this eighteenth day of February, 1885.

[NSeai!al] “OMERE YlLLERE, Not. Pub.”

The court held “the simple statement at the end of the deposition of ‘sworn to and subscribed before me’ is no certificate of anything, except that the witness swore to and subscribed his name to the deposition.” If, under those circumstances, the notary certified to nothing, except that the deposition was subscribed and sworn to, then we must bold that, in the case at bar, the simple signature of the notary, without even the jurat, which was present in the case of Murray v. Larabie, supra, did not certify to anything.

We are of opinion that the paper before us is not, intrinsically, a declaratory statement on oath. But counsel offer to prove aliunde the notice, that the oath was taken after location and before recording. Let it be remembered that the statute (§ 1477, Comp. Stats.) requires that the locator shall “make and file for record a declaratory statement in writing on oath.” It shall not only be made “on oath,” but “filed for record on oath.” We are of opinion that the statute intends that the oath shall be part of the record. Without directly so declaring, there seems to be a strong implication from analogy to other recording laws, that one office of the oath is to entitle the instrument to record. We believe that any other view would open the door to abuses, mischiefs, and errors. Suppose notices may be recorded with no affidavit or certificate of oath, although the oath may have been actually taken by the party. There would be no official evidence preserved of the act of the officer taking the oath, and titles to valuable mining property would be made to depend upon the doubtful memories of notaries public, and perhaps years after the event, or even after the death of the notary; and the temptation would be opened to such officers to remember or forget, as interests ulterior to their duties might sway them. We feel that it is utterly unsafe to sanction such a practice. We are of opinion that the view of the District Court, as to the New Brunswick location notice, was correct, and we affirm that ruling.

, 3. It is conceded by respondents in their brief, that they claim no rights by virtue of the fact that their adversary claim, the New Brunswick, was not recorded within twenty days after discovery. That disposes of this point.

4. Under the view expressed in paragraph 1, above, and on the authority of Russell v. Chumasero, supra, it must be held that, in the location notices of the Ida May and Corbett claims, the reference to adjoining claims is sufficient to allow the notices to be introduced in evidence, and proof to be offered, whether such adjoining claims are permanent monuments.

The judgment is reversed and the cause is remanded for further proceedings, in accordance with the views herein expressed;

Blake, C. J., and Harwood, J., concur.