Meyendorf v. Frohner, 3 Mont. 282

3 Mont. 282 | Mont. | 1879

Lead Opinion

Knowles, J.

The first proposition I shall consider in this case is: Was the demurrer to the new matter set forth in the defendant’s answer properly sustained ? The demurrer is in effect, that the new matter set forth in the answer, in no light in which it can be properly viewed, presents a proper defense to plaintiff’s complaint. The first defense is, that of an estoppel by judgment record. To sustain this the answer alleges that the defendants, Frohner and JBarta, located and become the owners of, by location, certain mining claims, known and described as the Cannon and the Cannon Extension claims ; that John Rogers and others located the same ground as “ the Star of the West Lode,” and went into the possession of the same; that to recover the possession thereof, defendants, Frohner and Barta, brought an action, which was decided in their favor,- and judgment of possession was awarded them under which the same was restored; that pending such litigation Agno, the grantor of plaintiffs, purchased the interest of the said Rogers and others in the said “ Star of the West ” location and went into possession of the said property, and undertook to defend said suit, and that he was therefore a privy in said action, and bound by the judgment therein. I agree to the proposition that the said Agno, under this state of facts, is estopped from setting up any claim or interest he may have acquired in “ the Star of the West ” location, from the said Rogers and others.

But it does not appear that the title in dispute in the case is' that derived from “the Star of the West” location. In Big. on Estop. 523,1 find this: “ But in pleading or replying a judgment as an estoppel to an action or allegation more minuteness, must be observed. It-must now be made to appear that precisely the same point was in issue at the former trial, as that now in question, or there can be no estoppel.”

The allegations setting forth the estoppel in this case did not show that the plaintiffs are claiming any thing by virtue of “ the Star of the West” location. The'trial of this cause shows that “ the Star of the West ” location was not in issue ; that the plaintiffs in the case claimed nothing by virtue of the same, but claimed title to the same by virtue of a patent from the United States. Hence the judgment in the case pleaded could not have worked an estoppel to the giving the same in evidence, and would have made no difference in this action. It is trae that in .the case of Barta and Frohner against Rogers and others, the right to the possession was determined, but that right in that case depended upon a different state of facts from that presented in this case. A party who has been adjudged to deliver possession of land to another claimant is not estopped from purchasing, subsequent to the action in which the right to such possession was determined, an outstanding title, and asserting again his right to the possession of the samó. Valentine v. Mahoney, 37 Cal. 389; Mann v. Rogers, 35 id. 316; Montgomery v. Whiting, 40 id. 294.

There is nothing worthy of much discussion in the point that the subsequently-acquired titles of Agno should inure to the benefit of Frohner and Barta. They were not the purchasers of any title from Agno or Rogers et al. The doctrine that asserts that the subsequently-acquired title of one man inures to the benefit of another, applies only where the latter is a purchaser of a title from the former. The said judgment in favor of Barta and Frohner did not make them the purchasers of any title from Rogers et al., or from Agno.

Each defense should be complete in itself. If a pleader does not wish to restate matters already pleaded in one defense, he should refer to such matters by appropriate words, and make them a part of any defense where he desires them to appear. Moak’s Van San. Pl. 606; White v. Cox, 46 Cal. 169.

In considering the remaining issues presented by the answer, I find-myself much at a loss. None of these defenses are stated separately, nor is either complete without referring to matters evidently averred and intended for another defense. The answer evidently unites several defenses, and a cross-complaint in what I think must be treated as one count. The defenses and cross-bill are not separately stated, but there was no demurrer to the answer for this reason. The defendants urge that the title of the plaintiffs had its inception in fraud of their rights; that Agno’s location of the same was made while he was in possession thereof under “ the Star of the West ” location. This is true under the allegations in the answer, but the answer shows that this location was made subsequent to the trial of the ease between Barta and Frohner and Rogers et al. His rights under this location could not have been determined in that case. A party is precluded and estopped by any title he put in issue in a litigation, or which he might have put in issue, and by no other. Mann v. Rogers, 35 Cal. 316. The acquiring of mining ground by location is procuring such right by purchase.

Wash, on Real Prop., vol. 3, p. 4, says: “ In one thing all writers agree, and that is in considering that there are two modes only, regarded as classes, of acquiring a title to land, namely: descent and purchase.” Certainly no one would contend that when a person locates mining ground, he acquires a right to the same by descent. He must acquire it then by purchase. The fact that Agno made a location of this mining claim, while he was in possession under “the Star of the West ” location, puts him in no different condition from what he would have been, had he purchased an outstanding title otherwise than by location at that time. I have shown in the cases of Valentine v. Mahoney, Mann v. Rogers and Montgomery v. Whiting, cited above, that he may do this. And how it would be fraud to do so I cannot see. It is alleged that Agno knew that defendants had the title to said ground, and that the same was not open to location. It is not necessary when a man buys in an outstanding title, for him to know that it is a valid title. And if he should not know that it was a valid title, or should know that it was not, I do not see how he can be charged with fraud. If his title was not a valid one, he would acquire nothing by it, and the person in possession of the property thus acquired would have a legal defense against the same. I have been unable to find any authority for the assertion that the person acquiring an outstanding title under such circumstances would be regarded as having committed a fraud even if he knew he had not procured the valid title by such purchase. The fraud, alleged to have been practiced by Agno upon the defendants in preventing them from contesting his application for a patent, will be considered under the plea of estoppel in pais. Taking the whole answer together, can there be enough extracted from it to show such a'n estoppel? The gist of the matters which can be treated as snch a defense, are the alleged false and fraudulent representations of Agno. For Agno and those in privy with him to be estopped by these it must appear: First, that there were representations concerning material facts; Second, the representations must have been madeVith the knowledge of the facts ; Third, the party to whom they were made must have been ignorant of the truth of the matter; Fourth, they must have been made with the intention that they Should be acted upon; Fifth, they must have been acted upon. Big. on Fraud, 488; Kerr on Fraud and Mistakes, 93; Biddle Boggs v. Merced Mining Co., 14 Cal. 279.

There is no allegation in the answer that the representations of Agno were made with the intent that the defendants should act upon the same. To have set up a complete defense of estoppel in pais, the answer should have contained such an allegation. Moak’s Tan Sant. PL 336.

There are certain allegations of fraud in the answer which tend to establish a fraud upon the United States by Agno in procuring a patent to the ground in dispute. For this only the United States can attack the said patent. Mowrey v. Whitney, 14 Wall. 434; Wash. on Real Prop., Vol. 3, p. 180; Field v. Seabury, et al., 19 How. (U. S.) 323. From the brief of appellants it appears that this answer should also be treated as a cross-complaint. A cross-complaint should certainly be set forth separate and distinct from those portions of the answer which are intended for defenses, and should be complete in itself. In order to find anything approaching a cross-complaint in this case portions of the answer must be referred to which were evidently intended for such defenses, as estoppel of record and estoppel in pais.

There is nothing in that portion of the ánswer intended for a cross-complaint which sets up title in the defendants, and I will have to refer to these allegations setting'up an estoppel by record to find such allegations. But as the point was not distinctly raised by the demurrer, I will consider the whole answer and determine whether or not sufficient is alleged therein to entitle the defendants to the relief asked. The relief asked is a declaration that defendants and not Agno were entitled to a patent from the United States, to the ground in dispute, and hence Agno occupied but the place of the United States and was only a trustee of the legal title for the benefit of these defendants, and the plaintiffs having notice of defendant’s equities are also but similar trustees. I am aware' of and fully recognize the legal proposition that where one person has procured a patent to any portion of the public domain from the general government, for which another party is entitled to a patent, that the former may be declared a trustee for the latter and adjudged to convey to him the legal title. But this latter person must show that in equity he is entitled to this conveyance. G-enerally speaking he would not be entitled to this conveyance unless he was entitled to one from the United States. The location of a parcel of mining ground in accordance with the United States law and the local laws upon the subject, does not entitle a person to a patent from the United States. He has the right to apply for a patent, and he only. It is a qualification for applying for a patent, similar to the right of citizenship, or the declaration of intention to become a' citizen. Before a person, who has located a mining claim in accordance with law, would be entitled to a patent from the United States, he must make an application therefor under oath, and file therewith in the proper office of the land register, a plat and field notes of the claim, made by or under the direction of the United States surveyor general. He shall post a copy of such plat together with a notice of such application in a conspicuous place on the claim, and shall file an affidavit of two persons that such notice has been duly posted. Then the register of the land office shall publish the fact for at least sixty days, that such application has been made. Then the applicant shall file with the register a certificate of the United States Surveyor General that five hundred dollars worth of labor has been expended, or improvements of that value put upon the claim by him or his grantors. Then there must be an affidavit that the plat or notices have been posted up on the claim during the sixty days of the publication of the notice. Then if no adverse claim is made to the ground, the applicant is entitled to a patent thereto upon paymeñt of five dollars per acre therefor. IT. S. Rev. Sts., § 2325.

It may be that where the title has passed out of the United States, a person might not be required to do all of these things, but certainly he ought to do every one of them that could' and which would be of any avail. He ought to have a survey made of the same under the direction of the United States surveyor general for Montana.

It is true the cross-complaint shows that there was a survey made of the property by a deputy United States mineral surveyor, but it does not show that the survey was made under the direction of the United States surveyor general. There was no certificate procured from the United States surveyor general of Montana, showing that defendants had performed five hundred dollars worth of labor upon said claim.

There was no tender to the plaintiffs or Agno, of five dollars per acre for this ground. And there is nothing to show that the defendants should be legally excused from doing these matters. In fact there is nothing in the cross-complaint which would tend to show that defendants were entitled to a patent to this ground save the mere location of the same. The cross-complaint does not show an equitable title for a patent in defendants. Do the defendants set up in the answer a legal title in themselves ? I suppose what the defendants would claim as allegations showing legal title in themselves, is the clause of the answer, numbered eleven, which commences thus: “Defendants further charge and allege that they were and are entitled to the exclusive possession and enjoyment of, etc.” The allegation that a party is entitled to the possession of real property is a legal conclusion and not the allegation of a fact. Payne and Dewey v. Treadwell, 16 Cal. 221.

There might be matter enough set up in the allegations intended for a defense of estoppel by judgment record to amount to a plea of a legal title in defendants. If there were no objection to considering this, still, under the demurrer in this case, should this be treated as new matter constituting a defense ?

Justice Rhodes in the case of Marshall v. Shafter, 32 Cal. 177, holds this language: “ It is proper at this point, however, to say that it is settled beyond all controversy in this State that the defendant may under the general denial give in evidence title in himself, and it follows that the allegation of such title in the answer does not constitute new matter, and therefore the allegations of title in the defendant do not present a new issue.” In this case the denials of the defendants in their answer put in issue, the allegations of title in the complaint. Under this issue the defendants could have proven any thing that would have shown that plaintiffs had no title or were not entitled to the possession of said property. For this purpose they could have shown title in themselves or the right to possession in themselves. I do not controvert the proposition that when a person possessing the proper qualifications as to citizenship, locates, according to law, a mine, he receives by operation of law a grant to a mining easement to the same, and this grant gives him the exclusive right to the possession and enjoyment of such property for mining purposes. And I am of the opinion that this grant is what may be termed a legal right, and can be introduced in evidence in an action to try the right to the possession of a mining claim, although it is opposed by a patent from the general government. A patent is nothing more than a public grant evidenced by a deed. The title to this mining easement rests upon a grant, as I have said, and is evidenced by the facts of location and the law of congress. Whoever is prior in time where there are two grants, is prior in right. If the defendants, then, located the claim in dispute, according to law, before the grantor of plaintiffs located the same, they could have introduced the title thus acquired, in evidence in this case, under their general denial, and it would have prevailed, in determining the right to the possession against the patent of the plaintiffs. There is nothing to show, however, in the record that they ever offered in evidence any such title on the trial. The fact that defendants made allegations in their answer showing title in themselves according to the foregoing opinion in the case of Marshall v. Shafter will avail them nothing.- According to that such allegations for the purpose of showing a legal title in themselves were not new matter constituting a defense. It was only surplusage or irrelevant matter when viewed in that light. The demurrer admits only so much of the new matter as goes to make a proper defense. A demurrer does not admit surplusage or immaterial matter. Moak’s Van Santv. PL 783. If the answer then could be considered as setting up a legal title as new matter in defense, so far it must be regarded as immaterial and sur-plusage.

I now come to the question as to whether or not the plaintiffs were possessed of a legal title or only an equitable one at the time of the commencement of this action. There is no motion for „a new trial; no record of the evidence introduced on the trial in this case. Hence according to the well-established rules in judicial proceedings, we cannot determine whether the findings of the court below were correct or not.

The cause was tried before the court without a jury, and the court finds that the plaintiffs were the owners of the premises in dispute in fee simple. "We cannot go behind this "finding.

On the trial it appears that there were exceptions taken to the introduction in evidence of a patent to Agno, from the United States of the ground in dispute, dated March 3, A. D. 1876, and a deed from Agno, to these plaintiffs, conveying the same, dated November 23, A. D. 1875. When this patent was delivered to Aguo does not appear. There is no evidence in the record upon this point. This court cannot then presume that it was not delivered to Agno before the commencement of this suit. If these deeds do not have a tendency to show a legal title in the plaintiffs, then they were improperly admitted in evidence. If they had that tendency, then they were properly received. The granting part of the deed from Agno to the plaintiffs is as follows : “ The said party of the first part for and in consideration of the sum of ten thousand dollars lawful money of the United States of America, to him in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, remised, released and conveyed, and by these presents does grant, bargain, sell, remise, release and convey unto the said parties of the second part and unto tbeir heirs and assigns forever, the following described tract or parcel of mining ground.”

Tbe covenants of warranty are as follows: “ And the said party of the first part, and his heirs and assigns, hereby promise and covenant the title, and peace and possession of said property to warrant and defend against the lawful claims of all persons whomsoever.’’ Taking these portipns of that deed, and there is no doubt but that it purports to .convey to the plaintiffs a fee simple absolute title to the mining ground in dispute. There could be no doubt that this is the scope of that deed were it not for another recital in the deed, namely: “ This conveyance is intended and does convey all the title, the party of the first part now has, as well as all title he may hereafter acquire by a patent from the "United States, application having been made therefor.” This recital, however, does not change the character of this conveyance. It does not place any limitation upon the title it conveys. In fact it only declares what in law would be the effect of such a deed under our statute. I do not deny that as far as the title the said Agno had to a patent from the "United States, he could have had only an equitable title to the same, and so far as that patent title was concerned the deed only conveyed his equitable title to that patent title. But that is not the question here presented, namely :• "What title this deed in fact did convey, but what did it purport to convey ? I answer that this deed must be classed as one that purports to convey the fee simple absolute title to this, mining ground, for it purports to convey a title without any restrictions or conditions. It purports to convey such an estate as would pass to one’s heirs at common law, and not to his administrator.

“ A fee simple title is one that excludes all qualification or restriction as to the persons who may inherit it as heirs.” 1 Wash. on Beal Prop., 65-66. There is no qualification or restriction as to heirs in this deed. Purporting then to convey a fee-simple absolute title to this ground in dispute, what was its effect upon the patent title that Agno subsequently acquired ?

Our own statute (see Cod. Sts. 401, § 32) upon conveyance of realty is as follows : “If any person convey any real estate by con veyance purporting to convey the same in fee simple absolute, and shall not at the time of such conveyance have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance.”

The recital in the deed of Agno only declared what was the effect of the deed under this statute, as soon as Agno received the patent from the general government. As soon as Agno received the patent to this ground from the United States the legal title he so acquired, by virtue of his deed to them, inured to plaintiffs’ benefit. I am not obliged, however, to rest my conclusion that the patent title of Agno, acquired by his patent, inured to the benefit of the plaintiffs, upon the section of our statute above quoted. In the case of “ The Lessees of Harmer's Heirs v. George Morris and David Gwynne, 1 McLean’s C. C. R. 44, one Symmes executed a deed to Harmer to certain lots in what is now the city of Cincinnati, in the year 1791. In the year 1794 Symmes received a patent from the United States to these lots with other ground. McLeaN, J., says as to the effect of this subsequent title acquired by Symmes : <e A deed having been given by Symmes to Harmer for these lots in 1791, when the patent was issued to Sym-mes for the same land in 1794, the deed of 1791 took immediate effect, and vested Harmer with the legal title.” This case was affirmed in 7 Pet. 554; 10 Curtis’ U. S. Sup. Ct. E. 558. Stoey, J., upon this point, used this language in delivering the opinion of the court: “ That the deed of Symmes to Harmer in 1791 passed a legal title to Harmer which became consummated in the latter when Symmes obtained his patent from the United States in 1794 is not controverted.” Under many decisions according to the doctrine in estoppel, the patent title of Agno would inure to the benefit of the plaintiffs. Agno’s deed to them being a war-rantee deed, it follows from this .view that the introduction of these deeds not only had a tendency to establish a legal title in the plaintiffs, but that they did establish such title, there being nothing to show that Agno did not receive this patent before the commencement of this action. It was signed before that, and may have been and probably was delivered before that.

Whatever may be my views as to the abstract question of right in this case, and however much my disposition might impel me to do otherwise, I am satisfied that well-established principles of law force me to the conclusion that the judgment in this case must be affirmed.

It is ordered that the judgment of the court below be affirmed with costs.

Judgment affirmed.

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Dissenting Opinion

Wade, C. J.,

dissenting. It is due to the importance of this case, and in view of the fact that the answer has been held insufficient, to set "forth the allegations of the same more fully than has been done. The action was instituted by plaintiffs to recover possession of the Nellie Grant Quartz lode claim and for a perpietual injunction enjoining the defendants from working the same. The answer in substance alleges that the defendants on the 9th day of June, 1872, located the Cannon and Cannon Extension lodes upon the unoccupied and unappropriated lands of the United States, and that they acquired the right to the exclusive possession and enjoyment of such lodes under and in pursuance of the act of Congress of May 10, 1872. That while they were so seized and possessed of such lode claims and while the same were no longer open to ex-ploi’ation and occupancy by any other persons than themselves, one John Rogers in company with John Gf. Keith, William Len-nox and A. J. Arnold wrongfully and unlawfully entered upon and ejected the defendants therefrom, and while so in possession relocated the same as the Star of the West lode. The defendants then instituted an action in ejectment to recover possession of the property. During the pendency of this action one Arthur B. Agno purchased of the defendants therein, who were so wrongfully in possession thereof, the Star of the West lode, and went into possession and agreed to defend the action. The cause was tried and resulted in favor of the plaintiffs (defendants herein) who were adjudged entitled to the possession of the property in question by virtue of the Cannon and Cannon Extension locations as against the defendants therein (Rogers & Company) who claimed under the Star of the West location. Thereafter by virtue of a writ of restitution the defendants in that action were dispossessed and these defendants were restored to the possession of the Cannon and Cannon Extension lodes. Thereupon an estoppel by virtue of this judgment is alleged against Rogers & Company, their grantees.

It further appears that while Agno was so wrongfully and tor-tiously in possession of the Star of the West lode, and during the pendency of the action in ejectment and an appeal and super-sedeas therein, lie, conspiring with Rogers' & Company to defraud the defendants and to avoid the consequences of such litigation and judgment, changed the name of the property and relocated the same as the Nellie Grant lode, well knowing that the defendants at the time of such relocation were entitled to the exclusive possession and occupancy of the property and that the same was not open to exploration and appropriation, being at the time owned by the defendants. Thereafter Agno fraudulently procured Meyendorf, one of the plaintiffs, a depnty mineral surveyor, to survey the Nellie Grant lode for the purpose of procuring a patent thereto, and the plaintiffs, with the full knowledge of all the rights and equities of the defendants, purchased the Nellie Grant lode and received a deed therefor. To aid this fraudulent design to procure a patent and while the property was so in litigation and in the possession of Agno, and while the defendants were at the city of Helena, eighteen miles distant, attending to such litigation, the plat and notices were placed upon the property, and immediately and within five days thereafter and long before the defendants knew that the name of the property had been changed and the same relocated, it became impossible, by reason of deep snows in the mountains and extreme cold and stormy weather, to obtain access to the property and make survey of the same, if an adverse claim became necessary.

Agno represen ted to the defendants that the Nellie Grant lode did not embrace any of the Gannon or Gannon Extension lodes, and the survey of the Nellie Grant lode, as shown by the field notes and official plats on file in the surveyor general’s office do not show the loeus of such claim to interfere with orto embrace any of the Gannon or Cannon Extension lodes, all of which records, survey plats and field notes were so done and executed for the purpose of deceiving and defrauding the defendants, who were at the time ignorant of such design and relied upon such representations.

While Agno was thus wrongfully and tortiously in possession of the property and wrongfully excluding the defendants therefrom by virtue of false affidavits concerning his occupancy and possession of the property and his compliance with the laws of congress and the rules thereunder, he placed himself in a position to apply for a patent to the property. The defendants, after discovering the locus of the Agno -location, filed their ca/oeat and certified copy of the judgment-roll in the ejectment case with the proper officer who erroneously disregarded the same.

It appears that the plaintiffs procured Agno todo and perform the fraudulent act charged against him for the purpose of fraudulently procuring a patent for the property when the same belonged to the defendants. Affter the defendants had been placed in possession of the property by virtue of the writ of restitution Agno went upon the premises and tore down his notices and plat and gave them to the defendants, and willfully and with the intent to deceive and injure the defendants said to them that he had abandoned his application for a patent and that in the future he would lay no claim to the property, and that he had done with interfering with the property, and that he had no right to do what he had done in attempting to defeat the judgment in the ejectment action. And relying upon these representations and the good faith of the same the defendants performed a large amount of work upon the property that they otherwise would not have done; that he also fraudulently and falsely represented that his survey and claim did not embrace the lode claims of the defendants, and that he would not and should not claim any part of the same; that these representations were made just before the time expired for the interposition of an adverse claim; that but for such representations the defendants would have ascertained the conflict as best they could (the same being then unknown to them), and interposed their adverse claim and maintained their title and obtained a patent to the property ; that such, representations were false and were fraudulently made to prevent the defendants interposing their claim, thereby to enable the plaintiffs to procure their patent; that the .plaintiffs had full knowledge of the facts at the time they received the conveyance from Agno and are estopped from asserting the title so fraudulently obtained, which title is a cloud upon the defendants’ title and is being injuriously used against them by plaintiffs by invoking the equitable interposition of the court to grant the injunction herein.

All these facts and allegations of the answer material to the issue were by the demurrer thereto admitted and the demurrer sustained, and this decision of the court below is by the majority opinion herein affirmed.

1. In my judgment this opinion assumes as a fact the very question to be tried in the case; it declares; “ But it does not appear that the title in dispute in this case is that derived from the Star of the West location.” This oracular assertion assumes-as a fact the important question that the answer seeks to present for determination, and the decision seems to be based upon this assumption and the one following it, that Agno held the Nellie Grant location by a title subsequent to the judgment in the ejectment case. The question is do the allegations of the answer warrant these conclusions ? Does not the answer conclusively show that the title under which the plaintiffs’ claim was derived from the Star of the West location, and was not the Star of the West title concluded by the judgment ? Was the Nellie Grant title a new and subsequently acquired title ? To answer these questions it becomes necessary, in the first place, to determine what effect is to be given to the judgment in the ejectment case. It is conceded that the patent to the plaintiffs’ grantor, Agno, carried with it the legal title to the property, but the defendants seek to show by their answer that they are entitled to the beneficial estate therein and ask the interposition of the equitable jurisdiction of the court to protect them in their possession and award affirmative relief, should it appear proper to do so. For this purpose they first plead the ejectment judgment. That judgment was good as between the parties as to all the probative facts put in issue. It determined every thing necessary to a recovery on the part of the plaintiffs in that action who are the defendants herein. It established their right to the identical property in controversy at the time. It conseqently devolved upon the respondents, the plaintiffs, to show a new title. But in making a new location or in changing the name of an old one as in this case they cannot again put the plaintiffs in that action to proof of the very matter they then litigated. They cannot again call upon them to establish their location and right of possession at the time this judgment was rendered. It was between the same parties and privies, involved the right of possession to the same property, and determined that at the date of its rendition the plaintiffs in the action were entitled to the possession. Being so entitled at that time how did they lose their title, and how did the respondents acquire that by which they claim the property % As the answer discloses by taking wrongful and fraudulent possession of the property, and while the right of possession was being tried, and during the pendency of the action for that purpose, relocating the property and changing its name in pursuance of a conspiracy to defraud the appellants and to. avoid the consequences of a judgment, awarding to them the possession of the property. I am unable to see how by these fraudulent and wrongful acts, the appellants lost their title, or how a valid new title was acquired by the respondents. Of course if there was a valid new title, it was not concluded by the judgment, but that is the very question presented in the answer, by showing in what this new title consisted, and how, if at all, it was acquired. “Was there a valid new title acquired by respondents after the judgment ? The Star of the West location “was a fraud. The possession acquired thereby was tortious and wrongful. So the court adjudged in the ejectment case. But this possession so acquired was made the basis of the Nellie Grant location, without which no location could have been made by Agno, and without which no patent could have been issued to him. How is a patent to a mineral lode claim acquired ? By making a lawful location, taking actual possession thereunder, and performing the necessary amount of labor thereon. Now as to the Nellie Grant location, the possession that supports it was taken under the Star of the West location and all the labor performed thereon by Agno, for all that appears, was performed while the lode was called the Star of the West lode, and as to such labor and possession they are both concluded by the judgment, and as to Agno his grantees and privies are as if no possession had been taken and no labor performed.

And so the question is presented whether a party can suspend the rights of his adversary, and while they are so suspended and his hands completely tied, acquire a valid and unassailable title to the very property in dispute. The Star of the West location and the possession thereby acquired being an indispensable requisite to the validity of the Nellie Grant location, it follows that if the Star of the West location was fraudulent and void, that of the Nellie Grant must be equally so, the Star of the West location being but a link in the chain of title to Agno, and if the judgment is conclusive as to the Star of the West location, it must be equally so as to that of the Nellie Grant.

The case of Mann v. Rogers, 35 Cal. 316, cited as authority in support of the title acquired by Agno under the name of the Nellie Grant lode, is not in point. It lacks the very element that renders the Agno title invalid. It does not call to its support the tortious possession without which Agno could not have acquired the Nellie Grant title. It required the unity and use by Agno of his entry under the Star of the West title, and the retention of the possession thereunder by appeal, and sv/persedeas to enable him to lay the foundation and build up his Nellie Grant claim. It will be seen from the above case that there was at the time of the litigation between Mann and Rogers a present subsisting operative title by grant in Yalligo. This title was purchased by Mann. It was an available title independent of any of the rights of the respective parties litigated in the action. In the case at bar Agno seeks to build up a right out of a possession that was being litigated and which he wrongfully held by force of the appeal. So in the case of Valentine v. Mahoney, 37 Cal. 389, referred to in the opinion of the majority of the court, the subsequently-acquired title was an outstanding available title drawing with it the right of possession.

An after-acquired title may be a naked title without any beneficial interest, or a right of possession alone. In either case it is capable of being enforced in connection with the rights that are alone incident to the character of title acquired. If the same tortious possession is invoked to support the title, and without its aid one cannot be produced, the claim must fall for want of legal support. Stripped of the possession upon which alone he can found the Nellie Grant title and he has nothing left. Had he been dispossessed under the writ of restitution or surrendered the possession of the Star of the West before the litigation was terminated he could then have relieved himself of the binding force of the judgment and established a new claim independent of the possession -held by reason of the appeal, and this is the doctrine announced in Montgomery v. Whiting, 40 Cal. 294. No one doubts but that a person in possession .may buy up an outstanding title and avail himself of it. But this outstanding title must carry with it the right of possession. He cannot buy up an outstanding title that is not coupled with the right of possession if he is a trespasser, for this will not aid him in defense of his possession. His tortious possession cannot assist him in such a case. He cannot use to his benefit the very trespass he is seeking to maintain, and thereby change the legitimate results of the controversy. He cannot use the process of the court and the remedies afforded by it, to hold wrongful possession of the property, and at the same time make the possession so held the basis of requiring a superior right over his adversary. He cannot make his trespass work a forfeiture, nor build up a title on such a basis. The title acquired must be a valid and available one, such that might be shown to exist in a stranger and defeat a recovery in ejectment. It must be one that carries with it the right of possession and capable of being enforced. I will give an instance that presents the present case in its true light, as distinguished from those cited by the court. Suppose A. was the owner by location of the Nellie Grant lode, but had not been in possession for a year, and could not under our statute maintain ejectment, but if in possession could successfully defend against such' action. After his absence for a year, B. enters upon and takes possession of the property and subjects it to his dominion. Within a few weeks 0. forcibly enters and evicts B. To regain the possession thus wrongfully taken from him, he institutes his action of ejectment against 0. In order to defeat this action, 0. purchases the title of A. and expects by the unity of his tortious possession with A.’s title to successfully defend. To allow sucli a doctrine to prevail, C. instead of being, placed at a disadvantage, by reason of his trespass, is favored on account of it, and a stale, unavailable title is made good in the hands of a wrong•doer, by the commission of a wrong. Now, as averred in the answer, this is just what Agno is seeking to do. The determination of the suit shows that his possession was tortious, and yet by appeal and supersedeas he makes it the sole origin of the Nellie Grant title. When we come to look for the Nellie Grant claims there is none in being until it is brought into existence out of Agno’s tortious possession. By it he makes the-change in the name and stakes — changes the inscriptions on the corners — procures a survey, and is enabled to make his record and apply for a patent for the identical property adjudged to belong to the defendants. If he had returned the possession he might never have been able to have secured a foothold upon the premises thus surrendered up. But if he had, and made it the basis of a new title, a new suit might possibly have been necessary to determine his right. ' But until this tortious possession is restored, he cannot lay a new foundation for a new title. He cannot build a new title upon the old foundation. The old foundation of his title, the Star of the West location, and the possession thereunder was concluded by the judgment. He was bound by this judgment so far as this location was concerned, and the Nellie Grant location being born of the Star of the West location, which had been adjudged void, was itself void. See Atherton v. Fowler, 6 Otto, 513, where the court holds that a naked, unlawful trespass cannot initiate a right of pre-emption in the public lands. The trespass of the Star of the West location could not therefore initiate the right to the Nellie Grant location.

.A judgment which binds the rights of the parties is as effectual as a release or a confirmation by one party to the other. It is conclusive of the right and establishes the obligation in ejectment to return the property. But for this rule successive transfers and alienations of the property would forever prevent a determination of the controversy. No one would contend that the judgment was either a bar or an estoppel to a subsequently-acquired title. But the question presented here is, whether Agno, by his entry under the Star of the West title, could by appeal and stvpersedeas stay the execution of the writ of restitution and under this entry and possession change the name of the same property and acquire a new title, we think it clear that he could not. The right of possession was the question under the laws of congress and the Territory that was litigated, so far as this right is concerned it was decided in favor of appellants. The issuance of the patent after the possession under the judgment conferred no new right in this respect, and was under the particular facts of this case a bare naked legal title which did not carry with it the beneficial estate. The judgment should therefore prevail as an estoppel in a court of chancery and operate as effectually as a release or confirmation by the patentee made prior to the issuance of the patent. That the judgment may not have been effectual before the land officer is no reason why it should not prevail in a court of chancery where the equitable rights of the parties are invoked according to the rules and practices of such tribunals. A patent may convey the bare naked legal title while the entire equitable interest and estate may be in another ; such a case would arise where by a judgment one party is decreed to be the owner and entitled to the possession of property the title to which was in another, and that is the situation of the parties to this case. The judgment determined every right possessed by the parties anterior to the issuance of the patent and leaves the patent simply evidence of the naked legal title while the beneficial interest in the property remains in appellants. In such cases the issuance of the patent confers no new title. It is conclusive in a court of law but does not determine the rights of the parties in a court of equity where the holder of the legal title may be decreed a trustee for the equitable owner. The patent issued to Agno. He obtained it by reason of his wrongful possession and perjury, while the appellants were the real owners of the property, flow, then, could he obtain any beneficial interest in the property short of holding possession until a title ripened under the Statute of Limitations, which'statute he could not invoke while the property and the right of possession was held by operation of supersedeas pending the suit as charged in the answer. If, by the operation of the supersedeas, Agno could hold possession and right of possession during its continuance and acquire a title because the party against whom it run could not successfully prosecute the very kind of action it is claimed the law requires, it is simply permitting the Statute of Limitations to run during the pendency of an action to determine this right. The patent is not in fact, a new title. If so, in what is it founded? No new entry was made. The old one alone is its basis. It had never been surrendered nor had the writ of restitution dispossessed Agno until after all the foundation he claims for the patent had been laid. After he was dispossessed nothing was done except the bare issuance of the patent.

Estoppels in pais are of an equitable character and dependent upon the facts and surroundings of the particular case. When a judgment is so connected with the parties and the subject matter as that for the purpose of preserving a right it ought in equity to prevail, it becomes in fact and effect an estoppel in pais. Because it is a judgment which may not be pleaded as a bar, it does not lose its efficacy as any other fact or act on account of its bearing in the case as an estoppel, and the true situation and relation to the controversy may be shown to ascertain its effect and to give to it its proper bearing. It may be good for one purpose and not for another. The relations of the parties to it, the reliance placed upon it by them may make it good when otherwise its effect might be avoided. A party may acknowledge that it is valid under such circumstances as will not permit him to gainsay it. So it may have such a bearing from its particular relations to the controversy that in good .conscience it ought not to be ignored. And such was the relation of this judgment to these parties. The defendants’ rights had been established ; they had been decreed the owners p£ the property. Agno knew this. lie bad in reality became a. party to the suit, and to rob the defendants of their property and to set at naught this judgment awarding them the possession, he in company with his confederates entered into the conspiracy disclosed in the answer. In good conscience he ought to be estopped by the judgment.

The judgment having established the right and title of appellants at the date of its rendition, the question is not whether the alleged fraud of Agno operated to defeat his title, but should not operate to prevent a forfeiture of appellant’s title ? It may be that the rule laid down by the court in reference to the doctrine of estoppel would be good when a prior equitable and legal right is made to yield to a subsequently asserted one, but we deny its applicability to a case where the alleged fraud is sought to be made available to create a forfeiture of a prior equity and prior right. In the one case the question presented is whether the fraud shall operate favorably to the acquisition of a right by defeating the title of the party defrauded, in which case we hold that the rule laid down by the court is greatly relaxed. In the other case it is applicable where a valid subsisting right not founded in fraud is lost by reason of a fraudulent act of the owner. A bare suggestion of the situation of the parties with respect to the property in controversy shows the utter inapplicability of the rule invoked. In the one case the party is allowed to acquire a right by the very acts that are alleged as constituting the estoppel, and in the other the party has the right and the estoppel is invoked to prevent its forfeiture. The real question’ is, did Agno acquire any rights against appellants by the perpetration of the alleged fraud ? If ho has acquired any legal advantage by reason of it, is it not subservient to the equitable rights of the defrauded party % If A., the owner of land, conveys it to B., but the deed is not recorded, and C. procures another deed with notice of B.’s rights, will it make any difference what C.’s 'object was? lie is estopped becausesa the act would be a fraud to allow it to stand.

2. Besides all this Agno and his privies are estopped even by the rule laid down by the court. He made false representations in material matters to the appellants. He made them with full knowledge of the facts, and the parties to whom they were made were ignorant of the truth of the matter. The representations were made by Agno with the intention that they should be acted upon by appellants, and they were acted upon by them. Because of such representations, false field-notes, surveys and record, they failed to file their adverse claim, and the representations were made willfully and fraudulently to cause such failure in pursuance of a conspiracy to defraud appellants of their property. For the same purpose Agno entered upon the property, tore down the notices and declared to appellants that ho had done wrong to interfere with their property and that he should make no further claim thei’eto, and this in pursuance of the same conspiracy to defraud appellants, and they, acting upon these representations and acts of Agno, failed to file their, adverse claim and went forward and performed a large amount of work on the property. All this appears in the answer, and its allegations contain all the elements of an estoppel in pais.

3. The notice of the Nellie Grant location, the survey-plats and record in the surveyor-general’s office, as the answer alleges, were purposely so drawn, made and entered that they failed to show that this location came in conflict with the Cannon and Cannon Extension locations. They represented a falsehood for the purposes of fraud. They were made to harmonize with the acts and representations-of Agno when he tore down the notices and declared that he should make no further claim to the property, and for the same purpose of deceiving and defrauding the appellants. But if the notice, survey, plat and record had. been honest and proper, showing a conflict between the two locations, the appellants, under the circumstances,would have been relieved frpm filing an adverse claim. They were the owners of the entire equitable interest in the property, but their rights, by reason of the fraudulent acts of the respondents, had been suspended. The statute does not pi’ovide for an adverse claim upon equitable grounds, but limits it exclusively to such actions as will determine the right of possession. The right of possession may be suspended or it may not set in until some equitable right is adjudicated, but there is no provision under the Mineral Land Act for the trial of equitable titles of this character, and consequently there is no bar to such actions when, according to the rules of equity, they should bo entertained. A party may be finally entitled to the possession, when at the time he is required to interpose his adverse claim he would not be entitled to such possession, which is the only question that can bo tried under the act. Then is the equitable right lost by failure to file an adverse claim, when the trial to result from such claim can in no manner affect the equitable right ? By the appeal and suspension of the writ of restitution the right of the appellants to possession was suspended. The right was not restored until after this writ became operative, and the answer clearly shows that no new title or right of respondents set in since that time. Both his entry and application for a patent under the charge in the answer were during its suspension, and while a motion for a new trial was pending. There might be someij plausibility that such a new right had been acquired as would have required appellants to interpose an adverse claim under the notice, if the notice had been given after and the judgment and right of possession under it were capable of being enforced. When a party is not entitled to the right of possession, he cannot maintain an action when the issue involves solely the right of possession. The necessity of interposing an adverse claim is determined by the right the party may at the time have to the possession. When a recovery upon his right of possession could not be had, he is not required to interpose an adverse claim. Such claim presupposes the right of possession and lays the foundation for the trial of such right. Nor would a judgment so suspended show right of possession. The party finally to be adjudged entitled to possession and restored thereto could not assert and maintain his right, while the operation of the judgment and writ of restitution were suspended. During such suspension therespond-ents who were in possession were entitled to the possession at the very time it is claimed the appellants should have interposed and brought an action that they could not maintain.

Nor was an adverse claim necessary. Merely changing the name of the property under the circumstances disclosed, without surrendering possession thus held under the Star of the West location, gave no new right, and left the status of the parties as if the application for the patent had been made under the Star of the West location, while the appellants5 right to the possession under the judgment had been suspended.

But if it had been necessary for the appellants to have filed an adverse claim in order to protect their title, they were excused from so doing for the reason that they were not properly notified of the Agno application for a patent. The pretended notice was not sufficient to require them to take any action in the premises. The averment of the answer- in substance is that the plaintiffs, conspiring to defraud the defendants, and to cause them to forfeit their title by failing to file an adverse claim, made the official survey, field-notes and official plats of the Nellie Grant location on file and among the records of the surveyor-general’s office, to show that such location did not conflict with the Cannon and Cannon Extension locations, or what is equivalent thereto, to fail to show that it did so conflict. With this record, survey and plats admitted to have been so made and drawn for the purposes of fraud, the plaintiffs, to further mislead and deceive the defendants, informed them the Nellie Grant location did not conflict with or embrace any part of the Cannon or Cannon Extension locations, and that they should make no further claim to the defendants’ property. The false record, survey and plats they had made, and their false representations were in perfect harmony, and both were in pursuance of a matured conspiracy to fraudulently obtain title to the defendants’ property. The defendants had the right to look to the records of the surveyor-general’s office, to ascertain if their property had been relocated, or in any manner infringed upon by the plaintiffs or others. The notice posted on the claim necessarily partook of the fraudulent character of the field-notes, plat and survey, and was, in truth, no notice at all, and was not intended to be. It did not call upon the defendants to protect their rights, for it did not show that they were imperiled and did not afford any basis for an adverse claim. This notice was intended by the law to give information instead of concealing it. Acting as a Statute of Limitations, and intending to cut oif the right to claim the property after the expiration of a limited period, it ought clearly to designate what property is claimed, and if it fraudulently conceals the property in order to prevent inquiry and claim, it is no notice.

4. Much is said in the opinion of the court to show that the answer does not contain allegations sufficient to entitle the appellants to a patent, and therefore that the respondents cannot be compelled to convey to them. In other words, that there is not sufficient alleged to entitle appellants to the affirmative relief demanded. It must, however, be remembered that the respondents are seeking to recover by virtue of their own title, and demanding that appellants be perpetually enjoined. They must recover upon the strength of their own title, and not upon the weakness of that of their adversary. If the answer contains a defense it is not subject to demurrer, because it does not state facts sufficient to entitle the defendants to the relief demanded. If it contained sufficient to defeat the plaintiffs5 action it is a good answer. It is sufficient to defeat the plaintiffs’ action if the answer shows that the defendants are the owners of the equitable title to the property while the plaintiffs hold the naked legal title, or that the plaintiffs are estopped from claiming title by reason of the judgment or in pais, even though there had been no demand for affirmative relief. If the patent to Agno prevented appellants from applying for a patent, as it did, and also from taking any steps in that direction, then they were excused from so doing. The law does not require them to do a vain thing; and though they were entitled to a patent „they could not procure one while that to Agno was outstanding, or while the property was in his possession, and held there by a suspension of the writ of restitution, and so they were excused from making the effort. All they could do is what they have done at the first opportunity, to show that they were the owners of the equitable interest in the property, and that Agno was trustee for them, holding the legal title for their benefit. Showing this they defeat the plaintiffs’ action. By the Cannon and Cannon Extension locations, the property was granted by the government to the appellants, which grant was kept alive and in full force by possession and work upon the claims, and thereby they became entitled to the exclusive right to take the necessary steps to apply for a patent, and the government having parted with this beneficial interest in the property, and the grant to the appellants never having been divested, there was no room for a second grant to any other person, for as to this property, it had nothing to convey but the naked legal title which it or its grantee held or holds as trustee for the real owner.

A patent is not conclusive* evidence of title in a court of equity. The adjudication of the land office is not in all cases final. That tribunal determines .and the patent appropriates the legal title, and where the question depends upon that title alone such appropriation is conclusive. But this leaves untouched the equity jurisdiction of the courts to go behind the patent, and if the facts warrant, to make the owner of the legal title but a trustee for the equitable owner, or otherwise to modify or adjust the rights of the parties and decree accordingly. Where the government has parted with its title, and the question becomes one of private right, courts of equity, for the purpose of relieving against fraud, accident or mistake, may look behind a patent and decree in favor of the real owner, though the legal title may be held by another. Where the officers of the land office decide controverted questions of fact in the absence of fraud, impositions or mistake, their decision on the question is final, except it be reversed on appeal in the land department. Fraud, impositions' or mistake may be presumed to exist so as to give a court of equity jurisdiction, when the land office issues different patents to different persons for the same property; or when it issues a certificate for a patent which is evidence of a governmental grant, to one person and the patent itself to another for the same property ; or when the government having by its valid grant (as in this case by virtue of the Cannon and Cannon Extension locations) conveyed the property to one person, by a title equivalent toa patent, and should thereafter, while such grant remained' vested and in full force, convey the same property by patent to another. In all such cases the patent is not conclusive, and courts of equity have jurisdiction to go behind the patent and ascertain wiiu is the real owner, and decree accordingly. Johnson v. Tows-let/, L3 Wall. 81. And so if the answer did not contain aver-ments which entitled the appellants to the affirmative relief demanded, the court had jurisdiction to try and determine the defense that was sufficiently alleged, and the demurrer to the answer should have been overruled.