148 P. 536 | Cal. Ct. App. | 1915
Action to quiet title to a mining claim of which plaintiff claimed ownership and right to possession.
Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant Salisbury appeals.
In January, 1910, plaintiff duly located a lode mining claim which he designated as the Lead Hill Lode Mining Claim, the *748 exterior boundary lines of which conflicted with and overlapped certain claims known as the Monster No. 4 Mining Claim and Monster No. 5 Mining Claim, ownership of which was claimed by appellants. This conflict, as between the Lead Hill Lode Mining Claim and Monster No. 4 Mining Claim, covered 9.54 acres; and as to the former claim and Monster No. 5 Mining Claim, covered 7.03 acres.
By answer, Fitting disclaimed any interest in the premises, and defendant Salisbury, in addition to answer denying the material allegations of the complaint, alleged that in April, 1907, J. P. Fitting duly located and perfected his claim to Monster No. 4 and Monster No. 5 Mining Claims, title to which claims Fitting conveyed to him by deed duly executed on December 3, 1909, since which date said defendant has been the owner in possession and (save a short time during the pendency of an order restraining him from so doing), engaged in developing and working the same and extracting ore therefrom; that Fitting in making said location, and down to the time of such conveyance to defendant Salisbury, had complied in all respects with the laws, rules, and regulations pertaining to the location and acquisition of mining claims and mineral locations upon the public domain, and during the year 1909 had done or caused to be performed upon each of said claims work and labor of the value of one hundred dollars.
Plaintiff's right depends upon whether or not the expenditure of one hundred dollars upon each of said claims was made during the year 1909 in the improvement and development thereof. If not, it is conceded that the former locator and his grantee, appellant here, forfeited all right thereto, leaving the property free and open to location by plaintiff. Upon this issue the court found that on April 25, 1907, J. P. Fitting was a member of a firm or association known as the J. P. Fitting Company, which employed Fitting to locate mining claims, and one D. H. Duncan was likewise employed by said company, who, on said date and while so employed, located two claims known as Monster No. 4 and Monster No. 5, posting notices thereon, wherein J. P. Fitting was named as the locator thereof; that thereafter, on July 29, 1907, J. P. Fitting executed a deed of conveyance whereby he conveyed to said J. P. Fitting Company all of his right, title, interest, and estate in and to each of said claims, and from said date *749 until January 1, 1910, said company was the owner and entitled to the undisputed possession of the land embraced within the boundaries of said claims; "that said J. P. Fitting Company did not do or perform any labor of any kind or description whatever upon, or make any improvement or spend any money for the benefit or improvement of said mining claims or either of them for or during the year 1909 and that no person made any such expenditure or did or perform any work or labor or made any improvement upon either of said mining claims for or in behalf of said J. P. Fitting Company, for or during said year; and that said J. P. Fitting Company was not prevented from making such improvement or from performing work and labor upon said mining claims or either of them by force or otherwise during said year.
The effect of the finding is that, while the claims were located in the name of J. P. Fitting, he thereafter, on July 29, 1907, conveyed his interest therein to the J. P. Fitting Company and that neither said company nor any person for or on its behalf did any work or performed any labor of any kind or description whatever upon said mining claims or made any improvements thereon during the year 1909.
The right of Fitting to the property attached in April, 1907, when the location of the mining claims was made in his name. Plaintiff's right thereto is by virtue of a like location made in 1910. The acts of plaintiff in thus locating the claims, so far as the same overlapped or conflicted with the claims of Fitting, were ineffectual for the purpose of vesting any right thereto in plaintiff, unless there had been an abandonment by Fitting or a forfeiture of his rights by reason of failure to do the annual assessment work for the year 1909. (Gear v. Ford,
The court, as hereinbefore stated, found that in July, 1907, J. P. Fitting by deed conveyed the claims so located by him to a company or association (whether incorporated is not found), known as the J. P. Fitting Company of which he was a member, and that said company failed to do the annual assessment work thereon. Conceding such fact established by proper evidence, — as to which, however, we express no opinion. — nevertheless, since Fitting was a member of such company or association (or if a corporation, a stockholder therein) he had an equitable and beneficial interest in the property by reason of which the assessment work done by him inured to the benefit thereof so as to prevent a forfeiture. (Wailes v. Davies, 158 Fed. 667, and cases there cited; Anderson v. Caughey,
Moreover, for the purpose of avoiding the effect of this deed so made by Fitting to the J. P. Fitting Company, defendant offered in evidence a judgment and decree wherein the superior court of Inyo County, on June 8, 1909, in an action brought by Fitting against the company, declared said deed null and void and ordered, adjudged, and decreed the same and the record thereof canceled and annuled for fraud practiced in procuring it. Plaintiff's objection to the reception of such document in evidence was sustained upon the ground that it appeared upon an inspection of the judgment-roll that the judgment was void. The ground upon which respondent relies in support of this ruling is that it appeared from the *751
judgment-roll that defendant was a non-resident corporation doing business in this state, and that the return of service indorsed upon the summons was that the same was served "on the 4th day of May, A.D. 1909, on Charles F. Curry as secretary of state of the state of California, by delivering to him, said secretary of state, personally in said county of Sacramento, a copy of said summons attached to a true copy of the complaint in the action therein mentioned." In the case ofWilley v. Benedict Co.,
Considering the whole record, we find that the affidavit of service is not the only evidence that defendant was served with process. The jurisdictional recitals in the judgment which constitute a part of the record are that, "it appearing to the court that defendant, the J. P. Fitting Company, a corporation, was duly served with summons and complaint herein, and having failed to answer plaintiff's complaint filed in the above entitled action, and the legal time for answering having expired, and no answer or demurrer having been filed herein, or other appearance made by defendant, and the default of said defendant, the J. P. Fitting Company, a corporation, in the premises having been duly entered according to law." Notwithstanding the insufficiency of proof contained in the affidavit indorsed upon the summons, this recital must be taken on collateral attack as true, unless the record affirmatively shows the facts upon which it is based to be untrue. There is nothing to indicate that such finding was predicated upon proof of service indorsed upon the summons found in the judgment-roll. The recital makes no reference to such proof as a basis for the conclusion, as was the case in Harris v.Sargeant,
For the reasons given, the judgment and order are reversed.
Conrey, P. J., and James, J., concurred.