245 F. 732 | 9th Cir. | 1917
Lead Opinion
(after stating the facts aá above).
The appellee asserts that the question for decision is whether or not the deed made by Patterson to his wife on November 27, 1911, carried with it an assignment or conveyance of the sublease made by Patterson to Hamilton on the same day, under which sublease Patterson retained 5 per cent, of the gross output of the whole claim. We think the question for decision is not thus limited, and that it involves a broader view of the equitable rights of
The situation should be viewed as it would be if the marriage relation did not exist. It may be expressed in this manner: A. holds the legal title to a one-fourth interest in a mining claim, in trust for B., who is the equitable owner thereof. The owner of the three-fourths interest enters into an agreement of lease with A., whereby the latter is to operate the whole claim, and pay the former 25 per cent, of the total output. A month later, and before the mining operations begin, A. deeds the one-fourth interest to B., and at the same time he sublets to C. under an agreement whereby C. is to pay him 5 per cent, of the gross output, in addition to the 25 per cent, agreed upon to be paid to the owner of the three-fourths interest. Whose is the 5 per cent, which was realized under the sublease? Does it belong to A., or does it belong to B. ? It seems to us that in equity it clearly belongs to B.
When Patterson entered into an agreement of lease, by which the interest of his wife was bound for a four-year term, it is not to be assumed that she was to get nothing out of it. In case he realized profits from the lease, he was accountable to her for her share of those profits. If she had been paid for her interest at the same rate that Wickersham was paid, she would have received considerably more than 5 per cent, of the gross output. When Patterson sublet the property in such a way as to secure to himself the payment of 5 per cent, of the gross output, we think that Mrs. Patterson could have required him to turn over to her that 5 per cent. At the first clean-up she claimed it, and, but for an injunction, it would have been paid to her. She testified that Patterson, when he told her of the sublease, told her that he had reserved 5 per cent, for the one-fourth interest, and that she assented to it. Patterson testified to the same effect.
It is contended that the decision of this court on the first appeal finally determined that Patterson’s deed to his wife did not convey to her the 5 per cent, reserved to him
We also held that the evidence in the case indicated that the conveyance by Patterson to his wife was for the purpose of defrauding his creditors, and that error was committed on the first trial in dismissing the complainant’s bill at the conclusion of the complainant’s testimony. We said “the burden was cast upon the defendants to show the good faith and honesty of the conveyance in question,” and we remanded the cause for a new trial. Now, upon the second trial, the defendants have shown the good faith and honesty of the conveyance, and have shown that Mrs. Patterson is in equity entitled to the 5 per cent, which represented, as both she and her husband testified, her interest in the leased property. ' On the second trial the court below found against Mrs. Patterson, not on the ground that the question of her right to the 5 per cent, had been adjudicated by our decision, but on the ground that Patterson had not at any time assigned or transferred that 5 per cent, to his wife. We hold that no such transfer or assignment was necessary, that Mrs. Patterson’s interest was not created by the deed which her husband made- to her, that in equity she is entitled to all that her husband got out of the lease of her property, that she is the equitable owner of the 5 per cent, reserved, and could have compelled him to pay it. Our former decision is therefore not an adjudication of the merits of the controversy as they are now established by the evidence adduced on the second trial.
Dissenting Opinion
(dissenting).
The record of the case on the present appeal, as well as the record before us on the former appeal (220 F. 21, 135 C.C.A. 597), shows without dispute that the $5,174.66 in the registry of the court below was 5 per cent, of the gross amount of gold taken from the Daly Bench mining claim by H. C. Hamilton under the assignment made to him by H. J. Patterson of the lease to the latter from Wickersham. In the judgment of the court below dismissing the former suit appears the following respecting that money: “And it further appearing from the records of this action that, on the 17th day of May, 1912, an order was made in this cause, directing H. C. Hamilton, as lessee of the Daly Bench, described in the complaint herein, [to] deposit with the clerk of this court 5 per cent, of the gross amount of gold mined by him upon said mining claim during the pend-ency of this action, as royalty accruing to the owner of the undivided one-fourth interest in said Daly Bench, the title to which is in controversy in this action, to be held to await the determination thereof, and that the value of the said 5 per cent, of the gross amount of gold so mined by the said Hamilton is $5,174.66. It is further ordered that, in the event that, within 10 days from the date of this judgment the plaintiff has not filed with the clerk of this court a supersedeas bond, approved by the court, for an appeal from this judgment, the clerk of this court pay to the said Mariam A. Patterson, or her attorney, A. R. Heilig, the said sum of $5,174.66, if said gold dust or money has been deposited with him, and that, if the said Hamilton has deposited said gold dust with the American Bank of Alaska, then said bank pay said sum to the said Mariam A. Patterson, or her said attorney.”
The identical written instruments appearing in the record of the present appeal were also shown on the former one, including the lease of the Daly Bench claim to H. J. Patterson for a term extending to October 12, 1915, reciting, among other things, the ownership by Wickersham of the
In discussing the deed from H. J. Patterson to his wife, and its effect, we said on the former appeal: "The deed from the latter to his wife was made November 27, 1911, expressing a consideration of $1 and quitclaiming to her ‘all his right, title, and interest, being an undivided one-fourth .interest,’ in the Daly Bench claim. That deed did not purport to convey to the defendant Mariam A. Patterson any part of her husband’s interest in the amount then due or afterwards to become due to him from Hamilton under the lease by which the latter worked the ground, and certainly did not convey to her any part of the 5 per cent, of the gross mineral output which was derived from
Accordingly we reversed the judgment there appealed from, which had awarded to Mrs. Patterson the 5 per cent, of the gross output of the claim in controversy realized by Hamilton in the working of the claim under the lease assigned to him by H. J. Patterson. That the former judgment of this court in respect to the same money again in controversy — the pleadings and facts in the two cases being, so far as the present question is concerned, precisely the same — is the law of the case seems to me to be very plain. And especially difficult is it for me to see how equity can award to Mrs. Patterson any portion of the 5 per cent, of the gross mineral output of the claim that was yielded by the three-fourths thereof owned by Wickersham.
I therefore respectfully dissent from the judgment now given.