81 Cal. 356 | Cal. | 1889
This is an action of ejectment to recover a tract of land containing about five and one half acres, situated in section 29, township 9 north, range 10 east, Mount Diablo meridian, in El Dorado County. The findings and judgment were for plaintiff, and defendants appeal from the judgment, and from an order denying a new trial.
The land in contest constitutes a part of what is known as the “ Oro Fino quartz mine,” which was surveyed by a United States mineral surveyor, and marked out, etc., in 1880. No patent seems to have been obtained for the land as mining ground; but plaintiff claims to have acquired the United States government title through one Charles P. Schenck, who was a homestead claimant of that part of said section 29 which includes the land in contest. In June, 1882, Schenck received a patent from the United States for the land covered by his homestead claim, but on September 11, 1880, when he was only a homestead claimant, and had not made his final proof, by a deed which was never recorded, he “ granted and quitclaimed” a part of the land described in the complaint to one William H. Miller. The deed was drawn by Miller on a blank in which was printed the word “grant”'; and immediately after that word he wrote the words “and quitclaim.” He knew that Schenck had not proved up his homestead claim. Prior to the year 1883, and subsequent to November, 1881, the land described in said deed from Schenck to Miller had been conveyed from said Miller, through mesne conveyances, all recorded, to the Oro Fino Gold Mining and Milling Company of El Dorado, a mining corporation existing under the laws of the state of Illinois; which corporation had built a mill on the land at a cost of eighteen thousand dollars, and had sunk a shaft to the depth of 130 feet, and had done other work, at large expense. On April 9, 1885, a deed was made, which purports, on its face, to be the deed of said last-named
On February 20, 1884, said Schenck, having then obtained his patent from the United States, as herein-before stated, executed to one Frank B. Ogden a quitclaim deed to all the land sued for in this action. On July 9, 1884, said Ogden, by deed, bargained, sold, and quitclaimed all said land to A. J. Mason, Robert Gay, and Peter Baker, and on February 21,1887, said Mason, Gay, and Baker, by deed, “ granted, bargained, and sold” all said land to the plaintiff herein. So the plaintiff claims the government title through said patentee, Schenck, by two courses: 1. The one which ended in the alleged deed from the Oro Fino corporation to plaintiff; and 2. The one which ended in the deed to plaintiff from said Mason, Gay, and Baker.
Defendants deny the title of plaintiff, and set up title in one Mathilda De Lescault, with whose consent they claim to be in possession.
We think, however, that no title was shown to be in said Lescault. Her asserted title rests upon execution sales under two judgments, the one known as the Phelps judgment, and the other as the Park Canal Company judgment. With respect to the sale under the Phelps judgment, the facts as found by the court are these: In 1883 the said W. H. Miller made two trips from Califor
The facts about the Park Canal Company sale are briefly these: While Miller, Kennedy, and Bargion were working the mine, they incurred a liability to the Park Canal and Mining Company, and the latter company brought a suit in the justice’s court against the three. It got service on Kennedy and Bargion, but not on Miller, and took judgment against all three. Execution was issued, and the interest of the three in the mine was sold to one Crawford, who assigned his certificate of sale to Lescault, to whom the constable afterward made a deed. It is needless to determine the question discussed by counsel, whether or not a joint judgment against three defendants where only two are served is valid against either; for as the defendants in that action had no title to the mine, therefore Lescault got no title through the sale.
The only question, then, is, whether plaintiff has shown title which will support ejectment.
It is clear that plaintiff has title to all that part of the premises in contest which was not conveyed by Schenck to Miller by the deed of September 11, 1880, and which went by mesne conveyances to the Oro Fino Mining and Milling Company,—that is, to all that part conveyed
But the title to that part of the land in contest, described in the first deed of Schenck to Miller,— and which carried the title afterward acquired from the United States, — seems still to be in the Oro Fino Mining and Milling Company. This result comes from the fact that no evidence -was offered to prove that the deed from the corporation to plaintiff was ratified by two thirds of its stockholders, as provided in section 1 of the act concerning mining corporations, which went into effect April 23,1880. (Stats. 1880, p. 131.) In McShane v. Carter, 80 Cal. 310, a majority of this court held that under said statute, a deed of a mining corporation of any part of its mine, not shown to have been so ratified, does not pass the title. Upon the authority of that case we therefore hold that the title to that part of the premises in contest, now under discussion, is still in the Oro Fino Mining and Milling Company, and not in plaintiff. For this reason the judgment must be reversed.
Sharpstein, J., Fox, J., Works, J., Paterson, J., Beatty, C. J., and Thornton, J., concurred.