44 Colo. 109 | Colo. | 1908
delivered the opinion of the court: •
This action was brought hy the appellant to obtain a decree compelling the appellee to convey to the plaintiff an undivided one-half interest in the Harvest Moon mining claim. The plaintiff contended that the circumstances under which the property was conveyed to the defendant were such as would amount to a trust in favor of plaintiff. The circumstances, as we gather them from the admissions, undisputed proof, and matters conclusively proven, are as follows: That on the eighth of September, A. D. 1903, Nelson G-asldll executed and delivered unto the plaintiff and defendant his lease of the property and bond for its conveyance upon the payment of five thousand dollars on or before the 15th day of November, 1903. ,, -The next day, in consideration of twenty-five dollars, Gaskill extended the option of purchase contained in such bond and lease until the 15th day of November, 1904. One-half of this twenty-five dollars was paid by plaintiff, and one-half by defendant. Under this bond and lease the parties agreed to work the property jointly, each to bear one-half of the. expense. This matter is disputed by appellee in his brief and also, to some extent, in his testimony, but the allegation of the complaint is “that, pursuant to said bond and lease and in furtherance of their said enterprise, the plaintiff and defendant immediately entered into the joint possession of the said mining claim and commenced .the development of same, each bearing and to bear one-half of the expenses of such development work and one-half of all other expenses in the furtherance of their said enterprise. ”
“A mining partnership is held to exist where the several owners of a mine co-operate in the working of the mine.”—Charles v. Eschleman, 5 Colo. 111.
“A mining partnership may exist as well where the parties have an interest -merely in the working of the mine or in carrying on mining operations as where they own the mine itself.”—Manville v. Parks, 7 Colo. 128.
In the same case it is said:
“For many years both English and American authorities have held that co-tenant owners, as well as lessees or párties having only equitable interests in the property, or holding under license to work or develop, or where the owner furnishes the mine and another the capital and labor, under an agreement to*113 share the profits of the miné jointly, in all snch eases there may he a partnership for mining purposes. ’ ’
In Higgins v. Armstrong, 9 Colo. 38, it is said:
“The testimony, however, does not warrant the inference that it was an ordinary or commercial partnership, since no partnership organization was shown. It appears to have been an association of individuals for the purpose of prosecuting a certain business venture, which was the operating of mines and smelting works at Leadville. It may, therefore, be appropriately denominated a ‘mining partnership,’ since the business related to mining projects. It was held in Charles v. Eschleman, 5 Colo. 111, that a mining partnership exists where the several owners of a mine co-operate in the working of the mine. Here the several owners in the ‘concern,’ as Mr. Higgins calls it, co-operated in carrying on certain mining operations.”
In Lyman v. Schwartz, 13 Col. App. 318, it is said:
“It appears that the defendants were jointly engaged in working a mine, and that three of them agreed to contribute the money and the other his services, and that they were to share equally in the result if there was ‘any result. This agreement shows a mining partnership. ’ ’
In Meacher v. Reed, 14 Colo. 351, it is stated as a- general rule that when two or more persons acquire mining property solely -or principally for the purpose of extracting the ore, the relation existing between them in the transaction of their common business is a mining partnership.
From these rules, the allegations of the complaint, the admissions of the answer, and the undisputed facts appearing in the record, it is quite apparent that there was a mining partnership existing between the parties.
“That upon his part he has fully desired and uniformly urged that the said incorporation be completed and perfected promptly and finally, and has told the plaintiff, who is an attorney, to go ahead and get this done, and if without funds of his own, to pay such expenses from money of the defendant in his, ■the plaintiff’s, hands, and defendant alleges that money of defendant’s in an ainount sufficient for this purpose was and is in his, the plaintiff’s, hands.”
The only money which was placed in plaintiff’s hands by the defendant was the one hundred dollars above referred to, and the .difficulty concerning the filing of the papers in Colorado arose subsequently to the purchasing of the property from Gaskill;. so that if we take the allegations of the answer most strongly against the pleader, as is the usual rule, we are forced to conclude that the one hundred dollars was not placed in the plaintiff’s hands for the par-pose of buying this property, but for the purpose, as
Plaintiff brought this action, alleging the facts substantially as above, and asking that defendant be compelled to convey one-half of the property to him. The court found the issues for the defendant, and plaintiff appeals.
It is contended by the plaintiff that the facts above stated constitute the defendant a trustee, -and that a resulting trust exists for the use and benefit of the plaintiff. Defendant denies this, and says that the whole agreement was void because some
It has been frequently stated that resulting trusts, or those created by operation of law, are, first, when an estate is purchased in the name of one person, but the money or consideration is given by another; second, where a trust is declared only as to part, and nothing is said as to the rest; and, third, in certain cases of fraud where transactions have been carried on mala fide.—Lloyd v. Spillett, 2 Atkyns 150; 1 Greenl. Ev., § 266; Washb. R. P., § 1422; Trapnall's Admx. v. Brown, 19 Ark. 39.
Constructive trusts are such as are raised by equity in respect to property which has been acquired
Resulting trusts'are not within" the statute of frauds, and may be shown by parol testimony.—Knox v. McFarren, 4 Colo. 586; Kayser v. Maughan, 8 Colo. 232; Bohm v. Bohm, 9 Colo. 100; Warren v. Adams, 19 Colo. 515.
Upon the failure to perfect the corporation it is apparent that a resulting trust exists in this case, whatever view we may take of it. If we say that the trust exists where the purchase price was paid by one and the deed made to another, then by a strong preponderance of the testimony it' is clear that the plaintiff comes within the rule. He -says that he paid his own money for this property; G-askill says that he did not know Bruce in the transaction, that he had no conversation with him concerning the purchase of the property; the defendant says that he gave plaintiff one hundred dollars. In his answer he asserts that at. the time of the commencement of this action, long after the purchase was made, the plaintiff had money in his hands sufficient to pay the expense of perfecting the corporation. Plaintiff could not have paid defendant’s money to G-askill and still retain it. Against this is the naked declaration of the defendant that he gave the one hundred dollars for the specific purpose of purchasing the property. Besides this, the property was purchased upon the 24th day of October; yet plaintiff and defendant continued to work the mine jointly, plaintiff furnishing a man and defendant himself working, until the 16th day of December, and until the defendant determined that he would not convey the property. If we consider the mala fides of the transaction, then it appears that in equity and good conscience defendant should convey one-half of this property to the plaintiff. These peo
Reversed cmd "remanded.
Chief Justice Steele and Mr. Justice Goddard concur. _