MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
Appellant, Dillon, made application to the United States land office for a patent to the Black Eagle quartz lode mining claim. Respondent, Mares, filed two adverse claims in the land office against this application — one based upon the Gold Hill quartz lode claim, and one based upon the Gold Rocky Hill quartz lode claim, with both of which the surface of the Black Eagle was in conflict. Within the time allowed by the statute of the United States, respondent instituted two suits, in support of his adverse claims (one on each of his locations), in the district court of Lewis and Clarke county. In the appeals under consideration, the suit based upon the Gold Hill location is involved. The action was tried by a court and jury, and from the judgment entered in favor of the validity of the Gold Hill location, and from an order overruling his motion for a new trial, appellant appeals.
Validity or State Statute.
Counsel for appellant insists, with great force and much reason, that the statutes of Montana requiring certain acts to be performed by one locating a mining claim, in addition to the requirements of the Acts of Congress (Stection 3610 et seq., Political Code), are in violation of Section 3, Article IV, of the Constitution of the United States, which provides: “The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice ally claims of the [130] United States, or of any particular state.” Also, that these requirements are inconsistent with the provisions of the Acts of Congress in regard to the location of mines, and therefore void. Also, if these provisions of the state statute are held to be permitted or recognized by the Acts of Congress, then such Acts, to that extent, are in violation of the above section of the Constitution of the United States.
. The question of the constitutionality and validity of our present statute, and of the provisions of the territorial statutes of a somewhat similar character, have been before this court and its predecessor, the supreme court of the territory, quite frequently, and we find that, whenever this question was discussed and decided by either court, the validity and constitutionality of these statutes have been uniformly upheld.
In O’Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302, the court for the first time directly considered the point made, relative to the constitutionality of the Acts of the legislative assembly of the territory, and holds such legislation valid. Chief Justice McConnell says: “By the reservation to itself of the sole right to dispose of the soil in the first instance, congress meant to make title to its purchasers, and receive the product of the sales, and not to regard those local regulations, looking to the acquisition of possessory rights merely, and their manner of enjoyment, as an interference with its prerogatives.” Of course, some distinction might be drawn between the legislative Acts of a territory and of a state, as to whether they conflict with the Acts of congress, the former being always under the direct control and supervision of congress, while the latter, if upon proper subjects of legislation, are entirely beyond congressional control.
In Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1031, this court had the matter under consideration for the first time, and says: “This court, after incidentally doubting the validity of the law of the territory requiring a location notice to- be verified (Wenner v. McNulty, 7 Mont. 30 [14 Pac. 643], afterwards, in O’Donnell v. Glenn, 8 Mont. 248 [19 Pac. 302], met the proposition squarely, and held the law to be good. While we [131] can conceive doubts as to this power of the territorial legislature, we do not feel it our duty to disturb the rule in O'Donnell v. Glenn, and the practice established upon that rule. We therefore sustain the law.”
The question came up for consideration again in this court in the case of McCowan v. Maclay, 16 Mont. 234, 40 Pac. 602, and Mr. Justice DeWitt .says: “Our statute requires that the notice of location of a mining claim shall be on oath. Comp. St. Fifth Div. Sec. 1177. That this requirement of our statute is within the power of the state legislature was doubted in Wenner v. McNulty, 7 Mont. 30 [14 Pac. 643], but was finally affirmed in O'Donnell v. Glenn, 8 Mont. 248 [19 Pac. 302], which ruling was afterwards .followed as the law of the case on the second appeal of O'Donnell v. Glenn, 9 Mont. 452 [23 Pac. 1018, 8 L. R. A. 629], and was followed as stare decisis in Metcalf v. Prescott, 10 Mont. 283 [25 Pac. 1037]. The Ninth Circuit Court of Appeals of the United States recently encountered this question in Preston v. Hunter, 67 Fed. 996 [15 C. C. A. 118], but passed it without an expression of opinion. We shall not now disturb the law of this jurisdiction in this respect.”
The question was again before this court in the case of Berg v. Koegel, 16 Mont. 266, 10 Pac. 605. The court say: “This decision [of the court below] is made upon the authority of McCowan v. Maclay, 16 Mont. 234 [40 Pac. 602], to the effect that our statute requiring the location notice to be verified is not in conflict with the laws of the United States upon the subject of the location of mining claims.”
It was again before this court in the case of Purdum v. Laddin, 23 Mont. 387, 59 Pac. 154 where the court uses the following language: “That the legislative assembly had power to enact Sections 3610 to 3613 of the Political Code is, in this state, too firmly established to permit of serious discussion or doubt; and that the provisions of these section are mandatory, reasonable and not in conflict with any Act of congress, seems clearly within the principles announced or tacitly recognized [132] in O’Donnell v. Glenn, 8 Mont. 248 [19 Pac. 302], McCowan v. Maclay, 16 Mont. 234 [40 Pac. 602], and Sanders v. Noble, 22 Mont. 119 [55 Pac. 1037].”
It was again before this court for consideration in the case of Baker v. Butte City Water Co., 28 Mont. 222, 72 Pac. 617, and the court said: “The question as to the right of the legislature to provide rules for the marking of the boundaries of. mining claims, and providing for a record of such location, and what the record paper must contain, has so long been recognized in this state, and has so many times been approved by this court, that it would be useless to enter again into any consideration of the questions so decided.”
To now hold these statutes unconstitutional or void, would be to reverse these uniform decisions, which have been followed and relied upon for many years; and this should not be done unless, in the opinion of the present court, such result would be the only one possible to be reached from a consideration of the questions. We would not, therefore, he justified in such a conclusion, if, after a careful investigation, we felt any doubt as to their correctness. We cannot say that we have an “abiding conviction” that these decisions are erroneous, but, at most, only that we have serious doubts as to their correctness.
While the Supreme Court of the United States, has not, to our knowledge, had the question presented to it in the same form that it is presented in this case, yet that court has indirectly at least, in many instances, held that the legislatures of the states might enact laws supplemental to the Act of congress relative to the location, possession and working of a mining claim. (Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113; Iron Silver Mining Company v. Elgin M. & S. Co., 118 U. S. 196, 6 Sup. Ct. 1177, 30 L. Ed. 98; Enterprise M. Co. v. Rico Aspen M. Co., 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96; Parley’s Park S. M. Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ed. 906.)
■ The same doctrine is held by the Court of Appeals of the Ninth Circuit; in Northmore v. Simmons, 97 Fed. 386, 38 C. [133] C. A. 211. The Supreme Court of Nevada has reached the same conclusion in Sisson v. Sommers, 24 Nev. 379, 55 Pac. 829, 77 Am. St. Rep. 815. Also the Supreme Court of Utah, in Copper Globe Min. Co. v. Allman, 23 Utah, 410, 64 Pac. 1019.
Questions of the construction of the Federal Constitution and statutes can he finally settled only by the Supreme Court-of the United States. This court should not assume the authority to declare any Acts of congress to be in violation of the provisions of the Constitution of the United States, except in, cases entirely clear and free from doubt Such decision by this court would only be binding within the state, and then only until the question should be finally decided by the Supreme Court of the United States. Again, if this court’should hold these statutes void because in conflict with the Federal Constitution or Acts of congress, and locations should thereafter be made not complying with their requirements, and the Supreme Court of the United States should afterwards decide to the contrary and hold them valid, all location made in the interim, not complying with their requirements, would be void. This would be a calamity which should be avoided if possible. On the other-hand, if this court holds these statutes valid, all locations must comply with their requirements in order to have validity, and, if the Supreme Court of the United States should afterwards decide that they were void, no one would be injured, because all locations made in conformity with these statutes would surely be valid, even if the statutes were void, as all the requirements of the Acts of congress would be fully complied with.
We, therefore, while entertaining very serious doubts as to the correctness of this court’s past ruling, in consideration of the. circumstances above set forth, must refuse to declare the legislative action of the state of Montana unconstitutional.
Verification.
The verification of the Gold Hill declaratory statement was-made by Frank Mares, the locator. This verification seems cor-. [134] rect in 40101 and substance, and does not disclose but, that it was made-upon the personal knowledge of the affiant. However, evidence was given on the trial that the affidavit was made without any actual personal knowledge of the facts sworn to, but entirely upon information derived from affiant’s brother and the engineer who had performed the specific acts of making the location. Counsel for appellant insists that this fact renders the location, void. •
The verification, by the terms of the statute (Section 3612, Political Code), is required to be made by the “locator” of the claim. Its object, as announced by the Supreme Court- of the Territory of Montana, “was to prevent fraud by subjecting the locator to the penalties of perjury if he swore falsely or corrh'ptly.” If the verification is in form and substance in accordance with the statute, it is prima facie sufficient, and the facts stated therein are prima, facie true. Of course, its effectiveness could be avoided by a proof that the facts verified did not exist or -were untrue. - This record does not disclose that any evidence was offered to challenge the truth of the affidavit, nor is it claimed that any of the facts therein stated did not exist o-r were not true. Therefore we must consider the verifi-. cation as true, and we cannot- conceive how appellant was injured, even if it was not made upon the personal knowledge of the affiant, but upon information. What concerns him is the truth of the facts verified.
Again, the statute simply provides that the statement “must be verified by the oath of the locator,” etc. (Section 3612, Political Code), not that it shall only be made upon the personal knowledge of the affiant. As well said by Chief Justice McConnell, in considering a similar -provision in the territorial statute, in the case of .Wenner v. McNulty, 7 Mont. 30, 14 Pac. 643: “It is not usual to require such strictness, unless the statute prescribing the oath expressly requires it. The object of recording the declaratory statement is to give the public notice that a location.has been made ; and the object of requiring an oath was to. prevent fraud, by subjecting the locator to [135] the penalties of perjury if he swore falsely and corruptly. If the affiant in such cases swears falsely and corruptly, he will be as much amenable to the penalties of the law denounced against perjury as if he had made the oath upon his own alleged personal knowledge; and the mere fact that the oath is absolute in form, when in fact it ivas made upon information and belief, does not invalidate it. 12 Mver’s Fed. Dec. Sec. 1047.”
We therefore cannot hold that the location of the Gold Hill lode mining’ claim ivas void on this ground or for this reason.
Another Suit Pending.
Appellant sets forth in his answer the following facts, in substance: That, after he had filed his application for a patent to the Black Eagle quartz lode claim in the land office, respondent claimed that the surface area of the Black Eagle conflicted with the surface area of the Gold Hill quartz lode mining claim, and also with the surface area of the Gold Pocky Hill quartz lode mining claim, and thereupon filed an adverse claim based upon the location of the Gold Hill, and another based on the location of the Gold Pocky Ilill; that afterwards respondent brought suit, in the district court of the First judicial district of Montana in and for the county of Lewis and Clarke, simultaneously on each of said adverse claims so filed, and that both suits are still pending. Counsel for appellant insists that respondent had but one cause of action, and that, having split this action into two suits, the pendency of the other suit prevents him from prosecuting this one. We find in the answer the following very pertinent allegation: “In which said action [referring to the action brought on the Gold Pocky Ilill] no claim was made to any portion of said Black Eagle by virtue of plaintiffs alleged ownership' of the Gold Hill lode mining claim.” Respondent demurred to a. portion of the answer, and, after hearing, the court sustained the demurrer thereto. To this counsel for appellant excepts, and urges the alleged error before this court.
[136] It appears, from the plat attached to the answer, that respondent made two locations, one of which he designated the “Gold Hill” and the other the “Gold Rocky Hill;” that the surface of each of these locations conflicts with the surface of the Black Eagle, but the one does not conflict with the other. Respondent, as stated, filed a separate adverse claim to appellant’s application fox patent on the Black Eagle, based upon each of his two locations. We have no doubt but that this was entirely proper, and a justifiable practice, but counsel for appellant says that respondent had only one cause of action, and therefore could maintain only one suit. We think that this position is erroneous, and that respondent had two separate and distinct causes of action, one of which was based solely and exclusively on his location of the Gold Hill lode, and the other solely and exclusively on the location of the Gold Rocky Hill lode.
The action instituted is primarily for the purpose of determining who was entitled to the possession of the ground in controversy, and ultimately for the purpose of determining who was entitled to a patent for such ground. The purpose of adverse suits is in “aid of and for the information of the land department, to determine as between the litigants the right to the possession of the mining claim in dispute.” (Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, citing Doe v. Waterloo M. Co., 70 Fed. 455, 17 C. C. A. 190; Wight v. Dubois, (C. C.) 21 Fed. 694.)
Of course, the effect of a judgment in favor of respondent in either suit would be to prevent appellant from acquiring a patent from the United States for the surface ground in conflict between the locations in such suit, and to allow patent to the same to be issued to respondent. This was not the primary purpose of either suit, but would be the result of the judgment recovered.
We cannot see how the two suits instituted by respondent could possibly have been tried as one cause of action. Each is based upon a separate and distinct location. One location may [137] be good, the other bad. Respondent could only recover judgment upon a valid location, because the right of possession can only come from a valid location. The proof in each case would be entirely different; in one location respondent may have been the locator, in another he may have been the purchaser; so that proof in one case would not “fit” the other case, nor authorize' judgment to be entered thereon. As we view the proposition, it is the same in effect as though A. held two promissory notes of B., each for a hundred dollars. Although they may bear the same date and he exactly identical in language and amount, each note constitutes a separate cause of action; and while A. may bring one suit against B. covering the two notes, each cause of action would have to be separately stated. A. would have the right to bring suit on one note and not upon the other. A judgment on one note would not be a bar to a suit on the other. The1 pendency of the suit on one note could not. be pleaded in abatement to the pendency of a suit on the other note. If A. brought a separate suit on each note, the court, under our statute, might compel a consolidation of the causes, and try the two causes of action in the same case. So here, possibly, although we do not desire to express any definite opinion on this proposition, Dillon might have asked the court below to. cosolidate the two causes of action and have them heard at the same time, under the provisions of Section 1894 of the Code of Civil Procedure.
In order for the pendency of one suit to be pleaded in abatement in another suit, the two suits must he identical, at least in subject-matter and parties; so that, if a judgment upon the merits is obtained in one, that judgment becomes final as to-both suits, and could be pleaded in bar in the other action. The question is, as this court has said, “Could the plaintiff in the former action have obtained all the relief which he alleges he is entitled to in. the present action?” (Wetzstein v. Boston & Montana Consol. C. & S. Mining Co., 28 Mont. 451, 72 Pac. 865.)
Recalling the allegation in appellant’s answer, above quoted, we find that respondent made no claim, in the suit brought upon [138] the Gold. Rocky HilT adverse, to any part of the Black Eagle lode claim which conflicts with the Gold Hill lode claim, and in .this action based upon the Gold Hill location he makes no claim to- any part of the Black Eagle which conflicts with the Gold Rocky Hill. There is therefore no identity of cause of action. How can wTe say that a judgment in one will bar a judgment in the other ? The proof would be absolutely dissimilar.
The language of the Supreme Court of the United States- in Watson v. Jones, 13 Wall. 715, 20 L. Ed. 671, is particularly in point in this regard. That court said: “When the pendency of such a suit is set up- to defeat another, the case must be the same. There must be the same parties, * * * there must be the same rights asserted, and the same relief prayed for. This relief must be founded on the same facts, and the title or essential basis of the relief sought must be the same. The identity in these particulars should be such that, if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties.” Very true, the validity of the Black Eagle location is brought into question in each of the suits, but respondent’s right of action depends not only upon the invalidity of the Black Eagle location, but upon the validity of his own location in each case. . '
Character or the Suit.
As already stated, the suit ivas brought in support of an adverse claim against appellant’s application for patent duly filed in the land office.
Section 2326 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p-. 1430] provides as follows: “Where an adverse claim is filed during the period of .publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries and extent of such a.d" verse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be staved until the controversy, shall have been settled -or decided [139] by a court of competent jurisdiction, or the adverse claim waived. 'It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim.” Thus, the Act- of congress provides that a suit shall be brought, in support of the adverse claim, within thirty days after the filing thereof, “in a court of competent jurisdiction.”
The Supreme Court of the United States says, in regard to this section: “Thus the determination of the right of possession as between the parties is referred to a, court of competent jurisdiction, in aid of the land office, but the form of action is not provided for by the statute; and, apparently, an action at law or a suit in equity would lie, as either might be appropriate under the particular circumstances- — an action fi> recover possession when plaintiff is out of possession, and a suit to quiet title when lie is in possession.” (Perego v. Dodge, 163 U. S. 160, 16 Sup. Ct. 971, 41 L. Ed. 113.) In other words, the character of the suit depends upon the practice in the state in which the suit is brought. If, under the statutes of the state, an action to quiet title is provided for, such suit will be sufficient; if, under such statute, an action of ejectment is provided for, then the action may be in ejectment; if a statutory proceeding is provided for, it may be followed, but if such proceeding is made exclusive by the statute, then its provisions must be followed; so that the only question for us to determine is whether or not, under the statute and practice of Montana, the action brought by respondent is an action in equity, at law, or a special statutory proceeding.
Counsel for appellant seems to insist that he is entitled to a verdict of the jury upon the proposition as to which, if either, party to the suit is entitled to possession of the ground in conflict, and cites the amendment of March 3, 1881, c. 140, 21 Stat. 505 [U. S'. Comp. St. 1901, p. 1430], to Section 2326, [140] which provides: “That if in any action brought pursuant to¡ Section 2326 of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find.”
■ This amendment was construed in the case of Perego v. Dodge, 163 U. S. 160, 16 Sup. Ct. 971, 41 L. Ed. 113, and the court said: “We do not think the intention of this Act was to-change the methods of trial. Its manifest object was to provide for an adjudication, in the case supposed, that neither party was entitled to the property, so that the applicant could not go forward with his proceedings in the land office simply because the adverse claimant had failed to make out liis case, if he had-also failed. In other words, the duty was imposed on the court to enter such judgment or decree as would evidence that the applicant had not established the right of possession, and was for that reason not entitled to a patent. The whole proceeding is merely in aid of the land department, and the object of the amendment was to secure that aid as much in cases where both parties failed to establish title as where judgment was rendered in favor of either; and, while the finding by a jury is referred to, we think that where the adverse claimant chooses to proceed by bill to quiet title, and as between him and the applicant for the patent neither is found entitled to relief, the court can render a decree to that effect, just as it would render judgment on a verdict if the action were at law. If congress had intended to provide that litigation of this sort must be at law, or must invariably be tried by a jury, it would have said so. There is nothing to indicate the intention thus to circumscribe resort to the accustomed modes of procedure, or to prevent the parties from submitting the determination of their controversies to the court. It must be remembered that it is The question of the right of possession’ which is to be determnied by the courts, and that the United States is not a party to the proceedings. The only jurisdiction which the courts have is of a controversy between individual claimants, and it has not been provided that the rights of an applicant for public lands, as against the gov-[141] eminent, may be determined by the courts in a suit against tbe latter. United States v. Jones, 131 U. S. 1, 9 Sup. Ct. 669, 33 L. Ed. 90; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 694, 15 Sup. Ct. 733, 39 L. Ed. 859.”
Section 1310 of the Code of Civil Procedure provides: “An action may be brought, by any person against another who claims an estate or interest in real property adverse to him, for the pürpose of determining such adverse claim.” This section would be sufficient of itself to give authority for the commencement and maintenance of a suit to detetrmine the matters directed to be ascertained by Section 2326 of the Revised Statutes of the United States, without any further legislative action; but the legislature went further, and .enacted Section 1322, which provides: “In an action brought to determine the respective rights of claimants to the possession of a mining claim or quartz lode, under the. provisions of the Acts of congress of the United States, it is immaterial which party is in possession, and it is sufficient to confer jurisdiction upon the court, if it appears from the pleadings that the application for a patent has been made and an adverse claim thereto filed and allowed in the proper land office; and the verdict or decision must find which party is entitled to the possession of the premises in dispute.”
The complaint in this case alleges that plaintiff “is the owner, except as against the paramount title of the United States, and is in the possession and entitled to the possession of all and singular that certain quartz lode mining claim.” He then sets out the facts necessary to a valid location, and afterwards alleges that the defendant assumed to locate a part of the claim, and made an application to the land office for a patent thereto-; that plaintiff filed his adverse and commenced this suit; then alleges that the defendant “is without any right whatever, and that said defendant has not any estate, title, interest or claim to the possession of the same, or any part thereof, and that the claim of the. defendant thereto casts a cloud upon the title of this plaintiff in and to his said Gold Hill quartz lode mining [142] claim, and greatly interferes with and injures him in the use and enjoyment thereof.” The prayer of the complaint is that the defendant be required to set forth thte nature of his claim to the ground, “and that all adverse claim of said defendant may be determined by a judgment of this court.”
The answer in the case denies the ownership of plaintiff, or that he is in possession or entitled to the possession of the premises, and then alleges defendant’s location of the Black Eagle quartz lode mining claim, and that he made application for a patent upon the same; and prays that plaintiff take nothing by his suit, “and that the defendant be adjudged to be the owner and entitled to the possession of the. premises sued for.”
Both parties claim under separate locations of mining claims, and the suit was for the purpose of determining who had the right of possession to the ground in conflict, for the guidance of the land office in issuing a patent therefor.
It must be remembered that the prayer of plaintiff’s cornplaint is that the defendant set up his adverse claims, and that the court determine that plaintiff is entitled to the possession of the property in question. The defendant sets up his adverse claim, and ends with practically the same prayer. We cannot conceive how this action could be treated as any other than one of equitable jurisdiction to determine an adverse claim. It has no semblance to an action at law, neither has the defense set forth in the answer any semblance to an answer setting forth a legal title to the premises. Both parties seem to desire the court to determine who is entitled to the possession of the premises on the adverse claim set forth. There is no allegation in the pleading upon which an action at law could be brought.
Again, appellant’s attorney in the trial of the case (as recited in the record) took the position before the court below, in support of his application to submit special interrogatories to the jury, “that the interrogatories ought to be submitted because the case was in nature an action in equity.”
The record does not disclose that a jury was demanded by either party. The court tried the case as an equitable case; [143] without objection on the part of appellant, as is very apparent from the fact that, in addition to the findings of the jury, it made several other findings. It is too late for appellant to urge the point in this, court, for the first time, that the action was not one of equitable cognizance, but one at law, having tried the action in the court below as one of equity, and stated in that trial that it “was a case of that character. The rule as announced by this court in the case of Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, as follows: “The matter was treated in the district court throughout as a suit in equity. In fact, the opening statement in appellant’s brief is, 'This is an equitable action.’ And without disposing of the question whether in fact it is an action at law or a suit in equity, it is sufficient to say that, when a cause has been tried upon a certain well-defined theory, neither party will be heard in this court, on oral argument, for the first time, to^ assume a position antagonistic to such theory. Harris v. Lloyd, 11 Mont. 390, 28 Pac. 736, 28 Am. St. Rep. 475; Leavenworth N. & S. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297; Davis v. Jacoby, 54 Minn. 144, 55 N. W. 908.” See, also, Hendrickson v. Wallace, 29 Mont. 504, 75 Pac. 355; Perego v. Dodge, 163 U. S. 160, 16 Sup. Ct. 971, 41 L. Ed. 113.
Two important questions suggest themselves, i. e., Does Section 1322, supra, provide for a statutory proceeding in cases of this character ? If so, does it intend that such proceeding should be exclusive? The consideration and determination of these questions do not arise in this case, as such proceeding would necessarily be equitable in character, and we have seen that appellant cannot question the equitable character of this suit.
We therefore hold, not only that the suit was actually one of equitable jurisdiction, but that appellant, by the admissions and action of his attorney in the lower court, is now estopped from saying that it was not.
Appellant’s counsel having placed himself in a position where he cannot be allowed to question the equitable character of the suit, all of his objections to the instructions of the court to the [144] jury are unavailing. (Hendrickson v. Wallace, 29 Mont. 504, 75 Pac. 355, and cases cited.) The findings of the jury were therefore only advisory to the court, and the court was justified in making the necessary findings.
This disposes of all questions raised and argued by appelllant’s counsel.
We advise that the judgment appealed from be affirmed.
Píer Curiam.-
Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.