Nelson v. Wood Placer Mining Co.

167 F. 206, 1908 U.S. App. LEXIS 5475

• Court: U.S. Circuit Court for the District of Montana
• Decided: November 4, 1908
• Docket: No. 230
• Status: Published

Opinion

HUNT, District Judge

(after stating the facts as above). Examination of the record shows that the contract and option of October 20, 1902, between complainant and defendant, bound defendant to convey to complainant at or before the time stated, January 1, 1904, by good and sufficient deed with the usual covenants, certain specified placer mining ground, portion of which was described in detail as patented, but portion of which was specially described as a mineral entry, for which receiver’s receipt had been issued on August 2, 1901, “patent not yet issued, but to be issued.” This language, together with the terms of the whole instrument, must be taken as evidence that when the contract was made the complainant, as well as defendant, knew that the title of defendant to the two claims known as “Discovery” and “Annex” was not a patent title proper, but was whatsoever interest, right, and title the defendant was vested with pursuant to the statutes of the United States, and the decisions of the Supreme Court defining the rights of one who has a receiver’s receipt for a placer mineral entry.

That such was the intent of the contract is also clear by the further covenant:

“That It is intended hereby to convey any and all right, title and interest and estate which may have been acquired, or may hereafter be acquired to the said premises or any part thereof, by virtue of any patent which may have been issued, or which may hereafter be issued by the United States government to said placer mining claims or any part thereof, all of the said placer mining claims hereinabove described containing in the aggregate three hundred and sixteen and is/ioo acres.”

The deed in escrow, containing clause of warranty, dated October 20, 1902, also described the property exactly as it had been described in the contract and bond, and contained exactly the same covenant that the estate and title conveyed were all the right, title, and interest and estate of the defendant that had been acquired, or might thereafter be acquired, by patent already issued, or which might thereafter be issued to the placer claims described, or any part thereof.

There is, therefore, perfect harmony between the contract and the deed in escrow, so that an understanding of the whole evidence is much simplified. Both instruments expressly state that the purchaser was to acquire all the rights of the Wood Placer Company to the properly described that that company had under patents already issued, or that might thereafter issue; atid both prove the knowledge of the parties as to the kind of title transferred, because both expressly recite that for two of the claims no patent had been issued, but was to be issued.

The transaction, as it appears by the writings and the testimony of the witnesses, is to be regarded as not an uncommon one; for there is nothing at all unusual in the purchase and sale of a mining claim where the vendor is in possession with a receiver’s receipt, as the evidence of his title and right to a patent. The evidence proves that complainant knew exactly what he was buying, and was satisfied with the status of the title and deed in escrow. He knew that patents had not issued, and, fraud by defendant not having been proven, complainant must be held to the knowledge that patents might possibly be delayed or even withheld by the United States for noncompliance with the law or the regulations of the Land Department. That is to say, complainant knew that, until consummation of the title by patent, the defendant acquired an equity — a right subject to examination by the Department of the Interior. There were, however, no adverse claims pending against the Annex or Discovery locations; there were, in fact, no defects in the essentials of the right to the two claims not patented; complainant was put in exclusive possession and right of enjoyment, and could not have been successfully molested by any one. Possession of patents for the two claims would, of course, have added to the security of the title of the vendee; yet, having knowingly taken title with application for patent pending, and being in exclusive possession under claim of exclusive right, he acquired a very high property ownership, such a one as is daily recognized in the practice of conveying mining claims, and as is consistently upheld by the courts in their adjudications. Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A. 230; Clipper Mining Co. v. Eli M. & L. Co., 194 U. S. 220, 24 Sup. Ct. 632, 48 L. Ed. 944.

The words “patent not yet issued, but to be issued,” as used in the contract and option, are merely descriptive of the status of the title, to the Annex and Discovery claims. They are not to be construed as words of covenant on the part of the vendor that patents would issue for the claims, or, as already indicated, that any higher title was conveyed than that which was vested in defendant by virtue of the receiver’s certificates, and any rights antecedent thereto. Bash v. Cascade Mining Co., 29 Wash. 50, 69 Pac. 402, 70 Pac. 487. Were the case one'where third parties had interrupted the possession and enjoyment of complainant, and had made claim, or where the evidence showed that actual misrepresentation or fraud on defendant’s part had entered into the transaction, different propositions would demand consideration.

The testimony is conclusive of the view that complainant has no equity in his case. He has received the property he purchased, has had every right of undisturbed enjoyment of it, he has been secure in his possession, and never has been molested or threatened in the title. The doctrine of Ankeny v. Clark, 148 U. S. 345, 13 Sup. Ct. 617, 37 L. Ed. 475, does not appear to me to affect this case. There the court held that a quitclaim deed to the land involved was not a good title under the contract which Clark had made with Ankeny. But in this case, the conveyance passed precisely what title the contract called for. The evidence here shows, too, that complainant can now strengthen his title by accepting the patents which it appears have been issued since January, 1904, aiid thus he may acquire the very title that he has contended for.

Finally, T can find no excuse that can be based upon any correct principle of right for his cla'im of rescission upon the ground of a failure of title.

The bill must, therefore, be dismissed.