In a suit in equity to have T. declared a trustee, for the use
of S., of an interest in a mine, and to compel a conveyance of the
same to S., T. set up two sources of independent title in himself:
(1) the purchase of a portion of the interest at an execution sale
under a judgment in a suit in which process was not served upon S.,
no appearance entered for him, no judgment entered against him, and
in which he was never in court; (2) proceedings under Rev.Stat.
§ 2324 by T. against S. as an alleged "co-owner" of the mine
to compel him to contribute to the payment of the annual labor on
the mine for the year 1884, by which proceeding it was claimed that
the interest of S. in the mine became forfeited to T. At the time
when the labor was done for which contribution was demanded, S. had
not received the deed for his interest, and the sheriff's deed to
T. of the interest which he claimed was not delivered until March,
1880.
Held:
(1) That T. acquired no interest in the share of S. in the mine
by the sheriff's deed.
(2) That T. was not a co-owner in the mine with S. during the
year 1884 within the meaning of the statute, which, as it provides
for the forfeiture of the rights of a co-owner, should be construed
strictly.
By the laws of Colorado, title to land sold under execution
remains in the judgment debtor till the deed is executed.
Co-tenants stand in a relation of mutual trust and confidence
towards each other, and a purchase by one of an outstanding title
or encumbrance, for his own benefit inures to the benefit of all,
and when acquired, is held by him in trust for the true owner.
The general rule laid down in
Garland v.
Wyan, 20 How. 6, following in principle
Comegys v.
Vasse, 1 Pet. 193,
26 U. S. 212,
and maintained in
Monroe Cattle Co. v. Becker,
147 U. S. 47,
147 U. S. 57,
that where several parties set up conflicting claims to property,
with which a special tribunal may deal, as between one party and
the government, regardless of the rights of others, the latter may
come into the ordinary courts of justice, and litigate their
conflicting claims, is announced to be the settled doctrine of this
Court.
This was a bill in equity filed by the appellee, Sawyer, against
Robert Turner, George E. McClelland, and J. S.
Page 150 U. S. 579
Allison, the purpose of which was to have the defendant Turner
declared a trustee for the use of the plaintiff of an undivided
five-eighths interest in what was known as the "Wallace Lode,"
which had been previously patented by the government to Turner, and
to compel a conveyance of the same to the plaintiff.
The case was submitted upon an agreed statement of facts, which
was substantially as follows: the Wallace lode, so called, was
discovered and located by John Clark on September 20, 1878. On
August 12, 1882, Clark conveyed an undivided three-fourths of this
lode to Amos Sawyer and Marcus Finch. On May 1, 1882, Clark
conveyed the other one-fourth interest to William Hunter, but the
deed was never recorded, the parties supposing it to be lost, and
on October 25, he made another deed to Hunter, which contained a
recital that it was made to supply the place of the other. On
October 26, 1882, Amos Sawyer and Marcus Finch reconveyed the
undivided one-half of the lode to John Clark. On January 8, 1883,
Marcus Finch conveyed an undivided one-eighth to Alice E. Finch. On
March 16, 1883, Clark and Hunter conveyed three-fourths of the
Wallace lode to Amos Sawyer and John S. Sanderson.
At this time, then, the lode was owned as follows: Amos Sawyer,
one-half, or four-eighths; John S. Sanderson, three-eighths; Alice
E. Finch, one-eighth.
It so remained from March 16, 1883, to January 12, 1885, when
Amos Sawyer assumed to convey his undivided one-half interest to
Alfred A. K. Sawyer, who also became possessed of the one-eighth
interest of Alice E. Finch, November 3, 1886.
The controversy arose over a lien filed August 14, 1883, by one
John F. Teal for annual labor done upon the lode at the request of
John S. Sanderson and Amos Sawyer. Teal claimed a lien for the sum
of $148.10, and filed notice thereof in the recorder's office of
Clear Creek County. One Charles Christianson also filed a similar
notice, claiming a lien for $227.95. On January 12, 1884, Teal
instituted a suit in the County Court of Clear Creek County to
enforce his lien, and
Page 150 U. S. 580
made John S. Sanderson, Marcus Finch, P. F. Smith, and _____
Sawyer defendants, as the owners thereof. There was no service upon
Sawyer, and he was not in court. On June 2, 1884, Teal proceeded to
sell the interest of John S. Sanderson, Marcus Finch, and P. F.
Smith to pay the amount of his decree, at which sale A. K. White
became the purchaser, took his certificate of purchase from the
sheriff, and sold and assigned it to Turner, who obtained a
sheriff's deed on March 3, 1885. This deed purported to convey the
whole Wallace lode. Christianson instituted a suit against the same
defendants as in the Teal suit, which was pending at the time, to
enforce his lien against the same.
On April 24, 1885, Turner, who had done the annual labor on the
claim for the year 1884, before he obtained a sheriff's deed,
published a forfeiture notice against the appellee, Sawyer, under
Rev.Stat. § 2324, but no forfeiture notice was published
against Alice E. Finch, who still owned an undivided one-eighth of
the lode, nor against Amos Sawyer, who owned one-half of the lode
during the year 1884, and until January 12, 1885, as above stated.
Appellant Turner declined an offer made January 18, 1885, to pay
five-eighths of the $100 for the annual labor of 1884 on behalf of
Alice E. Finch and Amos Sawyer, on the ground that the records
showed only Sanderson and Sawyer as having any remaining interest.
On October 27, 1885, Turner filed in the office of the clerk and
recorder of Clear Creek County an affidavit that Alfred A. K.
Sawyer, the appellee, had wholly failed to comply with the demands
contained in the forfeiture notice. Subsequently, and about
November 1, Turner instituted proceedings in the United States land
office at Central City, Colorado, for the purpose of procuring a
patent for the lode in his own name, and on April 13, 1886, a
receiver's receipt was issued to him by the receiver of the land
office, acknowledging payment in full for the entire lode, and on
April 20 he conveyed an undivided one-fourth interest to George E.
McClelland, by deed recorded December 6, 1886, and another
undivided one-quarter to J. S. Allison, by deed recorded May 19,
1886.
On March 17, 1887, the appellee, Sawyer, filed this bill,
charging
Page 150 U. S. 581
the patent to have been procured by the appellant Turner by
false and fraudulent representations as to ownership, and praying
that the title to an undivided five-eighths of the lode be deemed
to belong to the appellee, and that Turner convey the same to
him.
Upon the hearing in the court below, it was found that at the
time Turner applied for the patent and received the receipt
therefor, he was not the legal owner of an undivided five-eighths
of such lode, and it was decreed that he convey the same to the
appellee, Sawyer, and the other defendants were enjoined from
interfering.
From this decree an appeal was taken to this Court by Turner and
McClelland.
Page 150 U. S. 583
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The real question in this case is whether the title to the half
interest which Amos Sawyer assumed to convey to the appellee,
Alfred A. K. Sawyer, January 12, 1885, was obtained by Turner
through the proceedings taken by Teal in the enforcement of his
lien for labor done upon this lode, or by the forfeiture notice
published for the annual labor done in 1884.
(1) It is evident that nothing can be claimed by virtue of the
suit begun by Teal, January 12, 1884, against John S. Sanderson,
Marcus Finch, P. F. Smith, and _____ Sawyer, as the owners of such
lode, to enforce his lien, since there was no service upon Sawyer,
no appearance entered for him, and he was never in court. Judgment
was rendered in this suit against Sanderson, Smith, and Finch, the
last two of whom appear to have had no interest in the property.
Whether such proceedings were effective as against Sanderson it is
unnecessary to inquire. Not only was Sawyer not served in the suit,
but in the execution sale no pretense was made of the sale of any
interests except those of Sanderson, Smith, and Finch, which were
struck off to A. K. White, and were subsequently sold by him to
Turner, to whom the sheriff's deed was given March 3, 1885.
(2) It remains, then, to consider whether Turner acquired such
interest by the publication of his forfeiture notice against
Page 150 U. S. 584
Sawyer for the annual labor of 1884. This notice was as
follows:
"To A. A. K. Sawyer, residence unknown:"
"You are hereby notified that I have performed the annual labor
required by law for the year 1884 upon the Wallace lode, situated
in Cascade Mining District, Clear Creek County, Colorado, and that
unless within the time prescribed by law you pay your proportionate
amount of said expenditure, your interest in said lode will be
forfeited to me under the provisions of section 2324 of the Revised
Statutes of the United States."
"Robert Turner"
This notice was published pursuant to Rev.Stat. § 2324,
which enacts that
"upon the failure of any one of several co-owners to contribute
his proportion of the expenditures required hereby, the co-owners
who have performed the labor or made the improvements may at the
expiration of the year, give such delinquent co-owner personal
notice in writing or notice by publication in the newspaper
published nearest the claim, for at least once a week for ninety
days, and if at the expiration of ninety days after such notice in
writing or by publication such delinquent should fail or refuse to
contribute his proportion of the expenditure required by this
section, his interest in the claim shall become the property of his
co-owners, who have made the required expenditures."
It will be observed that the right to give this notice of a
claim for contribution is limited to a co-owner who has performed
the labor. Turner was not a co-owner with Sawyer at any time during
1884, as Alfred A. K. Sawyer did not receive his deed from Amos
Sawyer until January 12, 1885, and Turner did not receive his deed
from the sheriff until March 3, 1885. He did, however, hold an
inchoate title by virtue of White's purchase at the execution sale
of June 2, 1884, and the subsequent assignment, August 25, 1884, of
the sheriff's certificate to him. He appears also to have obtained
the assignment of certain other judgments which had been
recovered
Page 150 U. S. 585
by William Hunter against Sanderson and Smith. These judgments
were assigned to him August 27, 1884, sales made under them January
12, 1885, and certificates of sale issued to Turner, who thus
became the purchaser under these judgments. Neither of these,
however, made him a co-owner during the year 1884, within the
meaning of the statute, which, providing as it does for the
forfeiture of the rights of a co-owner, should be strictly
construed. Indeed, by the laws of Colorado, title to land sold
under execution remains in the judgment debtor until the deed is
executed.
Hayes v. N.Y. Mining Co., 2 Colo. 273, 277;
Laffey v. Chapman, 9 Colo. 304;
Manning v.
Strehlow, 11 Colo. 451, 457.
This accords with cases from other states which hold that the
estate of the defendant in execution is not divested by a seizure
and sale of his lands, but only by a payment of the purchase money
and delivery of a deed. The sheriff's certificate is necessary as
written evidence to satisfy the statute of frauds and to identify
the holder as the person ultimately entitled to the deed, but it
does not pass the title to the land, nor constitute the purchaser
the owner thereof.
Catlin v. Jackson, 8 Johns. 420;
Gorham v. Wing, 10 Mich. 486, 493;
Green v.
Burke, 23 Wend. 490, 498;
Hawley v. Cramer, 4 Cow.
717, 725.
It seems, however, that Turner, soon after the making and filing
by him of an affidavit of nonpayment by Sawyer of his alleged
proportion of his claim for labor, instituted proceedings in the
land office at Central City for the purpose of procuring a patent
for this lode, to be issued to himself alone, and prosecuted such
proceedings so far as to obtain, on April 13, 1886, a "receiver's
receipt," so-called, issued from the land office and delivered to
him. This receipt was recorded in the recorder's office of Clear
Creek County, Colorado, and on April 20, Turner conveyed to
appellants Allison and McClelland each an undivided one-quarter
interest in the lode. Whether he procured such receiver's receipt
by fraudulent and false representations, as charged in the bill, it
is unnecessary to determine. It is clear, to put upon it the
construction most favorable to him, that he acted under a
misapprehension of
Page 150 U. S. 586
his legal rights. There is nothing in the record showing that he
ever became possessed of Sawyer's interest in the lode. Assuming
that, under the proceedings in the Teal suit, he had acquired the
legal title to Sanderson's interest, he became merely a tenant in
common with Sawyer, and his subsequent acquisition of the legal
title from the land office inured to the benefit of his co-tenants
as well as himself. It is well settled that co-tenants stand in a
certain relation to each other of mutual trust and confidence; that
neither will be permitted to act in hostility to the other in
reference to the joint estate, and that a distinct title acquired
by one will inure to the benefit of all. A relaxation of this rule
has been sometimes admitted in certain cases of tenants in common
who claim under different conveyances and through different
grantors. However that may be, such cases have no application to
the one under consideration, wherein a tenant in common proceeds
surreptitiously, in disregard of the rights of his co-tenants, to
acquire a title to which he must have known, if he had made a
careful examination of the facts, he had no shadow of right. We
think the general rule, as stated in
Bissell v. Foss,
114 U. S. 252,
114 U. S. 259,
should apply; that
"such a purchase [of an outstanding title or encumbrance upon
the joint estate for the benefit of one tenant in common] inures to
the benefit of all, because there is an obligation between them
arising from their joint claim and community of interest; that one
of them shall not affect the claim to the prejudice of the
others."
Rothwell v.
Dewees, 2 Black 613;
Van Horne v. Fonda, 5
Johns.Ch. 388;
Lloyd v. Lynch, 28 Penn.St. 419;
Downer
v. Smith, 38 Vt. 464.
A title thus acquired the patentee holds in trust for the true
owner, and this Court has repeatedly held that a bill in equity
will lie to enforce such trust.
Johnson v.
Towsley, 13 Wall. 72;
Moore v. Robbins,
96 U. S. 530;
Marqueze v. Frisbie, 101 U. S. 473;
Rector v. Gibbon, 111 U. S. 276,
111 U. S. 291;
Monroe Cattle Co. v. Becker, 147 U. S.
47.
It is contended, however, that Sawyer is precluded from
maintaining this bill by the fact that he filed no adverse claim to
the lode in question under Rev.Stat. § 2325. This section
Page 150 U. S. 587
declares that, "if no adverse claim shall have been filed with
the register and receiver of the proper land office at the
expiration of the sixty days of publication" of notice of
application for patent,
"it shall be assumed that the applicant is entitled to a patent,
upon the payment to the proper officer of five dollars per acre,
and that no adverse claim exists, and thereafter no objection from
third parties to the issuance of a patent shall be heard, except it
be shown that the applicant has failed to comply with the terms of
this chapter."
By § 2326,
"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
adverse claim,"
etc. In this case, there was no conflict between different
locators of the same land, and no contest with regard to boundaries
or extent of claim, such as seems to be contemplated in these
provisions. Turner did not claim a prior location of the same lode,
and made no objection to the boundaries or extent of Sawyer's
claim, but asserted that he had acquired Sawyer's title by legal
proceedings. The propriety of such claim was not a question which
seems to have been contemplated in requiring the "adversing" of
hostile claims. In this particular, the case of
Garland v.
Wynn, 20 How. 6, is in point. In this case, it was
held that where the register and receiver of public lands had been
imposed upon by
ex parte affidavits, and a patent had been
obtained by one having no interest secured to him in virtue of the
preemption laws, to the destruction of another's right who had a
preference of entry, which he preferred and exerted in due form but
which right was defeated by false swearing and fraudulent
contrivance brought about by him to whom the patent was awarded,
that the jurisdiction of the courts of justice was not ousted by
the regulations of the Commissioner of the General Land Office.
"The general rule is," says Mr. Justice Catron,
"that where several parties set up conflicting claims to
property, with which a special tribunal may deal, as between one
party and the government, regardless of the rights of others, the
latter may come into the ordinary courts of justice and litigate
the conflicting claim."
Such was the case of
Comegys v.
Vasse, 1 Pet. 193,
Page 150 U. S. 588
26 U. S. 212,
and the case before us belongs to the same class of
ex
parte proceedings; nor do the regulations of the Commissioner
of the General Land Office, whereby a party may be held to prove
his better claim to enter, oust the jurisdiction of the courts of
justice. We announce this to be the settled doctrine of this Court.
See also Monroe Cattle Co. v. Becker, 147 U. S.
47,
147 U. S. 57,
and cases cited.
The judgment of the court below was right, and it is
therefore
Affirmed.
