Largey v. Bartlett , 18 Mont. 265 ( 1896 )

Hunt, J.

The appellants contend that the evidence was insufficient to justify the findings and decision of the court. We will not state the testimony at length. An attentive examination of the record satisfies us that the decided weight of evidence was upon respondent’s side, and that every material fact found by the court was amply sustained.

It is argued that the notices of location of the Razor Back and Hardfoot lode claims were invalid, and that George F. Bartlett was not the owner of said claims. But George F. Bartlett and the other defendants are in no position to say that said mining claims £ ‘ never existed. ’ ’ George F. Bartlett had entered into a valid agreement with plaintiff, Largey, that he would convey to Largey a half interest in and to the Razor Back and Hardfoot claims upon the performance of certain conditions by Largey, by which, among other things, Largey was to expend money in improving and surveying said mining claims. Largey faithfully performed his part of the contract by expending large sums upon the claims, and Bartlett, having-received the full benefit of the agreement, ought not to be heard in this suit to deny the existence of the claims or the validity of his own title to them. (Collins v. Tillou, 26 Conn. 368.)

To cure possible defects in the original notices of location, amended notices of location of said mining claims were made out and delivered by the surveyor to defendant J. H. Bartlett, George F. Bartlett’s brother, to post at the discovery shafts of the Razor Back and Hardfoot lode claims; and, as the findings show, said Bartlett proceeded to post said notices on said claims September 11, 1891. J. H. Bartlett was at that time the trusted agent and employe of George F. Bartlett • and this plaintiff, Largey, to assist the surveyor in matters precedent to securing patents. J. H. Bartlett cannot, therefore, by availing himself of knowledge obtained while in such capacity defeat this plaintiff’s rights, and profit by his violation of the confidence reposed in him. As against plaintiff Largey, the attempt of J. H. Bartlett to relocate the claims under different names and in his wife’s name, after agreeing to post,' and posting, amended notices in his brother’s name, and for plaintiff’s and his brother’s benefit, was null and void. Having been sent to the claims as a representative and trusted agent of the plaintiff, having pointed out to the surveyor where the claims were, and having full knowledge of the contract relation existing between Lar-gey and George F. Bartlett, his conduct in so changing the name of the locator after the surveyor had left was a gross violation of that common honesty which is due by every trusted agent to his employer and principal. Equity will therefore afford him no relief.

Nor can Harriet Bartlett, claiming that her husband was her agent, profit by the wrongdoing of her husband in attempting to locate the Hazel and Autocrat claims. At the time of the obliteration by him of the name of his brother, George F. Bartlett, as locator under the amended notices of location of the Hardfoot and Razor Back claims, J. H. Bartlett had notice of Largey’s claim and interest in the property, and was their agent. The use of his wife’s name was simply a fraud against his principals. It cannot avail him or her as against this plaintiff. (Hancock v. Gomez, 58 Barb. 490; Mechem on Agents, § 454 et seq.)

The subsequent suit of Harriet Bartlett against George F. Bartlett to quiet her title to the Hazel and Autocrat lode claims as against George F. Bartlett’s title to the Hardfoot and Razor Back lodes was also collusive, and clearly instituted for the purpose of defrauding this plaintiff out of his interest in the latter lodes.

The court found that George F. Bartlett was a party to this fraud. He had just previously made oath to the amended locations of the Hardfoot and Razor Back claims, thus reaffirming his title to said claims. His appearance in court in the suit to quiet title, his refusal to file an answer, his consent to enter his appearance in said case, his waiver of trial by jury, and consent that the cause might proceed, are evidences of collusion and prearrangement between himself and Harriet Bartlett to divest plaintiff of his interest in the mining claims. •The deed, too, from George F. Bartlett, executed about December 10, 1891, purporting to convey to his sister-in-law, Harriet Bartlett, all his interest in the Hardfoot and Razor Back lodes, having been made for the fraudulent purpose of defeating plaintiff’s rights, and having been taken with notice of plaintiff’s rights, as found by the court, was and is void as against this plaintiff’s interest.

The whole case sustains the findings and conclusions of the trial court that the deeds and judgment referred to were given and obtained ‘ ‘ for the purpose of defrauding P. A. Largey out of his interest in the said Hardfoot and Razor Back lodes. ’ ’

Plaintiff directly assails the judgment in favor of Harriet Bartlett. This he may do upon the grounds alleged. (Freeman on Judgments, § 486 et seq.)

The questions of misjoinder of parties, and that several actions have been improperly united, are not properly presented by the record. The demurrer was not specific. Besidés, an answer was filed after the overruling of the demurrer. Fultz v. Walters, 2 Mont. 165; Haverstick v. Trudel, 51 Cal. 431; Boone on Code Pl., § 52; Garver v. Lynde, 7 Mont. 110; Barber v. Briscoe, 8 Mont. 214.)

We find no errors in the rulings of the court upon the admission or rejection of testimony which prejudiced appellants’ substantial rights.

Largey having performed all the conditions of his agreement, and having expressed his willingness to cause the Butte Hardware Company to credit on the judgment of the Butte Hardware Company against J. H. Bartlett the sum of §350, plaintiff was entitled to the relief asked in his complaint.

The court had jurisdiction to enter the decree declaring the j udgment of Harriet Bartlett against George F. Bartlett void as against plaintiff, and declaring void the deeds made by George F. Bartlett to Harriet A. Bartlett as against plaintiff’s rights and interests in and to the Razor Back and Hardfoot lodes, and decreeing that George F. Bartlett make a deed to Lar gey for an undivided one-half interest in and to the said mining claims, and quieting plaintiff’s title to his interest in said claims as against these defendants.

Several other errors are assigned, but none of them are well taken. The judgment is affirmed.

Affirmed.

PembertoN, C. J., concurs. De Witt, J., not sitting.