Montana Mining Co. v. St. Louis Mining & Milling Co. , 20 Mont. 394 ( 1898 )

Pemberton, C. J.

There are several assignments of error directed to the action of the court in admitting in evidence the patent to the Nine Hour Lode Claim, and the mesne conveyances of the predecessors in interest of the plaintiff by which they conveyed their interests in said mining claim to the plaintiff.

These muniments of title are objected to because they do not specifically include, as appellants contend, the particular piece of ground in dispute. The patent and conveyances above mentioned all refer to the ‘ ‘Nine Hour Lode Claim’ ’ as the description of the premises conveyed. Appellants contend that, as the particular strip of ground in controversy is not included in the Nine Hour Lode Claim patent, and not expressly included in any of the mesne conveyances above mentioned, but was included in the St. Louis Lode Mining Claim patent, it was error to admit them in evidence.

We think these muniments of title were admissible to prove title to the Nine Hour lode mining claim in the plaintiff. Before the plaintiff could prove that it was entitled to a conveyance of the strip of ground in controversy on the ground that it was in equity a part of the Nine Hour lode claim, it was incumbent on it to prove its ownership of said claim. The patent and mesne conveyances to the Nine Hour lode claim were properly admitted for this purpose.

Counsel for the appellants urge that it was error on the part of the court to admit in evidence the bond for title to the ground in dispute, executed by defendant Mayger to the predecessors in interest of the plaintiff, for the reason that said bond is illegal, because against public policy. This appears to be the principal error assigned in the estimation of counsel for appellants, and seems to be the chief grouud upon which counsel base their objections to the evidence admitted in the case, and upon which they insist that plaintiff is not entitled to recover in this case.

Let us examine this assignment, for upon its determination we think the case practically depends. It is not contended that the Nine Hour and St. Louis lode mining claims were not valid mining claims. They both had valid discoveries, and were located according to law. If so, the owners thereof had title, — a grant to them from the government. (Belk v. Meagher, 104 U. S. 279.) It is conceded that Mayger had fully complied with the law, and was entitled to a patent to the St. Louis lode claim, when he applied therefor. Then, to all intents and purposes, the parties to the bond, at the time it was given, were the owners of the mining ground embraced within the claims above named. If so, they could dispose of their title thereto in any way they pleased, unless they were prohibited from so doing by some statute. What did the parties do? In order to settle a costly and troublesome lawsuit, they entered into a compromise, by which they settled the title among themselves to the ground in dispute, and fixed the boundary line between their two claims. We are at an utter loss to see how such a contract can be said to be against public policy or good morals. It seems to us to be just such a compromise of difference between the parties as is encouraged in equity. Our attention has not been called to any statute of the United States that prohibits such contracts, and, unless there is some statutory prohibition, we can conceive of no reason in law or equity why the contract in this case should be held to be illegal. (Gaines v. Molen, 30 Fed. 27.)

The court found that the plaintiff was. the owner of the Nine Hour lode claim, as well as the assignee of the bond of defendant Mayger for title to the ground in controversy, and that the defendant company took its deed to the same from defendant Mayger with full notice of the equities of the plaintiff. And we think the finding amply supported by the evidence. The evidence also amply supports the finding of the lower court that the predecessors in interest of the plaintiff were in actual possession of the ground in dispute at the date pf the bond for title, and that the plaintiff and its predecessors have been in possession ever since that time.

We think there was no error in the action of the court in excluding or striking out the evidence of Mayger that the bond was executed to all the obligees therein named. The bond was in evidence, and spoke for itself in that respect. The court properly found that the title of all the obligees named in the bond to the ground in dispute had been conveyed to the plaintiff.

The appellants assign as error the action of the court in admitting in evidence copies of certain conveyances. We think a sufficient foundation had been laid to authorize the admission of the copies by showing that the originals were not within the control or power of the plaintiff.

We think that the court properly found that the plaintiff was the owner in equity of the ground in controversy, and was entitled to have the legal title conveyed to it by the defendants.

The judgment and order appealed from are affirmed.

Affirmed.

Hunt, J., concurs. Pigott, J., not sitting.