Meyendorf v. Frohner

• Decision Date: 31 January 1879
• Parties: MEYENDORF ET AL., respondents, v. FROHNER ET AL., appellants.
• Court: Montana Supreme Court

3 Mont. 282

MEYENDORF ET AL., respondents,

v.FROHNER ET AL., appellants.

Supreme Court of the Territory of Montana.

January Term, 1879.

Appeal from First District, Jefferson County.

THIS cause was tried in the court below by BLAKE, J. The appeal was taken from the judgment of the court sustaining the demurrer to defendants' answer.

E. W. & J. K. TOOLE for appellants.

The pleadings and record in this case disclose the following facts: That on the 9th day of June, A. D. 1872, two of the above-named defendants, John Barta and Jacob A. Frohner, located two pieces of mineral land which they designated as the Cannon and Cannon Extension Lode claims. That such locations complied substantially with the requirements of the statutes applicable thereto, and that said claims were held by the locators in pursuance of such statute and the local rules and regulations of the district in which the same were situated; that in August, A. D. 1873, one John Rodgers et al. entered upon the said property and located the same under the name of the Star of the West lode. On the 5th day of September following, the said Frohner and Barta instituted their action of ejectment against said Rodgers et al. and that the controversy finally terminated in a judgment in favor of the said Cannon and Cannon extension claims and against the said Star of the West. That whilst said action was pending and said plaintiffs were kept out of possession wrongfully by defendants, one Arthur B. Agno, under an arrangement and in collusion with the defendants, entered into possession of said property and undertook to carry on the defense of said action for an interest in the said Star of the West claim.

That whilst said Agno was so in possession he conspired with said defendants to, and did change the name of said Star of the West claim for the purpose of avoiding any judgment that might be recovered in said action. That in pursuance of this arrangement the name of said claim was changed to the Nelly Grant, and the location and record thereof made in the name of said Agno. That said Agno defended said action and held possession of said property until judgment was rendered therein on the 30th day of August, 1875, in favor of plaintiffs. That on the 2d day of September following, said Agno and said defendants were removed from possession and the same was on that day restored to plaintiffs, upon a writ of restitution issued upon the judgment. And this was the first possession obtained by plaintiffs since their eviction from the property. That on the 29th day of November following the service of said writ, said Agno, during the temporary absence of plaintiffs, went upon the property and posted notices of his application for a patent on the same and that said property was so situated in the mountains as to be utterly inaccessible during the months selected by him for the publication of said notice. That by said notices said Nelly Grant did not purport to be a relocation of the Cannon and Cannon Extension lode, and neither did it appear to be a relocation of the Star of the West lode, and that the plats filed in the proper surveyor's office in Helena City for the District of the Territory of Montana showed that the said claims were not identical. It also appears that all of this was done to elude and deceive the claimants of the Cannon and Cannon Extension lode, and to take advantage of their inability to procure a survey showing the conflict in said claims, in order to interpose an adverse claim to his application which he seemed to consider necessary. That he several times mentioned his application for a patent to the Nelly Grant, but at all times told plaintiffs that it did not conflict with their Cannon and Cannon Extension claims. That when plaintiffs were enabled to return to said property, and after the publication of notice of said Agno application had expired and the time for interposing their adverse claim in the land office had passed, they discovered, for the first time, that said application did embrace said Cannon and Cannon Extension lodes. The plaintiffs at once filed their caveat and judgment-roll, showing the privity of said Agno to said judgment, which, with the other papers, were transmitted to the commissioner of the general land office. That for some cause the said judgment-roll and caveat were ignored by that department and a patent issued to said Agno in pursuance of his application on the 30th day of March, A. D. 1876, being within four months after such application was made. That in the mean time and whilst said claimants of the Cannon and Cannon Extension lode were in possession of the same, under their judgment and process issued in pursuance thereof and whilst they were in open, notorious occupancy of the same, said Agno sold and transferred his inchoate interest in said “Nelly Grant” lode to plaintiffs and respondents in this action. That after the said Agno had obtained said patent, said respondents, by virtue of their title theretofore acquired, instituted this action. The appellants by their answer, in addition to the general denial of all title or right of possession in respondents, set up the foregoing facts, together with other equitable defenses, and affirmative matter which will sufficiently appear by the argument and points hereinafter presented. The court below held that the affirmative matters and defenses set up in the answer were insufficient to constitute a defense if proven. Respondents introduced their deed and patent, judgment was rendered in their favor, a bill of exceptions duly signed and appellants appeal to this court.

Eight propositions were especially relied upon by appellants in their original brief, filed in this court, viz.:

First. That by reason of the equitable, as distinguished from the legal jurisdiction, separately conferred upon the several courts of this Territory by its Organic Act, the limitations thereby imposed upon the legislative assembly precluded it from converting equitable titles into legal ones so as to authorize the enforcement of rights thereunder in a court of law, and that the inchoate rights conveyed by Agno to respondents before the issuance of the patent to him will not support ejectment.

Second. That the property in controversy was appropriated lands and not subject to relocation under the mineral land laws of the United States. That Agno's pretended relocation and entry was void, and that there was nothing upon which to base a patent or to which it could relate, so as to confer a right of possession upon the patentee, as against appellants in possession, and who were entitled to said property at the time of such pretended location by reason of which in an action of ejectment by the patentee they may question the validity of the patent or the right of possession under it.

Third. That said patent is void on account of the fraud in making the proofs in the land office to obtain it, and that this fact will defeat an action based upon such patent.

Fourth. That the fraud perpetrated by the patentee upon the appellants enables them to invoke their equitable defense in connection with their possession, so as to defeat a recovery in this action.

Fifth. That said Agno is estopped by the judgment rendered in favor of the claimants of the Cannon and Cannon Extension lodes, by reason of his privity, and that his grantees are likewise estopped.

Sixth. That by reason of the actions and declarations of said Agno, by which appellants were prejudiced, he is estopped from asserting any claim to said Cannon and Cannon Extension property on account of his pretended Nelly Grant title.

Seventh. That said respondents, grantees of said Agno, took said property subject to all the rights and equities of appellants and that they can assert the same not only by way of defense, but compel a conveyance of said property in accordance with their prayer for affirmative relief.

Eighth. That appellants, on account of the facts pleaded, were not required to interpose an adverse claim in the land office. That if they were, sufficient excuse is shown for not doing so. That they do not waive any equitable right by a failure to interpose said claim, and that they are not prevented thereby from resorting to a court of equity to protect the same.

In answer to this original brief, respondents have interposed a very elaborate argument to which appellants are called upon to reply.

The utter want of established precedents by judicial decisions, directly in point under the statutes of the United States so recently passed in reference to its mineral lands, and the consequent necessity of resorting solely to deduction from analogy of reported cases to the one at bar, together with the number and importance of the propositions involved in this controversy, have rendered this reply much more prolix than would otherwise have been appropriate or necessary. If, however, we have been able to contribute any thing in inaugurating the correct theory upon which the rights of parties, under this comparatively novel proceeding, are to be determined, we shall feel amply compensated for whatever of labor we have bestowed upon it.

Under the first proposition before stated, it is conceded by the respondents that the title conveyed by Agno prior to the issuance of the patent was an equitable one, but they insist that as the patent has since issued the legal title thus acquired by the patentee inures to the benefit of his grantees. And they cite the case of Shepley et al. v. Cowan et al., 1 Otto (91 U. S.), 330et seq., in support of the doctrine that the patent dates back by relation to the first acts, that is entry and location, which were indispensable to its procurement, and that it shuts off all intervening claims and vests the strict legal title in the patentee. As appellants claim by priority of right, entry and location, they are in no wise affected by the propositions thus announced. The other authorities cited by re...