Allen v. Blanche Gold Min. Co.

• Decision Date: 06 July 1909
• Citation: 102 P. 1072,46 Colo. 199
• Parties: ALLEN et al. v. BLANCHE GOLD MINING CO.
• Court: Colorado Supreme Court

102 P. 1072

46 Colo. 199

ALLEN et al. v. BLANCHE GOLD MINING CO.

Supreme Court of Colorado

July 6, 1909

Error to District Court, Teller County; Robt.E. Lewis, Judge.

Action by Charles W. Allen and others against the Blanche Gold Mining Company.A demurrer to the complaint was sustained and plaintiffs being error.Reversed.

Charles C. Butler, for plaintiffs in error.

R. G Withers, for defendant in error.

STEELE C.J.

A demurrer to the complaint upon the ground that 'it does not state facts sufficient to constitute a cause of action against the defendant' was sustained.The plaintiffs refused to amend their complaint, and elected to stand thereon.The court thereupon rendered judgment in favor of the defendant and for its costs.The cause comes here by writ of error.

The complaint avers, in substance, that the plaintiff Allen being the owner of an undivided one-half interest in the Uncle Sam Lode, situate in the county of Teller, placed in escrow a deed for his interest in the property with H. B Gill to be delivered to one Frank Dodson upon the payment of $1,000 within three years from September 6, 1895; that without plaintiff's knowledge, and without the performance of the terms of the escrow agreement, the said deed was taken from the possession of said Gill and placed of record in Teller county; that thereafter, through mesne conveyances, the pretended right and title of said Dodson to said property was conveyed to the Shurtloff Gold Mining Company; that thereafter, and without the knowledge of the plaintiff, the said mining company applied for and obtained a United States patent for said mining claim to the Shurtloff Gold Mining Company and to the heirs of George Popst, deceased, wholly ignoring the rights of the plaintiff Allen; that thereafter, through divers mesne conveyances, the pretended right and title of said Dodson and the Shurtloff Gold Mining Company to said undivided one-half interest to said mining claim was conveyed to defendant.The action was begun April 28, 1902; and it is further averred in the complaint that until within two years prior to the commencement of the suit the plaintiff Allen had no knowledge or notice of the matters hereinabove set forth, but supposed that his said deed was still held by H. B. Gill, or had been lost or destroyed; that on October 17, 1901, the plaintiff Allen sold and conveyed to plaintiffS. A. Phipps and W. R. Gilpatrick an undivided one-fourth interest in said Uncle Sam gold mining claim; and that said plaintiffs Allen, Phipps, and Gilpatrick are now the rightful owners of an undivided one-half interest in said claim.The complaint prays that the deed so wrongfully obtained from the possession of the escrow holder be canceled, annulled, and held for naught, and that defendants be required to deliver to plaintiffs a good and sufficient deed conveying to them said undivided one-half interest in said Uncle Sam Lode mining claim, and for costs, and for such other relief as may be proper and according to equity.In support of the judgment counsel insist that the complaint does not state a cause of action because: (1)'No cause of action is stated under our recordation acts.'(a)'Plaintiffs permitted the Shurtloff Gold Mining Company to obtain a patent from the United States without adversing its application.'(3)Defendant is an owner of a subsequently acquired independent title, and no reason is stated why a court of equity should divest it of that title.(4)'Defendant is shown to be a subsequent bona fide purchaser for value, and therefore entitled to have its title protected.'

1.The demurrer should have been overruled, not sustained.The defendants claim that having all the record title, as no allegation is found...