Butte Hardware Co. v. Schwab
| Decision Date | 11 September 1893 |
| Citation | 34 P. 24,13 Mont. 351 |
| Parties | BUTTE HARDWARE CO. v. SCHWAB et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; John J. McHatton Judge.
Action by the Butte Hardware Company against Benedict Schwab, George A. Cobban, and others to quiet title. From a judgment for plaintiff, defendant Cobban appeals. Affirmed.
Statement of the case by the justice delivering the opinion:
This action is to quiet title as to the two thirty-seconds undivided interest in the Yellow Jack mining claim. The defendants Schwab, Cummings, Hauser, and Fitchen were owners of the claim, and made application for patent therefor. The Butte Hardware Company, the plaintiff, bought one-eighth interest in the claim from Schwab May 5, 1884. December 27 1884, a deed was made, purporting to be by the Butte Hardware Company, to Schwab, Cummings, Hauser, and Fitchen, for said one-eighth interest. The execution clause of that deed reads as follows: On December 30, 1884, the receiver's receipt was issued from the land office to Schwab, Cummings, Hauser, and Fitchen. On October 18, 1889 Schwab executed and delivered to defendant Cobban a quitclaim deed of all his interest in the premises. On October 26 1889, defendant Cummings executed and delivered a similar deed to defendant Cobban. The plaintiff contends that these deeds to Cobban are void, and a cloud upon its title. The complaint alleges that on December 27, 1884, the plaintiff was, and for a long time had been, the owner of, and in the possession and entitled to the possession of, said undivided one-eighth interest in the Yellow Jack mining claim, describing the claim; that on said day Schwab, Cummings, Hauser, and Fitchen were also owners, and, for the purpose of conveniently obtaining patent for the premises, agreed with P. A. Largey, superintendent of the plaintiff, that if plaintiff would convey its interest to them they would hold it in trust, and on demand reconvey to plaintiff; that P. A. Largey executed to those defendants the deed above mentioned; that this deed was executed and delivered without any consideration whatever, with the intention between Largey and those defendants that they should hold said property as trustees for the Butte Hardware Company; that Largey had no authority to sell or convey said property to defendants, or any one, and that said deed was executed without authority; that the property was worth $10,000; that plaintiff is now in possession. The complaint further alleges that on the 18th and 26th days, respectively, of October, 1889, the defendant procured said Schwab and Cummings to execute to him deeds for all their interest in the claim. It is alleged that Cobban did this with full knowledge of the alleged trust pleaded above, and with full knowledge that said Schwab and Cummings had no ownership or title in or to the said one-eighth interest. Said deeds are recorded in the county of Silver Bow, and are a cloud upon plaintiff's title. The complaint prays that Schwab, Cummings, Hauser, and Fitchen be decreed to be the trustees of plaintiff as to said one-eighth interest, and be required to reconvey the same to it, and that said Cobban be decreed to have no title in said one-eighth interest.
Schwab, Cummings, Hauser, and Fitchen defaulted. Cobban alone answered. The answer of Cobban denies the material averments of the complaint specifically. It further sets up that plaintiff is a commercial corporation organized under the laws of Montana for the purpose of engaging in mercantile business, and cannot hold or acquire the real estate or mining claim described in the complaint; that the holding of said ground is not necessary in the business of plaintiff. The answer alleges that said defendant Cobban purchased the Schwab and Cummings alleged interest in good faith, and for a valuable consideration.
The case was tried by the court without a jury. The court found that Largey, assuming to act as superintendent of plaintiff, made the deed above described; that the same was duly recorded in Silver Bow county on December 27, 1884; that there was no declaration of trust, or instrument in writing, showing that the two thirty-seconds interest so conveyed to Schwab and Cummings was to be reconveyed to plaintiff. It was also found that the receiver's receipt was issued to said Schwab and Cummings for said two thirty-seconds interest, and that they have never conveyed that interest to any one except Cobban. It was found that Cobban, at the time the action was commenced, had built a foundation for a house, which was partly upon the Yellow Jack claim. The court found that the plaintiff corporation was entitled to purchase and hold the one-eighth interest in said mining claim. The judgment decreed that the deed made in the name of Largey, superintendent of plaintiff, to defendants Schwab, Cummings, Hauser, and Fitchen, is null and void, and that it conveyed no title; also, that the deed made by Schwab to Cobban, and the deed made by Cummings to Cobban, are absolutely void against plaintiff; that plaintiff is the lawful owner of the property described in the complaint; and that its title thereto is adjudged to be quieted against all claims of the defendants, or either of them. The decree further recites that, it appearing that said void deed made by Largey was used in the land office as part of a chain of title, and that by the use of that deed the land office had issued a receiver's receipt for the property described in that deed to Schwab, Cummings, Hauser, and Fitchen, and that that property belongs to the plaintiff, it is ordered that said four defendants execute and deliver a deed conveying to plaintiff the title to the property described in its complaint, which they acquired by virtue of the receiver's receipt. From this judgment the defendant Cobban appeals. The other facts are stated in the opinion below.
Chas R. Leonard and E. W. Toole, for appellant.
George Haldorn and F. T. McBride, for respondent.
DE WITT, J., (after stating the facts.)
It is pleaded, it is adjudged by the court, it is not specified as error, and it is relied upon in argument on both sides, that the deed made by Largey, purporting to be the deed of the Butte Hardware Company, was and is void. We will therefore start with the foundation that that deed was a nullity. When that pretended deed was made, the Butte Hardware Company owned a one-eighth interest in the Yellow Jack mining claim. The deed, being to Schwab, Cummings, Hauser, and Fitchen, without describing the shares which the grantees were supposed to take, therefore purported to give Schwab and Cummings two thirty-seconds of the Yellow Jack mining claim. The deed being a nullity, Schwab and Cummings took nothing thereby. If that be true, Schwab and Cummings conveyed nothing to Cobban in October, 1889. This is clear enough, unless there is some estoppel.
It is contended that the Butte Hardware Company is estopped because it did not file in the United States land office an adverse claim (section 2326, Rev. St. U. S.) to the application for patent. But it does not appear that at the time of application for patent the Butte Hardware Company had or claimed any interest in the Yellow Jack mining claim, or that its grantors had an interest upon which they failed to file an adverse claim. The pretended deed from the Butte Hardware Company to Schwab et al. was made December 27, 1884. The Butte Hardware Company acquired its title to the one-eighth interest in May, 1884. If the notice of application for patent had been admitted, it would have appeared that the Butte Hardware Company did not own an interest in the claim when advertisement occurred. But, it not being allowed in evidence, it nowhere appeared, nor, indeed, was it pleaded, that the Butte Hardware Company, at the time of advertisement for patent, was an owner or claimant in the premises, or could thereby be estopped by virtue of not filing an adverse claim to the application for patent.
Again is the Butte Hardware Company estopped from claiming its title in two thirty-seconds of the Yellow Jack mining claim by virtue of Cobban buying the two thirty-seconds interest from Schwab and Cummings, grantees in the...
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