Eberle v. Carmichael
| Decision Date | 19 December 1896 |
| Citation | 47 P. 717,8 N.M. 696,1896 -NMSC- 034 |
| Parties | EBERLE v. CARMICHAEL et al. |
| Court | New Mexico Supreme Court |
On rehearing. Denied. For former report, see 42 P. 95.
Thos B. Catron, for plaintiff in error.
H. L Pickett and Wm. B. Childers, for defendants in error.
The petition for rehearing in this case was allowed for the purpose of reargument upon the proposition that a parol agreement for the acquiring of an interest in a mining claim in New Mexico was within the statute of frauds, and therefore void. The opinion of the court, reported in 42 Pac., at page 95 et seq., proceeded upon the theory that a parol agreement whereby three persons associated themselves together for the purpose of prospecting, discovery, location, and development of mines for their joint benefit, and located and developed mines in pursuance thereof, constituted a holding in common of such mines under the mining laws of the United States that the territorial statutes as to how such location should be made were merely regulatory in their character; and whether such statutes denominated the possessory interest acquired, real estate, an interest in real estate, a chose in action, or a chattel, mere denomination of such interest could not raise the statute of frauds as a bar of its acquisition, if it was not there, nor take it away if it was. We held that "such statute must be construed in subordination to the laws of congress, as they are more as regulations than independent legislation"; and this would be so without respect to the fact whether such laws were those of a sovereign state or a dependent territory, as in each case they would be local regulations as to an interest or right sought to be acquired, or acquired under the mining laws of the general government. In the case of Murley v. Ennis, which was a Colorado case, reported in 2 Colo. 304, it made no difference that in that state a mining claim was declared by law to be real estate. In the case of Gore v. McBrayer, 18 Cal. 583, the agreement was verbal; and it was conceded in the opinion, which was delivered by Baldwin, J., and concurred in by Field, C.J., and Cope, J. (a unanimous bench), that an interest in a mining claim was real estate by the law of California; but the court held the statute of frauds had no application. It is true that case differs from this so far as the location notice is concerned; there the name of the plaintiff appearing on the notice as one of the locators, while here plaintiff appears as sole locator of the Andrew Jackson Mine, and John E. Eberle as sole locator of the Lexington, but the principle which counsel for defendant combats is squarely announced, viz. that such agreement is not within the statute of frauds. Coming down further, we find in Moritz v. Lavelle, 77 Cal. 10, 18 P. 803, exactly such a location notice as here with reference to the Lexington Mine. The agreement was verbal, and to the effect that plaintiff was to pay all the expenses of the defendant in and about the occupying and relocation of a certain mine. The mine was located in the name of defendant as sole locator in the notice, with plaintiff as a witness, upon the express oral agreement between them that, in consideration of the former agreement about paying expenses, defendant would transfer by deed to plaintiff an undivided one-half interest in the mine. Plaintiff sued for specific performance, and, being met by demurrer that the contract was within the statute of frauds, the demurrer was overruled; Gore v. McBrayer, supra, being cited, among other authorities. If this case is authority in point so far as the Lexington Mine is concerned, there can be no doubt as to its being equally pertinent as to the Andrew Jackson, which was located in the name of plaintiff alone. Again, we find a California case (Settembre v. Putnam, 30 Cal. 490) which announces the principle that if two or more persons, as mining partners, claim and develop a mine situated upon land owned by a third person, and the partners verbally authorized one of their number to purchase the land of the owner for the benefit of all, and he buys the same in his own name, he holds the legal title of his...
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