Heinze v. Butte & Boston Consol. Min. Co.

• Decision Date: 02 November 1903
• Docket Number: 852.
• Citation: Heinze v. Butte & Boston Consol. Min. Co., 126 F. 1 (9th Cir. 1903)
• Parties: HEINZE et al. v. BUTTE & BOSTON CONSOLIDATED MIN. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F. 1

HEINZE et al. v. BUTTE & BOSTON CONSOLIDATED MIN. CO. et al.

No. 852.

United States Court of Appeals, Ninth Circuit.

November 2, 1903

James M. Denny, John J. McHatton, and John W. Cotter, for appellants.

H. J Burleigh, for the receiver.

John F Forbis and L. O. Evans, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The questions presented for consideration on this appeal are First, whether the amended bill for partition was defective for the reason that it contained no allegation that the appellee the Butte & Boston Consolidated Mining Company was in possession of the premises sought to be partitioned; second, whether the decree should be reversed for the reason that the trial court proceeded to a trial of the issues presented on the cross-bill of the appellants after it was disclosed that the title of the complainant in the amended bill was in dispute; third, whether the court erred in appointing a receiver over the disputed interests, and subsequently in extending such receivership over the whole of the property sought to be partitioned, and in directing the receiver to operate and mine the same; fourth, whether the court erred in its findings of fact upon the issues presented by the cross-bill.

The Montana statue gives the remedy of partition to co-tenants 'who hold and are in possession of real property as joint tenants or tenants in common,' etc.Code Civ. Proc. Sec. 1340.We think that the possession which the law imputes to the holder of the legal title is sufficient to maintain partition, under this statute.The statute is said to have been taken from section 1535 of the Code of Civil Procedure of New York.In construing that section in Bender et al. v. Terwilliger et al.(Sup.)63 N.Y.SUPP. 270, subsequently affirmed by the Court of Appeals in 166 N.Y. 590, 59 N.E. 1118, the court said, 'The possession therein referred to does not mean an actual physical possession, but that possession which follows the title. ' In Wainman v. Hampton,110 N.Y. 429, 43318 N.E. 234, 235, the court said, 'A constructive possession such as the law draws to the title is sufficient for the maintenance of the action. ' In Weston v. Stoddard,137 N.Y. 119, 128, 33 N.E. 62, 65, 20 L.R.A. 624, 33 Am.St.Rep. 697, the court said, 'What is here meant is not a strict pedis possessio, but a present right to the possession.'

The complainant alleged in its amended bill that it owned in fee simple an undivided one-half of the Snohomish claim, and an undivided two-thirds of the Tramway claim.It alleged that the defendants in the bill owned the remaining interests in both claims as its co-tenants.The answer to the amended bill which was filed by Daniel W. Connole, Catherine Sullivan, and Patrick N. Sullivan, and the answer which was filed by John McNamara, Bridget McNamara, and Joseph Connole, denied, on information and belief, 'that the complainant is now or ever was the owner in fee simple or otherwise of an undivided one-half interest, or any interest, in the Snohomish lode claim, or of an undivided two-thirds interest, or any interest, in the Tramway lode claim. ' These answers were filed respectively on December 1, 1897, and December 30, 1897.On March 21, 1898, F. Augustus Heinze, having obtained leave to intervene, filed a cross-bill, alleging that on October 16, 1897, he had purchased from Daniel W. Connole, Catherine Sullivan, and Patrick N. Sullivan, her husband, John McNamara, Bridget McNamara, his wife, and Joseph Connole, their undivided one-half interest in the Snohomish claim, and their undivided one-third interest in the Tramway claim.The sole object and purpose of his cross-bill was to set forth his interest in the property which was sought to be partitioned, and to obtain a decree protecting his right therein, and distributing to him his proportion of the proceeds of the same in case of a sale.The cross-bill also denied, upon information and belief, the title of the complainant in the bill.In none of the pleadings so far filed in the case was any defect or infirmity in the complainant's title alleged, nor was it asserted that any of the parties had adverse claims against the alleged title of the complainant, or adverse possession of the property sought to be partitioned.All the information that was conveyed by the pleadings at that date was that the complainant alleged a title in fee simple, and that the defendants and the intervener all denied, on information and belief, that the complainant was the owner of the interest which it asserted in its bill.In other words, by their answer they said to the court, 'We own an undivided one-half of one claim, and an undivided one-third of the other, but we deny, on information and belief, that the complainant owns the other interests. ' While the pleadings were in that condition, on April 30, 1898, Heinze, the intervener, and the defendants who had answered, moved for an order directing a stay of proceedings until the complainant should establish its right in an action at law.This motion, in view of the state of the pleadings, was denied.It was not again renewed, nor was the court at any subsequent stage of the proceedings requested to stay the action of partition.

The motion was properly denied.No issue had been raised as to the complainant's title or possession.The equity doctrine is well expressed by Chancellor Williamson in Lucas v. King,10 N.J.Eq. 277, where he said:

'I do not understand, however, that the bare denial of the complainant's title is any obstacle to the court's proceeding.The defendant must answer the bill; and if he sets up a title adverse to the complainant, or disputes the complainant's title, he must discover his own title, or show wherein the complainant's title is defective.If, when the titles are spread before the court, upon the pleadings, the court can see that there is no valid legal objection to the complainant's title, there is no reason why the court should not proceed to order the partition.'

In Jenkins v. Van Schaack, 3 Paige, 242, the court said:

'If there had been an actual ouster of the complainant by his co-tenant, or if the land was held adversely, it might be necessary to regain the actual seisin by ejectment before a suit for partition of the premises could be sustained either at law or in equity.'

In Appeal of Wistar, 115 Pa. 241, 8 A. 797, the court said:

'The defendants must point out some defect in the petition, or aver their own title or adverse possession, to justify the court to refuse to proceed in the partition.'

Of similar import are Overton's Heirs v. Woodfolk, 6 Dana, 374;Appeal of Welch, 126 Pa. 297, 17 A. 623;Hooper v. De Vries,115 Mich. 231, 73 N.W. 132.The reason of the rule applies with added force to a case such as this, where the answering defendants made no adverse claim as against the interest asserted by the complainant.

On July 20, 1898, some three months after the motions to stay the suit were interposed, James Larkin, by his guardian ad litem intervened and filed his answer to the amended bill, and filed his cross-bill thereto.In the answer it was alleged that Larkin was insane, and had been insane for five years.The answer denied, on information and belief, that the complainant owned the interest which it claimed to own in the two mining claims, and alleged, on information and belief, that the said James Larkin was at the time of the commencement of the suit, and still was, the owner thereof.The answer contained no allegation, however, that the complainant claimed title through James Larkin, or as his grantee.The prayer of the answer was that the suit be stayed, that the complainant take nothing thereby, and that the same be dismissed.James Larkin died on August 4, 1898, and on October 31, 1898, F. Augustus Heinze, administrator of his estate, and Clara A. Larkin, his only child and heir at law, by leave of the court filed their answer and their cross-bill to take the place of the answer and the cross-bill filed on behalf of James Larkin by his guardian ad litem.In their answer they denied, upon information and belief, that the complainant is or ever was the owner of an undivided one-half of the Snohomish claim, or of an undivided two-thirds of the Tramway claim; and, upon information and belief, they alleged that while James Larkin was insane, and laboring under such mental derangement as to render him incompetent to make any contract or conveyance of his property, the complainant's grantor, by fraud, duress, and undue influence, induced him to sign the deed under which the complainant claims to have acquired an interest in said property, and that said Heinze, as administrator of James Larkin's estate, and the said Clara A. Larkin, were and are entitled to the possession of the same.The prayer of the answer was that the complainant take nothing by the action, and that it be decreed that it has no right, title, or interest in said claims, and that the interests which it claims therein belong to the estate of James Larkin, deceased, and that said Heinze, as administrator, is entitled to the possession thereof.Their cross-bill alleged substantially as it was alleged in James Larkin's cross-bill, viz., that during the year 1893James Larkin, deceased, was the owner of the interests in the Snohomish and Tramway lode claims which are claimed by the complainant in this suit; that he was insane and was mentally incompetent to manage his property; that the complainant's grantor contrived to unjustly deprive him thereof, and induced him to sign and deliver a deed thereto for a very inadequate and unjust consideration; that the deed ought to be canceled by a decree of the court, and the legal title to said property reinvested in...