Jewell v. Trilby Mines Co.

• Decision Date: 16 November 1915
• Docket Number: 4470,4471.
• Citation: 229 F. 98
• Parties: JEWELL et al. v. TRILBY MINES CO. et al. SAME v. MOOSE COLD MINING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

229 F. 98

JEWELL et al. v. TRILBY MINES CO. et al.

SAME v. MOOSE COLD MINING CO.

Nos. 4470, 4471.

United States Court of Appeals, Eighth Circuit.

November 16, 1915

Charles Roach, of Denver, Colo. (William L. Pierce, of Belvidere Ill., and H. A. Hicks, of Denver, Colo., on the brief), for appellants.

F. A Williams, of Denver, Colo. (G. W. Whitford, of Denver, Colo on the brief), for appellees Trilby Mines Co. and George Diehl.

William Story, Jr., of Salt Lake City, Utah (William Story and Frederick Steigmeyer, both of Salt Lake City, Utah, on the brief), for appellee Moose Gold Mining Co.

Before CARLAND, Circuit Judge, and AMIDON and VAN VALKENBURGH District Judges.

VAN VALKENBURGH, District Judge.

October 18, 1913, in cause No. 4470, appellants brought against all the above-named appellees a bill of complaint, entitled 'a bill to quiet title and for accounting,' whereby they sought to establish their right and title to an undivided one-half interest in and to a certain piece of mining property known and described as the Ben Harrison lode and mining claim, and to an undivided one-third interest in and to a certain piece of mining property known and described as the Moose lode and mining claim. January 20, 1914, a hearing was had on motions of appellants Diehl and the Moose Gold Mining Company to dismiss the bill on the ground of misjoinder. The result of this hearing was that No. 4470 proceeded upon an amended bill to determine the rights of complainants to the Ben Harrison lode and mining claim, and on April 15, 1914, a bill of complaint was filed in cause No 4471 against the Moose Gold Mining Company to determine the rights of complainants in and to the Moose lode. The bills, in effect, seek to enforce a trust in the defendants for the benefit of complainants to the extent of the interests claimed in the bills. The two cases were heard together on appeal, and inasmuch as the controlling principles, as we view them, apply with equal force to both, they will be considered and disposed of in one opinion.

In cause No. 4470 the facts upon which the cause of action is based are these: July 18, 1891, the Ben Harrison lode was located by one G. A. Sheek and Gus P. Brene. January 11, 1892, Gus P. Brene died intestate in Phelps county, Mo., leaving as his heirs the four minor children, who are now complainants in this cause. March 2, 1894, the probate court of Phelps county, Mo., appointed one Victor Brene as guardian of the persons of complainants and curator of the estate of their deceased father. On the same day this guardian filed in said court his petition to sell one-half of the Ben Harrison lode, and an order of sale was entered by the court. April 2, 1894, the guardian executed a deed for one-half of said property to one Clarence Edsall; the consideration named being $4,000. Later in the year a receiver's certificate and patent were issued. December 1, 1904, Edsall conveyed the Ben Harrison claim to the Moose Gold Mining Company. December 7, 1908, the latter company conveyed to the Trilby Mines Company, which immediately entered into and ever since has been in exclusive possession of the Ben Harrison lode. November 10, 1908, the Trilby Mines Company executed upon said property a mortgage to the Colorado Title & Trust Company, as trustee, to secure an indebtedness of $90,000. August 2, 1913, the property was conveyed under mortgage sale to the defendant George Diehl. In October following this suit was commenced.

In cause No. 4471, the following additional facts should be stated: July 22, 1891, the said Gus P. Brene, together with one G. A. Sheek and one William J. Banta, discovered and located the Moose lode and mining claim hereinabove referred to, and after the death of Brene, to wit, on or about the 11th day of February, 1892, the said Victor Brene was appointed administrator of the estate of Gus P. Brene, deceased, by the probate court of Phelps county, Mo. On or about October 22, 1892, said probate court, upon application entered an order in the matter of the administration of said estate, authorizing the administrator to convey the interest of Gus P. Brene, deceased, in said Moose lode and mining claim. October 22, 1892, the administrator, together with W. J. Banta and G. A. Sheek as grantors, acknowledged and delivered to John E. Smith, John B. Glasser, and Ward Hunt a deed to the last-named property. The deed purports on its face to have been executed by Brene, as such administrator, under the authority of the order of sale made by the probate court of Phelps county, Mo., as aforesaid. August 12, 1893, Smith, Glasser, and Hunt conveyed the Moose lode to the Moose Gold Mining Company, appellee herein.

It is conceded that no letters of administration were taken out in Colorado, in which state the property in controversy is situated, and appellants base their claims upon the contention that the probate court of Phelps county, Mo., was without jurisdiction to make the orders of sale above recited, and that the deeds under which defendants claim were void. On the date these actions were originally brought the plaintiff Nellie A. Brene Jewell was 33 years of age, 15 years above her majority; Flora S. Brene Spindler was 32 years of age, 14 years above her majority; Zona F. Brene Smail was 28 years of age, 10 years above her majority; and the youngest of the complainant heirs, Bessie M. Brene, was 26 years of age, 8 years above her majority. In the bills it is alleged that complainants had no actual knowledge of the proceedings in the probate court; that they received no part of the proceeds of the sales; that they lived in Phelps county until their majority; that thereafter, on dates not stated, they took up their places of residence in different states, other than the state of Colorado; that they first became aware of their interest in the mining claims in suit in June, 1913, at which time, they allege, a representative of the holders and owners of the bonds secured by trust deed upon the Ben Harrison lode called upon the complainant Nellie A. Brene Jewell, and sought to obtain from her and her codefendants quitclaim deeds for the alleged purpose of correcting some irregularities in the early transfers of this property. It is further alleged that the Moose Gold Mining Company, the Trilby Mines Company, and the officers, solici tors, agents, and employes of said companies have been contriving and confederating together to defraud plaintiffs of their rights and interests in said claims, but no facts are stated to support a charge of fraud against either the administrator and guardian or the defendants in these actions, unless such is to be inferred from the alleged want of authority in the former and the assertion of title and the enjoyment of the properties by the latter.

In their answers below the defendants set up section 4073, R.S. of Colorado, which provides:

'Bills of relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within five years after the cause thereof shall accrue, and not later.'

Also section 4089, which provides:

'That every person in actual possession of lands under claim and color of title, made in good faith and who shall for seven successive years pay all taxes legally assessed on such lands shall be held and adjudged to be the legal

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