Justice Min. Co. v. Lee

• Decision Date: 20 May 1895
• Citation: 21 Colo. 260,40 P. 444
• Parties: JUSTICE MIN. CO. et al. v. LEE.
• Court: Colorado Supreme Court

40 P. 444

21 Colo. 260

JUSTICE MIN. CO. et al. v. LEE.

Supreme Court of Colorado

May 20, 1895

Appeal from court of appeals.

Action by Abe Lee against the Justice Mining Company and others to annul a patent.From a judgment of the court of appeals(2 Colo.App. 112, 29 P. 1020) reversing a judgment of the district court for defendants, defendants appeal.Reversed.

This case was brought into this court by appeal from a judgment of the court of appeals rendered in the case of Lee v. Mining Co., at the April term, 1892.See opinion, 2 Colo.App. 11229 P. 1020.This record consists of the complaint and a demurrer thereto, which are fully set out in the statement of the case preceding that opinion.The complaint is, in substance, as follows: That the plaintiff, Lee, on the 20th day of May, 1887, made a valid location of the Aftermath lode mining claim.That on the 8th day of October, 1885, Edwin Doust, being then and ever since an alien, located the Justice mining claim.That this claim covers and conflicts to the extent of 300 feet in width and 500 feet in length with the ground included in the Aftermath location.That Doust, on the 13th day of October, 1885, entered into a contract to sell and transfer the Justice mining claim to one Lawson, also an alien, and on that date executed a deed without any consideration therefor, to John W. Richards, who was a citizen of the United States, and solely for the purpose of having Richards procure a patent from the government.That concurrently with the deed, and in execution of the agreement to transfer the title to Lawson, Richards executed a title bond to said Lawson, whereby he agreed to convey to him the Justice mining claim, with other properties, for certain considerations therein named.That said Richards made application for patent, and on the 20th day of February, 1886, commenced his advertisement therefor.Said publication was completed on April 23, 1886.On the 30th day of April, 1886, the Justice Mining Company was organized and incorporated, with a nominal capital of $100,000; and on that day Richards executed a deed for the Justice mining claim, for a nominal consideration, to Joseph Ruse, as trustee for said company, which was recorded June 11, 1887.That the receiver's receipt was issued to Richards on June 14, 1887.Ruse thereafter conveyed the title held by him to the Justice Mining Company, in consideration of 56,000 shares of the capital stock.That by reason of the foregoing facts the title to the ground in controversy, by reason of his location of the Aftermath, became vested in plaintiff prior to the transfer by the trustee to the Justice Mining Company.That said receiver's receipt is a cloud upon his title, and asks that it, together with all the deeds mentioned, be canceled and held for naught.The court below sustained the demurrer to the complaint, and dismissed the action at the cost of plaintiff.The court of appeals, by a majority opinion (Judge Bissell not sitting), reversed this judgment.

A. W. Rucker, for appellants.

A. T. Gunnell, for appellee.

GODDARD J.(after stating the facts).

We think the learned judge who delivered the opinion of the court of appeals...