Mcalister v. Hutchison.

• Decision Date: 06 January 1904
• Citation: 75 P. 41,12 N.M. 111
• Parties: McALISTERv.HUTCHISON.
• Court: New Mexico Supreme Court

12 N.M. 111

75 P. 41

McALISTER

v.HUTCHISON.

Supreme Court of the Territory of New Mexico.

Jan. 6, 1904.

Syllabus by the Court.

1. A locator of a mining claim has no such title or interest in the same, after a conveyance and abandonment thereof, that the community interest of the wife attaches.

Error to District Court, Grant County; before Justice Frank W. Parker.

Action by Amy McAlister against Jane Hutchison. Judgment for defendant, and plaintiff brings error. Affirmed.

This is a suit to quiet the title to a one-third interest in the mining claim known as the “Scotch Lass.” Said mining claim was located by Henry McAlister, husband of the plaintiff in error, on the 16th day of April, 1891. On the 25th of July, 1892, Amy McAlister, plaintiff in error, conveyed by deed to her husband, Henry McAlister, all her right, title, and interest in said mining claim, dower and otherwise, the consideration for which conveyance, and for certain town lots in the town of Central, N. M., was $150. The deed recites that it was made in pursuance of articles of separation entered into between said husband and wife. On the 1st of April, 1895, Henry McAlister, being the owner of two-thirds interest in the Scotch Lass mining claim by virtue of his location, conveyed said interest by deed to Jane Hutchison, defendant in error. On November 1, 1894, plaintiff in error instituted an action for divorce against her husband, Henry McAlister. No defense was interposed, and a decree pro confessor was rendered against him, and a final decree of divorce was entered on December 23, 1897. Among other things, the plaintiff alleges in her complaint that her husband was the owner of a two-thirds interest in the Scotch Lass mining claim and other property, and claimed an interest in all of the property, including the mining claim, because and by virtue of her relation to the defendant in that proceeding as wife. It was decreed in that case, to which proceeding the defendant in error, Jane Hutchison, was not a party, that two-thirds interest in the said mine owned by Henry McAlister at the date of the institution of the divorce suit was community property, and that Amy McAlister, as wife of Henry McAlister, was entitled to one-half of it, to wit, a one-third interest in the said mining claim. Mr. McAlister was required, by the terms of the decree in the divorce suit, to pay the wife a certain sum of money, failing in which a one-half of his interest in the Scotch Lass mining claim should be sold by a commissioner appointed for that purpose; and one-third was sold by Commissioner Wright, appointed by the court, and the one-third interest so sold was purchased by Amy McAlister, on the 11th day of June, 1898. By virtue of these facts the plaintiff in error, Amy J. McAlister, claims title to the mining claim here in controversy.

A locator of a mining claim has no such title or interest in the same after a conveyance and abandonment thereof, that the community interest of the wife attaches.

Edward C. Wade, for plaintiff in error.

Colin Neblett and James Fielder, for defendant in error.

BAKER, J. (after stating the facts).

What interest had Henry McAlister in the Scotch Lass mining claim by virtue of locator, never having perfected his title by obtaining a patent, and not having made any application to purchase or having paid any of the purchase money? Also what interest did he convey to Jane Hutchison by his deed in which his wife did not join? In Black v. Elk Horn Mining Company, 163 U. S. 450, 16 Sup. Ct. 1101, 41 L. Ed. 221, the court says: “The interest in a mining claim, prior to the payment of any money for the granting of the patent for the land, is nothing more than a right to the exclusive possession of the land based upon conditions subsequent, a failure to fulfill which forfeits the locator's interest in the claim. We do not think that under the federal statute the locator takes such an interest in the claim that dower attaches to it.” The court in that case further says: “His interest in the claim may also be forfeited by his abandonment with the intention to renounce his right of possession. It cannot be doubted that an actual abandonment of possession by a locator of a mining claim, such as would work an abandonment of any other easement, would terminate all the right of possession which the locator then had. *** If he convey to another a right which may be thus lost, that conveyance would seem to be equivalent to an abandonment by him of all rights under the statute. What could be better evidence of an intention to abandon than an actual conveyance of his right to another, ceasing to do any work thereon, and the giving up of his possession in accordance with his conveyance? The abandonment by simply leaving the land is no more efficacious than conveying his rights to another, and also leaving possession without any intention of returning. His simple abandonment would leave no right remaining in his wife to claim dower upon his death in the interest thus abandoned. If he added a conveyance as a clearer evidence of abandonment, her alleged right to dower is not...