Pence v. Sweeney

• Decision Date: 11 December 1891
• Citation: 28 P. 413,3 Idaho 181
• Parties: PENCE ET AL. v. SWEENEY ET AL
• Court: Idaho Supreme Court

28 P. 413

3 Idaho 181

PENCE ET AL. v. SWEENEY ET AL

Supreme Court of Idaho

December 11, 1891

INTERVENER-PLEADINGS-CONVEYANCE-MINING CLAIM-MISTAKE-INADVERTENCE-PROCEEDS OF SALE-NONSUIT.

SUFFICIENCY OF COMPLAINT IN INTERVENTION.-The court below allowed McLelland to intervene. Held, that his complaint in intervention sets forth facts sufficient to bring him within the requirements of section 4111 of the Revised Statutes of Idaho.

COMPETENCY OF RECEIPT AND RELINQUISHMENT AS TESTIMONY.-A receipt and relinquishment signed by the defendants, although made without the knowledge or consent of the attorneys of record are testimony in favor of plaintiffs, and it is error for the trial court to refuse to receive the same.

AN ANSWER ADMITTING ALLEGATIONS OF COMPLAINT EVIDENCE FOR PLAINTIFF.-A paper in the form of an answer, verified by the defendants, admitting that the allegations of the complaint are true, and consenting that the plaintiffs are entitled to a judgment as prayed for in the complaint, is a sworn admission of the defendants. The court erred in refusing to admit the same in evidence on behalf of plaintiffs, although said sworn statement was made without the knowledge or consent of defendants' attorneys of record.

JURISDICTION OF COURT TO DETERMINE RIGHTS OF PLEADINGS.-Under the pleadings, the court had jurisdiction to hear and determine the question as to whether a mistake had been made in the deed of conveyance from Sebring, Ward, and Altizer to Pence and Starr, and whether the conveyance from Ward to Brown was a cloud upon plaintiff's title, and in case the mine was sold before the adjudication of said matters and the proceeds of the sale of the interest in dispute deposited in court the court had jurisdiction under the pleadings to determine the rights of plaintiffs thereto.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Reversed and remanded, with instructions.

Albert Hagan and Frank Ganahl, for Appellants.

Equity will not permit litigation by piecemeal, but will determine the whole controversy, so as to prevent future litigation. (Chester v. Hill, 66 Cal. 484, 6 P. 132; Cross v. Zellerbach, 63 Cal. 643; Kraft v. De Forest, 53 Cal. 657; Quivey v. Baker, 37 Cal. 472; Wilson v. Castro, 31 Cal. 421; McPherson v Parker, 30 Cal. 456, 89 Am. Dec. 129.) A cognovit is good as an admission in pais after answer is filed, and can be put in evidence upon the trial. (Hirschfield v. Franklin, 6 Cal. 608.) A party's answer in chancery is evidence against him by way of admission. (Fickett v. Swift, 41 Me. 65, 66 Am. Dec. 214; Elliott v. Hayden, 104 Mass. 180; Knowlton v. Moseley, 105 Mass. 136; Cook v. Barr, 44 N.Y. 158; Wylder v. Crane, 53 Ill. 490; Lawrence v. Lawrence, 21 N. J. Eq. 317.) Compromises of suits are favored, and are binding upon the parties, and will never be set aside or questioned except for fraud or imposition. (Draper v. Owsley, 15 Mo. 613, 57 Am. Dec. 218; Leach v. Fobes, 11 Gray, 506, 71 Am. Dec. 732; Grandin v. Grandin, 49 N. J. L. 508, 60 Am. Rep. 642, 9 A. 756; Dunman v. Hartwell, 9 Tex. 495, 60 Am. Dec. 177.) A release given by a client is a bar to any further prosecution of the action by him. It is an estoppel. (Coughlin v. Railroad Co., 71 N.Y. 443, 27 Am. Rep. 75.)

Woods & Heyburn, for Respondents.

A court of equity will not relieve third parties from a mistake of law. (2 Pomeroy's Equity Jurisprudence, secs. 842-846, 849; Hunt v. Rousmanier, 8 Wheat. 174; Bank v. Daniel, 12 Pet. 52; Jacobs v. Morange, 47 N.Y. 57; Bentley v. Whittemore, 18 N. J. Eq. 366.) Anyone who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both, may intervene. (Comp. Laws, sec. 4111.)

SULLIVAN, C. J. Morgan and Huston, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an appeal from a judgment and order dismissing appellants' complaint and cause of action. The complaint alleges that on the twenty-first day of May, 1888, the plaintiffs were the owners of the Sitting Bull lode mining claim. That the said claim was located by one J. A. Ward and John W. Sebring in the year 1885. That thereafter the said Sebring sold one-half of his interest in said claim, to wit, an undivided one-fourth, to one David Altizer, and thereafter said persons owned their respective interests therein as tenants in common. That, for the purpose of developing said mining claim, they entered into a contract with the plaintiffs, C. G. Pence and one L. J. Starr, whereby the said Pence and Starr agreed to do certain work in the development of said claim, and for which they were to receive an undivided one-half of the respective interests of the said Sebring, Ward, and Altizer. That upon the completion of such work the said Ward, Sebring, and Altizer were to execute and deliver to said Pence and Starr a deed of conveyance conveying to them an undivided one-half of their respective interests in said claim. That after the completion of said work by Pence and Starr the said Ward, Sebring, and Altizer executed to them a certain deed, but, instead of designating the respective interests to be conveyed by each grantor under the contract aforesaid, they, by mistake and inadvertence, conveyed by said deed an undivided one-half of said mining claim. That thereafter Starr sold and conveyed his entire interest in said claim to Pence. That Pence thereafter purchased of said Sebring an undivided one-eighth interest in said claim. That thereafter C. E. Kingman (one of the appellants) purchased of the said Altizer an undivided one-eighth of said claim. That thereafter one O. Kingman bought of said Ward all his right, title, and interest in and to said claim, as at that time said Ward believed he possessed an undivided one-quarter thereof. That, by the original deed from Ward, Sebring, and Altizer to said Pence and Starr, it was the intention of the parties to convey to said grantees an undivided one-half of each of their respective interests in and to said claim, to wit, Ward an undivided one-quarter, that being one-half of his interest; Sebring an undivided one-eighth, that being one-half of his interest; and Altizer an undivided one-eighth, that being one-half of his interest therein. That the mistake was made by conveying an undivided one-half of said lode, and not designating the undivided interest which each was to convey under the agreement with Pence and Starr. That thereafter the defendant Brown, with notice that Ward had already sold all of his right, title, and interest in and to said lode claim to O. Kingman, and knowing that said Ward had no interest therein, being so notified by said Ward, procured from said Ward a quitclaim deed for all of his interest in said claim. That said O. Kingman conveyed all of his interest in and to said claim to the plaintiff Charles E. Kingman, and that the plaintiffs (the appellants in this court) were then the owners of said entire mining claim. That Sweeney, one of the defendants, was, at the date of such conveyances an employee in the recorder's office of Shoshone county, and that it was by his investigation and suggestion, on information acquired from an inspection of the records of said county, that the apparent interest of said Ward, of the one-twelfth of said mine, was suggested to said Brown, and the conveyance from Ward to Brown thereafter procured. The complaint further alleges that said Sweeney and Brown have contracted, by bond, to convey to defendant Evans the one-twelfth interest so obtained from Ward, and to receive therefor $ 3,000, and for such purpose Brown has deposited with Sweeney his deed to said Evans, to be delivered upon payment to Sweeney of the sum of $ 3,000. That said Brown is to convey to said Sweeney said one-twelfth interest in said mine in the event of Evans not paying said $ 3,000. That Evans is made a party, because he is deemed a necessary party to the enforcement of the judgment or decree prayed for. That plaintiffs do not desire to destroy the sale of said mine, but simply that the proceeds of the sale of said one-twelfth interest be paid to plaintiff in event of a sale being consummated. The answer admits the discovery and location of the said claim, and the conveyance thereafter by Sebring of one-half of his interest therein to Altizer. Admits the making of the deed by Ward, Sebring, and Altizer to Pence and Starr, but explains Ward's connection with the making of the contract with Pence and Starr for the development of the claim, and the execution of the deed to them, and denies that any mistake was made in the execution of said deed.

Prior to the trial of the case the mine was sold under the bond referred to, and the parties entered into a stipulation whereby the money for the one-twelfth interest was deposited with the clerk of the court, subject to the adjudication by the court of the question as to the party entitled thereto. On January 16, 1891, one Thomas E. McLelland was allowed to intervene. The complaint of intervention does not demand any relief in the subject matter of the suit as to the mining claim, but alleges that one-half of the money which had been deposited in court, under the stipulation aforesaid, on June 25, 1888, had been assigned to said intervener by said Sweeney and Brown, on July 30, 1888. To this complaint of intervention plaintiffs filed an answer denying the same. The cause came on for trial on June 3 1891. The plaintiffs offered in evidence certain paper writings, claimed to have been executed by the defendants, admitting the allegations of the complaint, and consenting that judgment be taken against them as prayed for in the complaint, all of which were, under the objections of counsel for defendants and intervener, excluded by the court. Thereupon certain oral...