Phoenix Min. & Mill. Co. v. Scott

• Decision Date: 10 October 1898
• Citation: 20 Wash. 48,54 P. 777
• Court: Washington Supreme Court
• Parties: PH NIX MIN. & MILL. CO. v. SCOTT ET AL.

54 P. 777

20 Wash. 48

PH NIX MIN. & MILL. CO. v. SCOTT ET AL.

Supreme Court of Washington

October 10, 1898

Appeal from superior court, Kittitas county; John B. Davidson Judge.

Action by Ph nix Mining & Milling Company against J. H. Scott and another. From a judgment in plaintiff's favor, defendants appeal. Affirmed.

E Pruyn, for appellants.

Wager &amp Cameron, for respondent.

GORDON J.

This cause was tried and submitted to the superior court of Kittitas county upon an agreed statement of facts, and from a judgment in plaintiff's favor the defendants appealed. It appears from the agreed statement that appellant is sheriff in Kittitas county, and that in November, 1894, appellant Scott recovered a judgment in the superior court against John A. Shoudy in an action upon a promissory note executed by said Shoudy as surety for one Graff. It is further stipulated that "said judgment is not a legal claim or demand against the community property or estate of said John A. Shoudy and his wife, M. E. Shoudy, and never has been." On the 7th of August, 1895, the appellant Scott had execution issue, and placed the same in the hands of the sheriff, who on the same day levied upon certain mining claims in Kittitas county, located by the said John A. Shoudy under the mining laws of the United States and of the state of Washington, for which no patent had been issued, or any application for patent made. At the time of the entry of said judgment against Shoudy, and at the time of the execution of the note upon which said judgment was entered, and at the time of making said mining locations, said John A. Shoudy and M. E. Shoudy were husband and wife, living together as such in the state of Washington. On the 3d of August, 1895, Shoudy and wife, by their joint deed, for a valuable consideration quitclaimed and conveyed to the respondent's immediate grantors all of said mining claims and locations. Said conveyance was filed for record in the auditor's office on the 7th day of August, 1895, but subsequent to the notice of levy of the execution hereinbefore referred to. This action was brought for the purpose of restraining the sheriff from selling said mining claims and locations to satisfy the judgment against Shoudy, and also to remove the cloud upon plaintiff's title caused by the judgment and levy. Respondent contends that a locator's interest in an unpatented mining claim is not such an interest in real estate as will support a judgment lien; and, further, that if the possessory right which the locator has in such mining property is to be regarded as property subject to a sale on execution, then it is community property under our law, and as such cannot be subjected to the lien of a judgment against the husband alone. Appellants contend that the locator's possessory right is an interest in land, and such an interest as will support the lien of a judgment, and is and may be the subject of sale, mortgage, and lease; but they contend further that the wife has no interest in it until a patent has been issued; and these are the questions which the record presents for decision.

In Forbes v. Gracey, 94 U.S. 762, it is said: "Such right as the mining laws allow and as congress concedes to develop and work the mines, is property in the miner, and property of great value. *** Those claims are the subject of bargain and sale, and constitute very largely the wealth of the Pacific coast states. They are property in the fullest sense of the word, and their ownership, transfer, and use are governed by a well-defined code or codes of law and are recognized by the states and the federal government. This claim may be sold, transferred mortgaged, and inherited without infringing the title of the United States." In Belk v. Meagher, 104 U.S. 279, the court say: "Congress has seen fit to make the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the existence of an exclusive right to the possession, while the paramount title to the land remains in the United States." In Freeman on Executions (volume 1, § 175) it is said: "The mere possession, without title, is, no doubt, one of the least valuable interests or estates which can be held in land. It is, nevertheless, a legal estate. *** It is prima facie evidence of title. It is subject to execution; and its sale, under process against the possessor, gives the purchaser all the rights accruing from the possession of the defendant, together with the right to enter and enjoy the possession to the same extent as it could have been lawfully enjoyed by the defendant in execution if no sale had been made." See, also, to the same effect, McKeon v. Bisbee, 9 Cal. 137; Mining Co. v. Fremont, 7 Cal. 317; Manuel v. Wulff, 152 U.S. 505, 14 S.Ct. 651. In Freeman on Executions (volume 1, § 175) the author says: "Mere possessory interests on public lands may, in most of the states, be sold under execution, except where their sale would interfere with the laws of the United States with regard to the disposal of those lands." But while this possessory right to a mining claim is property which may be sold on execution, and may be the subject of...