Santaquin Min. Co. v. High Roller Min. Co.

CourtSupreme Court of Utah
Citation71 P. 77,25 Utah 282
Decision Date16 January 1903
Docket Number1400
PartiesTHE SANTAQUIN MINING COMPANY, a Corporation, Appellant, v. THE HIGH ROLLER MINING COMPANY, a Corporation, Appellant

Appeal from the Fourth District Court, Utah County.--Hon. John E Booth, Judge.

Adverse proceeding to determine the right of possession to the Silver King Mining claim. The opinion states the facts. From a judgment denying relief to either party, both parties appealed.

REVERSED.

Messrs King, Burton & King for plaintiff appellant.

There was no attempted delivery of the deed until after the corporation had been fully organized. That being true, there was no execution of the deed in question, to a grantee not in esse. The mere writing and signing of the deed did not constitute the instrument a deed. Delivery was essential to its execution; and the instrument did not take effect as the deed of the locators until after the organization of the company. Therefore, when the execution of the deed was completed the corporation was in existence. 4 Kent's Com., p. 450; Bishop, Cont., p. 47, sec. 325; Devlin on Deeds, sec. 260.

As stated delivery was essential to the validity of the deed, it took effect only after delivery. 4 Kent, Com., 454; Bishop on Cont., sec. 26; Brown v. Brown, 66 Maine 316; Devlin on deeds, secs. 177 and 264.

Acceptance by the grantee is an essential part of delivery. 3 Washb Real Prop., p. 310; Hibbard v. Smith, 67 Cal. 547.

We think it is wholly immaterial whether the grantee is in esse at the time of the making and signing of the deed. If it is in existence when the deed is delivered the deed is valid and passes the title held by the grantors. Spring Garden Co. v. Hulings Lumber Co., 32 W.Va. 357; 3 Washb., Real Prop., p. 300; Rotchs Wharf Co. v. Judd, 108 Mass. 227; City Bank of Kenosha v. McClellan, 21 Wis. 112; Conover v. Porter, 14 Ohio St. 450; Chauncey v. Arnold, 24 N.Y. 330.

Messrs. Powers, Straup & Lippman for defendant appellant.

In Utah Optical Co. v. Kieth, 18 Utah 464, this court held that "one of the essential requisites of a lease is the existence of some one taking and holding as lessee; and the plaintiff corporation not being in existence at the time it is claimed the lease was made, no lease could have been made to it." 1 Devlin on Deeds, sec. 123, p. 115; Hunter v. Watson, 12 Cal. 363; Phelan v. San Francisco, 6 Cal. 531; Miller v. Chittenden, 2 Iowa 368; Barr v. Schroeder, 32 Cal. 610; Hulick v. Scovill, 4 Ill. 191.

MARIONEAUX, District Judge. BASKIN, C. J., and BARTCH, J., concur.

OPINION

MARIONEAUX, District Judge.--

In this case both parties have appealed from the decree of the district court, and the case, briefly stated, is as follows: The complaint alleges plaintiff's corporate existence, and that on January 1, 1895, T. J. Kirkman, George E. Kirkman and T. W. Kirkman, duly entered upon certain vacant mineral land of the United States, and located the Silver King mining claim, and that during each year since the location the locators and their successor in interest (plaintiff) duly performed the work required by the laws relating to annual work on mining claims; that the locators duly conveyed, by proper deed, their rights to plaintiff, and that plaintiff is the owner and in possession of said mining claim; that after the location of the Silver King the defendant, claiming to be the owner of an alleged mining claim called the "High Roller," wrongfully caused the latter to be so surveyed as to overlap the Silver King, and include a portion thereof (describing it), amounting to 8.397 acres; that on July 15, 1899, the defendant made application to the proper authorities of the United States for patent for the said High Roller claim, including the said 8.397 acres claimed to be a portion of the Silver King claim; that within sixty days after said application plaintiff filed in the land office a protest and adverse claim in due form, and that thereupon proceedings were stayed to await the determination by a court of competent jurisdiction of the right of possession of said disputed area of ground. The complaint contains other formal allegations that it is not necessary to recite. The defendant's answer admits the corporate existence of plaintiff, but denies the other allegations of the complaint, and further alleges that it (defendant) was incorporated March 18, 1899; that on November 5, 1898, the said High Roller claim was mineral land of the United States, subject to location, and on said day was entered upon and located as a mining claim by A. O. Jacobson, H. Mangum, Jr., and I. H. Spriggs, and that ever since the date of location the said High Roller claim has been actually and exclusively occupied and possessed by said locators and by defendant as their successor in interest by virtue of a deed of conveyance from them to it. The answer further avers that defendant is now the owner and entitled to the possession of said High Roller claim. Each party prays that its title be quieted. Plaintiff therefore claims the area in dispute by virtue of a valid location of the Silver King claim, and legal succession to the rights of the locators; defendant claims title to the same area by virtue of a valid location of the High Roller claim, and legal succession to the rights of the locators.

Upon the trial the plaintiff offered W. H. West, Wm. Van Ausdale J. C. Holman, and others to prove a valid location of, and continuous assessment work upon, the said Silver King claim, in order, of course, to show that the area in dispute was part of a valid mining claim, and not public land subject to location, at the time of the location of the High Roller claim. Plaintiff, having concluded that branch of the case, next offered in evidence its articles of incorporation, which were received over the objection of the defendant. The evidence of plaintiff's succession to the rights of the original locators of the Silver King was as follows: W. H. West testified that one day in the year 1897 he saw the original owners of the Silver King claim at Santaquin, and "there was talk of incorporation," and the following paper was signed by T. W. Kirkman, Geo. E. Kirkman, and T. J. Kirkman, all the original locators of said claim: "This certifies that we, the undersigned, for and in consideration of one dollar, in hand paid, the receipt of which is hereby acknowledged, and 4,000 shares of stock in the Santaquin Mining Company, which shall be assessable, hereby agree to sign and deliver to the Santaquin Mining Company a good and sufficient deed conveying all our interest in the Silver King claim, situate in the Santaquin mining district, Utah county, Utah." The paper was admitted in evidence over the objection of the defendant. Witness continuing: "After I made this arrangement with owners, went to Salt Lake, and prepared to incorporate, and the articles were prepared. Q. What, if any, arrangements were made as to the deed of this Silver King claim? A. I made arrangements with these parties that owned the property that they were to sign the deed conveying the property to the proposed corporation, the Santaquin Mining Company, and that I was to hold the deed until the company was organized and incorporated into a company. There were other papers in connection with the deed. The deed was handed to me by T. J. Kirkman, one of the grantors, with instructions to deliver it to the company when incorporated. I took the deed, and after incorporation I delivered it to J. A. West, the secretary. It was recorded." Cross-examination: "Think Kirkman recorded deed before it was handed to me. Deed is dated August 17, and recorded August 21. Think I had it in my hands after August 21. Kirkman mailed it to me after it was recorded. It was mailed to me before organization of the company. The letter said, 'Deliver this to the company when it is organized.' I was told to hold the deed until the company was formed, and then deliver it. Before the deed was mailed to me, I had a talk with the Kirkmans about organization, and about taking the deed to hold until the company was formed." George E. Kirkman testified as follows: "Deeded my interest to plaintiff in 1897. Q. State what, if any, arrangements and negotiations were between you and the owners and Mr. West, or any other person, about this? A. Arrangements were that we deed our claims to the Santaquin Mining Company until it was incorporated. We gave West the deed, and told him to hold it until the company was organized and fixed so that they could take the deed. We were to get stock in the company after the company was organized. The stock was put in my father's name. I signed the deed. I think it was handed by my father to Mr. West." Cross-examination: "I do not know whether that was before it was recorded. It may have been sent by letter. Was not there when my father handed it or mailed it to West. Am not certain which way it went. Do not know how it was delivered." W. H. West, recalled, testified: "The deed shown me in Mining Record No. 35, page 538, is a copy of the one handed me. Q. Mr. West, I will ask you whether or not, when you were first at Santaquin in July or August, in company with Mr. Kirkman, there was any talk about formation of a corporation? A. Yes, sir; there was. They were to be stockholders. Mr. T. J. Kirkman was an incorporator. The basis of the incorporation was to acquire this property. In pursuance of this talk, the articles were prepared about August 18 or 19--a few days before they were signed, I think. After they were prepared, I visited the owners of the Silver King at Santaquin to make final arrangements about the deed. Told the grantors that the articles were prepared, and it was arranged so that they were to have so much stock. The...

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