Harding v. Brayton

Mr. Justice Burke delivered the opinion of the court. These parties are hereinafter referred to as Harding, Brayton and Harvey respectively. This was originally an adverse suit brought by Harvey against Brayton, under the provisions of sections 2325 and 2326 Revised Statutes of the United States ('§§29 and 30 of Title 30 U. S. Code), to adjudicate rights of possession and rights' to patent to mining claims. That fact is determined by the complaint. Hunt v. Eureka Gulch Mining Co., 14 Colo. 451, 24 Pac. 550. After it was at issue Harding, on leave of court, intervened. Brayton demurred to his petition and the demurrer was sustained. Harding filed an amended petition to- which Brayton’s demurrer was again sustained. Harding elected to stand, and to review the judgment dismissing’ his petition he prosecutes this writ. By his petition Harding, as joint tenant with Brayton and the heirs of one McDonald, claims the right of possession to an undivided one-fourth of the property in controversy. He expressly admits the rights of Harvey and that his claims are subordinate thereto. He asks no relief against Harvey, but demands that Brayton cause patent to issue to him for his one-fourth interest, or convey to him when patent issues, and pay him $1,000 damages plus $125 expended in support of his claim. It appears from the petition that Harding bought pendente lite and since he filed no adverse claim *347 in the land office contesting Brayton’s right to patent he took subject to the rig-hts of the litigants. People ex rel. Darby v. District Court, 19 Colo. 343, 35 Pac. 731. The record also discloses that the primary purpose of Harding’s petition was to support the action of Harvey, who filed no assignment and sued out no writ. Prom the foregoing it clearly appears that Harding was not entitled to intervene. Mont Blanc C. G. Mining Co. v. Debour, etc,, 61 Cal. 364; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439. The judgment is affirmed. Mr. Chief Justice Adams and Mr. Justice Bouck concur.