Bay State Mining & Townsite Co. v. Jackson

Mr. Justice Goddard delivered the opinion of the court. The sufficiency of the complaint was attacked by demurrer, and also by objection to the introduction of testimony, the objections relied on being that the complaint was defective in failing to describe the property by legal subdivisions, or by metes and bounds, and in failing to aver that the sale under the execution was at public vendue. We do not think these objections well taken. It will be seen that the bounds of the placer were given, and that the description was sufficient to enable any one familiar with the property to identify it. It was sufficient to enable the sheriff to identify it and subject it to sale under the execution, and is almost identical with the description by which it was conveyed by Welch to the defendant company. It also alleges that the premises were struck off and sold to Stephenson, he being the highest and best bidder, the time and place of sale thereof having been duly advertised according to law. From this allegation it is clearly apparent that the sale was at public vendue. It is further urged that the evidence is insufficient to show that plaintiffs obtained any title by virtue of the proceedings under the Stephenson judgment, for the reason that the return on the execution was fatally defective in not stating that the sale was made at public vendue, and because the copy of the assignment of the certificate of purchase from Stephenson to them having been excluded, there was no evidence showing that they were entitled to the sheriff’s deed. If there was any merit in these objections, which we do not admit, they were obviated by the recitals in the sheriff’s deed, which was in conformity with Mills’ Ann. Stats, secs. 2553, 2554, and which, by section 2555; is made evidence that the provisions of the law in relation to sales of land upon execution were complied with, until the contrary shall be shown. [143] The principal ground relied on for reversal is that the evidence failed to establish any title or right of possession, in Welch, to the premises in controversy. The testimony discloses that at the time of the levy of the writ of attachment Welch was in the actual occupancy of the premises, claiming the possession and ownership of the same. But aside from this, we do not think that in the circumstances of this case, it was incumbent upon the plaintiff to show title in Welch, he being the common source from which both parties derived title to the premises. They were not required to trace their title beyond such common source until the defendant showed some title in itself aliunde that acquired from Welch. “ When both parties claim under the same third person, it is prima facie sufficient to prove a derivation of title from him, without proving his title.” 2 Green, on Ev. sec. 307. See also, Lessee of Cooper v. Galbraith, 3 Wash. C. C. Rep. 546, Merchants' Bank of St. Louis v. Harrison, 39 Mo. 433, Miller v. Hardin, 64 Mo. 545, McCready v. Landsdale, 58 Miss. 877, Izlar v. Haitley, 24 S. C. 382, and Horning v. Sweet, 27 Minn. 277. While it is true that the defendant, by its answer, denies that it claims the right of possession by virtue of the deed from Welch, yet it appears from the evidence that four days after the- execution of the deed they entered into possession of the premises, and have remained in possession ever since; and there is no evidence to show that they ever acquired any other title thereto by location or otherwise. Their claim that Welch abandoned the placer intervening the levy of attachment in the Stephenson case and the acceptance of the deed by them, is also untenable, under the facts disclosed in the record. The time at which Mr. Ingram testifies that Welch was not in possession of the claim, he was in Denver two or three days; and on that occasion he executed the deed to the company, which not only conveyed the ground in dispute, together with all buildings and flumes, but also the lumber, mining tools, implements, etc., thereon; which also contains, as we have seen, the covenant for further assurance of title. [144] To constitute an abandonment, tbe party must leave the property, with the intention of relinquishing all right to it; and the fact, as evidenced by the conveyance, that Welch then claimed the property, conclusively shows that no abandonment had then taken place. The acceptance of the deed by the company, and the entering into possession thereunder, conclusively precludes it from asserting that the premises had been abandoned. Other errors are predicated upon the exclusion of certain evidence offered by defendant, but we are unable to see wherein the testimony offered was in any way material upon the issues in the case, or that its exclusion in any way prejudiced the rights of defendant. After a careful examination of the record, we are satisfied that the court properly instructed the jury to return a verdict in favor of plaintiffs. The judgment of the district court is therefore affirmed. Affirmed.