Riste v. Morton

Pemberton, C. J. This being an appeal from a judgment of nonsuit, the question for determination is as to whether there is any substantial evidence in the record which establishes or tends to establish, the allegation in the complaint that the defendants did not have and could not convey a good title to the mining property in controversy in accordance with the terms of their bond. It must be observed that the bond was to convey a good title to unpatented mining ground, or such title as would enable plaintiffs to procure a patent thereto. The plaintiffs knew they were contracting for title to unpatented mining ground. This is not disputed. It seems that, prior to the execution of the bond in question by defendants to plaintiffs, one undivided half of the Nevada King mining claim, mentioned in *the complaint, had been sold by defendant Hall, the locator, to E. F. Ferris. Ferris failed to contribute his share of the necessary work and' expense to represent said claim for the years 1886 and 1887. Hall advertised Ferris out, in accordance with section 2324, Rev. St. U. S. It is contended by appellants that Hall’s notice of publication to Ferris was not published for the length of time required by the statute. It is true that one affidavit of the publisher of the newspaper in which the notice was published would support this contention. But this affidavit was afterwardscorrected by the publisher by the filing of another affidavit, showing the notice was published for the full time required by law. So there is nothing in this contention. Appellants contend that the record should show that Ferris-had lost his title to the ground by the publication of such [142] notice, and that the record should show Ferris had not contributed his part in labor or money to represent the claim for the year in question. But counsel does not tell us what record the law requires to be kept to show these things. All the law requires is that the party applying for a patent be prepared to prove these things in the Land Office. In this case the record shows that the defendants, as the grantees, would have been amply prepared to make such proof on application for a patent to the ground. Appellants contend that Hall’s notice of discovery of the Nevada King mining claim is defective, in that it does not locate the claim with reference to any permanent monument. The notice describes the claim as adjoining and being bounded by three other claims on three sides thereof. In Garfield Mining Co. v. Hammer, 6 Mont. 53, 8 Pac. 153, this, court held that a description in a location notice referring to a mining claim was a sufficient reference to a permanent monument, saying that such mining claim ‘ ‘will be presumed to be a well-known natural object or permanent monument until the contrary appears. ’ ’ There is no evidence or presumption in this case that the three mining claims referred to in the Nevada King notice of location are not patented, and, if not patented, that they are not well-known and permanent monuments. Neither Ferris nor any one else, as far as the record shows, is claiming any title or interest in the mining property in controversy, or any part of it, adverse to the title of the defendants. There is nothing in the record that shows, or tends substantially to show, that defendants were not capable of conveying a good title to the ground in controversy, — just such title as they contracted to convey; that is, such title as would enable plaintiffs to obtain a patent thereto. This is all defendants contracted to ,do. The evidence shows they were able and willing to comply with the terms of their bond. There is no merit in this appeal. The judgment and order appealed from are affirmed. Affirmed. Hunt and Buck, JJ., concur.