Curran v. Campion

SANBORN, Circuit Judge. This suit involves a one-sixth interest in the same mine and products in question in the case of Kelley v. Boettcher, 85 Ped. 55. It is here upon an appeal from a decree sustaining demurrers to the amended bill, and dismissing the suit. The questions it presents are very similar to those raised by ithe demurrer in Kelley v. Boettcher, and the two cases were argued and submitted at the same time. The purpose of. the suit was to obtain the cancellation of a deed of of the mine, and to recover V<¡ of the mine and of its products. The original bill was filed on September 16, 1895. On November 5, 1895, a demurrer to this bill was sustained, and leave was given to the appellants to amend. The bill was amended; the appellees interposed demurrers to the amended bill; and on July 7, 1896, the decree sustaining the demurrers and dismissing the suit, which is challenged by ¡this appeal, was rendered. The amended bill discloses these facts: Prior to August 19, 1890, John Curran was the owner of the undivided one-sixth of the Little Johnny lode mining claim, which is situated near Leadville, in the state of Colorado. On that day he died, intestate, and his interest in this'mine descended to his father, Michael Curran, who died, intestate, on April 19,1891; and this interest descended to the appellants, so that the appellant Bridget Curran owned one-half, and each of the appellants Michael Curran, the son of the deceased Michael, and Margaret Curran, Katie Curran, Sarah Horan, Mary Walsh, and Bridget Polley, his daughters, owned one-twelfth, of that interest. In the summer of the year 1893, all of the appellants except Michael Cur-ran gave to Thomas J. Horan a power of attorney to sell and convey their interest in this mine. Horan lived at Grand Island, in the state of Nebraska, and none of the appellants lived nearer the mine than the state of Wisconsin. None of them knew anything about the history, condition, or value of the mine, or anything about the business of mining for gold and silver, and Horan was equally ignorant. The appellees A. V. Hunter and John P.. Campion had been profitably working this mine for several years prior to March 5,1891, when they organized the appellee the Ibex Mining Company, a corporation, the majority of the stock of which they have always held, and conveyed their interests to it. Since that time they have operated the mine in the name of this corporation. In 1893 these appellees conspired together to obtain from all the appellants except Michael Curran a conveyance of their interest in this mine, by false [69] representations and concealments. For tliis purpose they employed suitable agents to Induce Horan, their attorney in fact, to make this conveyance, and represented to him that they were working other mines through a shaft which they had on the Little Johnny lode mining claim, but that the Little Johnny was not doing anything at all, and that it had become entirely worthless because of (he fall in the price of silver. Horan was persuaded by these representations that the mine was .of little value, and was induced to convey the interest of all the appellants except that of Michael Curran to the appellee Hunter for $3,500, and nunter conveyed this interest to the mining company. This deed to Hunter was made on September 7, 1893. On September 20, 1893, in answer to a suggestion of Horan that he had heard that the mine was producing ore, one of the agents of the appellees wrote to him that there had been no ore taken out of this mine for more than four mouths; that there had been considerable prospecting work, in the hope of finding some ore, but without: success; and that everything indicated that the mine had been entirely worked out to the present depth. The fads were, however, that, at and before the time the deed was made, the Little Johnny was a valuable gold mine, and the ores raised from it were worth thousands of dollars per ton for their gold, and were of little value for their silver; that it had developed into a valuable mine in 1883; that (lie appellees Campion and Hunter had derived several millions of dollars from it prior to March o, 1891; that it had produced before, and was producing when the deed was obtained, ore of the value of $300,000 to §500,000 monthly above the expenses of operating it; and that it was worth $10,000,000 at that time. The appellants first discovered these facts about: t;wo weeks before they filed their original bill. The appellees, during their operation of the mine, concealed the amount and value of its products, mixed them with the ore from other mines, and purchased other mining claims with their proceeds. The appellants prayed for a cancellation of the deed of September 7,1893, for an accounting and a recovery of the proceeds of the products of the one-sixth of the mine, for a discovery, an injunction, and a /i'ceiver. The grounds of the demurrers to this hill were (1) that ¿he amended hill did not clearly sí ate facts sufficient to entitle the appellants to relief; (2) that it disclosed (he fact: that the appellants had been guilty of laches; (3) that Michael Curran, who did not join in the deed to Hunter, was Improperly joined as a complainant in this suit; (1) that; the cause of action against Campion and Hunter for an accounting of the products of the mine- prior to March 5, 1891, was improperly joined with the causes of action for the cancellation of the deed and an accounting of the products secured by the Ibex Mining Company after that date; and (5) that the appellants were not entitled to a discovery. The issues presented by these demurrers are so similar to those considered at length in the opinion in Kelley v. Boettcher that an extended discussion of them in this case would he idle. We shall content ourselves with briefly stating our conclusions. The positive allegations of misrepresentation and concealment which are found in this bill are sufficient:, if standing alone, to entitle appellants to a cancellation of the deed, a discovery, and an accounting. These allegations are supported by an averment that the appellants [70] were first informed about two weeks before tbe suit was commenced that at tbe time tbe deed of September 7,1893, was made, tbe mine was of great value, and bad produced large sums of money above the expenses of developing and operating it. ' It is true that there is an allegation in tbe bill that all tbe information tbe solicitor for tbe appellants could obtain in regard to tbe mine and its operation was derived from tbe general rumors in and about tbe city of Leadville to tbe effect that tbe Little Johnny bad developed into a very rich and extensive gold mine, and another, that be was unable to obtain any exact facts as to the net products and tbe dates when they were obtained. But these and other similar allegations are contained in that part of tbe amended bill in which the appellants are attempting to excuse laches, and to lay the foundation for a discovery, and they are accompanied with averments that tbe appellees have carefully and persistently concealed these facts from tbe solicitor of tbe appellants, and from all others who were not in their employment. La our opinion, they are insufficient, in view of all tbe allegations of the bill, to overcome its positive averments of misrepresentation and fraud. The answer to tbe plea of laches is that tbe suit was brought within tbe time prescribed by tbe statute of limitations of tbe state of Colorado for tbe commencement of actions at law of this character, and tbe bill discloses no such extraordinary circumstances as demand tbe application of that doctrine to this.suit in any briefer period. Tbe objection that there was a misjoinder of causes of action, in that tbe appellant Michael Curran has no interest in tbe cancellation of tbe deed, and that tbe appellees Campion and Hunter are liable to account for tbe products of tbe mine before, and not after, March 5, 1891, while tbe mining company is liable to account for those products subsequent to that date, is .met by tbe proposition that no bill is multifarious which presents a common point of litigation, tbe decision of which will affect tbe whole subject-matter, and will settle tbe rights of all tbe parties to tbe suit, and that it is not indispensable that all tbe. parties should have an interest in all tbe matters contained in tbe suit, but it is sufficient if each party has an interest in some material matters involved in tbe suit, and they are connected with tbe others. Hayden v. Thompson, 36 U. S. App. 361, 17 C. C. A. 592, and 71 Fed. 60; Brown v. Deposit Co., 128 U. S. 403, 412, 9 Sup. Ct. 127; Kelley v. Boettcher, 85 Fed. 55. Tbe title of the appellants to tbe one-sixth interest in tbe mine before tbe deed was made is a common point of litigation, which will determine tbe rights of all tbe parties if decided against tbe appellants. The right to tbe products of tbe one-sixth of the mine from 1883 to tbe present time is a material subject of tbe litigation in this case, in which all tbe parties are interested, and which is connected with tbe title to tbe mine, and with every other material matter in tbe suit. Tbe conclusion that tbe bill is sufficient to warrant relief entitles tbe appellants to a discovery of tbe facts within tbe knowledge of tbe appellees, which will aid them to establish their title and to maintain their suit. Tbe reasons and authorities for the conclusions we have so briefly announced in this case will be found in that portion of tbe opinion of this court in Kelley v. Boettcher, 85 Fed. 55, which relates [71] to tlie questions presented by tbe demurrer in that case; and, upon its authority, the decree below is reversed, and this cause is remanded to the court below, with directions to permit tbe appellees to answer tbe amended bill.