to prove a good cause of action, which motion the court overruled." The defendant excepted to the ruling, and also excepted to the finding and decision of the court against him at the close of the trial, but did not state the grounds of his objection.

There being no written pleading (Thorne v. Ornauer, 8 Col. 353), the questions to be determined on this appeal must be gathered from the evidence. The evidence shows that plaintiff and several other persons, some of them non-residents, were tenants in common of a certain mine in Lake County, plaintiff's interest being one eighth. These co-tenants employed Slater to work the mine, extract and sell the ores, and account to the owners for the proceeds. By this arrangement, it is assumed by counsel for appellant that plaintiff and his co-owners entered into a copartnership, thus constituting a relationship different from that existing between them as tenants in common, and hence that plaintiff cannot maintain this action in his own name for his share of the proceeds of the mine in the hands of the defendant arising out of such employment. There is no evidence of an express contract of copartnership having been agreed to between the several owners for any fixed or definite period, or at all. Nevertheless, the existence of a mining partnership, with its peculiar limitations and conditions, may perhaps be inferred from the acts of the parties and the circumstances appearing in evidence: Manville v. Parks, 7 Col. 128; Charles v. Eshleman, 5 Col. 111.

During the progress of the work a controversy arose between the plaintiff, Haas, and the defendant, Slater, as to the rate of wages per month the latter was to receive under his contract of hiring; and finally plaintiff undertook by written notice to defendant to terminate defendant's employment so far as plaintiff's interest in the mine was concerned. In such notice plaintiff declared that after a certain date, so far as his (plaintiff's) interest was concerned, he would dispense with defendant's services, and would in no way be responsible for any debts that might be contracted in connection with said mine without his personal consent. This notice was received by defendant, and the substance thereof was promptly communicated by him, in writing, to the other owners. In such communication defendant, Slater, declared that so long as the other owners chose to retain him in their employ it would not increase their expenses at all, but would only

-

decrease his salary twelve and one half per cent, that is, one eighth, and that he was ready to relieve plaintiff, Haas, of the burden of his salary. It does not appear that the other owners made any objection to this new arrangement. In addition to giving defendant notice of his withdrawal from the enterprise of working the mine, plaintiff also posted a written notice at the shaft-house, giving similar notice to all persons employed by or dealing with Slater in working the mine.

The acceptance of plaintiff's notice by defendant, and his express assent to its terms, the communication thereof to the other owners, and their acquiescence therein, together with his posted notice to all other persons interested, justify the conclusion that there was a withdrawal by plaintiff from any mining copartnership which may have theretofore existed between the several co-tenants. The other owners, as well as plaintiff and defendant, having notice of the new arrangement, the court was warranted in finding that there was a complete termination by mutual consent of plaintiff's liability to defendant under the original contract of employment, and that by this means plaintiff's interest in the proceeds of the mining property was entirely severed from that of his

co-tenants.

The defendant continued working the mine and extracting ores therefrom for several months after the withdrawal of plaintiff as aforesaid. The evidence was somewhat conflicting as to the rate of monthly wages the defendant was entitled to receive; but it is clear that defendant, at the close of his employment, reserved out of the proceeds of the mine his monthly wages at the full rate and for the full time as origi nally claimed by himself, disregarding altogether the abrogation of the original contract resulting from plaintiff's written notice, his own response, and the acquiescence of the other

owners.

Though not specifically so stated, it is obvious that the finding and judgment of the court were based upon the amount of plaintiff's interest in the surplus proceeds of the mine in the hands of defendant, according to the theory that plaintiff's liability under the original contract had been terminated and his interest in the proceeds of the mine severed from that of his co-tenants.

The findings of fact by the trial court upon the conflicting evidence cannot properly be disturbed. Plaintiff's share in

the proceeds of the mine having been entirely severed from that of his co-tenants, there appears to be no legal obstacle to his recovery of the same in this action. The judgment of the county court is accordingly affirmed.

CO-TENANCY-RIGHT OF ONE CO-TENANT TO MAINTAIN AN ACTION WITHOUT JOINING HIS CO-TENANTS. As to joinder of co-tenants as parties plain

tiff, see Lothrop v. Arnold, 25 Me. 136; 43 Am. Dec. 256, and note,

CASES

IN THE

SUPREME COURT

OF

GEORGIA.

DUTCHER V. HOBBY.

[86 GEORGIA, 198.J

SUBROGATION— PURCHASER AT VOID FORECLOSURE SALE.

Where property sold under a void foreclosure of a mortgage thereof has been purchased by one at sheriff's sale, and the purchase-money applied to the payment of the mortgage, and the sale and purchase are subsequently set aside and declared void, the purchaser may be subrogated to all the rights which the mortgagee originally had.

PETITION by Hobby as trustee, for the use of Warren, administrator of Caswell, against several of the Bunches and Dutcher. The petitioner conveyed certain land to Mrs. Bunch and her children, for the purchase price of which she gave her notes for six hundred dollars, secured by mortgage. The land was subsequently sold at foreclosure sale and purchased by Caswell, who received a sheriff's deed and paid the purchasemoney to the mortgagee. The Bunches resisted Caswell's right to take possession, offering to refund the purchase-money, and alleging that the foreclosure was void. This suit was dismissed, and ejectment brought to recover the land for Caswell's estate. Dutcher in the mean time acquired a lien as attorney for the Bunches, which he proceeded to foreclose. The land was sold under a fraudulent tax levy, purchased by one Banks, and fraudulently transferred by him to one of the Bunches, who is in possession, claiming title in fee, free from the mortgage lien. The petition prays for a decree foreclosing the mortgage for the purchase-money, the same to be paid to Warren, and declaring the sheriff's deed to Bunch to be void,

and that Dutcher's claim rest on what remains after payment of the purchase-money, and that he be restrained from enforcing any judgment on his lien until the priorities are settled by final decree. Dutcher demurred on the ground that the matter alleged was not sufficient basis for the relief sought. The demurrer was overruled, and he appealed.

Salem Dutcher, for the plaintiff in error.

Frank H. Miller, for the defendants in error.

BLANDFORD, J. The main question in this case is, whether, where property sold under a void foreclosure of a mortgage as the property of the mortgagor, which has been purchased by one at sheriff's sale, and the purchase-money applied to the payment of the mortgage, and said sale and purchase is afterwards set aside and declared void, such purchaser can be subrogated to the rights which the mortgagee originally had to have his mortgage foreclosed, and the property therein conveyed sold in discharge of the lien of the mortgage. It will not be necessary to consider any other question made by this record. While we are not permitted to lift the veil of the future, we take the liberty of pushing back the shutters of the past so as to let the light shine upon this question.

We think the authorities sufficiently answer this question in the affirmative. In 2 Freeman on Executions, 2d ed., sec. 352, it is laid down that a purchaser at a void judicial sale under foreclosure has the same right as the original mortgagee himself. In Brobst v. Brock, 10 Wall. 534, the court says: "It is enough that an irregular or a void judicial sale, made at the instance of a mortgagee, passes to the purchaser all the rights the mortgagee, as such, had." In Gilbert v. Cooley, Walk. Ch. 494, it was held that though a statutory foreclosure of a mortgage be irregular, and no bar to the equity of redemption, yet a purchaser at such sale succeeds to all the interest of the mortgagee. To the same effect, see the case of Jackson v. Bowen, 7 Cow. 13, wherein the court held that a conveyance by a mortgagee, as upon a statutory foreclosure under the power of sale in his mortgage, even if the proceedings to foreclose be irregular, yet carries all his interest as mortgagee to the purchaser, as well in the debt as the land mortgaged. Such a deed operates as a good assignment, and the purchaser may claim as assignee. See also Rorer on Judicial Sales, sec. 224; 1 Jones on Mortgages, 874, subd. a, sec. 878; Freeman on Void Judicial Sales, 51-53; Davis v. Gaines,