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So far as the action is for the recovery of , validity of his mortgage than he would have the indebtedness evidenced by the promis- been in had his mortgage been valid and sory note and mortgage, the cause of action there had been no mistake. As has been accrued, according to the allegation of the heretofore pointed out by this court in simcomplaint, two years after November 26, ilar cases, this is not an action for relief 1890. When this action was commenced, upon the ground of mistake within the meanDecember 8, 1899, more than seven years ing of subdivision 4, § 338, Code Civ. Proc., had elapsed after the cause of action accrued, but is substantially one to compel payment and no facts are alleged in the complaint of the indebtedness evidenced by the note and sufficient to avoid the effect of the running mortgage executed by the guardian to plainwithout action commenced of the time pre- tift. The case is very similar to that of scribed in this section.

Clausen v. Meister, 93 Cal. 555, 29 Pac. 232, Plaintiff relies upon certain facts alleged | where the complaint alleged that a loan was in the complaint as sufficient to defeat this made and the note and mortgage taken by objection. Substantially these facts are as

reason of certain fraudulent representations follows: The property described in the that the maker was the owner of the mortmortgage was acquired by said minors un

gaged property, whereas in fact she was der the provision of the will of their father.

only the executrix of the will of the deceasHe had incumbered a portion thereof with

ed owner, and entitled upon distribution to a mortgage, which was a valid and subsist

only one-fourth of the property. The money ing lien thereon at the time of his death.

there loaned was used to pay a claim against Subsequent to his death this mortgage was

the estate, thus benefiting all those interforeclosed, and a sale of tlie premises had

ested in the property under the deceased. under the foreclosure decree. It was to

Within three years after the discovery of redeem the property from such sale that the

the facts, but more than four years after the $1,000, for which the note and mortgage in

maturity of his note and mortgage, the suit were given, was borrowed from plaintiff, plaintiff brought his action for the amount and the money was in fact used for that pur

due, and sought to be subrogated to the pose. The money was borrowed by the guar

rights of the creditor of the estate whose dian and the note and mortgage were given

claim had been paid with his money. This without any order of authorization there

court there said: "The real cause of action for on the part of the superior court having

is for the recovery of the money loaned by jurisdiction of the guardianship proceedings. The guardian represented to plaintiff plaintiff, and the other relief demanded is

but incidental to this, and the time allowed that as such guardian she had authority to

by the statute within which to commence execute the note and mortgage, and that

an action for the recovery of this money such mortgage would be a valid lien on

cannot be extended by alleging the discovery, the minors' property, and it was the inten.

within three years, of facts which in equity tion of both guardian and plaintiff that

would have entitled him to look for its replaintiff should have a valid lien thereby. Both the guardian and plaintiff believed that

payment to other security than the mortgage the mortgage was good and valid, and their

which accompanied the note received by him mistake in that regard was not discovered

at the time of the loan." See, also, Campuntil within three years prior to the com

bell v. Campbell, 133 Cal. 33, 65 Pac. 134. mencement of this action. We see nothing

Whatever rights in equity this plaintiff may in these facts that can assist plaintiff. Plain

have originally bad by reason of the facts tiff's theory apparently is that this is an

alleged, such rights were available only to action for relief on the ground of mistake,

aid in the enforcement of the claim eviand that, therefore, under subdivision 4, 8

denced by the note and mortgage, and, when 338, Code Civ. Proc., he had three years after

the bar of the statute attached to that claim, bis discovery of the facts constituting the

such incidental equitable rights were lost. mistake within which to commence his ac

Clausen v. Meister, supra. tion. It will be observed that the discovery The demurrer to the complaint should by plaintiff as to the invalidity of his mort- hare been sustained. gage was not made until after the statute The judgment is reversed. would have barred it, had it been a valid mortgage. We are at a loss to understand We concur: BEATTY, C. J.; SHAW, bow plaintiff can be placed in any better J.; MCFARLAND, J.; HENSHAW, J.; position by reason of his mistake as to the SLOSS, J.


The trial court has power in its discretion to grant or refuse plaintiff permission to make defendant his own witness.

Department 2. Appeal from Superior Court Calaveras County; A. I. McSorley, Judge.

Action by T. W. Mutchimor against J. D. McCarty. From a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial, he appeals. Affirmed.

W. J. Donovan, for appellant. Solinsky & Wehe, for respondent.

(119 Cal. 603)

MUTCHMOR v. MCCARTY. (Sac. 1,401.) (Supreme Court of California. Aug. 27, 1906.) 1. MINES AND MINERALS-LODE CLAIM-LOCATION-NOTICE-RECORD-EFFECT.

The record of a notice of location of a lode claim, as required by St. 1875–76, p. 833, c. 562, is only effective to prove the bare fact of the record of such notice, and is not evidence that the notice was posted on the claim, that the location was so marked on the ground that its boundaries could be readily traced, that they included the apex of a lode, the existence of any valuable mineral deposit in place, or that the necessary assessment work had been done, all of which were essential to the validity of the location.

[Ed. Yote. For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, $ 50.] 2. SAVE-VALIDITY-- DESCRIPTIOX.

Where a notice of location of a loile claim failed to contain a description of the claim by reference to a natural object or permanent monument by which it could be identified, as required by Rev. St. U. S. $ 2321 [U. S. Comp. St. 1901, p. 1426), it was ineffective for any purpose.

[Ed. Xote.-For cases in point, see vol. 31, (ent. Dir. Jines and Minerals, $$ 45, 46.] 3. SAME - VALIDITY OF LOCATION -- RELOCATION.

Where plaintiff's alleged lode claims were mostly relocations of abandoned claims, and plaintiff failed to show actual possession prior to the commencement of the action, the doing of the requisite assessment work, or that there existed within the described boundaries of any of the claims a vein or deposit of ore sufficiently valuable to pay the cost of extraction or the cost of reduction, the claims were invalid.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Mines and Minerals, $ 63.] 4. SAME-VEIN WITHIS PLACER CLAIM-LO


Under Rev. St. U. S. $ 2:319 et seq. l'. S. Comp. St. 1901, p. 1-121] providing for the disposition of lode or vein mining claims and placer deposits, a vein known to exist within the boundaries of a placer claim at the date of an application for a patent, and not included in the application, may be located by an adverse claimant after the issuance of the patent. 5. SAME.

Rev. St. U. S. $ 2333 [U. S. Comp. St. 1901, p. 1433] provides that where a vein or lode is known to exist within the boundaries of a placer claim, an application for a patent for the placer claim which does not include an application for the vein or lode ciaim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim, but where the existence of the vein or lode is not known, a patent for the placer claim shall convey all the minerals within its boundaries. Ield, that a lode claim is known to exist within a placer location within such section when its existence is known to the placer claimant, when its existence is generally known, or when any examination of the ground, sufficient to enable the placer claimant to make oath that it is subject to location as such, would necessarily disclose the existence of the vein. 6. SAME-QUARTZ VEIN-VALUE.

a quartz vein which contains so small a portion of gold, silver, etc., as to be of no value for mining purposes. is not a known vein, within Rer. St. U. S. $ 2:333 TU. S. Comp. St. 1901, p. 1433) providing for the disposition of mining claims.

BETTY, C, J. This is an action to quiet plaintiff's alleged title to nine separate quartz mining claims or lode locations, described by their respective names and by reference to the notices of location recorded in the ollice of the recorder of Calaveras county. The complaint contains the allegations usual in such cases. The defendant, by his answer, denies that the plaintiff is, or ever was, owner, in possession, or entitled to the possession, of any of said claims, or of any interest therein. He admits that he claims an interest and estate in all the real property described in the complaint, but denies that his claim is without right. He alleges that for more than 10 years last past he and his grantors have been the owners, and in the actual possession, of two placer mining claims held under patent from the United States-the Carson Hill, containing 146.30 acres, patented on the 18th of October, 18991, anıl the Blue Mountain, containing 151.26 acres, patented February 1, 1898—and also a certain quartz mining claim. He further alleges that for more than 20 years he and his grantors have been the owners, and in the actual possession, of 480 acres of agricultural land, contiguous to the Carson Hill and Blue Mountain placer claims, which is also held under patents issued to his grantors by the United States. He alleges that he is informed and believes that the real property described in the complaint conflicts with said placer mining claims and agricultural patents. The action was commenced in December, 1902, and wils tried by the court without a j'iry in November, 1903. The court found that the plaintiff was not, and had never been, the owner, or entitled to the possession, of any part of the property described in his complaint, and that the defendant was the owner and entitled to the possession of all the property described in his answer. Judgment was entered accordingly in favor of the defendant for his costs. The appeal of plaintiff is from the judgment, and from an order denying a new trial.

Aside from one specification of error in the ruling of the court upon an objection to a question asked defendant on his cross-examination, the only point urged by appellant

in support of his appeal is that the findings and near these placer claims prior to the atare contrary to the evidence in this: that the tempted location of the Emerald in June, evidence showed a valid location of one of 1890. A notice of this claim was recorded his claims (the Emerald) prior to any ap- on the 18th of that month by one Kennedy plication for a patent for either of defend- in pursuance of a special act of the Legisant's placer claims, and because all of his lature applicable to Calaveras county, requirotlier claims, though located subsequent to ing all notices of mining locations to be rethe applications for the placer patents, were corded in the county recorder's office. St. of mineral veins known to exist by the placer 1875-76, p. 853, c. 562. But this notice was claimants prior to the date of their said ap- invalid under the act of Congress (Rev. St. plications, but not mentioned therein or in § 2324 [U. S. Comp. St. 1901, p. 1426]), for the patents, and which, therefore, remained the reason that it contained no description open to appropriation by any qualified loca- of the claim by reference to any natural tor. This question of the right to locate a object or permanent monument by wbich lode claim within the surface lines of a it might be identified. And, besides, if it patented placer claim has been very frilly had contained every essential requisite of a argued by counsel for the respective parties, location notice, the copy of the record would but it is extremely doubtful whether, in view have proved nothing except the bare fact of the evidence contained in the record, a that s'ich a notice had been recorded. It decision upon the point is necessary to a would not have proved that it was posted on final disposition of the case. For it does the claim, or that the location was so not appear that the first finding of the court marked on the ground that its boundaries to the effect that the plaintiff was not the could be readily traced, or that they included owner of any interest in any of the claims the apex of a lode, or any valuable mineral described in his complaint was based upon deposit in place, or that the necessary work the view that they were invalid only because had been done to keep the claim good. the attempted locations were within the Every one of these things, with the possible boundaries of the placer patents, and upon exception of the posting of the notice, was veins the existence of which was unknown

essential to the validity of the claim, but it at the time the patents were applied for. is difficult to find in the record any satisIt may be that the court deemed the evi

factory evidence upon a single point. Kendence offered by plaintiff insufficient to nedy was himself a witness, but he only establish the validity of any of his alleged testified that he had prospected "all these claims, irrespective of the objections based

claims and found gold-bearing quartz,” and upon their conflict with the placer patents. that when he was working on the Emerala As to the Emerald claim, the alleged loca- prior to the application for the placer pattion of which antedated the applications for ents, October 22, 1892, the defendant wouli patents, this must have been the ground of

come to his claim to inquire as to his the decision, as it may have been with

prospects and get him to pan out some dirt, respect to the others, and, therefore, we

and when he did so "allowed he had as have first to consider whether we should be

good a prospect as was on the hill.” This warranted in holding that the evidence was

is in substance the whole of his testimony such as to require a finding by the trial judge as to his own claim. One of the other witthat the Emerald, or any of the other alleged

nessses, Womble, testified generally that all claims, was valid in itself as a location, and of the claims in controversy that had been whether the plaintiff made satisfactory proof

located prior to 1891 (which would include the that he was, when he commenced this action, Emerald) were so marked by mounds that he even in the peaceable possession of any of and a surveyor had no difficulty in finding the ground in controversy. It appears from the corners of the claims. He also testithe evidence that the Carson Hill and Blue

fied that a man named Watson worked on Mountain placer claims are situated in what the Emerald in 1893, and that Kennedy sunk is known as the "Madane Felix Mining

a shaft on it in 1894. This is all the testiDistrict" in Calaveras county and not far mony I can find in the record bearing on from Copperopolis, where active mining has the validity of the Emerald claim, and it is been carried on for many years; that within clearly insufficient to show that it was of the limits and in the neighborhood of those any validity whatever at the commencement claims are numerous small veins or seams of this action. Aside from other objections of quartz carrying an extremely small per- there is no evidence that $100 worth of work centage of gold where not entirely barren. was done on the claim in any year after These little veins crop out at a number of its attempted location, and there is no eviplaces, and their existence has long been dence that any work has ever been done on generally known. It was shown that as

as it since the year 1894, or that either Kenlong ago as 1879 there were old prospecting nedy or the plaintiff was in actual possesshafts on some of these veins, which had re- sion of the claim or of any part of it when mained untouched from that date until the this action was commenced. date of the trial, from which it may be in- All the other claims of plaintiff are of a ferred that various lode claims had been date subsequent to the 221 of October, 1892, located, prospected, and abandoned within | when the placer patents were applied for.. The notices were recorded and purport to presumed that it was based upon this view, have been posted as follows: Santa Cruz in and we should be compelled to sustain it for July, 1893; Buena Vista in October, 1893; the reasons stated. And this finding fully Democrat in October, 1894; Dandy in Janu- supports the judgment of dismissal, and is iry, 1897; Cape Horn in January, 1899; Big unaffected by the ruling of the court restrictBonanza in January, 1900; Dead Men's Spring ing the cross-examination of the defendant in January, 1900; Duplex in January, 1900. above referred to. Several of these claims are relocations of old But if it were conceded that, as to one or and abandoned claims. The Democrat was

more of the eight claims of plaintiff atoriginally the Dead Cow, and by that name

tempted to be located subsequent to the appliivas prospected and abandoned, apparently,

cations of the placer patents, there was satisby the defendant prior to October, 1892. The

factory and uncontradicted evidence of full Dandy was formerly the Bald Eagle. The

compliance with the federal statutes and tape Horn was another of the defendant's

local regulations governing the location and old and abandoned locations. The Duplex

working of mining claims, this finding of uvas formerly the Opranso. There is no evi- the court would, even in that case, have ·lence of sufficient work to keep good a single abundant evidence to support it. The isne of these claims, and no evidence of ac

suance by the government of its patents for tual possession of any part of any of them by

the Carson Hill and Blue Mountain claims Plaintiff or a co-tenant at the commencement

to the grantors of defendant is conclusive of this action, and as to those located subseuent to 15994 there is no evidence of a proper

evidence in this proceeding that the land marking of the locations by visible monu

patented is placer ground, and that defend

ant, from the date of the applications for ments on the ground. There is no evidence of the existence within the described bound

patents, has been the owner of everything

within its surface boundaries excepting only iries of any of them of a vein or deposit of

such veins of ore or mineral deposits in ore of any practical value. Kennedy, it is true, testifies that he found gold-bearing place as were known to exist at the date quartz in all of them, but this would be

of such applications, subject of course to the true although none of the quartz carried

right of owners of exterior lode claims to

follow their veins on the dip under the surcold enough to pay the cost of extraction or the cost of reduction. On the other hand,

face. As to the agricultural lands described il witness for defendant, E. Boggs, a miner

in the answer, and which are held under and practical assayer, testifies that in 1888

homestead patents, defendant is the absolute or 1889 he spent 10 days prospecting in the

owner under a title long antedating the loneighborhood of the claim then owned by the

cation of any of plaintiff's claims, and, as defendant and called the Dead Cow (now

far as they may conflict with those lands, the Democrat) and could find no one that

there can be, and in fact is, no controversy. would assay $1 a ton—the best came from

The sole question, therefore, with respect to the Dead Cow and assayed only 80 cents.

those claims of plaintiff which are here asFrom the positive testimony of this witness,

sumed to have been regularly located and from the silence of plaintiff's witnesses as

perfected subsequent to the 22d of October, to the quality of the ore found in the small

1892, is whether there was uncontradicted veins of quartz appearing within the limits

evidence from which the court should have of the placer patents, from the failure to

found that they cover veins or mineral deprove assessment work on any of plaintiff's posits in place which, within the meaning of claims, and from the general agreement of

section 2333 of the Revised Statutes [U. S. :ll the testimony in the case that, although

Comp. St. 1901, p. 1433], were known to the ground covered by these claims lies with

exist at that date. in a short distance from a busy mining

The Revised Statutes of the United States amp, and has been prospected for more than (section 2319 et seq. [U. S. Comp. St. 1901. 30 years, during which time many claims p. 1421]) provide for the disposition alike of have been located and abandoned after the lodes or veins, and of placer deposits. The isual tests by the sinking of shafts, etc.,

price of lode claims is $5 per acre of the the court was entirely justified in concluding, surface while that of placer claims is only if it did so conclude, that there was no $2.50. It is therefore a fraud for a person vein or deposit of ore within any one of the cognizant of the existence of a vein of apclaims dsecribed in the complaint of suf- parent value to attempt to acquire the title ficient value or promise to justify its location by means of a placer location and patent. ils a lode claim, and, förther, to conclude It is accordingly provided by section 2333 that that the failure to prove that the work re- "where the same person, association, or corquired by the act of Congress had been done poration is in possession of a placer claim, on the claims was due to the fact that such and also a vein or lode included within the work had not been done and that the claims, boundaries thereof, application shall be made if ever valid, had been abandoned before for a patent for the placer claim with the the action was commenced. If the finding statement that it includes such vein or lode, of the court against plaintiff's claim of own- and in such case a patent shall issue for the orship had no other support, it would be placer claim, subject to the provisions of this chapter, including such rein or lode, upon Iron S. M. Co. v. Mike & Star Co., 143 U. S. the payment of five dollars per acre for such 403, 12 Sup. Ct. 513, 36 L. Ed. 201; Lindley vein or lode claim, and twenty-five feet of on Mines, $ 781 and cases cited. In this case surface on each side thereof. Thic reinainder it does appear that the Emerald, the Dead of the placer claim, or any placer claim not Cow (now the Democrat), the Cape Horn, embracing any vein or lode claim, shall be and perhaps other veins, were known to the paid for at the rate on two dollars and defendant several years before his grantors fifty cents per acre, together with all costs of applied for the placer patents. It is reaproceedings; and where a vein or lode, such sonably certain that their existence was, as is described in section twenty-three hun- prior to that date, generally known, and dred and twenty, is known to exist within the known to defendant's grantors. On this point boundaries of a placer claim, an application we think the plaintiff's (ase was clearly for a patent for such placer claim which proved, and without substantial conflict in does not include an application for the vein the testimony. But upon another point esor lode claim shall be construed as a con- sential to his case there was a failure of (Olusive declaration that the claimant of the proof. A quartz vein which contains SO placer claim has no right of possession of the small a percentage of gold, silver, et., as to vein or lode claim; but where the existence be of no value for mining purposes is not a of a vein or lode in a placer claim is not known vein within the meaning of the law, known a patent for the placer claim shall and whether it is of any practical value is convey all the valuable mineral and other de- always a question for the jury (or in the posits within the boundaries thereof." The absence of a jury for the court). Iron S. M. patents for the Carson IIill and Blue Moun- Co. v. Mike & Star, supra; Migeon v. Montain claims contain express reservations in tana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. conformity with these provisions, as follows: 150, and cases therein cited. In this case “(1) That the grant hereby made is restrict- there was not only a failure on the part of ed in its exterior limits to the boundaries of plaintiff to prove that any of the veins claimthe said mining premises, and to any veins

ed by him could ever be expected to pay the or lodes of quartz or other rock in place cost of extracting the ore, but there was, on bearing gold, silver, cinnabar, lead, tin, cop

the contrary, a preponderance of evidence per, or other valuable deposits, which may that, at the date of the application for the have been discovered within said limits sub- placer patents, they were generally regarded sequent to and which were not known to

as valueless, and have since proven to be so. exist on the 22d day of October, A. D. one

Upon this ground, therefore, if upon no thousand eight hundred and ninety-two. (2)

other, the finding against plaintiff's claim of That should any vein or lode of quartz or

ownership is clearly supported by the eviother rock in place bearing gold, silver, cinna

dence. bar, lead, tin, copper, or other valuable de- The questions asked by plaintiff's attorney posits be claimed or known to exist within

on cross-examination of defendant, to which the above-described premises at said last

objections were sustained by the court, were named date, the same is expressly excepted

clearly not proper as cross-examination, and and excluded from these presents." There

the ruling of the court was correct. The are other reservations in the patents, but

real complaint of the plaintiff respecting this they are immaterial to the present discus

matter seems to be that he was not allowed sion.

to make the defendant his own witness. The decisions of the Supreme Court of the

This the court had the right, in its discreUnited States and of other courts of high

tion, to allow or to refuse, and we think its disauthority, both state and federal, have set

cretion was not abused in refusing to hear furtled the construction of this provision of

ther evidence on the point to which the questhe Revised Statutes, and of these reserva

tions were directed. They related exclusivetions in placer patents as applied to a great 15 to defendant's knowledge of the existence variety of cases, and especially as they ap

of quartz veins within the boundaries of the ply to this case. A vein known to exist with

placer claims prior to the application for pat

ents, in the boundaries of a placer claim at the

That fact had already been satisfactodate of the application for patent, and not

rily shown, but was immaterial for two rea

sons: First, because it was not his know). included in the application, may be located by an adverse claimant after the issuance of

edge, but that of his grantors, and of the

miners generally, that was important; and, the patent, and a vein is known to exist with

second, because it had been shown that the in the meaning of the statute (1) when it is known to the placer claimant; (2) when its

veins were of no value, and not within the

meaning of the law. existence is generally known; (3) when any

The judgment and order of the superior examination of the ground sufficient to en

court are affirmed. able the placer claimant to make oath that it is subject to location, as such would neces- We concur: MCFARLAND, J.; HENsarily disclose the existence of the vein. SHAW, J.

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