"And if said sum of fifteen thousand dollars shall not be paid on or before six months from date, the said Brandow shall be at liberty to commence proceedings for the foreclosure hereof, and for enforcing payment of the same against said mine, it being expressly understood that the said Brandow shall have recourse only against said mine in the event payment of said sum of fifteen thousand dollars is not made within the six months aforesaid."

This was accompanied by a deed from respondent to appellant, the description in which recites the granted property as "the first northern extension of Pocotillo, and being the same mine, located on the twenty-eighth day of December, A. D. 1868, by J. S. Reece, H. W. Dunham, J. T. Quigley, W. J. Quigley and P. Fitzpatrick, and by them recorded on the same day, in the mining records of said White Pine district, in book E, page 229."

This somewhat voluminous statement of fact and recital of evidence has been made, as it really comprises the whole case, and is of itself so nearly decisive that very little more need be said. Default occurring in the payment specified in the agreement, respondent filed his bill and claimed a foreclosure upon eighteen hundred feet of mining ground, one thousand north and eight hundred south, alleging that such was the Pocotillo mine. The answer denied, and averred that the mine referred to in the agreement was only the one thousand feet north; making, as will be seen, no controversy about the most northern two hundred feet.

It would seem that the position of the answer was so selfevident, that there could be no room for doubt. But respondent was admitted to testify, and swore that the Pocotillo mine "embraces eight hundred feet south of the Belmont monument (that referred to in the notice first recited), and one thousand feet north of the same monument. The defendant is in possession of all the said ground, and has been ever since about the fifteenth day of May, 1869. The Pocotillo company has done work on the mine; a portion of the work was done at the monument, and some work was done both north and south of the monument. The eight hundred feet and the one thousand feet comprise what is known as the Pocotillo mine."

Upon what theory this testimony was offered, or under what rule of evidence received, is difficult to imagine, and as difficult to perceive what possible bearing it has upon the case. If taken at all its possible weight, it is entirely in the present, and if so understood, of course could not affect the fact or intent of the parties at the date of the agreement. If it is to be construed as referring back to the date of the papers, then it simply proves an absurdity; for if appellant was at that time claiming the eight hundred feet south, it had no controversy with respondent. If it was claiming the eight hundred feet north, as in fact it was, then it had at that time no pretense of right to the southern ground, no business upon it, no authority to work it.

But upon the evidence no real conflict arises. The facts are plain, simple, coherent. The parties were disputing about the northern eight hundred feet; both claimed it; the agreement says that it was known as the Pocotillo mine, and about that ground and no other they litigated, compromised, agreed and conveyed. It is a legal impossibility that any other could have been intended, as there was none other in dispute, none other about which any agreement was necessary, or could have been sensibly framed upon the basis set forth in the instrument quoted. The matter is too clear for argument.

Let the decree of the district court be modified, as claimed by appellant, so as to include the north one thousand feet of what is now known as the Pocotillo mine, and no more. Decree modified.

PHILLPOTTS V. BLASDEL.

(8 Nevada, 61. Supreme Court, 1872.)

'Separate location on same lode-Conveyance of lode held under different names. Plaintiff derived title to the premises in controversy from D., to whom defendant had conveyed by deed containing the following description: "All that portion of the claim known as the Ward Beecher, commencing at the south side and east end of a long cut running easterly and westerly, generally known as the Ward Beecher Cut. Also all my right, title and interest in the Montrose, Colfax and Barris & Sproul lodes, lying south of a due east and west line drawn from the

1 Lebanon Co. v. Republican Co., 6 Colo. 372.

1

south side and east end of the above mentioned cut," etc. The plaintiff conceded that nothing was conveyed by the deed under the name Ward Beecher, on account of incurable defect in that portion of the description, but that the Colfax was the same as the Ward Beecher, and was sufficiently described to convey the premises; the defendant disputed the identity of the veins, but claimed that if the same, the Colfax location was a nullity, and nothing passed by a conveyance under that name. Held, that where two interfering claims have been made upon the same vein and are held by the same party, the deed of the one will convey the other to the extent of the ground covered by both locations, without regard to their being located and known by separate names, and if it can be ascertained what lode is intended to be conveyed, it makes no difference that it has been called by a name illegitimately acquired. Vein-Cross seam-Division of lodes. Where a spar seam is found crossing a deposit (considering the character of such seams in the district where Treasure Hill is situate as a matter of notoriety), it does not constitute a division between lodes, even where it is shown that the rock behind the spar seam contains but little ore.

'Naming lode. Placing upon a lode a notice of location headed "Colfax Lode" is to christen it with that name.

Location notice, where placed. In order to hold a ledge, it is not necessary that the notice should be placed on the ore or any part of the vein or lode. It is sufficient if the notice is placed in such reasonable proximity and relation to the ledge as, in connection with the work done under it, to give notice to all comers what ledge is intended.

Order granting new trial, when reversed. It is not enough to authorize the appellate court to reverse an order granting a new trial, that the evidence appears fully to support the verdict. It will only be reversed for the most cogent reasons.

Relocation-Conveyance. There is no law to prevent a party from relocating his own claim by a different name and, though he can not thus acquire any more ground, a conveyance by the latter name will be valid. Deed-Statute of uses-Party plaintiff in ejectment. A deed in which R. grants, bargains, sells, remises, releases, conveys and quitclaims the premises to P. for the use and benefit of the E. & A. M. Co: Held, to be a deed of bargain and sale, and that the legal title remained in P. because no use can be limited on a use, and when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a further use to another person is repugnant and therefore void; but though not a use which the statute can execute, yet still it is a trust in equity, which in conscience ought to be performed. Held, also, that P. rather than the E. & A. M. Co. was the proper party to bring ejectment for the premises conveyed.

Appeal from the District Court of the Eighth Judicial District, White Pine County.

The facts are stated in the opinion. A verdict having been

1 Sterens v. Williams, 1 M. R. 557.

2 Thompson v. Lee, 1 M. R. 611.

found in the court below for defendant, and plaintiff's motion for new trial having been granted, defendant appealed from the order.

CLARKE & LYON, for appellant.

I. The court below erred in granting a new trial on the ground of insufficiency of evidence. The question is here (as it was below), is the evidence sufficient in law? If there was some evidence to support the verdict, if there was a substantial conflict, then the new trial should have been denied: 4 Nev. 156, 304, 395. This rule is not changed by the fact that the judge trying the cause set aside the verdict. The intendments, which ordinarily lie in support of the verdict, are not reversed or otherwise disturbed by the adverse decision of the judge.

II. The new trial was granted because it was discovered there was no Colfax lode, and because the Colfax location notice was posted in reasonable proximity to the Ward Beecher lode. We submit, however, that the Ward Beecher claim, which was in fact upon a ledge, was not conveyed by the mere fact that the Colfax claim, which was supposed to be on a separate ledge, but which was in fact upon no ledge, was conveyed. The reasonable proximity of the notice to the ledge can only be considered as evidencing the intention of the locator to take the ledge in question. But the intention to take the Ward Beecher ledge by the Colfax location, is conclusively negatived by the circumstance that it recognizes the Ward Beecher location, and is parallel to it, and by the circumstance that the locators claim the discovery of a ledge.

III. The proofs show that the plaintiff held the ground in suit (if at all) as agent and trustee of the Eberhardt and Aurora Mining Company (Limited) of London, England. The legal title vested in that company, and the action should have been prosecuted in its name. The common law was adopted by the legislature of Nevada in 1861; and the statute of uses (27 Henry VIII), which was enacted before the emigration of the colonists to America, was adopted as a part of the common law: 4 Kent, 299; 1 N. H. 237; 3 N. H. 239; 4 Mass. 136; 6 Mass. 31; 3 Binney, 619; 10 John. 456, 505. Under the operation of the statute of uses we claim that Phillpotts, un

der the deed, was the trustee of an executed trust; that the legal estate conveyed to him was immediately vested by the statute in the cestui que trust, to wit: the Eberhardt and Aurora Company; and that therefore the action should have been brought in the name of that company.

IV. Blasdel's deed to Drake does not put the title out of Blasdel. As to the Ward Beecher, it is admittedly void for uncertainty. But the mention in the deed of the Ward Beecher excludes the idea that the Ward Beecher was intended to be conveyed under the name of Colfax; and if not intended to be conveyed as Colfax and not sufficiently described as Ward Beecher, how could the Ward Beecher ledge be conveyed in that deed?

V. The Ward Beecher location is oldest in time, and therefore first in right. It is on the ore channel or lode described in the proofs, and is the only ledge shown to exist. As there is but one lode, and that is the Ward Beecher, there can be no Colfax lode, unless the Ward Beecher is known by the name of Colfax, which is not shown nor attempted to be shown. The Ward Beecher lode can not pass by the name Colfax unless it was so known and intended. It was not so known and intended, therefore it did not pass.

VI. There can be but one valid location or perfect legal title to the same mining ground, claim or lode, within the same area. It follows, of necessity and conclusively, that if the Ward Beecher is a valid location, the Montrose, Colfax, and Barris & Sproul, if located on the same lode and within the same area by the same parties, are void. It follows, with equal certainty, that if (as admitted) the Ward Beecher location and title were perfect, no other title could be acquired to the Ward Beecher claim or lode, in virtue of the subsequent location of the Colfax, Montrose, or Barris & Sproul on the Ward Beecher lode as such. And as no legal title could be acquired by a second and void location on the same lode within the same area, a fortiori no valid title could be acquired to the Ward Beecher lode, previously located, by the subsequent location of supposititious or imaginary lodes within the same superficial area.

THOMAS WREN and F. W. COLE, for respondent.