The respondents claim that the allegation of the complaint respecting the amount of the work performed by the appellant on the property is ambiguous, but we think that it should be deemed an averment that the appellant performed his part of the conditions of the contract of copartnership. When this allegation is controverted by the respondents, the appellant must establish on the trial "the facts showing such performance. Civ. Pr. Act, § 68. Therefore the examination of one question will enable us to determine this appeal. If the contract of copartnership is valid we are of the opinion that the complaint contains the allegations that are necessary to empower the court to enter a decree requiring the respondents to convey to the appellant his interest in the property in controversy. Is this contract within the Statute of Frauds of this Territory? The following sections of the act relating to conveyances and contracts are pertinent to this inquiry:

"No estate or interest in lands other than for leases for a term not exceeding one year, or any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing." Cod. Sts. 393, § 6. "The term 'lands,' as used in this act, shall be construed as co-extensive in meaning with land, tenements, hereditaments and possessory land claims to public lands; and the terms'estate' and interest' in lands shall be construed to embrace every estate and interest, present and future, vested and contingent, in lands as above defined." Cod. Sts. 394, § 22; 389, § 1.

It does not appear that the respondents have acquired the title of the United States to the property. Their interest in the lode may be lost or forfeited by abandonment, or a failure to comply with the laws of the mining district, the Territory or the United States. Counsel for both parties concede, what we consider a sound proposition, that the lode in dispute is real estate. Melton v. Lambard, 51 Cal. 258. We must apply to the contract set forth in the complaint the legal principles that govern copartnerships for the purchase and improvement of real property.

A partnership may be formed without any written articles between the parties. "After some question it seems to be settled that there may be a partnership for the buying and selling of land." Pars. on Part., 37, n. f. According to the weight of the authorities, which are conflicting upon the question, the contracts of such a partnership need not be reduced to writing to make it valid. Pars. on Part., 7, n. d. We do not intend to review the cases in which this subject has been examined, but will refer to a number of the most recent decisions which we have read.

The Supreme Court of Indiana holds, in Holmes v. McCray, 51 Ind. 358, that a parol agreement for a partnership for the purpose of dealing in lands is not within the Statute of Frauds. Chief Justice Biddle, in the opinion, says: "As between the partnership and its vendors or vendees in the sale or purchase of lands, the statute in all cases would operate; but as between the partners themselves, when they are neither vendors nor vendees of one another, we can not see how the statute can affect their agreements."

In New York, the same views are announced in Chester v. Dickerson, 54 N. Y. 1, and Fairchild v. Fairchild, 64 Id. 471. Chief Justice Wade in his concurring opinion quotes from the opinion of the court in Chester v. Dickerson, supra, and this reference is therefore sufficient. The same matter is considered in Traphagen v. Burt, 67 N. Y. 30, and the court comments on the case of Levy v. Brush, 45 Id. 589, which is relied on by the respondents, and says: "In the case cited (Levy v. Bush, supra), the plaintiff had done no act of performance, advanced no money, nor parted with anything under the contract, nor had the land been accepted, possessed and treated as joint property, nor improvements made upon the same accordingly, and the contract regarded as carried into effect. * Where a party has partly performed or parted with valuable property upon the faith of the contract, equity will not allow another party to retain property obtained upon the faith of a verbal contract to consummate a fraud by retaining the property and refusing to perform the contract."

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These rules have been applied to the settlement of questions arising concerning quartz lodes. The case of Murley

v. Ennis, 2 Col. 300, is directly in point. Mr. Justice Wells says in the opinion: "If two or more go into the public domain together to search and explore for mines, with the agreement to occupy and develop such discoveries as may be made for the joint benefit, and such discovery, development and joint occupation follow, it is clear that, while each explorer becomes invested with his due share and estate in the premises, no provision of the Statute of Frauds is violated. Such contract of association is merely the creation of an agency in each of those contracting, and is no more a violation of law than a contract of partnership or association in any lawful calling."

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In Welland v. Huber, 8 Nev. 203, three persons and Huber, in December, 1871, entered into a verbal agreement to prospect for and locate mines. All the parties were to be equal owners. In 1872 Huber located the Huber lode, 1,000 feet in length, and recorded in the name of each partner 20) feet and in his own name 400 feet. In the decision Mr Justice Belknap says: "If Huber located the 400 feet in his own name in pursuance of the alleged partnership, he did so under an implied promise to convey to the complainants their interest in it upon request. The complainants at once acquired a right to a specific performance, and that right could be enforced in equity without a previous request."

In Gore v. McBrayer, 18 Cal. 582, Gore, McBrayer and others verbally agreed to prospect for quartz. The court held that the Statute of Frauds, which requires an instrument in writing to create an interest in land, does not apply to the taking up of mining claims, and that a writing is not necessary to vest or divest title on locating mines. In Settembre v. Putnam, 30 Cal. 490, it is decided that, if mining partners, under a verbal agreement, claim and develop a lode upon the land of another, and authorize one of their number to buy the same for the benefit of all, and he procures a deed in h's own name, he holds the legal title of the interests of his partners in trust for them.

After examining these cases we conclude that the contract of copartnership made by the appellant and respondents is valid and can be enforced. The name of the property in controversy, which may be called the Silver Girdle lode, or

the Burlington lode, is immaterial. It was acquired and developed by the labor of the appellant and respondents under the contract, and is the property of the parties to this action. The transaction between the respondents and Young and Rouderbush, by which the same estate under another name was conveyed to the respondents, does not affect the rights of the appellant to his interest. The legal title is vested in the respondents, but equity will treat them as trustees for all the partners: Fairchild v. Fairchild, supra; Pars. on Part., 363; Story on Part., § 92; Bainbridge on Mines (3d Ed.), 395; Dupuy v. Leavenworth, 17 Cal. 262; Miller v. Ball,

64 N. Y. 286.

The demurrer to the complaint should have been overruled.

WADE, C. J., concurring.

The question presented by this record is, whether or not if two or more persons enter into a verbal agreement of copartnership in the b siness of prospecting for and discovering quartz c'aims, and when discovered, to acquire title thereto for the mutual benefit of the copartners, such contract, not being in writing, is within the Statute of Frauds and void.

Congress has granted to the citizens of the United States, and to those who have declared their intention to become such, the privilege of entering upon and exploring the public domain, for the purpose of discovering valuable mineral deposits therein. The business, therefore, of searching or prospecting for quartz lodes or placers, is entirely legitimate, largely engaged in in this Territory, and may be conducted either individually or in partnership. All kinds of property may be held in partnership. Quartz claims, by our statute, are made real estate, and there can be no question that it is entirely legitimate for parties to enter into a partnership for the purpose of trading, dealing and speculating in real estate: Clagett v. Kilbourne, 1 Black, 346; Fall River W. Co. v. Borden, 10 Cush. 458; Pars. on Part., 37; 3 Kent, 24, 28. The inquiry before us, however, has to do with the proposition as to how the existence of such a partnership shall be evidenced and established. Our statute has been cited by Mr. Justice Blake, ante, 516.

Did this verbal agreement of copartnership create, grant or

declare any interest in real estate at the time it was entered into? Evidently not, for, at that time, as to this copartnership, there was no real estate in existence; neither of the partners then owned or had any interest in a quartz claim; such claim was yet to be searched for and found. There was nothing upon which the agreement could operate. It created and declared the title to nothing at all. A quartz claim is not real estate until discovered and located, and a verbal agreement concerning an undiscovered and unknown claim is not and can not be an agreement creating or disposing of an interest in real estate, and if not, such agreement is not within the statute. This agreement contemplated that the parties would search for and find quartz claims, and when found, that they would comply with the provisions of the act of Congress, whereby title could be acquired. But the agreement in and of itself did not create or declare a title to any property whatever. If by this agreement the parties had attempted to make a parol or verbal conveyance of land, or any interest therein, they would have utterly failed, for at the time the agreement was made they had no lands to convey. Evidently, then, it was not the object or purpose of this agreement to create, grant or declare any interest in real estate. How are the titles to quartz claims acquired, created or declared? First, a valuable mineral deposit must be found; second, it must be distinctly marked and located; third, $500 worth of work must have been performed upon the claim before a patent can be granted; fourth, after finding the lead, locating it, and performing the necessary amount of labor, an application may be filed in the local land office for a patent, and after publication of notice for sixty days, as the law requires, and no adverse claim being interposed, a patent may issue. But at the time of this agreement none of these things had been accomplished, no lead had been found, and it seems, therefore, reasonable to follow that the agreement did not attempt to create, grant, assign or declare any interest in real estate, and is not within the Statute of Frands.

We think the following authorities conclusively determine the proposition that a partnership may exist in reference to acquiring title to the sale and ownership of real estate, and that such partnership may be created by parol agreement.