Angus v. Craven (Cal.) 64 P. 1091.

Brown v. Whittington (Or.) 64 P. 649

Carpenter v. Cook (Cal.) 64 P. 997.
Cox v. Bernard (Or.) 64 P. 860.

Davis v. Hofer (Or.) 63 P. 56.

De Jarnatt v. Marquez (Cal.) 64 P. 1090.

George v. Nowlan (Or.) 64 P. 1.

Johnson v. Woodbury Trust Co. (Kan.) 64 P. 1030.

Feeney v. Hinckley, 64 P. 408; granted April 18, 1901.

Filipini v. Trobock, 62 P. 1066; granted Dec. 29, 1900.

Fresno Canal Co. v. McKenzie (Cal.) 65 P. 473; granted July 15, 1901.

Garner v. Judd (Cal.) 64 P. 1076; granted June 3. 1901.

Gibbs v. Tally, 63 P. 168. On rehearing, 65 P. 970.

Hallinan v. Hearst, 62 P. 1063. On rehearing, 66 P. 17.

Hamilton v. Hubbard (Cal.) 65 P. 321; granted June 28, 1901.

Howard v. Bryan, 62 P. 459. On rehearing, 65 P. 462.

Lathrope v. Flood, 63 P. 1007; granted March 22. 1901.

Liebbrandt v. Sorg (Cal.) 65 P. 318; granted June 28. 1901.

Levin, In re, 63 P. 335; granted Jan. 1, 1901.

65 P.

15, 1901.

People v. Wells, Fargo & Co., 64 P. 702; granted May 6, 1901.

Reis v. State, 59 P. 298. On rehearing, 65 P. 1102.

(25 Mont. 344)

BUTTE HARDWARE CO. v. FRANK et al. (Supreme Court of Montana. May 27, 1901.) MINES-PATENTS—JUDGMENTS-LIENS-UN

PATENTED CLAIMS-ABANDON

MENT-PLEADING.

1. An unpatented mining claim being real estate, a judgment lien attaches to it, under Code Civ. Proc. § 1197, declaring that from the time a judgment is docketed it becomes a lien on all real property of the judgment debtor.

2. A judgment lien on an unpatented mining claim is not lost by the transfer of the claim by the judgment debtor, on the ground that such transfer is an abandonment thereof, since the transfer of an unpatented claim does not amount to an abandonment.

3. Rev. St. U. S. § 2332, declares that nothing in the chapter of the Revised Statutes relative to the locating, holding, or procuring of titles to mining claims and to adverse claims, etc., shall be deemed to impair any lien which may have attached in any way to any mining claim prior to the issuance of the patent. Held, that a judgment creditor having a lien on an unpatented mining claim was not obliged to adverse the claim of the locator under the United States statutes providing for the filing of adverse claims against one seeking a patent for a mining claim on the public domain.

4. A complaint alleged that plaintiff had a docketed judgment against R., and that certain unpatented mining claims were conveyed by deed absolute from D. to R., who on the same day gave a quitclaim deed to F., and that the property was sold to plaintiff at judgment sale. F. was in the possession of the property at the time the quitclaim deed was made. Held, that there being neither an allegation that R. ever owned any of the property, nor that F. ever got any property or title from him, and there being an implication of doubt as to the title from R., owing to his having given a quitclaim deed to one in possession, the complaint, was insufficient to sustain a suit on the theory that the judgment sale of the land to plaintiff transferred to him title to the claims.

Pigott, J., dissenting.

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Suit by the Butte Hardware Company against Henry L. Frank and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

F. T. McBride and Bernard Noon, for appellant. Campbell & Parr, for respondents.

MILBURN, J. This case comes before this court upon the appeal of the plaintiff from a judgment entered after the sustaining 65 P.-1

of a demurrer to a complaint, the ground of said demurrer being that the pleading did not state facts sufficient to constitute a cause of action. The plaintiff abided his complaint, and a judgment was entered for the defendants. Appellant declares that the questions raised by respondents in the lower court are: First, "Does the lien of a judgment attach to an unpatented mining claim under the statutes of Montana, which provide that a judgment becomes a lien upon all the real property of the defendant from the time of the docketing thereof?" and, second, "If it does, is such a lien an adverse claim, within the meaning of the United States statutes providing for the filing of adverse claims in the land office against one seeking a patent for a mining claim on the public domain?" Counsel for the respondents in their brief declare that they do not consider either of the foregoing questions of importance in the case, and therefore refrain from discussing them. They hold that the question to be considered by this court is, "Does a judgment rendered against a locator or a holder of a possessory title to an unpatented mining claim attach to the government title, where the locator has only the right to purchase from the government of the United States upon certain conditions, where he has failed to exercise that right, and has abandoned the same by conveying his possessory right to another?”

The complaint sets up that the plantiff is a corporation organized under the laws of the state of Montana; that a judgment was duly procured and entered in the district court of Silver Bow county in favor of the plaintiff on September 6, 1890, in the sum of $922.02 with costs, against the firm of Gordon & Ritchie, composed of John A. Gordon and Frederick Ritchie, said judgment having been duly docketed on September 17, 1890; that on May 18, 1895, a writ of execution was issued and by the sheriff levied on certain lands described in the complaint. said lands being levied upon as the lands of the said Ritchie; that on the 10th day of June. 1895, the sheriff sold all right, title, and interest of the said defendant in said lands:

that the plaintiff was the highest bidder, and became the purchaser thereof; that a certificate of sale was executed and delivered by the sheriff to the plaintiff, and was duly recorded in the office of the clerk of Silver Bow county; that there was no redemption, and the sheriff executed and delivered to the plaintiff (it being still the owner of the said certificate) on July 30, 1896, a deed of conveyance of the premises in question; that said property consisted of an undivided onehalf interest in the John the Baptist lode, an undivided one-half interest in the Silver Moon lode, all of the Evangelist lode, all of the Mascot lode, all of the Copper Trust lode, and an undivided one-sixth interest in the Eddie lode, situate in said county; that after the docketing of the judgment one Paul A. Davis "conveyed by deed absolute to the defendant Frederick Ritchie the herein-described premises on May 21, 1891, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining"; that "thereafter, to wit, on the 21st day of May. 1891, the said defendant Frederick Ritchie conveyed by quitclaim deed all his right, title, and interest to the above-described premises to the defendant herein, Henry L. Frank"; that at the time of the purchase of said premises by the said Ritchie, and the transfer by him to Frank, the same were unpatented mining claims; "that thereafter, and while the lien of this plaintiff's judgment hereinbefore alleged was still a valid and subsisting lien upon said premises, the defendant herein, Henry L. Frank, secured patents from the United States government for said unpatented mining claims as follows, to wit: Evangelist, August 19, 1893; Mascot, August 19, 1893; John the Baptist, August 19, 1893; Silver Moon, December 21, 1893; Eddie, February 21, 1895; Copper Trust, August 19, 1893." The complaint further states that on October 23, 1896, the defendant Frank conveyed by quitclaim deed a certain interest in the Copper Trust claim (describing it) to the defendant John S. Clapp; that on the same day said Frank conveyed to F. H. Symons, by quitclaim deed, all his interest in and to a certain portion of the surface ground of the Copper Trust claim (describing it); that "the defendants herein, Henry L. Frank, John S. Clapp, and F. H. Symons, are, and have been at all times hereinbefore mentioned, in connection with the said defendants, in possession of and control of the heretofore described premises; that they claim the same adver ly, and withhold the same wrongfully and unlawfully and illegally from this plaintiff; that the said claims of the said defendants are adverse to the rights of this plaintiff, and operate as a cloud upon the title of plaintiff, which, unless removed and possession given to plaintiff, will in time ripen into title by adverse possession"; that plaintiff at all times "since the execution of the

said sheriff's deed to plaintiff on the 30th day of July, 1896, has been the sole and unconditional owner in fee simple of the said premises herein described, and entitled to the use, benefit, and enjoyment of the same, and that it has never parted with the same, or any portion thereof"; that the defendants claim title to said premises by reason of said patents secured by the defendant Henry L. Frank, and the conveyances of Frank to the defendants Clapp and Symons; that defendants further claim that plaintiff is forever barred and estopped from claiming or asserting any right, title, or interest in or to the said premises, by reason of its failure to file any adverse claim to the application of said Henry L. Frank for a patent to the premises at the time he secured the said patents; that plaintiff claims title to the said premises by reason of the sale and the execution of the sheriff's deed as aforesaid; that on May 21, 1891, said judgment became and was a lien upon said property; that the lien of its judgment was preserved by section 2332, Rev. St. U. S.; and that plaintiff was not required to assert an adverse claim against the alleged application of Frank for a patent. Plaintiff prays that the lien of said judgment may be adjudged and decreed as a valid and subsisting lien upon the property in controversy at the time of said sale, that the sheriff's deed be declared to have passed the title in fee to said premises, that plaintiff be declared the sole owner as against the said defendants, and that the claims of the defendants be declared to be void as to the plaintiff. Plaintiff further prays that it be awarded the possession of the premises free from all claims and demands of the defendants, or those claiming under them, and for further relief. The demurrer was submitted without argument.

The question of whether a judgment lien attaches to an unpatented mining claim is new to this jurisdiction, and is not devoid of difficulty. Section 1197 of the Code of Civil Procedure provides that, "immediately after filing the judgment roll, the clerk must make the proper entries of the judgment under appropriate heads, in the docket kept by 'him; and from the time the judgment is docketed it becomes a lien upon all real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterward acquire, until the lien ceases. The lien continues for six years, unless the judgment be previously satisfied." Is an unpatented mining claim real property of the owner? This question must be answered in the affirmative. There is no need to argue this point, as it seems to be settled by authority that unpatented mining claims are real estate. Robertson v. Smith, 1 Mont. 410; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Tibbitts v. Ah Tong, 4 Mont. 536, 2 Pac. 759. They are property, in the fullest sense of the word. They may