Turner v. Sawyer

Statement by Mr. Justice BROWN:

This was a bill in equity filed by the appellee, Sawyer, against Robert Turner, George E. McClelland, and J. S. Allison, the purpose of which was to have the defendant Turner declared a trustee for the use of the plaintiff of an undivided five-eighths interest in what was known as the 'Wallace Lode,' which had been previously patented by the government to Turner, and to compel a conveyance of the same to the plaintiff.

The case was submitted upon an agreed statement of facts, which was substantially as follows: The Wallace lode, so called, was discovered and located by John Clark on September 20, 1878. On August 12, 1882, Clark conveyed an undivided three-fourths of this lode to Amos Sawyer and Marcus Finch. On May 1, 1882, Clark conveyed the other one-fourth interest to William Hunter, but the deed was never recorded, the partties supposing it to be lost; and on October 25th he made another deed to Hunter, which contained a recital that it was made to supply the place. of the other. On October 26, 1882, Amos Sawyer and Marcus Finch reconveyed the undivided one-half of the lode to John Clark. On January 8, 1883, Marcus Finch conveyed an undivided one-eighth to Alice E. Finch. On March 16, 1883, Clark and Hunter conveyed three-fourths of the Wallace lode to Amos Sawyer and John S. Sanderson.

At this time, then, the lode was owned as follows: Amos Sawyer, one-half, or four-eighths; John S. Sanderson, three-eighths; Alice E. Finch, one-eighth.

It so remained from March 16, 1883, to January 12, 1885, when Amos Sawyer assumed to convey his undivided one-half interest to Alfred A. K. Sawyer, who also became possessed of the one-eighth interest of Alice E. Finch, November 3, 1886.

The controversy arose over a lien filed August 14, 1883, by one John F. Teal for annual labor done upon the lode at the request of John S. Sanderson and Amos Sawyer. Teal claimed a lien for the sum of $148.10, and filed notice thereof in the recorder's office of Clear Creek county. One Charles Christianson also filed a similar notice, claiming a lien for $227.95. On January 12, 1884, Teal instituted a suit in the county court of Clear Creek county to enforce his lien, and made John S. Sanderson, Marcus Finch, P. F. Smith, and _____ Sawyer defendants, as the owners thereof. There was no service upon Sawyer, and he was not in court. On June 2, 1884, Teal proceeded to sell the interest of John S. Sanderson, Marcus Finch, and P. F. Smith to pay the amount of his decree, at which sale A. K. White became the purchaser, took his certificate of purchase from the sheriff, and sold and assigned it to Turner, who obtained a sheriff's deed on March 3, 1885. This deed purported to convey the whole Wallance lode. Christianson instituted a suit against the same defendants as in the Teal suit, which was pending at the time, to enforce his lien against the same.

On April 24, 1885, Turner, who had done the annual labor on the claim for the year 1884, before he obtained a sheriff's deed, published a forfeiture notice against the appellee, Sawyer, under Rev. St. § 2324, but no forfeiture notice was published against Alice E. Finch, who still owned an undivided one-eighth of the lode, nor against Amos Sawyer, who owned one-half of the lode during the year 1884, and until January 12, 1885, as above stated. Appellant Turner declined an offer made January 18, 1885, to pay five-eighths of the $100 for the annual labor of 1884 on behalf of Alice E. Finch and Amos Sawyer, on the ground that the records showed only Sanderson and Sawyer as having any remaining interest. On October 27, 1885, Turner filed in the office of the clerk and recorder of Clear Creek county an affidavit that Alfred A. K. Sawyer, the appellee, had wholly failed to comply with the demands contained in the forfeiture notice. Subsequently, and about November 1st, Turner instituted proceedings in the United States land office at Central City, Colo., for the purpose of procuring a patent for the lode in his own name, and on April 13, 1886, a receiver's receipt was issued to him by the receiver of the land office, acknowledging payment in full for the entire lode; and on April 20th he conveyed an undivided one-fourth interest to George E. McClelland, by deed recorded December 6, 1886, and another undivided one-quarter to J. S. Allison, by deed recorded May 19, 1886.

On March 17, 1887, the appellee, Sawyer, filed this bill, charging the patent to have been procured by the appellant Turner by false and fraudulent representations as to ownership, and praying that the title to an undivided five-eighths of the lode be deemed to belong to the appellee, and that Turner convey the same to him.

Upon the hearing in the court below it was found that at the time Turner applied for the patent and received the receipt therefor, he was not the legal owner of an undivided five-eighths of such lode, and it was decreed that he convey the same to the appellee, Sawyer, and the other defendants were enjoined from interfering.

From this decree an appeal was taken to this court by Turner and McClelland.

L. C. Rockwell, for appellants.

[Argument of Counsel from pages 581-583 intentionally omitted]

Edward Lane and F. D. McKenney, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.