
    267 F. 753
    TUPPELA v. CHICHAGOFF MINING CO.
    No. 3474.
    Circuit Court of Appeals, Ninth Circuit.
    July 6, 1920.
    Rehearing Denied Sept. 7, 1920.
    
      John H. Cobb and John R. Winn, both of Juneau, Alaska, for appellant.
    Overton G. Ellis and Robert E. Evans, both of Tacoma, Wash., and H. L. Faulkner, of Juneau, Alaska, for appellee.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   ROSS, Circuit Judge

(after stating the facts as above).

For a number of reasons we are of the opinion that upon the record it is impossible to sustain the decree appealed from, first, because the attempted sale and purchase of the complainant’s property under and by virtue of the guardianship proceedings was wholly null and void. Chapter 79 of the Compiled Laws of the Territory of Alaska (1913) contains certain general provisions respecting the administration of estates, among which is section 1595, which is in part as follows:

“The commissioners appointed in pursuance of this act and other laws of the United States have jurisdiction within their respective precincts, subject to the supervision of the district judge, in all testamentary and probate matters;' that is—

“First. To take proof of wills.

“Second. To grant and revoke letters testamentary, of administration, and of guardianship.

“Third. To direct and control the conduct and settle the accounts of executors, administrators, and guardians. * * *

“Seventh. To take the care and custody of the person and estate of a lunatic or habitual drunkard and to appoint and remove guardians therefor; to direct and control the conduct of such guardians and to settle their accounts * * * »

Sections 1596 and 1597 of the same chapter are as follows :

“Sec. 1596. There are no particular pleadings or forms thereof in proceedings before commissioners when exercising the jurisdiction of probate matters, as specified in the section last preceding, other than as provided in this chapter.

“Sec. 1597. The mode of proceeding is in the nature of a suit in equity as distinguished from an action at law. The proceedings are in writing, and are had upon the application of a party or the order of the court. The court exercises its .powers by means of—

“First. A citation to the party;

“Second. An affidavit or the verified petition or statement of a party;

“Third. A subpoena to a witness ;

“Fourth. Orders, judgments, and decrees;

“Fifth.- An execution of warrant to enforce them.”

In chapter 88 of the same Laws, under the title “Of Guardians and Wards,” is section 1720, which reads as follows: “The commissioner for each precinct, when it .shall appear to him necessary or convenient, may appoint guardians to minors and others being inhabitants or residents in such precinct, and also such as shall reside without the district and have any estate within the same.”

The section last quoted is the same as section 888 of Carter’s Ann.Code Civ.Proc., upon which the decision of this court in the case of Martin et al. v. White, 146 F. 461, 76 C.C.A. 671, was largely based.

By section 1723 of chapter 88 every such guardian is required to give bond, with surety or sureties, to the United States, in such sum as the commissioner may order, with certain specified conditions, including the requirement that he should make a true inventory of all of the real and personal property of the ward that should come to his possession or knowledge, and return the same to the commissioner within a stated time, and should dispose of and manage all of such estate according to law and the best interests of the ward, and should render an account under oath of all such property, and of his management and disposition thereof, within a prescribed time, and at the expiration of his trust should settle his accounts with the commissioner and pay over the amounts remaining in his hands to the person or persons adjudged entitled thereto.

By section 1734 it is provided that every guardián appointed under the provisions of chapter 88 shall pay all just debts due from his ward out of his personal estate if sufficient, and, if not, then out of his real estate, upon obtaining a license for the sale thereof as provided by law; and, by the next section, that, in the event the income and •profits from the estate of the ward be insufficient for his comfortable and suitable maintenance ánd that of his family, the guardian may sell the real estate upon obtaining a license .therefor, as provided by law.

By section 1755 it is declared that — “In order to obtain a license for such sale the guardian shall present to the commissioner of the precinct in which he was appointed guardian a petition therefor, setting forth the condition of the estate of his ward and the facts and circumstances under which it is founded, tending- to show the necessity or expediency of such a sale which petition shall be verified by the oath of the petitioner.”

Sections 1756, 1757, 1758, 1760, and 1761 are as follows :

“Sec. 1756.- If it shall appear to the commissioner from such petition that it is necessary or would be beneficial to the ward that such real estate or some part of it should be sold, he shall thereupon make an order directing the next of kin of the ward and all persons interested in the estate to appear before him at a time and place to be therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate.

“Sec. 1757. A copy of such order shall be personally served on the next of kin of such ward, and on all persons .interested in the estate, at least ten days before' the hearing of the petition, or shall be published at least three .successive weeks in a newspaper circulating in the district, to be specified by the commissioner.

“Sec. 1758. No such license shall be granted for the sale of any real estate of a ward, excepting that of a minor, unless the commissioner of the precinct of which the ward is an inhabitant shall certify in writing his approbation of the proposed sale.”

“See. 1760. Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath before the commissioner or some other officer competent to administer the,same, in substance as follows: That in disposing of the estate which he is licensed to sell he will use his best judgment in fixing the time and place of sale, and that he will exert his utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested therein.

“Sec. 1761. He shall also give public notice of the time and place of sale and shall proceed therein in like manner as is prescribed for executors and administrators; and the evidence of giving such notice may be perpetuated in the same manner and with the same effect as is provided in the case of sales of real estate by executors and administrators.”

That the court of the commissioner is one of limited jurisdiction, and a compliance with the requirements of the statute is essential to vest any jurisdiction in it, was expressly held by this court in the similar case of Martin et al. v. White, supra, decided June 20, 1906. See the numerous authorities there referred to, which it is unnecessary to again cite.

In principle, an apt illustration will be found in the decision of the Supreme Court of California in 1882, in the case of Stevenson v. Superior Court of City and County of San Francisco, 62 Cal. 60, where the question was whether the court in which was had administration upon the estate of a man supposed to have been dead, but who subsequently and after the administration had been closed appeared and moved the entry of an order vacating and annulling the proceedings, rightly granted the motion and entered the - order. In sustaining that action of the trial court the Supreme Court of the state held that while it is true that the court of probate, before issuing letters of administration, must first determine affirmatively • the question of death, the subsequent showing of the fact that the man was all along alive established the nullity of the entire proceedings because of the lack of the essential “subject-matter” for the jurisdiction of any court; citing among other cases that of Griffith v. Frazier, 8 Cranch, 23, 3 L.Ed. 471, where Chief Justice Marshall said: “Suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision' of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. And although one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.”

Mr. Justice McKee in his concurring opinion in Stevenson v. Superior Court, after making reference to a number of decisions not mentioned in the principal opinion, continued on page 65 of 62 Cal.: “I know of no case opposed to the doctrine of those cases except it be the case of Roderigas v. East River Savings Institution, 63 N.Y. 460. In that case the Supreme Court of New York held that money paid to the administrator of a supposed decedent could not be recovered back although it appeared that at the time of issuing the letters of administration the party was not dead. But in Lavin v. The Emigrant Industrial Savings Bank, 18 Blatch. 1, in the Circuit Court of the United States for the state of New York, it was decided that that case had no support elsewhere in the authorities of the English or American courts. A living person, says the court, cannot be concluded by a surrogate’s decision that. he is dead. As to him, such a decree is absolutely void, and he may claim his property as taken from him ‘without due process of law.’ ”

Applying the law as declared by this court in the case of Martin et al. v. White, supra, and in the other cases above referred to, the essential point of all of which is that there must be a subject-matter for the exercise of jurisdiction, and a substantial compliance with the provisions of the statute in order to deprive any one of his property by virtue of it, we think it perfectly clear that the proceedings under which Mills, as guardian of the appellant, Tuppela, undertook to sell and convey his interest in the Over the Hill, Rising Sun, Pacific, Golden West, and Porphyry claims, were absolutely void. As to the one last mentioned, the petition did not even ask for its sale or make any reference to it.

As has been shown, section 1597 of the Code of Alaska expressly requires the petition for the appointment of a guardian to be verified and all of the proceedings to be in writing.

Turning to the record, it is seen that the fundamental step in those proceedings — the petition for the appointment of a guardian — lacked the essential verification required by the statute. Furthermore, the record shows that the only attempt of the petitioner to comply with one of the first requirements of the statute authorizing the court to exercise the power conferred upon it, to wit, the giving of “a citation to the party,” was the following:

“In the Matter of the Appointment of a Guardian for John Tuppela, an Insane Person—Notice of Hearing.

“The petition of A. G. Shoup, guardian ad litem for said John Tuppela, an insane person, having been heretofore filed in this court, notice is hereby given that hearing will be had in the said matter in the office of the commissioner at Sitka, Alaska, at the hour of ten o’clock in the forenoon of the 24th day of June, 1914.

“Dated at Sitka, Alaska, this 13th day of June, 1914.

“[Signed] R. W. De Armond, Commissioner and Ex Officio Probate Judge.”

It is true that on the trial it was admitted that the appellant was duly and regularly adjudged insane on the 4th day of June, 1914, by the same commissioner, and that at the time of the application for the appointment of a guardian of his estate he was confined in the Morning-side Hospital .for the Insane at the city of Portland, state of Oregon. But we think it is too plain for argument that those facts have no bearing whatever upon the question as to the lack of the essential verification of the petition for the appointment of a guardian of his estate.

Moreover, while the statute does not in terms provide for notice of the petition, the proceedings are, as said by the Supreme Court of Indiana in the case of Martin v. Motsinger, 130 Ind. 555, 558, 30 N.E. 523, 524, cited with approval by this court in Martin v. White, 146 F. 466, 76 C.C.A. 676, of “such a character that they cannot be ex parte and be valid. If the statute was to be construed as authorizing proceedings of an ex parte character, it would be, to that extent, in conflict with the Constitution of the United States and void.”

It is not pretended that prior to the making of the order appointing Mills guardian of the appellant, or prior to the making by him of the attempted sale in question, nor, indeed, prior to November 15, 1919 (more than five months after the commencement of the present suit), was there any order of record, or any order even in writing directing the service upon the appellant, or upon any one else, of notice of the application for the appointment of Mills as such guardian. But the record shows that on the day last mentioned, to wit, November 15, 1919, the commissioner entered an order as of date June 13, 19Í4, directing that notice of the hearing of the application for the appointment of a guardian of the estate of appellant “be given by posting three copies of notice of hearing, signed by said commissioner and ex officio probate judge, in three conspicuous places in the town of Sitka, for a period of 10 consecutive days next prior to said date of hearing,” to wit, June 24, 1914, at 10 a. m., at the office of the commissioner and ex officio probate judge in Sitka. But since that nunc pro tunc order shows upon its face, and, indeed, embodies an express finding of fact to the effect that the order directing the service of such notice was an oral order, which the statute, as has been shown, expressly required to be in writing, nothing more need be said to show that it was wholly ineffectual to remedy a second fatal defect existing in the first and fundamental step in the proceedings in question.

Other fatal defects in those proceedings, may be briefly referred to. They are a failure to show a compliance with the provisions of section 1756 of the statute, which, as has been seen, provides that should it appear from the petition that it is necessary or would be beneficial to sell the whole or part of the real estate of the ward, the commissioner, by an order, should direct the next of kin and all persons interested in the estate to appear before him at a specified time and place, not less than four nor more than eight weeks from the time of making the order, to show cause why a license for such sale should not be granted; with the provision of section 1757, requiring such order to be personally served on the next of kin and all persons interested at least 10 days before the hearing of the petition, or published in a prescribed way; with the provision of section 1758, expressly declaring that no such license shall be granted unless the commissioner shall certify in writing his approbation of the proposed sale; with the provision of section 1760, declaring that the guardian before fixing the time and place of sale shall take and subscribe an oath in substance that he will use his best judgment in fixing the time and place of sale, and will exert his utmost endeavors to dispose of the property to the best advantage of all persons interested; and with the provision of section 1761, declaring that he shall give public notice of the time and place of sale, and proceed otherwise as is prescribed for executors and administrators.

It cannot be doubted that the appellant was at least one of the persons interested in his own estate. The suggestion that because he was then insane no benefit to him could result from giving him notice is well answered by the Supreme Judicial Court of Massachusetts in the case of Allis v. Morton and another, 4 Gray’s Rep. 63, 64, where that court said: “To say one is insane, and therefore need not be notified, is to decide the question before it is tried. Nor would the existence of insanity be a good reason for dispensing with the notice. A man may be insane so as to be a fit subject for guardianship, and yet have a sensible opinion and strong feeling upon the question who that guardian shall be. And that opinion and feeling it would be the duty as well as the pleasure of the court anxiously to consult as the happiness of the ward and his restoration to health might depend upon it. But if the party is wholly demented, yet there are always friends interested in the question, and whom the notice might reach; and the very fact of his incapacity to take care of himself furnishes a sound reason for caution and publicity in all the steps taken.”

The appellee having by its answer disclaimed any interest in both the Porphyry and Golden West claims, it is only necessary to inquire into the proof regarding the interest of the appellant in the Pacific, Rising Sun, and Over the Hill claims.

The evidence shows without conflict that the Pacific claim was located by one Hanlon October 24, 1907, who thereafter, and prior to February 12, 1913, conveyed an undivided one-half thereof to the appellant, and on the day last mentioned conveyed the other undivided one-half to the appellee, leaving the appellant and the appellee the owners in equal parts of the whole of that claim.

The evidence also shows without conflict that the Rising Sun claim was located by the appellant July 22, 1910, and that he performed the assessment work thereon for the years 1911, 1912, and 1913, an undivided one-half of which claim Mills undertook as guardian to sell and convey to the appellee by his deed of October 16, 1915, as part of the void proceedings above referred to.

The ninth finding of fact made by the court respecting that claim is as follows: “That the Rising Sun lode mining claim was discovered, staked, and located by the plaintiff, John Tuppela, on July 22, 1910, and location notice in the sole name of John Tuppela was duly filed and recorded according to law, and the said John Tuppela was the sole owner of said claim until October 16, 1915; and that he now is the owner of an undivided one-half interest in said Rising Sun claim, which said one-half interest was not embraced in the property conveyed by said guardian.”

The conclusion of law drawn by the court based upon its findings of fact (hereinafter more specifically referred to) is as follows: “That plaintiff has no right, title, or interest in or to any of the claims named in said complaint save and except an undivided one-half interest in the claim known as the Rising Sun, which said half interest was not involved in this case, and is not entitled to any equitable relief, and that the complaint be dismissed, with costs.”

It therefore appears that the court itself found the fact to be that the plaintiff was the owner of the entire interest in the Rising Sun claim if the attempted conveyance by the guardian of the undivided half thereof to the appellee company was void and of no effect. Erroneously holding it valid, the court drew the further erroneous conclusion that the other undivided half of the claim was not involved in the suit.

Regarding the remaining claim — the Over the Hill — it is undisputed that it was located March 26, 1906, in the name of H. A. Bauer; but it was and is contended by the appellant that the location was made under and in pursuance of what is commonly known among miners as a “grubstake” agreement for the equal benefit of Bauer, W. R. Hanlon, Charles Peterson, and the appellant, Tuppela. The record shows the notice of location to have been signed thus:

“Locators:

“H. A. Bauer,

“Per agent, Wm. R. Hanlon.

“Wm. R. Hanlon,

“Agent for H. A. Bauer.

“Witnesses:

“Chas. Peterson.”

Evidence having been given on that controverted question, the trial court submitted to a jury four certain issues of fact bearing on it, which, together with the answers of the jury thereto, are as follows:

“Question No. 1: Did Tuppela have a meeting with Bauer and Hanlon on the steamer ‘Cottage City’ in the fall or winter of 1905, as testified to by him and denied by Bauer and Hanlon?

“Answer: Yes.

“Question No. 2: What, if anything, was said or done by Bauer at that meeting, or in Bauer’s presence, which would lead a reasonable man to believe that Tuppela was to have any particular, i. e., specific interest in what might be located?

“Answer: Grubstake understanding arrived at.

“Question No. 3: What interest was Tuppela to have in mining claims located pursuant to the terms agreed upon at such meeting?

“Answer: Unable to answer.

“Question No. 4: Did Tuppela, pursuant to such terms, assist in the discovery and location of the Over the Hill claim ?

“Answer: Yes.

“(Be sure to answer question No. 1, but, if you answer' question No. 1 in the negative, you need not. answer questions Nos. 2, 3, or 4.)

“T. E. P. Keegan, Foreman.”

The verdict of the jury upon the issues submitted to it does not appear from the record to have been expressly set aside, but was disregarded, and the facts found to be otherwise in the following subsequent and further findings of fact made and filed by the court:

“III. That thereafter (to wit after appellee’s attempted purchase from the guardian), learning that H. A. Bauer claimed to own the mining claim known as the Over the Hill, defendant, for .a valuable consideration, obtained the said Bauer’s title, or supposed title, as hereinafter stated, and thereafter, believing it had acquired all adverse interests, or supposed adverse interests, duly and regularly applied for, and on January 3, 1919, obtained, a patent from the United States for the said Over the Hill claim. Said Bauer’s title to said claim was as set forth in finding IV immediately succeeding.

“IV. That in the winter of 1905-1906 one W. R. Hanlon was employed by the said H. A. Bauer to prospect for, discover, and locate lode mining claims for, and in the name of, said Bauer, said Bauer undertaking to pay the wages of said Hanlon and his necessary assistants to be selected by Hanlon and all other costs and expenses of said undertaking; that, in pursuance of said employment, the mining claim ^called the Over the Hill was duly discovered and located by the said Hanlon. for and in the name of said Bauer, and the location notice of said claim was duly and regularly recorded; the ground embraced in said Over the Hill claim is substantially the same mining ground as that embraced in the Sea Foam, which had been previously discovered, staked, located, and recorded by the said Hanlon for and in the name of one Bernard Hirst, who had abandoned the same; that there was no agreement of any kind by which plaintiff, or any one except Bauer, was to have any interest in, or aliquot part of, said Over the Hill claim, and that as a matter of fact plaintiff never did have any interest whatsoever in or to said claim, but that he, nevertheless, claimed to have an interest therein; that said mining claim was of a purely speculative value, and said Bauer, being a mining promoter and desiring to promote a corporation' for the purpose of placing upon the market said claim and other claims of which he was the owner, took from plaintiff the power of attorney marked ‘Exhibit G’ in this case, not intending, however, thereby to acknowledge, and not thereby acknowledging, that said plaintiff did in fact have any interest in said claim to convey "or deal with.

“V. That, in ignorance of the true state of the title of said claim, defendant paid to said W. R. Hanlon a certain consideration for a supposed half interest therein, and was informed that plaintiff herein was the owner of the other half interest, which said other half interest, or supposed half interest, defendant acquired, or attempted to acquire, at the guardian’s sale heretofore mentioned.

“VI. That on the 9th day of December, 1915, said H. A. Bauer, for a valuable consideration, sold, set over, transferred, and assigned unto the defendant all his right, title, and interest in and to said Over the Hill claim. Said purchase was made in aid of the said purchase or supposed purchase, at guardian’s sale, and was not for the protection of any tenancy in common, or supposed tenancy in common.”

In the opinion accompanying the findings of the court it is stated that, assuming the plaintiff’s testimony regarding the making of the “grubstake” agreement to be true, it “lacked the fundamental requirement which must exist before what is called a ‘grubstake’ agreement can be enforced as a resulting trust, to wit, an agreement for a specific aliquot part.”

And again the judge says in his opinion: “I cannot find that the evidence even preponderates (to say nothing of being ‘clear and convincing’) in the direction that there ever existed any such contract as would in law give rise to a resulting trust. Before such trust ‘results’ two essentials are requisite: (1) The agreement must have existed at the time of the payment or the doing of the work; (2) such agreement must be for a specific aliquot part.”

The court was clearly in error in holding it essential to the validity of a grubstake contract that it should specifically state the interest of each party thereto. Morrow v. Matthews et al., 10 Idaho, 423, 79 P. 196. Even in the case of an ordinary conveyance of lands to two or more persons as joint tenants or tenants in common, such a specification of interest is not essential. In such cases, prima facie, the interest of each is equal, although the contrary may of course be shown. Markoe v. Wakeman, 107 Ill. 251; Shiels v. Stark, 14 Ga. 429; Jackson v. Moore, 94 App.Div. 504, 87 N.Y.S. 1101.

The contention of the plaintiff in the court below in respect to the Over the Hill claim was, as stated in the opinion of that court, .based upon an alleged agreement between Bauer, Hanlon, and himself, by which Bauer was to furnish the “grub,” etc., and the plaintiff and Hanlon were to do the work of prospecting and locating the contemplated claims; Peterson being subsequently joined with Hanlon and the plaintiff by consent of Bauer given through his agent Hanlon.

In finding as a fact, as the court did contrary to the finding of the jury upon that issue, that no such contract was ever entered into, the court relied in part upon the testimony of Hanlon to the effect that he located the Over the Hill claim for Bauer and in his name, and that, although he had hired the plaintiff and Peterson to assist generally in making locations for Bauer, and that Bauer paid them for their services, yet that in regard to the Over the Hill claim he (Hanlon) was the only one who made any discovery thereon or took any part in making the location thereof, testifying particularly, as the court below said in its opinion, that the plaintiff took no part in its location and never had any interest in that claim. The court, however, proceeded to say in its opinion: “On cross-examination this witness was impeached by the showing that many pf his statements were at variance with statements made by him in the pleadings and at the trial of a suit which he himself had previously brought against, the defendant company to recover an interest in the Over the Hill for himself. He lost that suit. As to many matters testified to by Hanlon he was evidently falsifying at one trial or the other, and was considerably embarrassed; but I think it more likely that he was falsifying at that trial, where his interests were at stake, than at this trial, in whose outcome he is not shown to have any interest whatsoever.”

It is thus made clear that Hanlon committed perjury either in the present case or in the suit brought by him against the present appellee to recover for himself an undivided interest in the Over the Hill claim. The court below concluded that he perjured himself in his own case and told the truth in the present one, and, as has already been shown, found the fact to be, contrary to the finding of the jury, that the alleged contract between the plaintiff, Bauer, and Hanlon was never made. Yet the record in the present case shows that Bauer was also a witness in the case brought by Hanlon against the Chichagoff Mining Company to recover an undivided one-fourth interest in the Over the Hill claim, when the following questions were asked, and the following testimony given by Bauer:

“Q. Didn’t the judge ask you this question: ‘When Mr. Hanlon went out to locate the claims, did you or did you not — I am. not talking about any particular claims, but when he went out to locate some claims there — did you or did you not have any agreement with him by which he was to do certain things and you were to do certain things ?’ Do you remember that question being asked you? A. I believe so; yes.

“Q. And you answered it: T did; yes.’ A. I think so; yes.

“Q. And did he ask you this question: ‘What was th'at agreement?’ Do you remember that question? A. I be-I Heve I do; yes.

“Q. ‘A. He was to do the locating and work, and I was to furnish the money.’ Did you answer it that way ? A. I think so.

“Q. ‘When was that agreement made?’ Remember being asked that ? A. I think I do.

“Q. ‘A. Just after the strike was made at Chichagoff.’ Did you so answer ? A. I think I did.

“Q. He then asked you this question: ‘After the strike was made, but before any of these claims were located, is that it?’ And your answer was: ‘Yes, sir.’ Did you so testify? A. Just read that over again.

“Q. The judge asked you this question: ‘After the strike was made, but before any of these claims were located?’ And you answered: ‘Yes, sir.’ A. I probably did not exactly understand that question ¿t the time, you know.

“Q. Did you so testify? A. I think I did; yes, sir.

“Q. And then was this question asked you: ‘About when was it?’ And you answered: ‘That was about’— then you ppused — ‘I think June, 1906.’ Did you so testify? A.. I might have testified to that. I wasn’t familiar with the dates, or anything of that kind, you know — it was so long ago. '

“Q. Was this question asked you then by the judge: ‘Now, what claims did he locate under that agreement?’ Do you remember that question? A. I think so; yes, sir.

“Q. And your answer was: ‘He located the Golden Wedge, that is the placer, the Over the Hill claim, I think was one, and I think the Porphyry, and one other; I don’t remember exactly what the name of it was.’ Did you so testify? A. I think so; yes.”

The plaintiff testified, in substance, that in the winter of 1905-1906 he and Hanlon met Bauer on the steamer “Cottage City” at the wharf in Sitka, upon which steamer Bauer was leaving for Seattle, and that they then and there agreed that in the spring the plaintiff and Hanlon should go to Chichagoff, where a discovery of gold had then been recently made, and prospect and locate claims, the supplies to be furnished by ,Bauer from Mills’ store in Sitka, and all claims located to be shared equally between the three; that about the middle of March, 1906, Hanlon got the necessary supplies at Mills’ store, but, finding that the boat in which they were to go required three men to handle, Peterson was procured to join the party, with the agreement that the locations made should be shared in the proportion of one-fourth each; that the plaintiff, Hanlon, and Peterson then proceeded to Chichagoff, and on March 26 located the Over the Hill claim in the name of H. A. Bauer, by W. R. Hanlon, agent, the names of the plaintiff and Peterson being signed as witnesses — all of which names, as has been hereinbefore shown, being preceded by the word “locators,” not “locator.”

The plaintiff further testified in substance that the next day they located a claim called “Mystery,” in his name and that of Peterson; and in April three other claims, named “Aurated,” “Authentic,” and “Cablegram,” respectively, were located, one in the names of Peterson and the plaintiff, and the other two in the names of H. A. Bauer, W. R. Hanlon, Charles Peterson, and John Tuppela; that those five claims were the only ones located on that trip, and that Bauer never objected to the joining of Peterson in the work and locations, and never claimed but one-quarter of the claims. Peterson, by deposition, corroborated the testimony of the plaintiff in so far as it related to himself and his actions; and the record further shows that subsequently Bauer, to wit, on the 10th day of January, 1907, bought from Peterson his one-quarter interest in the five claims so located, taking his conveyance thereof, in consideration of which he deeded to Peterson a house and lot in Sitka; and that on the same day that he bought Peterson's quarter interest he drew and obtained from the plaintiff and Hanlon powers of attorney from them to sell their interest in the said five claims. The evidence shows further that the assessment work for 1908 upon the Over the Hill claim was done by the plaintiff, and that Bauer paid to the plaintiff $50 for his part thereof; that the annual labor on said Over the Hill claim for the years 1909, 1910, and 1911 was done by the plaintiff and W. R. Hanlon as part owners, and in January, 1912, they began the publication of a notice to forfeit Bauer’s interest in the claim for his failure to perform or pay for his part of the annual labor for those three years, which publication appeared at least once a week for 90 days and was seen and read by Bauer; that the annual labor upon the said Over the Hill claim for the year 1912 was performed by the plaintiff alone as part owner, and that in January, 1913, the plaintiff published a notice to forfeit Hanlon’s interest therein for his failure to perform or pay for his part of the annual labor for 1912, after which Hanlon sold his interest therein to the defendant Chichagoff Mining Company, which company paid the plaintiff, and thereby saved the forfeiture.

Enough has been pointed out, we think, to show that the findings of fact made by the court contrary to the findings made by the jury are unsupported by, and contrary to, the evidence in the case, and that the decree must be reversed, with directions .to the court below to enter a decree adjudging the appellant to be the owner as against the defendant to the suit of the whole of the Rising Sun lode mining claim, and of an undivided one-half interest in the Over the Hill and Pacific lode mining claims, and directing a conveyance to him by the defendant to the suit of the legal title to the undivided one-half interest in the said Over the Hill claim conveyed to it by. the government patent, and for an accounting of all ore extracted by the defendant from the said Over the Hill claim, and for judgment in favor of the appellant for one-half of the value thereof, less one-half of the legitimate expenses of mining, extracting, and reducing such ore, and for an accounting of the whole of the value of the ore extracted by the defendant from the said Rising Sun claim, and for judgment therefor, less the legitimate expenses of mining, extracting, and reducing such last-mentioned ore, and for costs of suit.

Ordered accordingly.  