
    262 F. 911
    TJOSEVIG et al. v. DONOHOE et al.
    
    No. 3360.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 2, 1920.
    
      See, also, 255 F. 5, 166 C.C.A. 333.
    
      John Rustgard, of Juneau, Alaska, for appellants.
    Hellenthal & Hellenthal, of Juneau, Alaska, Lyons & Orton, of Seattle, Wash., Donohoe & Dimond, of Valdez, Alaska, and Smith, Chester & Brown, of Seattle, Wash., for appellees.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
    
      
      Certiorari denied 252 U.S. 587, 40 S.Ct. 396, 64 L.Ed. 730.
    
   GILBERT, Circuit Judge

(after stating the facts as above).

It is contended that a trust relationship between the appellees and the appellants was neither pleaded nor proved, and the statute of frauds is invoked. The statute of frauds is complied with in the fact that the appellants held the appellees’ interest in trust under a contract which was in writing and was signed by the appellants, and which created the trust. It provided that the appellees, after the conclusion of the litigation, should receive from the appellants a deed of a specified undivided interest in the mining claims. It' was competent, either by a parol agreement or by inaction, to postpone the conveyance. There is no denial that it was in fact postponed, and there is no contention that an interest in the property was ever conveyed to the appellees after the date of the contract. The complaint plainly shows that a trust was pleaded. The appellees, after setting forth in their amended complaint the terms of the contract and their performance thereof, alleged that from the date of the original decree, which was obtained by them under that contract, until the sale to the Copper Company, the appellants held the interests of the appellees in trust for them.

The appellants urge as against the existence of a trust that the parties to the contract of 1911 treated that, instrument as conveying title to the appellees, and they point to the fact that in the interval between the final decree of April 6, 1911, and the sale to the Copper Company the appellees signed, together with the appellants, certain options that were given on the mining properties. There is nothing in that fact to show that the appellants did not hold the property in trust. It indicates only that the owners of the equitable interest and the owners of the legal title were working in harmony and had agreed upon terms of sale. It has no further probative value. Nor does the fact that after the forfeiture proceedings the appellants claimed the properties adversely to the appellees negative the existence of a trust. Nor does the fact that the appellees finally became convinced that the appellants were intending to “beat them out of their interest” in the property tend to prove that there was no trust. And the same may be said of any alleged admissions of the appellees that it was incumbent upon them to contribute to the assessment work.

The appellants are in error in asserting that the court below found that the appellants weré trustees of an express trust created orally. What the court found was that on the request of the appellants the appellees agreed not to demand a deed and agreed that the appellants should hold the legal title to their interest in trust for them. That is not a finding that an express trust was created by parol. It is a finding that the date of the conveyance was by agreement of the parties deferred, and that in the meantime the trust which had been created by the contract continued in force.

The appellants contend that, notwithstanding the deed to the Copper Company, the appellees still hold whatever interest they had in the mining claims, that the contract itself operated as a transfer of title to the appellees, and that they have not been injured by the deed to the Copper Company. We are unable to assent to this view. While the contract contains words of present grant, it also clearly shows that it was the intention of the parties that at the close of the contemplated litigation a deed should be executed to the appellees. Says the contract: “The said 7]/-z one-hundredths undivided interest in and to each said claim shall be conveyed immediately .after the settlement of the said litigation as. aforesaid by a good and sufficient quitclaim or mining deed, and in case the said parties of the first part are unable to or refuse to execute said deed as above, then and in that case this instrument shall be understood to be and it is hereby agreed to be a conveyance.”

It is not shown that the appellants were unable to convey, or that they refused to convey, and the contingency, therefore, on which the contract was to stand for a deed, never arose. Instead of executing the deed at the close of the litigation, as the contract required, the appellants agreed, as the court below found, to retain the title to the interest of the appellees in order the better to negotiate a sale of the mining claims.

The appellants point to the allegation of the original complaint which charges that they failed and neglected to convey to the appellees their interest in the claims. That, however, is far from saying that the appellants refused to convey. The case was tried on the amended complaint. If the original complaint had contained an' allegation that the appellants refused to convey, the appellees were not precluded from otherwise alleging the facts in an amended complaint. In Williams v. Paine, 169 U.S. 55, 76, 18 S.Ct. 279, 287, 42 L.Ed. 658, the court said: “We agree generally that, although there are words of conveyance in preesenti in a contract for the purchase and sale of lands, still, if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey and not a conveyance. The whole question is one of intention, to be gathered from the instrument itself.”

To the same effect is Chavez v. Bergere, 231 U.S. 482, 34 S.Ct. 144, 58 L.Ed. 325.

The appellants contend, further, that it is immaterial whether the appellees’ interest was legal or equitable; that whatever interest in the premises they ever had they still have, for the reason that the deed to the Copper Company was a quitclaim deed and transferred only the interest of the grantors. The record leaves no room to doubt that in conveying the mining claims to the Copper Company the grantors intended to grant, and the Copper Company and its agent understood that they were to receive, an absolute transfer of all interests in the claims. The evidence is that Christian Tjosevig, for himself and the other appellants, represented that the appellees’ interest liad been advertised out, and there was no fear of any question regarding the title; that the grantee had expected to receive a warranty deed, but that a quitclaim deed was accepted only for the reason that patents had not yet issued to the mining claims; that Christian Tjosevig repeatedly stated that it was the intention to convey a clear title to the whole property, and that after the appellees brought their suit he stated to the officers of the purchaser that the appellees’ claims were fictitious; that it was never his intention to convey anything but a clear title.

In an option for a deed given on April 6, 1916, by the appellants to Rowe for the sale of the mining claims, the grantors gave the right to purchase “all their right, title, and interest in [which said interest includes the whole] those certain mining claims or lodes,” etc. That option was forfeited, and on June 6, 1916, when the claims were sold to the Copper Company, a contract was entered into between the grantors in the deed and the Copper Company, one purpose of which was to make provision for the terms of payment of the purchase price. It was agreed in that contract that the Copper Company should have the right to enter upon said mining claims “for the purpose of mining, developing, and equipping the same, and operating the same as a going mine or mines, and to sell or dispose of any of the ores so mined or milled.” The contract and the deed are parts of one transaction and are to be construed together. The contract shows that the Copper Company was given the unrestricted right to enter upon said mining claims and to mine and dispose of all the ores thereof, on the assumption that the appellants and Nils Tjosevig were the owners of said claims and were possessed of the right to mine and sell all the ores therein.

It is the general rule that the grantee in a quitclaim deed takes only the interest of his grantor in the premises. Lindblom v. Rocks, 146 F. 660, 77 C.C.A. 86. In 18 C.J. 314, it is said: “But the fact that a deed purports to convey the grantor’s interest is not conclusive of an intention to convey only that interest. The intention, to be gathered from the whole instrument, must prevail.”

In Wise v. Watts, 239 F. 207, 152 C.C.A. 195, in giving effect to a conveyance which was in the form of a quitclaim deed, this court held that the paramount object in the construction of a deed is to give effect to the intention of the parties, which is to be gathered from a consideration of the entire instrument, read in the light of the facts and circumstances under which it was executed. The deed made to the Copper Company had greater efficacy than a mere quitclaim. By its terms it conveyed “all the estate, right, title, interest, property, possession, claim, and demand whatever, as well in law as in equity, of the grantors.” The grantors held at that time the legal title to all interests in the claims as they appeared of record; the appellees’ contract not having been recorded. Taking the language of the deed, together with the coincident contract between the parties, and the facts and circumstances surrounding the transaction, we entertain no doubt that the deed was, and was intended to be, a conveyance of all interests in the claims. Trudeau v. Fischer, 96 Neb. 275, 147 N. W. 698; Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67, 15 Am.St.Rep. 850; Holland, Adm’r v. Rogers, 33 Ark. 251; Plummer v. Gould, 92 Mich. 1, 52 N.W. 146, 31 Am.St.Rep. 567; Dennison v. Ely, 1 Barb.(N.Y.) 610.

It is contended that the Copper Company had, through Rowe, its agent, actual notice of the interest of the appellees before making the purchase; that Rowe had seen the record at Chitina showing that the interests of the appellees had been forfeited for nonperformance of assessment work, and must have also seen that the notice showed on its face that it was absolutely defective. It does not follow from this that Rowe discovered any defect in the forfeiture proceedings. The appellants’ counsel in the court below had discovered no such defect. They set forth in the answer that the appellants had acquired the appellees’ interest by forfeiture, and, although they have abandoned that contention in this court, they stoutly maintained it in the court below. Rowe testified that Christian Tjosevig told him that he had “advertised everybody out.” Said the witness: “He asked me at that time if I had not found the statement to be true that they had been advertised out. I admitted I had checked up his statements at the office of the mining recorder at Chitina on my first trip to Alaska, and had found them correct according to the records of that office. There never was any question in my mind but that Christian Tjosevig was transferring all the right, title, and interest in the property to the corporation. He said many times that everything was cleaned up.”

The appellants advert to the fact that at the time when the appellees began the present suit a considerable proportion of the purchase money had not been paid, and they argue that the Copper Company was not a purchaser in good faith. It would make no difference in this case, if the Copper Company had notice of all the antecedent facts in relation to the appellees’ claim of interest and had not paid the purchase price at the time when this suit was begun. The controlling fact is that the appellants, together with Nils Tjosevig, made a conveyance of all interests in the property to the Copper Company. The appellees had the right to regard the conveyance as a thing accomplished, and to acquiesce in it, and to require the appellants to account to them for their proportion of the purchase money then paid or agreed to be paid. It is not important to inquire what remedy, if any, the appellees might have had as against the Copper Company.

Of the assignment of error directed to the finding that the legal title to 3/48 interest in several claims, which stood at the time of the conveyance to the Copper Company in the name of Halvorsen, was held by him as trustee for Christian Tjosevig, it is sufficient to say that Halvorsen joined in the conveyance with the other grantors, and thereby transferred whatever interest he had in the claims. The record is convincing that he had no right to that 3/48 interest. But, if there is due him any proportion of the proceeds which his coappellants received, his demand is against them and not against the appellees. Halvorsen joined with the other appellants in petitioning the court to release to them all of the purchase money held in trust, excepting $17,000, which was deemed more than sufficient to meet the appellees’ demand. The court below went as far as equity permitted in expressing its purpose to direct that any portion of the fund in excess of the amount awarded to the appellees, with interest and costs, should be turned over to Halvorsen.

The appellees ask us to modify the judgment, and they point to the fact that in the opinion of the court-below it was said that they were entitled to 7^2 per cent, of the $3,000, which the appellants received on the forfeiture of the contract to Rowe; the court having omitted in the decree to add that amount to the judgment. The appellees, not having appealed from the decree awarding them affirmative relief, cannot review the denial of a portion of the relief which they sought. Sanborn-Cutting Co. v. Paine, 244 F. 672, 682, 157 C.C.A. 120; Lasswell Land & Lumber Co. v. Lee Wilson & Co., 236 F. 322, 149 C.C.A. 454.

The decree is affirmed.  