
    157 F. 62
    CASCADEN v. DUNBAR et al. DUNBAR et al. v. CASCADEN.
    No. 1,312.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 28, 1907.
    
      McGinn & Sullivan, J. C. Campbell, and W. H. Metson, for appellant and cross-appellee.
    T. C. West, Fernand De Journel, Hugh O’Neill, arid John R. Jones, for appellees and cross-appellants.
    Before GILBERT and ROSS, Circuit Judges, and DE FI A VEN, District Judge.
   ROSS, Circuit Judge

(after stating the facts as above).

The court below found the making of the alleged contract by the plaintiff with Bennett; that it was oral; that at that time Bennett, Scott, and Dunbar were general partners and then engaged in freighting, and immediately thereafter "in locating, acquiring, and working placer mines” in the vicinity of Fairbanks. The evidence shows without conflict that in the early part of December, 1902, the plaintiff made the locations set out in the complaint for the defendants Bennett, Scott, and Dunbar, and prepared the notices of location thereof, and gave them to Bennett for recordation, and that Scott and Dunbar, as well as Bennett, had actual notice of the plaintiff’s action in locating the claims; and the court below so expressly found. But the court also found that "neither Scott nor Dunbar made any agreement of any kind with the plaintiff Cascaden, nor gave him any power or authority to locate mines for them, and the evidence does not show that Bennett had any power, as partner or otherwise, to employ him for that purpose.” Other findings of the court below are as follows:

“That on May 21, 1903, Dunbar relocated bench claim No. 12A below discovery on Cleary creek, on the right limit and first tier, in his own name; on May 24, 1903, he relocated No. 5 above on Solo creek in the name of Scott, No. 8 above on Solo in his own name, and the fraction between discovery and No. 1 above on Solo creek in the name of Bennett; in doing so he saw and used the stakes set by Cascaden in his prior locations, and had full notice and knowledge thereof.
“On July 1, 1903, Scott, Bennett, and Dunbar were general partners, and held and owned each and all of the claims so mentioned in paragraphs 5 and 9 herein, as equal partners, and that on that day Bennett was the owner as such partner, and in possession of an undivided one-third interest in and to those placer mining claims mentioned in paragraphs S and 9 in these findings, and in those certain placer mining claims described in his deed to Cascaden so made and delivered on December 20, 1902; that on July 1, 1903, Cascaden presented the deed so made and delivered to him by Bennett on December 20, 1902, to the said Bennett, and requested him to formally ac- • knowledge the same, and the said Bennett did on said July 1, 1903, acknowledge the same to be his deed, before J.' Tod Cowles, a notary public in and for Alaska, who thereupon wrote his certificate of acknowledgment thereon; and the said Bennett again delivered the same to Cascaden, who thereupon filed the same for record, and the said deed and certificate of its acknowledgment was on that day recorded in the office Of the recorder in the Fairbanks precinct, Alaska.
“That on July 1, 1903, and for a long time prior thereto, the placer mining claims so described in Bennett’s said deed to Cascaden had been duly located by the defendants Bennett, Scott, and Dunbar; a discovery of mineral had been made thereon; the boundaries had been so marked that they could be readily traced; and notices of location therefor had been filed and recorded in the office of the recorder in the district where they were situated.
“That on the 17th day of May, 1904, the defendant Bennett, made, signed, and delivered a deed in writing, whereby he attempted to convey to the defendants Scott and Dunbar a full, undivided one-third of the title to the placer mining claims formerly by him sold and conveyed to plaintiff Cascaden, by his deed of December 20, 1902, and acknowledged and recorded July 1, 1903, and that said Scott and Dunbar took and accepted said deed with full notice and knowledge of the prior deed to Cascaden. That on the 17th day of May, 1904, and subsequent to Bennett’s deed to them, Scott and Dunbar made, signed, and delivered the deed in writing, whereby they attempted to convey to defendants Manley and Rice a full, undivided one-third of the title to the placer mining claims, so formerly sold by Bennett to Cascaden, and. that said Manley and Rice took and accepted said deed with full notice and knowledge of the prior deed from Bennett to Cascaden of December 20, 1902, and its acknowledgment and record on July 1st, 1903.”

The decree of the court below evidently proceeded upon the theory that Bennett acquired an undivided one-third of the claims described in the decree, by virtue of Dunbar’s location thereof in May, 1903, which undivided one-third passed by the deed of Bennett to the plaintiff, executed December 20, 1902, and acknowledged and redelivered July 1, 1903 — the defendants Manley and Rice having notice of the plaintiff’s rights in the premises.

' A careful consideration of the evidence in the case satisfies us that the plaintiff should have been awarded the undivided one-half of the interest of the defendants in all of the claims so relocated, for we think the record shows the truth to be that the defendants Bennett, Scott, and Dunbar were mining partners from the time of the making of the original contract of November 30, 1902, and that Bennett entered into the contract on behalf of himself, Scott, and Dunbar, and that the three, for the purpose of cheating the plaintiff out of his interest in the claims, thereafter entered into a fraudulent scheme by which they would and did withhold from recordation the notices of the locations made and prepared by the plaintiff, and after the time specified by the act of Congress for the recording of such notices had expired, made the relocations of 1903. We think it plainly appears that all of this was done for the fraudulent purpose of cheating the plaintiff out of his one-half interest, and it is equally plain that equity will not permit such purpose to be accomplished. That such cases do not come within the statute of frauds is well settled. The agreement involved personal services and necessary expenses incurred in the locations by the plaintiff, and necessary expenditures by the defendants Bennett, Scott, and Dunbar in recording the notices of such locations-at Circle City (200 miles distant, it appears), where was located the office of the recorder of the mining district in which are situate the claims in question, and such other expenditures as may have been required by the rules and regulations governing such locations in that district. It was a joint venture, to which both parties to the agreement stipulated to contribute services and money for their joint and equal benefit. See Gore v. McBrayer, 18 Cal. 582; Sandfoss v. Jones, 35 Cal. 487; Moritz v. Lavelle, 77 Cal. 11, 18 P. 803, 11 Am.St.Rep. 229; Murley v. Ennis, 2 Colo. 300; Welland v. Huber, 8 Nev. 203; Hirbour v. Reeding, 3 Mont. 13; Raymond v. Johnson, 17 Wash. 232, 49 P. 492, 61 Am.St.Rep. 908; Berry v. Woodburn, 107 Cal. 511, 40 P. 802; Lindley on Mines, §§ 796, 797; Snyder on Mines, §§ 1592-1596.

The judgment is reversed, and the cause remanded to the court below, with directions to award the plaintiff an undivided one-half of the interest of the defendants in the claims relocated by the defendant Dunbar in May, 1903, and his appropriate interest in the proceeds thereof, if any.  