Arizona weekly miner., 1874-02-13


 shaw On cross examination Lnn says "l have never been engaged In any business in partner ship with French. never owned q mining claim in company with him. What mean by a mutual partnership Is tbat when one is broke and the other Is not, the one who has mouey shares with the other. French docs not a0w own any portion of the property in question. He holds one.half of the ground As security Tor what l owe him. French on tllis subject says: "In the spring of l,GJ, Linn went from Prescott to White Pine IL was understood between us that vas to be inter. estcd In asything he found, and If found any thing here, l would give him show or fl l could get bIm, situation here l would do L." The st'Stsment oi the transcript also contains copies Of two letters, also copy of deed and power of attorney from Linn tO French. Tue
 first ot these letters Is dated Prescott, \. T., Jan uary EI, lSil and is addressed by French 10 Linn, at Gold Hill, Nevada, and states that French had lOcatsd A claim for Linn and promised 10 send hm come ore. Plaintiffs objected to this letter and the objection was oyerruled The second of these letters Is between the same parties and from and to the same place, dated January ', 1871. Ths letter seems 10 have contained a blank deed aod t also appears that Linn executed and re- tasued the deed and power Of attorney with little if any delay. On the 27th of June, French executed his deed to I.inn for one undivided half of the property. The consideration of the whole of said property from Linn to French be- ing <l ,OOO, and the consideration of one.half deeded back by French to Linn being $50. A witness named Thorne was called by the plain. tifis and offered to prove that at the time More land located the groUnd for Linn, he located two claims for witness and Cassidy, with the under standing that ThoTne and Cassidy were to deed one-half of said location to the Tiger Company, of which Moreland was a member, without fur ther consideration and agreeable Co said under standing, did deed one half Of said ground to the Tiger Company. This evidence was offered to show that similar understanding existed at the time with Linn. Objected to and the objection was sustained and the plaintiffs excepted.
 From the evidence of Thorne thus stated, the court Is asked to ind fraud in the location of the claim of Linn by Moreland and French. The credbilty of this statement Is seriously impaired by the fact that the man Thorne who makes 1t was himself partieepeS fraudis by his own con feSson but even if true it does not tend 10 show fraud in Linn, and it was rightly rejected. Linn seems to have done all in bis power diligently to assert his own right and perfect his clalm. True, he seelns to have been chehy employed defending himself since the institution of ths suit. On July ls, 1872, Linn, however, appears to have done 1t like a man who believed himself right and labor ing to defend bis own property. Alter the most careful consideration, neither contradiction of the deed from Linn to French nor fraudulent n- tent in the defendants, Is discovered in this tes timony. lt Is true in law that deed cannot be directly coniradicted by parol testimony. It is always susceptible Of the fullest oral expla- nation for the prevention Of fraud and the | consummation of justice. IL frequently hap pens that the real or whole intention is not mentioned or described in deed and it must be shown by other testimony If ever called in question. What possible contra diction or evidence appeared in Lnns deed, which mentions the consideration Of s0OO Is there In the fact tha; Linn owed French money at the time desired and thus enabled French to sell the property, expected French 10 pay him tue purchase money or credit bm with it; or in the fact that French expected to do all this he says be did in good Aiih, These facts and intentions may all stand on a solid foundation of truth to- gether. The power Of attorney Is no contradic- ton of the deed or anything else. It was another familiar way of enabling French ,o sell the prop erty for Linn's benefit. It proves the real inten- tention of the deed and not in contradiction of it. So too the deed from French to Linn for oniy an undivided half of the property, Is evidence of the deieasiole character of Lin1's deed 70 French and may be remote evidence of Linn's indebtedness to French for which the other half remaining in him ! is alleged to be collateral security. If French shall deIy that Linn's deed was but a defeasIbie | deed, or Linn deny that be owes the debt for which French retained the undivided interest of half the claim as a security, then the fraud will perhaps begin to have existence At present, | none Is apparent With these conclusions the highest judicial authorities fully accord. A care ! full examination Of the case discloses no evasion
 duplicty coneealment, falschood or false pretense on their part which constitute the unfaillng index of fraud. No one claims to have been injured by them or either of them; not N. F. Sawyer, ] who entered on Linns claim February JIth, | 1871, removed his notices and attempted to usurp his claim; not the plaintiffs who have knowingly taken her place and commenced this
 
 | therefore be oyerruled. E .I
 The third point is that mining claim is an in- l terest in land, within the meaning of the statute | Of fraud. This point Is certainly true as ab- stract legal proposition. There Is no elemen, Of the present case which brings 1t within the stat ute of frauds. It is not shown nor does 1t appear how the statute of frauds eau apply to any person 1 or thing in the presen. case. The third point Is | oyerruled as inappicable to the case.
 | The fourth point Is "one person cannot locate a | mining claim for another except in connection | with himself without authority in writing from | the person for whom he locates" Since the United States first permanently occupied Califor- | nia In July, lS4d, there has arisen a system of mining law on our Pacific slope whose peculiar principles, obligations, and relations, courts of justice cannot disregard without the most fragrant | injustice. Like all other codes which have at- tempted permanent existence, this code has been the offspring of stern necessity. This system, too has reared class Of men peculiar In their charac- ter and relations. One ofthese is the prospeetor who, with remarkable daring and sagaelty, alone | or with a small attendance, penetrates eyeryg where in search of the precious metals Great as are his natural resources, he would be poverless but for | the necessary aid furnished him by others, more or Iess remote, who are to share with him in the | results of his explorations. The compaets by which these things are done in many, pcrhaps In most instances, arc found withoat any written surance by men who know and trust each others uuwritten faith. But for these simple. formess methods, our mineral wealth would have been far | and our mineral system must lose much Of it's progressive power. Tie present case belongs to | this system, and it cannot be determined without more less reference 10 its rules and obligations. Al the time of the location of the claim in contrs- versy, it was not incladsd in any mining district | Of its own, nor was 1t subject to the law of any | other. The common law of miners above refer | red to, was recognized by those concerned in tue l claim but beyond that they were bound by no law except the act of Congress of July 26, lSCS. All these laws appear to have been complied with | by defendants. This suit. however, stopped them | before tbeiF patent could be secured fbe testi. | mOny shows that French had Linn's authority to
 locate this claim for him and that Linn after
 wards ratified his acts by taking and holding the
 property It enabled Linn to hold the property against every claimant but the United States Even II Linn had no right, Mary F. Sawyer could
 not by any legal right enter on his property and
 carry oil bIs notices. This point Is therefore ruled.
 The sixth point is: ".That the location Of 2 min