Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-12-01
ALL ABOUT 4 MINE.
CONTEST OVER THE ORC FINo CLAIM
IN Ell DORADO COUNTY.
The Supreme Court Grants the Defend
ants New Trial-A1 the Facts
Reviewed.

the office of ]. S. Williams, Deputy Clerl
of the Supreme Court for the District o
Sacramento, an opinion in the case of tht
Pekin Mining and Milling Company
against Kennedy, Bargion, on appeal from
the Superior Court of Ell Dorado county
denying the defendants a new trisl. The
case was heard in bank, and is one of i'm
portance, involving the title to a piece Of
valuable mining land which the Supreme
Court says the defendants obtained by
| means of fraud. In rendering the decision
the Court says:
This is an action OF ejectment to recover a
tract of land containing i've and half acres,
situated in section 20. township north, range
10 east, in FL Dorado county. The findings q d
judgment were for plaintiff, and defendants ap-
peal from the Judgment and from an order deny
ing new trial. The land in contest constitutes
part what is Known as the "Oro Elmo Quartz
Nike" which was surved by United states
mineral surveyor, and marked out, ETC., in 1880.
No patent seems to have been obtained Tor the
land as mining ground; but the plaintiff claims
to have acquired the United States Government
title through one c. 2. Schenck, who was a
homestead claimant of that part of said section
% which includes the land in contest. In June,
1882, Schenek received patent from the United
claim, but on September IL, 1880, when he was
only homestead claimant, and had not made
his final proof, by deed which was never re-
corded, he granted and qult-clalmed part
of the land described in the complaint to one
w. H Miller. The deed was drawn by Miller
on blank in which was printed the word
grant and Immediately after that word he
wrote the words land quit claim" He knew
that Schenck had not proved up his homestead
claim. Prior to the year 1883, and subsequent
to November 1851, the land described in said
deed from Schenck to Miller had been conveyed
from said Miller, through mesne conYeyances,
all recorded, to the Orc Elmo Gold Mining and
Milling Company of Fl Dorado, a mining cor
poralion existing under the laws OF The State of
Illinois: which corporation had built mill on
the land at cost of $4,000, and had sunk
shaft to the depth of 100 feet and had done
other work at large expense.
On April g. 1885, deed was made which I'M
ports on its face to be the deed OF said last
named CORPORATION, and which, If 1t be valid
claim of said corporation, conveys to the
plaintiff herein all The land described in the
complaint. The name of the CORPORATION is
signed to it, and also the names of persons as
suming to be its President and Secretary, who
acknowledged it in due form before a Notary,
and it has affixed TO il the corporate seal. There
was no evidence offered, however to show that
the deed had been authorized by the Trustees
of the corporation, or that 1t was ratified by
two-thirds of the stockholders, nor was there
any other proof Of lis execution, and defendants
objected for these reasons 10 It's introduction
The ODleCLlOn WAS OVtITueQ. On feDIudry
90 1854, said Schenck, having then obtained his
patent from the United States as hereinbefore
stated, executed to Frank B. Ogden quit claim
deed to all the land sued for in this action. On
July 9, 1884, said ogden, by deed, granted, bar
gained sold and quit-claimed' all said land to
the plaintiff herein. So the plaintiff claims the
Government title through said patentee,
Schenck, by two causes: First the one which
ended in the alleged deed from the Orc Elmo
CORPORATION to plaintiff; and second, the one
which ended in the deed to plaintiff from said
Mason, Gay and Baker.
Defendants deny the title of plaintiff, and set
up title in one Mstheida de Lescault, with
whose consent they claim to be i'll possession.
We think, however, that no title was shown
to be in said Lescault. Her asserted title rests
upon execution sales under two judgments-the
one known as the Phelps Judgment, and the
other as the Park Canal Company judgment
With respect to the sale under the Phelps jCdg-
ment the facts as found by the Court are these;
In 1888 the said Il. w. Miller made two trips
from California 10 Chicago, where the principal
place of business of the said ORC Elmo Mining
Corporation was, for the purpose of procuring
himself to be elected Director and 10 be APP
pointed the Superintendent OF said mine, and
on the last trip ne was successful. After his re-
turn and while he was such Superintendent.
and as such in charge OF said mine, he entered
into contract (about which, however. there
had been forser negotiations with the defend
ants Kennedy and Bargion, BY which the three
were to take possession OF and work the mine
including the mill and all the land described in
of said corporation, known as the Mcmahon
ground-as partners, ignoring the right of said
corporation and intending to get the title unto
themselves In accordance with this agree
ment Miller let the said two defendants into
Joint possession with Kim, and the three COM
menced to work the mine as partners The
facts OF Miller's Dictatorship and Superintend-
ency Of the corporation and the right OF the
latter to the NINE were well known to said de-
PENDANTS. In September, 1888, one Josiah Phelps
commenced an action in Justices Court
against said ORC Elmo Corporation TO recover a
small sum OF money. Miller appeared as man
eging agent and superintendent and answered
for the corporation.
At the trial Kennedy appeared for the corpor-
alton at the request of Miller, and judgment
was rendered against the corporation for $50 So
and costs. Execution was issued and levied on
the mine; and on March y. 1884, the day of the
Constable's sale, the mine was knocked down
to Kennedy for the sum of $3.50. 1t had been
agreed between Miller, Bargion and Kennedy
that the latter should bid off the property in
his own name. But it had also been agreed be-
tween Miller and Frank B. Ogden therein above
mentioned), that said Ogden should attend The
sale for the purpose of procuring the title TO
said mine to be taken in his (Ogden's) name.
Ogden attended the sale, and it was agreed be-
tween him and Kennedy that for the purpose oil
lettering bidders, Ogden should give public
notice at the sale thai the mine did not belong
10 said Orc Elmo corporation, but was the prop
erty of him OGDEN. Such notice was accord
ingIy given, and the mine was bid in by Ken
nedy as before stated. But another complica-
ton arose. Ogden volunteered his as istaDce
to the Justice Of the Peace TO rite out the GER
| ti:icate of SALE and inserted therein his own
name as purchaser, instead OF that OF kennedy.
This was not known TO or discovered by the
Constable (Cline) or Kennedy. 1t was signed
by the Constable and filed in the office OF the
| County Recorder as provided by law. This was on
March % 1854, and the mistake was not discov-
cred until the next July, and on the 18th OF said
| July the Constable undertook To remedy the
| mistake by issuing smother certificate, reclted a
,1-tr. lam ON or FQy
| of July, instead of March 22d. 1t was filed fol
record July 10, 1884. Kennedy assigned his
certificate TO Ella C. Gates on August IA, 1854
| and on September p, 1884, the Constable exc
cuted a deed to said Gates. On December 80
1884 the said Gates executed a grant deed OF
! the mine to the said Mathilda de Lescault. The
| said Gates and J esceut were relatives OF the
| defendants, and there is no evidence that tney
were purchasers for value. But in the mean
| time Mason Gay and Baker (hereih before men
| toned, having The right to redeem, paid the
| said Ogden on September 20, 1884, the full
| amount necessary 10 redeem the mine from saio
| sale of March % 1854 and received from said
Ogden certificate OF such redemption, when
| was recorded October l, 1884, ana they had nc
| knowledge that there YVES any certificate oil sale
| than the one in which OGDEN was named as
| purchaser, unless the recording OF the second
| certificate to Kennedy in July constituted lega
notice.
Under these circumstances we think that nc
| title to The premises in contest passed to Lescau
| t. rough the sale under the Phelps judgment
| Ii the officer could amend the certificate aftel
| the lapse Of several months, and II the redemp
| TONERS were called upon to look tor addiiiona
| certificates Of the sale, still an examination o.
| the records wouls not have disclosed any T
| tificate referring to the Aale of March p 1854
| and we think, therefore, that the redemption
| was fully accom- ?lished. But, in addition tt
| that, the sale was itlelf invalid by fraud-fraud
| first BY the Director and Superintendent (ant
| those who conspired with himl against the alb
| sent corporation, whose rights he was bound t
protect; and second fraud through the conspir
| acy to deter bidders and prevent a lair sale.
| The facts about the Park Canal Company
sale are briefly these: While Mi Ter, Kennel.
and Bargion were working the mine they re
celyed q liability to the Park Canal and Mimi
| Company, and the latter company brought
| suit in the Justices Court against the three.
go service on Kennedy and Bargion, but not OF
| Miller ard took judgment against all three an(
execution was issued and the int z est of th'
| three in the mine was sold to one Crawford
| who assigned his certificate OF sale to lescault
to whom the Constable afterwards made d ed
It's needless tn determine the question discussed
| by counsel whether or not joint Judgment
| against three defendants, where only two wer
SIZED, is valid against either; for, the defend
| ant in that action had no title to the Eiue
therefore Lescault got no title through the sale
| The only question, then, Is whether plaintiff
| Ii is clear that plaintiff has title 10 all tina
part OF The premises in contest which was no
| CONVEYED by Schenck TO Miller by deed of SEP
| tember II, 1880 and which went by mesne con
veyances to the Orc Elmo Mining and Millin
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