The Pioche weekly record. [volume] (Pioche, Nev.) 1877-1900, 1894-07-12

strangers to the transaction, in chance con.
versation, which the witnesses had no reason
to recollect from interest in the subject
matter which may have been imperiectly
heard, on naccurately remembered, peryert-
ed or altogether fabricated testimony there
fore impossible to contradict
And in lat err case, the same court again
says: Specific performance should never
be granted unless the terms OF the agreement
sought to be enforced are clearly proved, or
where it is left in doubt whether the party
against whom relief is asked, in fact made
such an agreement"
Hennessy VS.. Woolworth, lbs L. S. 43S
ID
The reason Of the rule is satisfactory.
The policy of the law is to acquire written
evidence OF title and interest in real estate.
Experience fully demonstrated that bust
ness was hampered, improvement retarded,
investments discouraged and all stability of
title to real estate jeopardized, as well as
great inducements and temptations for fraud
]
permitted to be created or assigned by parol
agreements. To prevent these evils the
statute of frauds was enacted at early
date. Courts of equity relaxed the rigor of
the law, when to enforce it would operate as
a fraud, and trusts by operation of law we're
for the same reason exempted from the
operations of the statute. Knowing the
law, as all are bound to- he who ignorantly
or carelessly deals in lands, or acquires an
interest therein, by agreemen. not in writ
ing, acts with great negligence, and when he
asks a court to relieve him from the conse-
quences of his folly, he is put to full, clear
and satisfactory proof Of the existence OF the
agreement and OF the terms thereof He
who seeks to avail himself, of an exception
to a general rule of statute, should plainly
/ bring himself within the exception.
AS applied to this case, the rule is mate
rial, not in the sense that all agreement of
partnership should require strict proof, but
that an agreement whether OF partnership
or otherwise whereby one asserts claim or
interest in real estate contrary to the record
evidence of title, and the agreement is not
evidenced by writing, is within the class
which the statute invalidates; and when its
power of court of equity invoked, the
equity OF the claim, its existence and terms,
and its exemption from the in6rmity which
the statute creates, must lie shown by
clear plain and convincing proof
Bingham vs., Thompson, New 233.
Gruber VS., Bakes, 20 New 476. % Am &
Eng. Enc, 1910
Mining claims are easily located, Of specu.
lative value and liable to sudden and great
huctuation. Their improvement involves
the expenditure of large capital and the TAX
ing of great risks. Title rests upon possess
ion and record evidence. Adverse possess
ion for relatively very briof period defeats
the true title. Diligence in the assertion of
claim thereto is exacted, and public policy
and private enterprise arc turthered by
securing the greatest possible confidence il
the record title. The mere assertion of al
interest in the property not shown by the
record, with the attending possibility of ex
pensve litigation, often destroys or greatly
impairs the value of property for sale, anC
hinders and delays the development of it
Litigation of this character is well known
to be so expensive that owners are often in
duced to buy their peace and settle claim
without any belief whatever in their vail
dity. knowledge that a claim against
valuable property, however ll-founded ha
a value to the extent that the owner is will
ing to pay rather than assume the expens
Of litigatipg it, often induces parties t.
assert some interest in the property unde
circumstances and without a 1.-THE OF tn
evidence which they would require befor
commencing actions of another character
These inducements and temptations for tn
bringing of unfounded suits should be re
duced to the lowest possible point, and tina
desirable end is best furthered by holdin
the complainant to strict proof and promp
and consistent assertion of his claim. Thi
is said not for the purpose of characterizin
this action, but to show the pertinency {
, the principles of law above stated.
The main features of this case are that i
, 1885, the plaintiff and defendant starte
upon prospecting trip, jointly contribu
ing supplies That the only claim locate
in that year and thereafter worked by thei
| was the Lizard in the Quartz district an
, situated long distance from the propert
| in dispute. That the plaintiff and defer
, dant worked upon this claim together fc
, some time, contracted Indebtedness ft
supplies, and were joint owners of the clai
and mining partners in developing it unit
the sale and conveyance of it by the plair
y tiff to the defendant, in September, lS9
n During this time they had been jointly il
e terested in certain timber claims and WOO
cutting enterprises. These were terminate
n and settled long ago. In the spring Of 1879
n the defendant went to Ferguson District
this county and in connection with 9th
e parties located the properties, other this
$ the Keystone mentioned in the complain
Y The Keystone, it is admitted was insert,
in the complaint by mistake, and is nj
claimed by plaintiff. During the SUNNI
of 1892, the discoveries in Ferguson distri
. attracted much attention. Active and su
n cessful mining operations were carried
9 by the defendant, and his associates, al
# during that summer the plaintiff ascertain'
l. that the defendant had located claims,
II that district which were considered valuah
>. and were being worked. During this tin