The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-02-08
Question Involving Title to the Sac
ramentO.
TIE DEMURRER SUSTAINED
THIRTY DAYS TO FILE AN
AMENDED COMPLAINT.
J. H. Bacon's Bond-United States VS..
o. j. Salisbury-Afidavit Against
st. v. LIE Sieur-Sstting of Cases
The Disbarment Case of Attor-
ney B. H. Jones Settled.

In the United States circuit court
yesterday, in the case of N. ]. Curtis
ct al. VS.. ]. S. Lakin ct al, involving
title to the Sacramento mine. at Mer-
cur, Judge Marshall sustained the de-
murrer of the respondents to the COM
plainants' complaint, the synopsis of
the opinion delivered by the judge be-
ing as follows:
The defendants filed a general de-
murrer to the bill of the compliments
on the ground that the complaint did
not show such a cause as ought to en-
title the complainants to recover.
The complaint alleged in substance
that on Feb. l, 1892, the plaintiffs en-
tered into a contract with j. S. Lakin
and formed a mining partnership
whereby the said Lakin, Bowley and
Curtis were to locate mining claims,
developing and marketing such mines
as might come into their hands and
that thereafter the compliments fur
nished said Lakin with money and
supplies TO develop. prospect for and
locate mining claims in pursuance
with said agreement.
That during the continuance of said
partnership and on May IA, 1892, the
said Lakin located. in his own name
the Sacramento and Excelsior mining
claims in Camp Floyd mining district,
Tooele county, Utah, with the intent
to defraud the compliments out of
their shares therein.
That he thereafter conveyed an undi-
vided one-Sixth interest and an undi-
vided one-third interest in each of said
claims to Glenn r. Boutwell, and r. Z.
McConaughy, but whether said con-
veyances were received by said gran
tees in good faith for a valuable con-
Sideration the compliments are not
a a a nj
the respondents, except the Sacra-
mento Gold Mining company pretended
to associate themselves together with
the pretense of Incorporating said COM
pany That the incOrpOratOrs were
insufficient in number under the laws
of Utah for that purpose. Since March
1896, Lakin, Boutwell, and McConaughy
have operated said mining claims, un-
der the name of the incorporation, Sac
ramento Gold Mining company, and
have extracted and sold ore therefrom
in value exceeding $4,000 and apprO-
priated the same to their own use; that
no settlement therefor has ever been
had with compliments. The property
is worth over 5000, coo.
The plaintiffs have demanded of j.
s. Lakin conveyance to them of two
thirds of said first named mining
claims, the Sacramento and Excelsior,
with said demand The relief pray I'll
for is that the compliments be decre9d
to be owners of an undivided two
thirds of the Sacramento mining claims
and that defendants be required to
convey such interest therein to them
and to account for and pay over to
them their portion of all ore extracted
and sold therefrom, but in the alterna-
tive that if the corporation, the Sac
Ill f-,f1 am b.1a
found Vali-i and ii be adjudged to own
said mining claims then the complain
ants be de"reed to be the owners of
two thirds of the capital stock of said
A discovery from all of
the defendants is sought
(The cOmplainants also alleged that
the title of said mining property had
never passed 10 the Sacramento Gold
Mining company, for the reason that
the deed was made to the company be-
fore the company was incOrpOrated)
The bill must be considered one for
relief. not simply for discovery. and if
it states no ground for relief as
against any defendant it cannot be
maintained against such defendant as
a bill Of discovery so far as defend
ants G. r. Boutwell,, r. z. Neon
aughy and Nora E. McConaughy are
the bill is manifestly insult
IlClGll. Inc COMPARTMENTS aSStTl ttull-
able title to lands, the legal title of
which was conveyed by compliments
trustee TO Boutwell, and McCOnaughy.
To recover, it is incumbent upon the
plaintiff to show that such grantees
are privy of their equity. The burden
is on them to allege and prove that
such grantee has motive, in fact, of
their rights. or that they paid no value,
or to show due notice in law.
This burden is not sustained by the
averment that the compliments are ig-
norant whether the conveyance was in
good faith or for value. 1t is not neces- I
sary TO decide what. if any, presump-
ton of fact arises as to notice or want
Of consideration from the other defend
ants to J. S. I4akin in making the con-
veyance; such. a presumption is at most
evidence inconclusive in itself. and can
not take the place of allegations OF the
fact.
The demurrer of the Sacramento Gold
Mining company presents some addi- /
-ional questions. The bill proceeds on I
The theory that the company was not I
ralidly incorporated, because the whole /
for Its capital stock pro-
ceeded from three of the stockholders, /
instead OF the entire five subscribers
hereto, the actual corDorators We're 1
therefore, less than the minimum num- /
Der OF five. prescribed by the statutes