Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-05-27
on PETITION FOR REHNARISG
RY !

RY BoNNIFIELD. ].
The first ground urged for a rehearing
il: that the plaintiff does not pretend 10
sue except in his W behalf, and it Ger
tainly atfirmatively appears from the
complaint and the admissions in the case
that he alone filed a protest in the United
States Land Office against defendants
application for d patent, and therefore the
appellant claims that this court erred III
assuming as it does in the opinion that
the plaintiff claimed in his protest or in
this action said Fraction mine for him
self and his alleged co-oWners, George
Nesbitt and \. Berth a. tenants in COM
mon"
Counsel are in error in the above com-
tention. By the complaint it is alleged
that the plaintiff and his a>
tenants in common are in possession and
entitled to the possession of the Fraction
anime. etc. Also hat the plaintiff filed in
the L. 5. Land Office his and his cO-teli-
ants adverse claim to that portion of tie
Sleeper mine embraced within the Frac-
ton mine, and plaintiff pays that the ii
tie to said Fraction mine be Quoted in
him and his cO-tenantS and such is the
decree of the trial court. The advpr>-
claim filed as aforesaid alleges subslanti-
ally, that the affiant the plaintiff hercl
and his c~o-tenants (nalning them) George
Ne>bitt and A. Berth are the owners, etc
of the Fraction mine as tenants in com
mon.
BY the answer it is alleged that said
plaintiff and the said George Nesbitt and
A. Borth base their rights to such pos
session (Of a portion of the Sleeper mine)
upon the alleged pretended location
called by them the Fraction mine. = = "
Where a claim is owned by more than
one individual, it is customary to select
one to act in behalf of all. for which pur-
pose a special power of attorney is exc
cuted and filed with the application, but
this is not necessary. Uindley or Mines,
Sec. 6S1) The practice of the depart
ment has been to recognize such applica-
ton, signed by one joint owner in behalf
of himself and the remaining owners.
I'D; Ayers VS.. Daley, 3 Cops l.. O. 1861
tn~questiOnably an act manifestly done
by one LOW for the benefit of all,
would be presumed to be authorized or
at least ratified. (Lindley, Sec. 6Sl.)
The contention of petitioner that nei-
Their the certificates of sale of the interests
of DeBeck and Stevens in the Fraction
mine nor the deeds of the officer show
color of title in Nesbitt Bros, we think is
not correct. The certificates are regular
in form and fully comply with Sec. 1858
General Statutes of Nevada, which pro-
vides that: Upon a sale of real estate
under execution) the purchaser shall be
substituted to and acquire all the right,
title, interest and claim of the Judgment
debtor thereto, and when the estate is
less than a freehold of two years unex-
pired term, the sale shall be absolute.
In all other cases the real property shall
be subject to redemption as provided in
this chapter. The officer shall give to the
purchaser a certificate of sale containing,
49, A duplicate of such certificate
shall be filed by the officer in the office of
the Recorder Of the county, All of which
the officer did.
The deeds are also regular in form and
purport to conve by the officer said in
terests of DeBeck and Stevens in s.; / |
mine to Nesbitt Bros.
Petitioner further claims that if the
judgment is affirmed the patent will be
issued to the plaintiff, and that DeBeck