Becker-Franz Co. v. Shannon Copper Co.

GILBERT, Circuit Judge (after stating the facts as above). The decree of the court below made no specific disposition of the appellant’s claim of title to the appellee’s interests acquired through the forfeiture thereof for nonpayment of annual assessment work in. pursuance of a notice of forfeiture given after the decisions of the state courts. It decreed only that the appellee was the owner of r,’/J0° of the property, and that the appellant was the owner of the remaining 4!>/roo, and quieted the title of each, and found that the property could not be partitioned, and decreed that it be sold by a commissioner at public sale and provided for confirmation of the several sales by the court and for a final report by the commissioner, and that the appellajit take nothing by its counterclaim. [1] While the general rule is that equity has no jurisdiction to determine the validity of a legal title set up by the defendant in a partition suit and will suspend partition until the question of the legal title has been determined at law (20 R. C. L. 729; Clark v. Roller, 199 U. S. 541, 545 , 26 Sup. Ct. 141, 50 L. Ed. 300 ; Gay v. Parpart, *524 106 U. S. 679, 689 , 1 Sup. Ct. 456, 27 L. Ed. 256 ; Gilbert v. Hopkins [C. C.] 171 Fed. 704 ; Bearden v. Benner [C. C.] 120 Fed. 690 ; West v. East Coast Cedar Co., 101 Fed. 613 , 41 C. C. A. 528 ; American Ass’n v. Eastern Kentucky Land Co. [C. C.] 68 Fed. 721 ), and while it is held'in some jurisdictions, as in Litz v. Rowe, 117 Va. 752 , 86 S. E. 155 , L. R. A. 1916B, 799, and cases there cited that a controversy over the légal title arising in a partition suit belongs exclusively to a court of law, and no acquiescence or consent can create jurisdiction over it in equity, we think the rule to be followed in the federal courts is that where, as in the present case, no objection is raised in the trial court to the disposition of the question of the legal title by a court of equity, the objection is waived so far as an Appellate Court is concerned (Elder v. McClaskey, 70 Fed. 529 , 17 C. C. A. 251 [certiorari denied 163 U. S. 685 ]; Reynes v. Dumont, 130 U. S. 354, 395 , 9 Sup. Ct. 486, 32 L. Ed. 934 ). [2] On the merits the appellant’s claim to title by forfeiture under the provision of section 2324, Rev. Stats. (Comp. St. § 4620), was properly denied on the ground that the appellant was holding adverse possession- of the mining claims during the period of time when the annual assessment work was done, and Bennie was denied permission to enter upon the claims or to contribute to the assessment work. Mining Co. v. Mining Co., 6 Utah, 183 , 21 Pac. 1002 , 5 L. R. A. 259; Mallett v. Uncle Sam Min. Co., 1 Nev. 188 , 90 Am. Dec. 484 ; Field v. Tanner, 32 Colo. 278 , 75 Pac. 916 ; Trevaskis v. Peard, 111 Cal. 599 , 44 Pac. 246 ; Madison v. Octave Oil Co., 154 Cal. 768 , 99 Pac. 176 ; Garvey v. Elder, 21 S. D. 77, 109 N. W. 508 , 130 Am. St. Rep. 704 . [3] Nor was the appellant entitled to be paid out of the proceeds realized upon the partition sale any portion of the sums paid out by it for the annual assessment work for the years 1911 to 1914, inclusive, as demanded in its counterclaim. That a court of equity has jurisdiction in a partition suit to direct payment by one cotenant to another of his proportionate share of assessment work made necessary to maintain the life of a mining claim1 is not to be doubted. 30 Cyc. 230; McClintock v. Fontaine (C. C.) 119 Fed. 440 ; Hayne v. Gould (C. C.) 54 Fed. 951 . But such a right to contribution is lost in a case where the cotenant in possession holds adversely to his cotenant, and denies him permission to enter upon the claim or to contribute his proportion of the .expenses of maintaining the same, for in such a case the claim for contribution is inconsistent with the prior acts of the co-tenant in possession, of such a character as to estop him to claim contribution. Victoria Copper Min. Co. v. Rich, 193 Fed. 314 , 113 C. C. A. 238 ; Wistar’s Appeal, 125 Pa. 526 , 17 Atl. 460 , 11 Am. St. Rep. 719 ; Van Ormer v. Harley, 102 Iowa, 150 , 71 N. W. 241 . We find no error. The decree is affirmed. ,