Opinion
Department One
Appeal from a judgment of the Superior Court of Fresno County and from an order denying a new trial. S. A. Holmes, Judge.
COUNSEL:
J. A. Hannah, for Appellant.
Sayle & Coldwell, for Respondent.
JUDGES: Harrison, J. Van Fleet, J., and Garoutte, J., concurred.
OPINION
HARRISON, Judge
The plaintiff located a mining claim under the laws of the United States February 8, 1888, in the name of the defendant, signed the name of the defendant to the location, and posted and left the notice on the mine. In the following March he left a copy of the notice with the county recorder to be recorded, unless he should otherwise instruct him within a few days, and paid the fee for recording, but never gave any further instructions to the recorder. Shortly after this he saw the defendant, and informed him that he had posted notice on the claim in his name; and in his testimony says: "I told him that I had posted a notice on a claim in his name, and that before I had it recorded I came to see him if it was satisfactory with him to have the mine stand in his name, and deed it back to me as Mr. Stephens had formerly agreed to do, and he said it was agreeable." Soon after this interview with the defendant, the plaintiff conveyed an undivided half of the claim to one Broder, and he and Broder continued in possession of the mine, expending money in working it, taking to themselves all the proceeds. In December, 1890, the defendant, at the request of Broder, conveyed the mining claim to him. In February, 1891, the plaintiff demanded from the defendant a conveyance of the claim, and upon his refusal brought this action to recover [41 P. 806] damages for the breach of his agreement to make such conveyance. Judgment was rendered in his favor for six hundred dollars. The defendant has appealed.
A mining claim is real estate (Melton v. Lambard , 51 Cal. 258), and under the provisions of the statute of frauds can be transferred only by operation of law or an instrument in writing. The provisions of section 2322 of the Revised Statutes of the United States, conferring upon the locator of a mining claim "the exclusive right of possession and enjoyment" to the claim, is in the nature of a legislative grant of an interest in the land; and the interest thus conveyed to the locator by the government cannot be transferred by parol, or otherwise than in accordance with the statute of frauds. (Goller v. Fett , 30 Cal. 481; Garthe v. Hart , 73 Cal. 541.) The location may be made in the name of another than the actual locator (Morton v. Solambo Copper Mining Co ., 26 Cal. 527; Rush v. French, 1 Ariz. 150), and when so made the person in whose name it is made becomes vested with the legal title to the claim (Van Valkenburg v. Huff, 1 Nev. 142); and it is not necessary for its validity that it should be recorded. (Thompson v. Spray , 72 Cal. 533.)
By virtue of the acts done by the plaintiff in reference to the mining claim in question, the defendant became vested with the legal title thereto as fully as if the plaintiff had located the claim in his own name, and afterward by a conveyance absolute in form, and without any consideration, transferred it to the defendant. The defendant could not by any oral declarations subsequent to such conveyance render himself a trustee for the plaintiff or bind himself to transfer the claim to him. An absolute conveyance of lands cannot after its execution be turned into a trust by any oral declarations of the parties thereto. (Feeney v. Howard , 79 Cal. 525; 12 Am. St. Rep. 162; Hasshagen v. Hasshagen , 80 Cal. 514; Sherman v. Sandell , 106 Cal. 373.) The plaintiff did not locate the claim in the name of the defendant by reason of any fiduciary relations between them (see Feeney v. Howard, supra ), nor was it made under any prior agreement on the part of the defendant to hold the same in trust for him. The cases of Gore v. McBrayer , 18 Cal. 582, and Moritz v. Lavelle , 77 Cal. 10, 11 Am. St. Rep. 229, do not aid the plaintiff, and are not in contravention of this rule. In both these cases the location was made under a prior agreement between the parties that it should be for the joint interest of both. At the time of the transaction involved in Gore v. McBrayer, supra, a mining claim could be transferred by parol, the statute requiring it to be in writing, having been passed in 1860; and in Moritz v. Lavelle, supra, the location was made by both parties in the name of the defendant, upon the express agreement between them at the time of the location that in consideration of the prior agreement of the plaintiff to furnish the means for its location and working the defendant would transfer an interest therein. In Gore v. McBrayer, supra, the location was originally made in the name of both parties, and it was held that the interest thereby vested in the plaintiff could not be defeated by tearing down the notice and making a new location, in which the plaintiff's name was omitted.
The court should have excluded the oral evidence of the agreement by the defendant to reconvey the mining claim to the plaintiff, and should have granted the nonsuit asked by the defendant.
The judgment and order are reversed.