ASPEN MINIl'iG & SMELTING
'V. ASPEN MINING
(Oircuit Oourt, D. Oolorado.
August 18, 1888.)
William J. Wood. the locator of the mine in question, was born in Canada, where he lived until 1870, when he moved to Kansas, leaving his wife and five or six children in Canada. It appeared that an entry of public lands had been made in Kansas, by a William Wood. who made oath at that time that he was a citizen. the head of a family consisting of a wife and seven children, and that he and his family had resided on the land from September, 1870, to April. 1871. A witness testified that .he saw naturalization papers issued in Kansas, in such locator's possession, but no record of snch papers conld be found in that state. Held that, the locator's title to the mine being of recent origin, the evidence of his citizenship was insufficient to support the same.
ANt> MINING-LoCATION AND ACQUISITION-CITIZENSHIP-EvIDENCE.
In Equity. Suit to caucel a conveyance. Suit by James A. Wood and others, heirs at law of William J. Wood, against the Aspen Mining &. Smelting Company, Jerome B. Wheeler, .and others, defendants, to set aside a conveyance made by complaina,ntsof their interest in a mine located by said William J. Wood. T. A. Green, for complainants. G. J .. Boal, for Wheeler. T. J.Ed8all, for Aspen Mining & Smelting Company. HALLETT, J. In the month of April, 1880, WilliamJ. Wood,with two other persons,located the Emma mine, in Pitkin county ,and wards died intestate. This bill is filed by complainants, as the heirs at law of Wood, to set aside certain conveyances made by them of their terests in said mine inherited from William J. Wood, and to establish their title thereto. It is alleged in the bill that William J. Wood was at the time of locating the mine a citizen of the United States, and thus qualified to acquire title to .public mineral lands under section 2319 of the Revised Statutes. This allegation is denied in the answers, and has become the subject of proof. It is conceded that Wood was born in Canada; and lived there until the year 1870, when he came to the state of Kansas, leaving a wife and five or six children residing in Canada. In proof of Wood's citizenship a record of an entry of land made by one William'Vood in Greenwood county, Kan., is offered. In that entry William Wood made oath that he was a citizen of the United States, which oath it is claimed establishes the fact. The proof offered in support of the entry shows that William Wood was the head of a family consisting of a wife and seven children, and that he had resided with his family on the land from September 20,1870, to the date of entry, April 8, 1871. Inasmuch as William J. Wood had then only six children. and his wife and family were in Canada, it would seem that he was not the same person who entered the land in Kansas. If he 4id make entry, he gave false testimony as to the number and residence of his family, which is not to be presumed. He also gave false testimony as .his. citizenship. He had th.en been ill t4e COUlltry pnly one year, and.
could not have gained citizenship under five years. There is also on file the affidavilofoneJohn P. KinneavYI to the efl'ecUh'at in theyear 1873. in Denver, he saw in Wood's possession certain "naturalization papers or declarations" which were issued in the town of lola or Emporia, state of Kansas, in. 1871 or 1872. Full search has been made in the records of Greellwooq county and elsewhere m the state of Kansas, and no record orWood's declaration of intention to become a citizen, or of his natural. ization, can'be found. In the absence of such record, it is clear that no statemetitas that made by Kinneavy can be resuch ceived. .And in a case of this kind, where the fact is of recent occurence, and there is .nothing like concurrent acquiescence in its existence on the it is clear enough that no such part of those;' mterested in evidence as,that here offered can be recognized. In such a case the fact of naturalization or of the declaration of intention to become a citizen pro\·ed. the record of some court of jurisdiction. Green·V.Sala8; 31 Fed. Rep. 107; Dryden v.Sunnburne, 20 W. Va. 90. In sOInecases;'where it is sought to overturn a title long recognized as. valid; there mEty bea presumption 'of citizenship in the absence of proof by the record·. ;Such cases ar6 referred to in Dryden v. Swinburne, supra. But no rule of that kind can be applied in a case where complainant's right has been contested from the very hour that it accrued. Other questionsptesented in the record have not been considered. On the ground that the citizenship of William J. Wood, or a declamtion by him of his intention to become a citizen, is not sufficiently shown, the IIlotion-for a receiver is denied·.
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(Oircui' (Jourt, S. D. IO'WfJ, (J. D.
August 80, t888.)
PAYMENT-WilAT AMOUNTS TOo-MONEY.IN HANDS OF AGENT.
Defendant applied to C. to procure him a loan to be used in paying a mortgage held by plaintiff. The loan was secured and embezzled by C., but de-, fendant did not know when he received the money. and never expresslY'di. rected Mm to apply It to the mortgage. O. was plalntiff'·s agent to collect the . interest and principal of the mortgage.- Held, that defendant had made no application of the money, and that its receipt by C. was not a payment of the mortgage.
In Equity. Bill to foreclose mortgage on realty. On final hearing. This isa bill to foreclose a mortgage on real estate, brought by William Boardman against Harrison Blizzard, owner of the real estate, and Warren Gifford, a junior incumbrancer. Kauffman &: Guernsey. for complainant. H: McNeil and D. H Ettien, for defendants·
'SHmAS, J. On the 25th da.y of July, 1879, the defendant Harrison Blizzard, through Hugh R. Creighton, Des Moines, Iowa, negotiated a