majority">Wilson, J.

The purpose of this suit instituted by appellees was to secure a decree adjudging that the defendant was a trustee, holding in trust for them four undivided one-ninth parts of the Mallet lode mining claim in the Cripple Creek district, and that defendant be compelled to convey such interest to them. Defendant interposed a demurrer to the complaint, which was overruled. Thereupon, he stood upon the demurrer and a decree was entered in behalf of plaintiffs as prayed for. The substantial allegations of the complaint, admitted by the demurrer to be true, were that on January 26, 1895 — less than two years before tbe commencement of this suit — the parties to the action and one Bruce, whose interest is not *366involved in this controversy, were the owners of the said lode mining claim, the plaintiffs owning four one-ninth parts thereof. That on said date, plaintiffs, together with Bruce, executed to defendant a hond and lease of the claim, by the terms of which defendant was to be let into the exclusive possession thereof for the purpose of working it on his own account, paying a certain royalty therefor to the other parties, and with privilege of purchasing the other parties’ interest in the claim within a certain time, at a specified price. This bond and lease, which was set forth in full in the complaint, specifically required defendant to do a certain amount of work upon the claim during each year that he held possession thereunder. The complaint specifically alleged that this provision of the lease requiring certain work to be done each year was inserted by the agreement of all parties, for the purpose of preventing a forfeiture of the claim on account of the failure to comply with the United States law with reference to assessment work.

The complaint further alleged that whilst defendant was so holding possession under said lease, and before its expiration, in violation of his contract, he demanded that plaintiffs pay to him four ninths of the cost of the assessment work upon the claim for 1896, under penalty of the forfeiture of their interest therein. That upon their failure to make such payment, defendant filed a pretended notice of such forfeiture, with the intent to defraud plaintiffs out of their interest, and thereafter, claiming to be the sole owner of the claim, made application for patent in the United States land office, and through such fraudulent means procured from the land office a receiver’s receipt for the purchase price of said claim.

The chief contention of defendant in his argument is that the United States land department alone had jurisdiction of the controversy, and that a court of equity should not, if at all, assume jurisdiction until a patent for the claim had been issued by that department. This claim is based upon an alleged rule of the general land office to the effect that, “One holding a present joint interest in a mineral location in an ap*367plication for a patent, who is excluded, from the application so that his interest would not be protected by the issue of patent thereon may protest against the issue of patent as applied for, setting forth in such protest the nature and extent of his interest in such location, and such a protestant will be deemed a party in interest entitled to appeal.”

Without attempting to discuss the extent, application or object of this rule, it is obvious that it does not, and could not, apply to the matter in controversy. Here the question presented was one solely for judicial determination, namely, whether or not the plaintiffs herein were holding a “ present joint interest ” in the location. If such a protest had been made and received by the land department, it would not have assumed judicial functions and undertaken to decide the controverted point, but would have referred the parties to the courts for redress. The plaintiffs had a clear right to commence this proceeding in court, because it was the court alone that could determine the matter. The suit was not an attack, either collateral or otherwise, upon the proceedings in the land office. Neither was the suit instituted prematurely. The parties were not compelled to wait until a final patent had been issued. The issuance of a patent was a matter solely between the government and the parties. The issuance of the receiver’s receipt was an acknowledgment, so far as all other parties save the government was concerned, that the government had parted with its interest in the land. After its issuance, the parties to whom the receipt ran were vested with a title which they could convey, subject to be defeated only by the government. Struby, etc., v. Davis, 18 Colo. 93; Godding v. Decker et al., 3 Colo. App. 204.

If plaintiffs had been compelled to wait until the actual issuance of the patent before they were entitled to commence proceedings to assert their rights, defendant could in the mean time have conveyed the property, and the plaintiffs would have been without any chance of redress.

From the facts as alleged in the complaint, — and those alone are before us, — we see no question of waiver by or es*368toppel against the plaintiffs. If such existed, they should have been set up as matters of .defense. The mere facts that plaintiffs had notice that defendant claimed a forfeiture of their interest by reason of nonpayment of their part for the assessment work, and did not attempt to assert any adverse claims in the land office would not create an estoppel, nor would they thereby waive any rights. They, and parties similarly situated, might be, and indeed generally are, anxious to see patent proceedings pushed as vigorously as possible and a patent secured as quickly as can be. They certainly do not thereby, however, waive any right to subsequently go into the courts and have the interests of the parties in the claim properly determined and adjudicated.

We think the judgment in this case was clearly correct, and it will be affirmed.

Affirmed.

Citation profile

Relationships

How this case has been treated — in progress