majority">

By the Court,

Belknap, J.

This is a suit in equity for the purpose, among other things, of obtaining a decree determining that plaintiff is a half owner with defendant in certain mining property standing in the name of defendant. The case was tried by the court without a jury. The decision was in favor of defendant.

The complaint alleges that, in consideration of the mutual advantages to be derived therefrom, the parties promised and agreed to and with each other to combine their efforts and means in prospecting for and locating water rights, timber claims, and mines and mining claims, and that they should be equal partners in all such locations; that said agreement has never been annulled in any way, but still remains in full force and effect.

The answer denies the partnership; admits defendant’s ownership in the mines, but denies that such ownership was acquired by virtue of any agreement of partnership, or by the aid of any means, tools, or equipments furnished by the partnership, and alleges that defendant’s interest was acquired entirely independently of it.

The facts, so far as material to the contention, are that the parties formed a mining partnership by oral agreement, *389 and under it some mining locations were made, and other property acquired. These matters were of small value, and all of them had been settled long prior to the commencement of this suit. If there was anything left out, it was, according to appellant’s testimony, the Hidden Treasure claim, called in the complaint, by mistake, the “ Keystone Claim.” No effort was made to amend the complaint so as to embrace the Hidden Treasure claim, probably because no value was attached to it, and it was afterwards relocated by a stranger. In the spring of 1892 the defendant went the Ferguson mining district, and, in connection with others, located the property in dispute.

The important question is whether the Ferguson district mines were located under the partnership. Unless partnership capital was employed in their acquisition, the partnership agreement is within the statute of frauds, and void. The statute declares: “Sec. 55. No estate or interest in 'lands other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning or declaring the same, or by his lawful agent, thereto' authorized in writing.” (Stats. 1861, p. 11.) Equitable relief may be given against the partner holding the legal title when the property has been acquired by partnership capital upon the theory that a resulting trust exists — a trust arising by operation of law, and within the exception of the statute. (Colly. Partn., sec. 135, and note; Edgar v. Donally, 2 Munf. 387; Sigourney v. Munn, 7 Conn. 11.) The district court, however, in its decision, under conflicting testimony, held that the mines •were not located with partnership capital, and enforced its conclusion by many circumstances in its support. Under well-settled rules, we cannot disturb the finding, but take this occasion to approve of it, as being fully supported by the evidence.

A number of exceptions were taken to the admission of evidence touching the dissolution of the partnership. The admission of this evidence could not have prejudiced the *390 appellant, as the decision against him, as we have seen, was placed upon other grounds.

The judgment and order of the district court are affirmed.

Citation profile

Relationships

How this case has been treated — in progress