Redpath v. Aagaard

PRESTON, J.

Appeal from judgment of dismissal entered for defendants after the sustaining, without leave to amend, of their demurrer to plaintiffs’ third amended complaint. The sufficiency of the pleading is the sole issue. We shall therefore first set forth the substance of the allegations thereof:

That in April and May, 1914, plaintiffs and defendants entered into a contract to run to patent under the mining laws of the United States a certain lode mining claim situated in the Cleveland National Forest Reserve in Orange County, pursuant to which plaintiff Kenneth V. Redpath, acquired an eleven-sixteenth interest in the claim and defendant, Jack Herman Aagaard, acquired a one-fourth interest

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therein and said parties performed the annual assessment work thereon every year from 1914 to 1930, but never made application for a patent thereto. That said claim does not contain within its limits a vein or lode of quartz or other rock in place bearing any mineral and said agreement to secure a patent was for the exclusive purpose of developing the land and impounding the water thereon for a public resort and subdividing the land into lots for sale to the public, without any intention of using the property as a mine. That at the time said contract was entered into defendants misrepresented to plaintiffs that they knew said mining claim contained a vein or lode of quartz or other rock in place bearing mineral and also misrepresented to plaintiffs that they knew the law to be that after the parties obtained their patent to the land, they would have the right to use it for the purposes above mentioned, without using it as a mine, and plaintiffs believed said misrepresentations ; that plaintiffs are informed and believe that defendants at said time supposed that they knew the law governing the use of a patented mining claim and apprehended that such law would permit use of the land in the manner above indicated, for other than mining purposes. Plaintiffs further allege that their consent to said contract was given by

mistake;

that about December 1, 1929, they ascertained that said lode claim did not contain a vein or lode of quartz or other rock in place bearing any mineral and learned for the first time that a mining claim could not be run to patent for the exclusive purpose of developing the land for other than mining uses. Further, plaintiffs allege that on June 2, 1914, pursuant to said contract and for no other consideration, they deeded to defendant Leah Aagaard certain property situated in Los Angeles County from which defendants have received rents over the period from 1916 to 1929 in a sum to exceed $30,000 and have converted the whole thereof to their own use and benefit. That plaintiffs first became aware of their right to rescind said contract about December 1, 1929, and on December 17, 1929, brought an action against defendants for rescission thereof and for the cancellation of the deed of conveyance of said Los Angeles real property; that on May 19, 1930, plaintiffs dismissed said action without prejudice and on the succeeding day instituted this action. The prayer of