Costa v. Silva

THE COURT.

This is an appeal by defendant from a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial. The case is here on the judgment-roll and a bill of exceptions. It appears from the unchallenged findings as follows: That about twenty-four years ago the plain

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tiff bought a one-fourth interest in a certain mining claim described in the complaint, containing sixty-three and fifty-one one-hundredths acres, and paid therefor the sum of four hundred dollars, but took no deed for the same. That both plaintiff and defendant went into possession of said claim and each had a residence thereon, and for a number of years they worked said claim jointly. That during their residence thereon they each cultivated a portion thereof, and that defendant has continued to reside thereon from the time plaintiff first went into possession up to the present time. That a short time prior to the middle of October, 1896, the defendant recognized the one-fourth interest of plaintiff in and to said claim, and then proposed to plaintiff that they take steps to get a patent to said claim jointly; that plaintiff should pay one-fourth of the expenses of getting the patent, and that the defendant should pay three-fourths, to all of which plaintiff agreed. That they then jointly had the said claim surveyed, and plaintiff, at the request of defendant, contributed his services in making the survey, and paid a portion of the expenses thereof. That plaintiff understood that the patent to said claim would be procured in the names of plaintiff and defendant jointly, and they went to the office of their attorneys in Yreka, who had been employed to procure the patent for them, and each paid a portion of the expenses necessary to obtaining said patent. That plaintiff paid toward the expense of surveying the claim and getting a patent the sum of forty-five dollars. That prior to October, 1896, the defendant made application under the Revised Statutes of the United States to purchase the said claim, and thereafter, about the middle of October, 1896, made final proof in the United States landoffice at Redding, in Shasta county, and received a certificate of purchase therefor in his own name. That after the said certificate of purchase was so issued to the defendant, plaintiff demanded of defendant a deed to a one-fourth interest in and to said claimj and defendant then refused, and still refuses, to execute or deliver such deed or any deed to plaintiff.