Patterson v. Keystone Mining Co.

California Supreme Court Oct 15, 1866Published

Before: Sanderson

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Holding. The court held that a party must produce a written bill of sale or establish its loss before offering oral testimony of the sale's contents, and that a party is not precluded from proving a verbal sale simply because they erroneously alleged a written sale in their pleadings.

Issues

Does the Act of 1860 require all mining claim sales to be in writing?
Does an allegation of a written sale in a pleading preclude a party from proving a verbal sale at trial?
Is a party required to produce a written bill of sale or prove its loss before introducing secondary evidence of the sale?
What constitutes a sufficient change of possession for a mining claim sale?

Disposition. reversed

Quotations verified verbatim against the opinion

“The defendant was therefore bound to produce it or establish its loss before resorting to oral testimony.”

“The allegation, so far as it avers that the sale was by a written instrument, is an averment of the evidence of the fact of sale, and would have been stricken out on motion for that reason.”

“Mandeville being the last person shown to have it in his possession, inquiry should have been made of him in order to lay a foundation for the introduction of secondary evidence as to its contents.”

Synopsis

Appeal from the District Court, Eleventh Judicial District, Calaveras County.

In the month of August, 1860, Wm. L. Callahan, with nineteen others, located a copper vein or lode in Calaveras County, and named it the Keystone Claim. Callahan, at the time of the location, owned one undivided one twentieth of the mine.

On the 27th of November, 1860, the Keystone Mining Company was incorporated, and for some four weeks before the act of incorporation, Ambrose Blatchly had claimed to own and represent Callahan’s interest, and became one of the corporators, and received certificates of stock for the same, and delivered possession of the same to the corporation for the stock. On the 3d day of June, 1861, Callahan executed to plaintiff, Patterson, a deed of all his right, title, and interest in the claim. The plaintiff claimed under this deed. On the 20th day of July, 1861, Patterson commenced an action to recover possession of the one twentieth which formerly belonged to Callahan. The defendant claimed that in October, I860, Callahan had sold his interest to Blatchly, and that Blatchly had entered into possession and had delivered possession to the company.

On the trial, T. W. Beau, a witness for the defendant, testified that in October, 1860, Callahan gave him verbal authority to sell his interest in the mine to Blatchly, and that he contracted with Blatchly for Callahan to sell him the same for one hundred and fifty dollars, and informed Callahan, who assented to the contract and told Bean to give Blatchly a bill of sale for the same in Callahan’s name, as his attorney in fact, and that he then executed to Blatchly a bill of sale, in the name of Callahan, as his attorney. The testimony was admitted, subject to all legal objections. The defendants then moved the Court to strike out Beau’s testimony, because a written sale was alleged in the answer, and because the alleged parol sale was void, and also because no authority was shown to execute the bill of sale, as a parol authority was insufficient for such a purpose. The Court denied the motion, and defendant excepted. The defendant also moved the Court to disregard the evidence concerning the contents of the bill of sale, because it was not shown to be lost. The Court denied the motion, and defendant excepted.

The trial was by the Court, and the Court found as a fact that the sale from Callahan to Blatchly was by parol. The defendant recovered judgment, and plaintiff appealed.

The other facts are stated in the opinion of the Court.

By the Court, Sanderson, J.: I. It is settled that prior to the passage of the Act of the 13th of April, (Stat. 1860, p. 175), title to a mining claim would pass by a verbal sale, if accompanied by an actual transfer of the possession. This doctrine was first suggested in Jackson v. The Feather River Water Company, 14 Cal. 18, and formally announced in Table Mountain Tunnel Company v. Stranahan, 20 Cal. 198. It was subsequently affirmed in Gatewood v. McLaughlin, 23 Cal. 178, and in the present case when here on a former appeal (23 Cal. 575.) In the case of The Copper Hill Mining Company v. Spencer et al., 25 Cal. 18, we held that this rule applies only to cases where the vendor is in the actual possession and can deliver it to the vendee, and not to cases where there is an adverse possession in a third party. But in neither of these cases was the effect of the Act of I860 considered. The question is important. Does not that Act preclude verbal sales, and require them to be made in writing? Prior to its passage it is well settled that a written instrument was not necessary. Unless a change in that respect was desired no legislation was needed. Yet the Act was passed, and it was provided that “ conveyances of mining claims may be evidenced by bills of sale,” etc. Does not “ may” mean must or shall ? The first section of the Act concerning conveyances provides that “ conveyances of lands or of any estate or interest therein may be made,” etc. Here the word “ may” means must or shall, and, if so, why is not the same true of the former ? It may be doubted whether the rule in Table Mountain Tunnel Company v. Stranahan is not entirely abrogated by the Act of 1860 ; but we reserve the question, since its determination is not necessarily involved in this case.

By the second section the operation of the Act was limited to gold mines, and did not therefore embrace mines of the character of the one in suit. It is true this section was repealed in 1863 (Statutes, p. 98), and the operation of the Act thereby extended to all kinds of mines; but the sales [364]from Callahan to Blatchly, and from the latter to the defendant, were made whi^e the second section was still in force, and hence their validity must be determined by the rule in Table Mountain Tunnel Company v. Stranahan. Under the law, therefore, applicable to this case, the sales from Callahan to Blatchly. and from the latter to the defendant were good, and passed the title, if accompanied by a transfer of the possession, if merely verbal, which, however, as will be seen hereafter, does not seem to have been the case with the former.

Patterson v. Keystone Mining Co.

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