Downing v. Rademacher

CHIPMAN, C. Action to quiet plaintiff’s title to an undivided two-thirds interest in a certain mining claim, known as the ‘‘Baron Mine, ’ ’ in the Randsburg district. Judgment in the usual form was entered, quieting plaintiff’s title to thirty-two sixtieths of the mine, also quieting the title of defendant Middlecoff, grantee of plaintiff, to eight-sixtieths, and the remaining twenty-sixtieths to defendants and appellants Rademacher and Osmont. The appeal is from the judgment, on the judgment-roll alone. There was a motion for a new trial, but there is no appeal from any order made on the motion, and hence the fragmentary statement found in the transcript cannot be considered. It appears from the findings that on January 11, 1897, Rademacher was the owner of the Baron mine, and on that day he conveyed two-thirds thereof to plaintiff. The finding of the court is as follows: “That the claim of title of the plaintiff herein to said mill and mining property is founded solely on said conveyance made by defendant Rademacher to the plaintiff on the eleventh day of January, 1897, and said contract, Exhibit B, made at the same time with said deed; .... that plaintiff claims that said conveyance was made to him in consideration of the covenants and undertaking on his part contained in said contract, Exhibit B.” As the ease depends somewhat upon the terms of this contract, at least a general statement of its provisions is necessary. It recites that, whereas Rademacher. has granted to Downing an undivided two-thirds interest in the Baron mine, “now, for the purposes of working said mine, said parties agree as follows.” Downing was given the exclusive right to work the mine as he should see fit. “He shall mill and reduce all of the mineral ore taken out of said mine by him, and deliver to the said party of the second part [Rademacher] one-third of all the gold or other minerals taken from said ore by said first party [Downing] free of cost and expense to said party of the second part.” [584]Downing was “to use his best endeavors to find water on said mining claim or near the same,” and meanwhile was to take water from a well belonging to Rademacher. Downing was to have the right to erect any mills on the property or on other mining claims of Rademacher. Downing had the right to take any quantity of ore from the Baron mine that he might desire, and “have it milled wherever he pleases, provided always that'he shall deliver to said Rademacher one-third of all of the gold and other products of said mining and milling.” There was a provision that Downing would save Rademacher harmless from any demands of one Putnam and one Nidiver “for work they have done on said Baron mine, and will see that said Putnam and Nidiver are paid fair wages for the work they have done on said Baron mine; and all the ore now on said mine, milled by said Putnam and Nidiver for said Rademacher, is included in this contract, and said Downing may mill the same, and give one-third of the mineral taken therefrom to said Rademacher.” There is a provision that Downing will defend at his own cost any lawsuits that may be commenced against Rademacher concerning the mine, and Downing may select the attorneys in any such suit, but shall not be liable for any judgment that may be rendered against Rademacher. The contract gave Downing the right to control certain litigation then pending in Kern county against Rademacher, and Rademacher released Downing and the plaintiffs in that action from all costs and damages caused to Rademacher by an injunction in said action. Middlecoff’s interest comes from a deed by plaintiff to him after the deed to Downing was executed. It appears also that plaintiff conveyed thirty two-sixtieths to one Hyde, but that it was by way of and as a mortgage; and the court refused to order Hyde to be made a party defendant, for the reason that he had no interest in the property, except as mortgagee. The court found that neither said conveyance to Middlecoff nor said mortgage to Hyde “was made in violation of said contract, Exhibit B, nor without the knowledge or consent of said Rademacher, nor did said conveyance, or either of them, disable said plaintiff from performing said contract, Exhibit B, without the consent of his said vendees or otherwise.” And there is a finding that both these conveyances “were made in good faith and for value,” and that neither of them was without consideration. The court also