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to be a known or ascertainable natural monument. In the case of Hammer v. Garfield Mining Company, 130 U. S. 299, the starting-point was located with reference to "Vaughn's Little Jennie mine." This was held to be sufficient; and the court, per Field, J., said: "The Little Jennie mine will be presumed to be a well-known natural object or permanent monument until the contrary appears." All that has to be done by one seeking information, therefore, is to go to Turnback Creek and follow it up until he comes to a black-oak tree near a small ravine on its north side, which tree has the above notice posted upon it, and which is fifteen hundred feet northwesterly from another black-oak tree, which latter tree is a young one, and is four hundred feet northerly of an old crosscut or drift in the ravine, and has a copy of the above notice posted upon it. Looking at the description as it appears in the record, we cannot say that it is not amply sufficient. For all we can say to the contrary, those two trees may be the only black-oak trees on the whole creek. If any latent circumstances existed which renders it impossible to locate the line, it should have been proved by the party attacking the notice.

(b) It is said that neither as posted or recorded does the notice state that the claim is within the Tuolumne mining district, or even in Tuolumne County, or the State of California. This is in effect saying that the claim is not sufficiently described.

So far as the posting is concerned, the objection is manifestly untenable. The notice was posted upon the vein or lode itself, and stated that it was for a specified portion of this vein or lode. That identified and fixed the lode; and it was not necessary to go on and give the geography of the locality.

We also think that the record was sufficient. Under the rules of this district, the record is sufficient if it is the same as that posted, provided the latter is sufficient. As above stated, the statute does not require a notice to

be either posted or recorded. It leaves those matters to local regulation, subject, however, to the provision that when a notice is required to be recorded it shall contain a description of the property and certain other matters. The language of the statute is repeated in section 3 of the local rules, above quoted, in reference to the notice to be posted. Consequently, the notice, as posted, must comply with the requirements of the statute in relation to recorded notices. And the provision of the local rules in relation to recording merely requires that the notice posted shall be recorded. It says that all claims thereafter located will be regarded as abandoned unless "the notices of location" shall be filed for record within thirty days from "the date of such notice of location." This language can only refer to the notice of location previously spoken of in the rules. Hence it must be held that, under these rules, if the sufficient, it is sufficient as recorded. sarily the case in all districts. required to be posted; and it may be that in others less is required for the posting than for the recording. But in the Tuolumne district the notice posted is to be recorded; and if one is sufficient, the other is.

notice as posted is

This is not necesIn some no notice is

And here the notice posted was sufficient. It is true that, as recorded, it lacks the specific application which resulted from being affixed to the claim itself. But aside from this, the notice posted contains, as we have seen, a sufficient description of the claim; and the phrase "this vein or lode" must be held to be the vein or lode of which a portion is subsequently described in the notice.

The notion that, where the part of the vein or lode which is claimed is sufficiently described in the recorded notice, the phrase "this vein or lode" is not sufficient unless accompanied with the information that the vein or lode in question is within a particular district, county, or state, is one that might arise in the mind of a lawyer,

but would not be apt to occur to a miner. It certainly did not occur to the miners who adopted the rules of this district; for they prescribed the form of notice to be posted (which was followed by defendant's grantor), and then provided that the notice posted should be recorded. In construing notices like this, it must be remembered that, as a rule, miners are unacquainted with legal forms and requirements, and are frequently out of the reach of assistance; and in view of this, it has been wisely held that their proceedings are to be regarded with indulgence, and liberally construed.

In this case we think that the notice was sufficient, both as posted and recorded.

2. The description in the deed from Cademartori to the defendant was suficient. It conveyed "all that certain mining claim situated near Cherokee, Tuolumne County, state of California, and being the Sunny South claim, being fifteen hundred feet in length by three hundred feet in width on each side of the vein, and more fully described in volume 1, page 118, of Record of Quartz Mines."

The claim conveyed had a descriptive name, which was known, and was described in the mining records. This was sufficient. (Civ. Code, sec. 1092.) The parol evidence in aid of the description was admissible (Thompson v. Southern Cal. M. Co., 82 Cal. 497), though the description, under the circumstances shown in this case, was probably sufficient without it.

3. There is no merit in the point that the ground was not open to location when the defendant's grantor located it. The person who made the prior location testified that he had abandoned it at the time of the location of the defendant's grantor. Nor is there anything in the point that the deed to the defendant was of the old abandoned location, and not of the new one. It referred to the old one merely for a description of the property, and tonveyed whatever right the grantor had.

LXXXIII. CAL.-13

We therefore advise that the judgment and order denying a new trial be affirmed.

BELCHER, C. C., and VANCLIEF, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No. 13186. Department Two.-February 26, 1890.] JOHN STANTON, RESPONDENT, v. H. W. FRENCH, CONSTABLE, ETC., APPELLANT.

REFUSAL OF PROPER INSTRUCTIONS-REVIEW ON APPEAL.-When proper instructions are refused, and the record on appeal shows affirmatively that there were no other such instructions given, the judgment must be reversed.

EXEMPTION FROM EXECUTION-PEDDLER-JOINT OWNERSHIP OF HUSBAND AND WIFE-WIFE'S SEPARATE PROPERTY.-Property owned jointly by the judgment debtor and his wife cannot be claimed as wholly exempt from seizure, under execution against them jointly, upon the ground that the husband is a peddler of bread, habitually earning his living by the use of the property; and he cannot recover the interest of the wife in such property which has been sold under execution. The husband cannot claim any exemption on account of the separate property of his wife.

ID.-WAIVER OF EXEMPTION.-Exemption of property from execution is a personal privilege of the debtor, and is waived by failure to claim it as exempt within a reasonable time after it has been seized under execution.

ID. RECEIPT OF PROCEEDS OF EXEMPT PROPERTY-HUSBAND AND WIFE -AGENCY OF WIFE.-If the wife of the debtor has been in the habit of transacting business for him, and receiving and paying out money with his consent, her receipt of the proceeds of sale of property claimed as exempt, in her husband's presence, and without objection from him, is a payment to him; but if no agency appears for the husband, the reception by the wife of the surplus proceeds of the sale, after satisfaction of the execution, will not constitute a waiver of the husband's claim of exemption.

ID. JOINT NOTICE OF CLAIM OF EXEMPTION-HUSBAND AND WIFE.-A notice of claim of exemption from execution signed by two persons is sufficient as a claim for either separately; and the fact that a claim of exemption made by a husband is also made and signed by his wife does not invalidate his claim.

APPEAL from a judgment of the Superior Court of the county of Merced, and from an order denying a new trial.

The instructions asked by defendant numbered 5, 6, 8, and 12, referred to in the opinion of the court, were as follows: "5. If you find, from the evidence, that the property mentioned in the complaint was owned by plaintiff and Mary Stanton jointly, then, notwithstanding plaintiff might have been a peddler of bread, habitually earning his living by the use of said property, defendant would have the right to levy upon and sell the interest of Mary Stanton to satisfy a judgment against her, and such sale would pass a valid title to all of her interest in the property, and plaintiff cannot recover such interest in this suit. 6. While the law exempts certain property of a judgment debtor from execution. and forced sale, such exemption is a personal privilege, which may be waived by the debtor, and a failure to claim the property as exempt, when levied on to satisfy a judgment against him, within a reasonable time thereafter, is a waiver of the exemption right, and the officer selling exempt property, without such claim of exemption, is not liable for the value thereof." "8. If you find, from the evidence, that Mary Stanton, plaintiff's wife, was, at and prior to February 11, 1887, in the habit of transacting business for plaintiff, that she was in the habit of receiving and paying out money for him with his consent, then the payment of any balance from the proceeds of the sales of the property mentioned in the complaint to said Mary Stanton, in the plaintiff's presence, and without any objection from him, was a payment to him." "12. If you believe, from the evidence in this case, that plaintiff was simply engaged in delivering bread to the customers of Mary Stanton, and that she owned the bread and business, and collected and received the proceeds of the sale of this bread, then he was not a peddler, under subdivision 6 of section 690 of the Code of Civil Procedure, and is not entitled to the exemption of the property mentioned in the complaint." The following is the instruction given at request of

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