say, that there is a clear distinction as respects responsibility for negligence between the powers granted to a corporation for governmental purposes and those in aid of private business, a like distinction may be recognized when we are asked to limit the full power of imposing excises granted to the national government by an implied inability to impede or embarrass a state in the discharge of its functions. It is reasonable to hold that while the former may do nothing by taxation in any form to prevent the full discharge by the latter of its governmental functions, yet whenever a state engages in a business which is of a private nature, that business is not withdrawn from the taxing power of the nation." In City of Chicago v. Seben, 46 N. E. 244, 245, 165 Ill. 371, 377 (56 Am. St. Rep. 245) the court said: "It is well settled that municipal corporations have certain powers which are discretionary or judicial in character, and certain powers which are ministerial. The powers of such corporations have also been divided into those which embrace governmental duties, such as are delegated to the municipality by the Legislature, and in the exercise of which the municipality is an agent of the state, and those powers which embrace quasi private or corporate duties, exercised for the advantage of the municipal locality and its inhabitants. Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial. 2 Dillon on Mun. Corp. §§ 949, 832; Tiedeman on Mun. Corp. § 324. A corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner. It has been said that the work of constructing gutters, drains and sewers is ministerial, and that the corporation is responsible in civil actions for damages caused by the careless or unskillful manner of performing the work. It is the duty of a municipal corporation, which exercises its power of building sewers, to keep such sewers in good repair, and such duty is not discretionary, but purely ministerial. The adoption of a general plan of sewerage involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers and the keeping of them in repair, after the adoption of such general plan, are ministerial duties, and the municipality, which constructs and owns such sewers, is liable for the negligent performance of such duties. [See cases cited.] It has always been the doctrine of this court that, while the legal obligation of the city to construct gutters and grade and pave streets is one voluntarily assumed, yet that, when the city constructs these improvements for the benefit of the public, it then becomes the duty of the city to see that they are kept in repair [citing cases]." In Johnston v. City of Chicago, 101 N. E. 962, 258 Ill. 494, 45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339, the court said: "In considering the question of liability the authorities usually hold that it must be considered that a municipality acts in a dual capacity--first, in exercising its governmental functions; and, second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employees although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers. 2 Cooley on Torts (3d Ed.) 1014; City of Chicago v. Seben [46 N. E. 244], 165 Ill. 371 [56 Am. St. Rep. 245]; 20 Am. & Eng. Ency. of Law (2d Ed.) 1197; Tiedeman on Mun. Corp. §§ 338, 349. The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employees. 20 Am. & Eng. Ency. of Law (2d Ed.) 1196. Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. A municipal corporation acts judicially, or exercises discre 10 F.(2d) 9 tract for several years during which time A. unquestioned. Also, that the bankrupt was, M. Ketch advanced therefor a large sum of in reality, insolvent at that time is estabmoney which should have been advanced by lished. It is hardly contended that the exWallace. Thereafter, the Ketches transfer- aminer had actual knowledge of such inred their interest in the entire lease to Levant solvency. The controversy narrows down to Oil Company which thereafter carried on the whether he was in possession of such infordevelopment of the 20-acre tract. In such de- mation as would have caused a prudent man velopment, the Levant advanced a large sum to doubt and, therefore, to have investigated of money which should have been advanced the solvency of the bankrupt. The master by Wallace. Mrs. Ketch and the Levant Oil found that the examiner "had reason to beCompany each claimed a mining partnership lieve and did believe" that Wallace was then lien superior to the mortgage. solvent. The trial court approved the findings of the master. We have painstakingly read and considered all of the evidence upon this matter. While there is a conflict in the evidence and the answer is not entirely free from doubt, yet we not only think the evidence lacks that certainty and clarity which would authorize us to overturn a finding of the master which has been approved by the trial court but we approve that finding as being supported by the weight of the evidence. Therefore, we hold that the mortgage is valid The receiver of the bank brought an action to foreclose the mortgage. That suit was begun before the bankruptcy petition was filed. Thereafter, there was an amended petition bringing in the trustee and a second amended petition bringing in the Ketches and Levant Oil Company. By an amended reply, the bank sought, in event the Ketch and Levant Oil Company advancements were held to be liens superior to the mortgage, to have the two tracts marshaled so that those two sums would be paid from the 40-acre tract. The decree established the mortgage and the Mrs. Ketch and Levant Oil Company advancements as liens and required Ketch and the company to first resort to the 40-acre tract for satisfaction. From this determination only the trustee appeals. Appellant urges here seven points which may be placed in three general groups: (I) That the mortgage is voidable; (II) that the liens allowed Mrs. Ketch and the Levant Oil Company must fail because no mining partnership between them and Wallace existed; (III) that there was no right to marshal these assets between these three liens. I. The Mortgage. The appellees contend that the question of the validity of the mortgage is not reviewable because a final order affirming its validity was made more than 6 months before this appeal was taken. As our view of the merits as to this matter favors appellees and as we prefer to place our determination upon that ground, we pass by this preliminary proposition without discussing or disposing of it otherwise. and not voidable. II. Appellant does not deny the general legal proposition that if the relation between the bankrupt and Mrs. Ketch and the Levant Oil Company was that denominated in law as a "mining partnership," a lien for advancements made by one for the benefit of another in connection with the particular mining venture would exist as to the proceeds and mining property. His contentions are (a) that no such "partnership" existed as a matter of fact as to either tract; (b) that it could not legally exist as to the 20-acre tract during the time the Levant Oil Company was operating because a corporation cannot be a member of a partnership; (c) that the Levant Oil Company was never, as a matter of fact, interested, as a mining partner in the 40-acre tract, nor, as matter of law could be a partner therein. We think the three above propositions can be settled by a statement of the law respecting "mining partnerships," as here applicable, and by a determination of the facts, in that respect, as shown by the evidence. [1] In working out the legal rights and liAppellant contends that the mortgage is abilities arising from novel legal relationvoidable because made less than 4 months ships, courts wisely strive to assimilate such before the petition in bankruptcy was filed, to other long established and defined relationat a time when the bankrupt was insolvent ships to which the one in question is most and when the bank examiner knew or had similar. But analogy does not mean identity. reasonable grounds to believe that such in- It implies difference. Also, the attendant solvency existed. That the mortgage was use of established terminology only adds to executed within the four months period is the danger of carrying an analogy too far. 10. Mines and minerals 99 (2)-Lien for advances attaches to partner's interest in entire partnership property. Lien for advances attaches to partner's interest in entire mining partnership property under development, and is not confined to par ticular part in connection with development of which advances were made. 11. Bankruptcy 149-Bankruptcy of single partner in mining partnership held not to interfere with partnership business, nor with rights of partners inter se. Bankruptcy of single partner in mining partnership does not interfere with ordinary business of partnership, nor rights of partners inter se as to partnership property and bankruptcy court is entitled only to demand profits due bankrupt, and cannot assume administration of business without consent of other partners, except to protect individual rights of bankrupt. 12. Bankruptcy 293(4)-Court held to have Jurisdiction to administer property of solvent mining partnership in which single partner was bankrupt. Where bankruptcy trustee of single partner in solvent mining partnership assumed control of partnership property, and other partners, by appearing and asking relief, consented thereto, bankruptcy court could act and protect rights of all parties, but such assumption of jurisdiction did not change rights of partners inter se, as to partnership property. 13. Bankruptcy 354-Mortgagee's receiver held entitled to marshaling of liens on mining partner's interest and assets covered thereby. Where bankrupt's debtor's interest in oil and gas lease on 20 acres was insufficient to pay mining partnership liens and other liens superior to mortgage, and leave enough to satisfy mortgage, and partners' liens were adequately protected by remaining 40 acres of partnership land, mortgagee's receiver was entitled to marshaling of liens and assets covered thereby, and bankruptcy trustee's contention that such marshaling should not apply to advancements made after the mortgage was executed, or after bankruptcy petition was filed, was untenable. 14. Mines and minerals 99(2)—That partner in mining partnership incumbered his interest by mortgage held not to affect rights of other partners, nor of mortgagee. That partner in mining partnership incumbered his interest by mortgage did not affect rights of other partners to liens for advances, nor right of mortgagee to marshaling of assets which would not harm other partners. United States for the Eastern District of Appeal from the District Court of the Oklahoma; Robert L. Williams and Franklin E. Kennamer, Judges. Action by Bernard Ulrich, receiver for the State National Bank of Ardmore, and another, against Hugh L. Sturm, trustee of the estate of Harold Wallace, bankrupt, and others. Decree, for plaintiffs, and the named defendant appeals. Affirmed. Earl Q. Gray, of Ardmore, Okl. (H. C. Potterf and J. M: Poindexter, both of Ardmore, Okl., on the brief), for appellant. F. M. Adams, of Ardmore, Okl. (T. B. Orr, of Ardmore, Okl., and Villard Martin, of Tulsa, Okl., on the brief), for appellees Levant Oil Co. and A. M. Ketch. William Johnson, of Ardmore, Okl. (Hugh W. McGill, of Ardmore, Okl., on the brief), for appellee receiver. Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. STONE, Circuit Judge. Harold Wallace, who had been engaged in banking and in oil operations in Oklahoma, became a bankrupt. The State National Bank of Ardmore, to which he was indebted on various notes, became insolvent and was taken over by the Comptroller of the Currency. On March 2, 1922, the bank examiner, with the hope of reviving the bank, procured from Wallace a mortgage securing a portion of this indebtedness. The mortgage covered an undivded one-half in an oil lease on a described 20 acres of land. Less than 4 months later, an involuntary petition in bankruptcy was filed against Wallace, who was later adjudicated a bankrupt and appellant elected as trustee therein. Some years prior to the above transactions, in 1917, Wallace had acquired an undivided half interest in an oil lease in 80 acres of land from F. L. Ketch. Twenty acres were disposed of and are not involved in this litigation. Of the remaining 60 acres, 20 acres formed the tract covered by the above mortgage. The 40-acre tract was developed through a contract with the Skelly Oil Company. Ketch conveyed one-half of his onehalf interest in the lease on the 60 acres to Thereafter the his wife, A. M. Ketch. Ketches and Wallace developed the 20-acre 10 F.(2d) 9 tract for several years during which time A. unquestioned. Also, that the bankrupt was, M. Ketch advanced therefor a large sum of in reality, insolvent at that time is estabmoney which should have been advanced by lished. It is hardly contended that the exWallace. Thereafter, the Ketches transfer- aminer had actual knowledge of such inred their interest in the entire lease to Levant solvency. The controversy narrows down to Oil Company which thereafter carried on the whether he was in possession of such infordevelopment of the 20-acre tract. In such de- mation as would have caused a prudent man velopment, the Levant advanced a large sum to doubt and, therefore, to have investigated of money which should have been advanced the solvency of the bankrupt. The master by Wallace. Mrs. Ketch and the Levant Oil found that the examiner "had reason to beCompany each claimed a mining partnership lieve and did believe" that Wallace was then lien superior to the mortgage. solvent. The trial court approved the findings of the master. We have painstakingly read and considered all of the evidence upon this matter. While there is a conflict in the evidence and the answer is not entirely free from doubt, yet we not only think the evidence lacks that certainty and clarity which would authorize us to overturn a finding of the master which has been approved by the trial court but we approve that finding as being supported by the weight of the evidence. Therefore, we hold that the mortgage is valid The receiver of the bank brought an action to foreclose the mortgage. That suit was begun before the bankruptcy petition was filed. Thereafter, there was an amended petition bringing in the trustee and a second amended petition bringing in the Ketches and Levant Oil Company. By an amended reply, the bank sought, in event the Ketch and Levant Oil Company advancements were held to be liens superior to the mortgage, to have the two tracts marshaled so that those two sums would be paid from the 40-acre tract. The decree established the mortgage and the Mrs. Ketch and Levant Oil Company advancements as liens and required Ketch and the company to first resort to the 40-acre tract for satisfaction. From this determination only the trustee appeals. Appellant urges here seven points which may be placed in three general groups: (I) That the mortgage is voidable; (II) that the liens allowed Mrs. Ketch and the Levant Oil Company must fail because no mining partnership between them and Wallace existed; (III) that there was no right to marshal these assets between these three liens. I. The Mortgage. The appellees contend that the question of the validity of the mortgage is not reviewable because a final order affirming its validity was made more than 6 months before this appeal was taken. As our view of the merits as to this matter favors appellees and as we prefer to place our determination upon that ground, we pass by this preliminary proposition without discussing or disposing of it otherwise. Appellant contends that the mortgage is voidable because made less than 4 months before the petition in bankruptcy was filed, at a time when the bankrupt was insolvent and when the bank examiner knew or had reasonable grounds to believe that such insolvency existed. That the mortgage was executed within the four months period is and not voidable. II. Appellant does not deny the general legal proposition that if the relation between the bankrupt and Mrs. Ketch and the Levant Oil Company was that denominated in law as a "mining partnership," a lien for advancements made by one for the benefit of another in connection with the particular mining venture would exist as to the proceeds and mining property. His contentions are (a) that no such "partnership" existed as a matter of fact as to either tract; (b) that it could not legally exist as to the 20-acre tract during the time the Levant Oil Company was operating because a corporation cannot be a member of a partnership; (c) that the Levant Oil Company was never, as a matter of fact, interested, as a mining partner in the 40-acre tract, nor, as matter of law could be a partner therein. We think the three above propositions can be settled by a statement of the law respecting "mining partnerships," as here applicable, and by a determination of the facts, in that respect, as shown by the evidence. [1] In working out the legal rights and liabilities arising from novel legal relationships, courts wisely strive to assimilate such to other long established and defined relationships to which the one in question is most similar. But analogy does not mean identity. It implies difference. Also, the attendant use of established terminology only adds to the danger of carrying an analogy too far. [2-7] The relationship between parties engaged in the common ownership and operation of mining property is somewhat sui generis. Where there is merely a common ownership and no joint development, the relation is, ordinarily, a tenancy in common. Where they join their efforts or means or property in the development of mining property they constitute a "mining partnership." The use of the term "partnership" in this connection is by analogy and is not to be taken as meaning, in all legal respects, the same as an ordinary business or trading partnership. Such a partnership has many of the attributes and limitations of an ordinary partnership but not all such. There are some cardinal differences. Probably, the main differences are that the death or bankruptcy of one such partner does not terminate the partnership and that one partner may convey his interest, or any part thereof, without the consent of his associates and without terminating the partnership and the transferee thereof becomes a partner, to the extent of the interest transferred, from the effective date thereof. Mining partnerships are held, generally, to be applicable to development of oil and gas properties Pennsylvania being the exception. Such relationship in this regard is recognized in Oklahoma. Where a mining partnership exists, each partner is liable to the others for his share (depending upon his interest) of the expenses and losses incurred in the enterprise and there is a lien for such upon his interest in the property or proceeds therefrom in favor of creditors or of other partners who have made advances. Such a partnership may result from express contract or be implied by the conduct of the parties in joining in mining operation on a profit and loss sharing basis or in jointly acquiring mining property for the purpose of joint development and afterwards prosecuting such development or where persons owning a min engage in working it for the purpose of extracting the minerals. Where a mining partnership is in existence, the purchase of an interest of a partner or the purchase of an interest of a partner in the lease being mined makes the purchaser a partner. The power of one such partner to bind the others is strictly limited to acts having a direct connection with the development of the mining venture which is the subject of the partnership. In the footnote are collected numerous cases supporting the above rules and, also, distinguishing mining partnerships from tenancies in common, agency agreements and hiring contracts.1 1 Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764; Bissell v. Foss, 114 U, S. 252, 5 S. Ct. 851, 29 L. Ed. 126; Kahn v. Central Smelting Co., 102 U. S. 641, 26 L. Ed. 266; Taylor v. Salt Creek Consol. Oil Co., 285 F. 532 (C. C. A. 8th Cir.); Lesamis v. Greenberg, 225 F. 449, 140 C. C. A. 481 (9th Cir.); 74 (9th Cir.); Shea v. Nilima, 133 F. 209, 66 Greenberg v. Lesamis, 203 F. 678, 122 C. C. A. C. C. A. 263 (9th Cir.); G. V. B. Min. Co. v. First Nat. Bank, 95 F. 35, 35 C. C. A. 510 (9th Cir.); Thomas v. Hurst, 73 F. 372 (C. C. D. Mo.); Santa Clara Min. Ass'n v. Quicksilver Min. Co., 17 F. 657, 659 (C. C. D. Cal.); Johnstone v. Robinson, 16 F. 903, 905 (C. C. D. Colo.); First Nat. Bank v. Bissell, 4 F. 694 (C. C. D. Colo.); In re Gladough, 1 Alaska, 649; McMahon v. Meehan, 2 Alaska, 278; Marks v. Gates, 2 Alaska, 519; Elliott v. Elliott, 3 Alaska, 352; McNamee v. Williams, 3 Alaska, 470; Bell v. Wright, 25 Ariz. 97, 213 P. 575; Waring v. Crow, 11 Cal. 366; Gore v. McBrayStone v. Riggs, 163 Ark. 211, 259 S. W. 412; er, 18 Cal. 582; Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96; Henderson v. Allen, 23 Cal. 519; Duryea v. Burt, 28 Cal. 569 (a leading case); Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116; Settembre v.. Putnam, 30 Cal. 490; Patterson v. Keystone Min. Co., 30 Cal. 360; Jones v. Clark, 42 Cal. 180; Taylor v. Castle, 42 Cal. 367; Decker v. Howell, 42 Cal. stern v. Thrift, 66 Cal. 577, 6 P. 689; Stuart 636; Nisbet v. Nash, 52 Cal. 540; Morganv. Adams, 89 Cal. 367, 26 P. 970; Chung Kee v. Davidson, 102 Cal. 188, 36 P. 519; Berry v. Woodburn, 107 Cal. 504, 40 P. 802; Dellapiazza v. Foley, 112 Cal. 380, 44 P. 727; Dorsey v. Newcomer, 121 Cal. 213, 53 P. 557; Ferris v. Baker, 127 Cal. 520, 59 P. 937; Prince v. Lamb, 128 Cal. 120, 60 P. 689; Frowenfeld v. Hastings, 134 Cal. 128, 66 P. 178; Harper v. Sloan, 177 Cal. 174, 169 P. 1043, 181 P. 775; Lawrence v. Robinson, 4 Colo. 567; Charles v. Eshleman, 5 Colo. 107; Manville v. Parks, 7 Colo. 128, 2 P. 212; Higgins v. Armstrong. 9 Colo. 38, 10 P. 232; Jennings v. Rickard, 10 Colo. 395, 15 P. 677; Meagher v. Reed, 14 Colo. 335, 24 P. 681, 9 L. R. A. 455; Slater v. Haas, 15 Colo. 574, 25 P. 1089, 22 Am. St. Rep. 440; Hurd v. Tomkins, 17 Colo. 394, 30 P. 247; Butler v. Hinckley, 17 Colo. 523, 30 P. 250; Patrick v. Weston, 22 Colo. 45, 43 P. 446; C. D. M. I. Co. v. Bliley, 23 Colo. 160, 46 P. 633; Hodgson v. Fowler, 24 Colo. 278, 50 P. 1034; Taylor v. Thomas, 31 Colo. 15, 71 P. 381; Milliken v. Fredrickson, 73 Colo. 534, 216 P. 714; McLaughlin v. Thompson, 2 Colo. App. 135, 29 P. 816; Perkins v. Peterson, 2 Colo. App. 242, 29 P. 1135; Ashenfelter v. Williams, 7 Colo. App. 332, 43 P. 664; Caley v. Coggswell, 12 Colo. App. 394, 55 P. 939; Lyman v. Schwartz, 13 Colo. App. 318, 57 P. 735; Lamont v. Reynolds, 26 Colo. App. 347, 144 P. 1131; Hawkins v. S. H. Min. Co., 3 Idaho (Hasb.) 241, 28 P. 433; Haskins v. Curran, 4 Idaho, 573, 43 P. 559; Brown v. Bryan, 5 Idaho, 145, 51 P. 995; Hand v. Allen, 294 m. 35, 128 N. E. 305; Huston v. Cox, 103 Kan. 73, 172 P. 992; Judge v. Braswell, 13 |