B. DEPUY and JOSEPH MILTON et als. v. JOHN WILLIAMS and PAUL NEWMAN et als., 26 Cal. 309

By the Court, Rhodes, J. Ejectment to recover a mining claim. The plaintiffs were in the actual possession up to about August, 1862. The defendants were in possession at the.commencement of the action, and for their defense they rely mainly on the ground that the plaintiffs, before the entry of the defendants, abandoned the mining claim by failing to work it, according to the local mining laws. The Court below ordered a nonsuit of the plaintiffs on that ground.

The plaintiffs’ counsel does not controvert the view of the Court below, that a failure to perform the amount of work on the mining claim that is required by the local mining laws or regulations, amounts to an abandonment of the claim, and that thereupon tlie claim may be occupied and appropriated by another.

But he relies upon a single point for the reversal of the judgment, which is the refusal of the Court to permit him to prove “ that plaintiff Milton colluded with the defendants to get possession of the claim in dispute, and that it was by such collusion that defendants got into possession of plaintiffs’ claim.” The respondents objected to the evidence, on the grounds, “ 1st. That the same parties cannot be shown to be plaintiffs and defendants in the same action ; and 2d.

That it is irrelevant and inadmissible under the pleadings, as the complaint charges no collusion between plaintiffs and defendant.” If a plaintiff has in fact sued himself, we think it would be reasonable and proper, though we find no direct authority to the point, that.he should be permitted to prove that he fills two of what Blackstone defines as the constituent joarts of a Court—the actor' and reas—for the purpose, if for no other, of satisfying the third constituent part of the Court — the judex—of a fact that would not be credited without the most ample proof.

But, be this as it may, the objection is not relevant to the evidence offered. The learned Judge of the Court below was in error in sustaining the objection on the second ground, for it was not requisite that the fact of collusion should have been alleged in the complain!; to entitle it to be proven. If it had been alleged, the complaint would have been liable to the objection, that it stated the evidence, instead of the ultimate facts of the cause of action. We can add nothing to the lucid opinion of Mr. Chief Justice Field, in Payne & Dewey v.

Treadwell, 16 Cal. 242, that will serve more clearly to point out the allegations that are necessary in an action of ejectment. But the decision excluding the evidence, may be sustained on other grounds. A party who has a right of entry upon lands, and who has entered by force or fraud cannot be turned out of possession by the action of ejectment. If he possesses the right of entry, it is not impaired by any fraud, false representation or collusion practiced by him upon one having no right of possession.

And so, if he is rightfully in possession, he will not be put out of possession, though he may have gained an entry by any species of collusion. The wrongful entry and the wrongful withholding of the possession, is, in ejectment, nothing more than the entry upon the possession of the plaintiff and the withholding the possession from him, without lawful right so to do. They are not made, in a legal sense, anymore wrongful, in an action of ejectment, by super-adding to them fraud or collusion.

If the defendant has no right to the possession, as against the plaintiff, the plaintiff’s cause of action is not, in the least degree, strengthened by proof of the fraudulent acts of the defendant in acquiring the possession. He may safely rest upon proof of his legal title to the possession, and the fraud or collusion of the defendant is immaterial. It is quite unusual, and we think unsustained by principle or authority, for a number of plaintiffs to found their claim to relief upon the fact that one of their number had combined and colluded with others to defraud his co-plaintiffs.

An action founded upon such a state of facts, could not be maintained by a party to the fraud except in violation of the maxim of universal application, that a party cannot take advantage of his own fraud. If Milton occupied such' a relation to the claim, by agreement with his co-tenants, that he could, by his acts or neglect, divest them of the right of possession, then it might be material to inquire into his acts of fraudulent collusion with the defendants, by which an apparent abandonment of the claim resulted, for the purpose of showing that they had not voluntarily, or in fact, abandoned the claim.

At the time plaintiffs offered to prove that Milton colluded with the defendants, that they might get possession of the claim, no evidence had been offered tending to prove that any arrangement or agreement had been made between Milton and the other plaintiffs, by which he was to hold the claim, or do any act for them or on their account, nor did they propose to prove, in connection with the testimony then offered, that any such arrangement or agreement had been made.

Unless such proof had been made, or was proposed to be made, the fact of the collusion of Milton with the defendants was immaterial and the ruling of the Court was correct. The decision of the Court being correct at the time it was made, proof subsequently made, completely establishing an agreement, by which Milton was to hold the possession of the claim for the plaintiffs, and perform the necessary amount of work, and do all the acts that were requisite under the mining laws, to enable them to continue to hold and own the claims, would not have the effect of rendering the decision erroneous.

The decision was right when given, and therefore will be sustained on appeal. Judgment affirmed.