JOHN GOLLER, and F. HOFFMAN v. CHARLES FETT, SAMUEL LARRABEE, and WM. DAVIS, 30 Cal. 481

By the Court, Shafter, J.: The plaintiffs sue to recover the possession of certain mining ground, of which they claim to be the owners to the extent of seven twelfths. The allegations of the complaint are denied in the answer, and the defendants plead specially, title in defendant Fett and a misjoinder of parties plaintiff. The plaintiffs recovered a verdict at the trial, on which judgment was duly entered for seven twelfths of the premises undivided. The appeal is from the j udgment and from the order denying defendant’s motion for a new trial.

Both parties claim under Benfeldt—the defendant Fett by a written conveyance, in due form, executed January 3d, 1866, and including the whole of the property; the plaintiffs by verbal sales and transfers of possession previously made—the sale to Goller being of four twelfths, made in April, 1865; that to Hoffman being of three twelfths, made in August of the same year. First—Assuming the sales and transfers by Benfeldt to the plaintiffs respectively, they became thereby tenants in common of the mine, and as such were authorized to sue jointly under the Act of 1857. (Acts 1857, p. 62; Touchard v.

Keyes, 21 Cal. 208.) Second—The legal title to the seven twelfths claimed by the plaintiffs did not pass to them by the verbal sales and transfers of 1865. The point arises under the Act of 1860. (Acts 1860, p. 175.) It was considered arguendo in Patterson v. Keystone Mining Company, ante, 360, that the provision that “ conveyances of mining claims may be evidenced by bills of sale or instruments in writing not under seal,” contained in the first

section of the Act, was mandatory, and that it was' intended that that method of conveying mining claims should exclude conveyances by parol, even though accompanied by a delivery of possession. The point, however, was not directly adjudged in the case referred to, but it is now determined in conformity with the views therein expressed.

The Court below, in opposition to this view of the effect of the Act of 1860, instructed the jury that if they found a verbal sale by Benfeldt to the plaintiffs respectively, accompanied by delivery of possession, that such verbal sales “ would be as valid and effective to convey title as written bills of sale.” This instruction was erroneous, and for anything we can know to the contrary, the jury may have based their verdict upon it, without refei’ence to other instructions, presenting to the jury an alternative ground, on which, if found, the plaintiffs would be entitled to recover.

We cannot, therefore, intend that the jury ever put their minds upon the question as to whether Fett bought in 1866, with notice of the equitable right of the plaintiffs which their entry and possession had perfected. Third—The Court erred also in refusing to permit defendants to prove the expense of digging the gold bearing earth. The point was directly adjudged in Maye v. Tappen, 23 Cal. 306.) Judgment reversed and new trial ordered.