STEVENS et al. v. McCHRYSTAL et al., 150 F. 85

PHILIPS, District Judge, after stating the facts as above, delivered the opinion of the court. The chief insistence of counsel for appellants is that the facts alleged show a trust relation between the said Kelly and others and the Mc-Chrystals, which the latter failed and refused to observe; that it was a continuing trust, which, under the facts recited, was neither barred by the statute of limitation nor obstructed in its enforcement by the laches of the complainants. We are unable to discover any trust agreement in the ultimate shape the contractual relation between the parties assumed.

When -the claim of Kelly and others, adversing the application of the Mc-Chrystals for a patent, was withdrawn and the suit arising thereon was" dismissed, the parties in legal effect conceded that the mining area in contest was the property of said McChrystals. Thereupon the new agreement or contract between them supervened, which alone formed the basis of any right of action in Kelly and others or their successors.

That contract created no trust obligation upon the McChrystals to obtain title for the benefit of the complainants so as to impose- upon them the duty of seeking out the said Kelly and others and making tender of conveyance. The agreement was that after the McChrystals should procure a patent to said claim they would, “upon demand therefor and the payment of $101.25, convey to said Timothy Kelly et al. by deed” the property, etc.

Clearly this did not vest in Kelly and others any equitable title or interest in the property, for the obvious reason that at the time they had not paid any part of the purchase price or expenses of the acquisition of the patent. Ducie v. Ford, 138 U. S. 587, 591, 11 Sup. Ct. 417, 34 L. Ed. 1091. The contract constituted the mere relation of a prospective vendor and vendee under an optional contract. Dunphy v. Ryan, 116 U. S. 491, 496, 6 Sup. Ct. 486, 29 L. Ed. 703.

The legal effect of the final agreement was the creation of a mere optional contract, whereby, upon the procurement of a patent to said claim, the McChrystals were, upon demand therefor and the payment of $101.26, to convey to the said Kelly and others the designated property. No obligation on the part of the McChrystals was imposed to do anything about making the conveyance until the patent should be procured and a demand made upon and a payment to them of the sum of $101.25. The McChrystals could take no initiative or aggressive action against Kelly and others.

It was left entirely optional with the latter as to whether or not they would move in the matter; and they could make no demand for a conveyance except upon the tender of $101i25. In the absence of any specification as to when the demand and tender should be made, the law implies that this should be made within a reasonable time; such reasonable time being a question for the determination of the court under, the special facts of the particular case. A cause of action arises as soon as the party has a right to apply to the proper tribunal for redress. Tapley v. McPike, 50 Mo. 589.

In this case the right to make the demand and tender arose in favor of Kelly and others when the McChrystals obtained a patent, which was May 23, 1893. They could not escape the running of the statute of limitations if they delayed making their demand an unreasonable length of time. Williams v. Bergin, 116 Cal. 56, 47 Pac. 877; Meherin v. S. F. Produce Exchange Company, 117 Cal. 215, 48 Pac. 1074; Hintrager v. Hennessy, 46 Iowa, 600; Ball v. Keokuk & N. W. R. Co., 62 Iowa, 751, 16 N. W. 592.

The only excuse pleaded in the bill for the long delay in bringing this suit is that neither the complainants nor their predecessors in interest had any knowledge or information that said patent had issued until about the middle of the year 1901. This is but an admission of the appellants’ indifference and inattention to their interests and duty. The records of the Land Office Department are an open book, accessible to every one concerned. There was a local land office in Utah where the records would show the issue of all patents for lands situate in that district.

The very situation of the matter respecting the patent was such as to render it highly probable, the adversed contest being abandoned, that the patent would issue at an early date. Johnston v. Standard Mining Company, 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480. An inquiry by letter or otherwise would have enabled the appellants or their predecessors to have early obtained the necessary information respecting the issue of the patent. They rested, however, in indifference, contenting themselves with the mere “saying” of John H. McGhrystal that he would carry out his agreement.

His promise to convey, made in 1892, was a continuing promise for a reasonable time, which received no additional virtue by its oral repetition. It furnished no obstruction to affirmative action on the part of the appellants, and no excuse in law for their nonaction. The bill discloses the fact that in 1898 the Eagle & Blue Bell Mining Company,.one of the defendants below, became the purchaser of this property, knowledge of which fact by appellants at the time of the transfer is not negatived by the bill.

They stood idly by for nearly ten years after their cause of action arose, and for four years after the Eagle & Blue Bell Mining Company became the purchaser, before making tender to the McChrystals, and five years before demand by suit on said company. The value of the property is alleged in the bill to be $20,000, warranting the inference that by the development of this property under the management and expenditure of this company it had become valuable, on discovery of which these appellants come forward with the offer of the petty sum of $101.25 and demand a conveyance to them of the property.

Under the statute of Utah (Rev. St. 1898, § 2875) actions on written instruments, upon contracts, obligations, or liability founded upon written instruments are barred by limitation after the lapse of six years. And, as applied to property like mines in Utah the value of which is very fluctuating, courts of equity, exact of claimants asserting rights therein, based upon contracts parol in character, a degree of vigilance and early, energetic action in enforcing such claims wholly wanting in this case. See Twin-Lick Oil Company v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Galliher v. Cadwell, 145 U. S. 368, 12 Sup.

Ct. 873, 36 L. Ed. 738; Johnston v. Standard Mining Company, 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480; Curtis v. Lakin, 94 Fed. 251, 255, 36 C. C. A. 222. There was no error in the action of the Circuit Court in dismissing the bill of complaint, and its decree is affirmed.