SHEA et al. v. NILIMA et al., 2 Alaska Fed. 307

HAWLEY, District Judge (after making the foregoing statement). It will be our endeavor to confine the discussion in this case to as few points as possible, and at the same time to cover all material questions that have been properly raised and presented by counsel.

It may be said generally that the evidence of Nilima, and the facts set forth in the amended, supplementary, and substituted complaint, make out at least a prima facie case on the part of the appellees; and, unless the legal objections raised thereto by appellants destroy the force and effect thereof, there is enough in the record to sustain the action of the court below in issuing the injunction. Some of the reasons which sustain this view will be hereafter referred to.

The agreement of partnership, as alleged and proven, does not fall within the character of contracts required by the Alaska Code to be in writing in order to be valid. The agreement does not come within the provisions of the statute of frauds. The rule is well settled that an agreement between two or more persons to explore the public domain, and discover and locate a mining claim or claims, for the joint benefit of the contracting parties, does not fall within the statute of frauds, and need not be in writing.

If, in pursuance of the agreement, one of the parties locates the claim in his own name, he holds the legal title to the interests of the others in trust for them. Murley v. Ennis, 2 Colo. 300; Hirbour v. Reeding, 3 Mont. 15, 20, 23; Meylette v. Brennan, 20 Colo. 242, 38 P. 75; Meagher v. Reed, 14 Colo. 335, 351, 367, 24 P. 681, 9 L.R.A. 455; Gore v. McBrayer, 18 Cal. 582, 587; Settembre v. Putnam, 30 Cal. 490; Moritz v. Lavelle, 77 Cal. 10, 18 P. 803, 11 Am.St.Rep. 229; Welland v. Huber, 8 Nev. 203; 2 Lind, on Mines, § 797.

This is not a partnership to deal in lands.' It is alleged in the complaint to be a “prospecting and mining partnership.” But it matters not what name is given to it by the parties; it must be left to the court to determine its general nature from the facts. Whether it is called a “contract,” an “agreement,” or a “partnership,” the law steps in, and from the facts determines the rights of the respective parties thereunder. It will not be necessary to follow the counsel as to when or at what place the agreement was executed.

In the very nature of the case, no independent argument can be based on the talk at Eaton Station. The entire steps taken by the parties must be considered. Whatever was done in furtherance of the common purpose, understanding, and agreement must be treated as an entire or continuous transaction, so far as their rights and obligations in respect to the enterprise are concerned.

If by words, acts, and deeds they joined together in a common purpose, and agreed to share equally in the enterprise, they were, in a certain sense, partners, and such a partnership may be formed without any written articles between the parties. In determining whether the relation between the parties to an oral agreement constitutes a partnership, their intention, as is disclosed by the nature and effect of the whole agreement, and acts done thereunder, must govern.

The mutual agreement between Nilima and Johansen was not, strictly speaking, a mining copartnership, in the full sense of that term, or an ordinary common-law partnership, or a “grubstake” agreement; and some of the principles of law announced in such cases are not specially applicable to the case in hand, and need not be discussed. We are of opinion that the complaint states facts sufficient to constitute a cause of action in equity; that the objections urged thereto are more to the form than to the substance.

Some of the objections made thereto are purely technical; others are based upon the theory of appellants that the suit was a mining copartnership, pure and simple; and others, that the existence of a partnership and date of location of the claim are uncertain. A motion to have made it more certain and definite would doubtless have been allowed..

In Pomeroy’s Code Rem.(3d Ed.) § 549, the author said: “The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective — such insufficiency pertaining, however, to the form rather than to the substance — the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment. * * * If, instead of alleging the issuable facts, the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver conclusions of law in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion, and not by a demurrer.”

Section 97 of the Alaska Code of Civil Procedure (31 Stat. 347) declares that: “The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.” It is claimed that appellees were guilty of laches in commencing and in prosecuting the suit. What are the facts? The complaint does not state the time when the Columbia .claim (in controversy) was located, but it does show that it was located prior to August 20, 1900. Nilima and Johansen left Eaton Station in the spring of 1899.

The complaint was filed July 25, 1901. It may have been within one year, and could not have been over two years, from the time of the location of the claim. The application for the injunction was made June 9, 1903. These facts as to time do not seem to bring the case within the rule of laches, and no question as to laches seems to have been urged in the court below. There is no assignment of error upon this point. It has, however, been held that the objection of laches may be taken without pleading the same as a defense. Sullivan v. Railroad Co., 94 U.S. 806, 811, 24 L.Ed. 324; Richards v.

Mackall, 124 U.S. 183, 187, 8 S.Ct. 437, 31 L.Ed. 396; Penn Ins. Co. v. Austin, 168 U.S. 685, 697, 18 S.Ct. 223, 42 L.Ed. 626. It may therefore be assumed that it may be considered without reference to the assignments of error. It is well settled that if the delay in the assertion of rights is not adequately explained, and if such circumstances have intervened in the condition of the adverse party as to render it unjust To them, a court of equity might afford relief where a shorter time than that prescribed by the statute of limitations has elapsed without suit.

From the record in this case, it does not appear that the relative positions of Nilima and Johansen had. in any way been changed to the prejudice of appellants by the delay. Townsend v. Vanderwerker, 160 U.S. 171, 186, 16 S.Ct. 258, 40 L.Ed. 383; 18 Am.& Eng.Ency.L.(2d Ed.) 101, and authorities there cited. The suit was brought before Johansen’s death, and appellants purchased the property from Johansen with knowledge of Nilima’s equitable claims, and they ought not to be allowed to plead laches for a less time than prescribed by the statute of limitations! They were all, with the exception of R. L.

Price, encouraging Johansen in his refusal to execute the deed of a one-‘half interest in the property to Nilima. The next contention of appellants is that the contract in question was' made between aliens, and cannot be enforced; it being claimed that the enforcement of the contract involves the violation of the statutes of the United States as to who can locate mining claims. If the contract between the parties was illegal, having for its object a-violation of the law, it cannot be judicially enforced. 15 Am.& Eng.Ency.L. (2d Ed.) 935, and authorities there cited.

The record shows that, at the time the Columbia claim was located, both Nilima and Johansen were aliens. It also shows that on April 28, 1900, Nilima, in the superior court of the city and county of San Francisco, Cal., in accordance with the provisions of law upon the subject, regularly declared his intention to become a citizen of the United States. At this date Johansen still recognized Nilima as his partner, and no intervening rights of others to the claim had accrued.

The statute of the United States provides that: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase * * * by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law.” Rev.St. § 2319 [U.S.Comp.St.1901, p. 1424], The fact that a mining claim is located by an alien can only be taken advantage of by the government. The location is not illegal or void, but, at most, is only voidable by the act of the government.

A subsequent declaration of intention by a locator, or one having an interest in the claim, prior to the inception of any adverse rights, relates back to the date of the location, or acquisition of the alien’s interests therein, and validates the transaction. Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 603, 619, 3 L.Ed. 453; Craig v. Radford, 3 Wheat. 594, 599, 4 L. Ed. 467; Governeur’s Heirs v. Robertson, 11 Wheat. 332, 356, 6 L.Ed. 488; Osterman v. Baldwin, 6 Wall. 116, 122, 18 L.Ed. 730; Manuel v. Wulff, 152 U.S. 505, 511, 14 S.Ct. 651, 38 L.Ed. 532; St. Louis M. Co. v. Montana M.

Co., 171 U.S. 650, 655, 19 S.Ct. 61, 43 L.Ed. 320; McKinley M. Co. v. Alaska M. Co., 183 U.S. 563, 572, 22 S.Ct. 84, 46 L.Ed. 331; Crœsus M., M. & S. Co. v. Colorado L. & M. Co. (C.C.) 19 F. 78, 82; Billings v. Aspen M. & S. Co., 51 F. 338, 342, 2 C.C.A. 252; Lone Jack M. Co. v. Megginson, 82 F. 89, 93, 27 C.C.A. 63; Tornanses v. Melsing, 109 F. 710, 47 C.C.A. 596. In McKinley M. Co. v. Alaska M. Co., supra, the court said: “The meaning of Manuel v.

Wulff is that the location by an alien, and all the rights following from such location, are voidable, not void, and are free from attack by any one except the government.” In Lone Jack M. Co. v.

Megginson, supra, this court said: “But if the right of Hanley as a locator could now be brought in question upon the ground that he was an alien at the time when the location was made, we are of the opinion that his subsequent declaration of intention to become a citizen related back to the date of his location, and, in the absence of adverse rights attaching prior to the date of the actual declaration of intention, operated to validate the location.” The laws applicable to Alaska declare that aliens may acquire and hold lands.

By the act of Congress of March 2, 1897, c. 363, 29 Stat. 618 (8 U.S.C.A. § 71 et seq.), which was in force at the time the agreement in question was made, aliens, or persons who shall become bona fide residents of the United States, were "authorized to acquire title to lands or mining claims by purchase. There is nothing in these acts which in any manner attacks the validity of the agreement in question.

Under the views we have expressed, and the principles of law announced in the decisions we have cited, the agreement of the parties, the location of the claim, and the enforcement of Nilima’s rights therein, were not and are not in violation of the law. The position of appellants upon these points cannot be sustained. Courts of equity will not declare illegal or void a contract or agreement to do that which the law does not prohibit, but in fact expressly admits.

In the consideration of the questions involved in this case, we have not lost sight of the fact that the appeal herein is taken from an order of the court allowing an injunction pendente lite; that in such cases it is not necessary to make such a complete and perfect showing as would entitle the applicant to full relief at the final hearing of the case upon its merits; that it is enough, if the court can find from the pleadings, the evidence, and affidavits in support thereof, a case which presents a proper subject for investigation in a court of equity.

The court is then authorized to exercise its sound discretion in issuing an injunction. Especially is this true in a case like the one in hand, where the issuance of an injunction only-keeps the property in statu quo during the litigation, until the final hearing. In all such cases appellate courts are not inclined to interfere unless it clearly appears that the court below abused its discretion. Blount v. Société, 53 F. 98, 101, 3 C.C.A. 455; Workingmen’s Amalgamated Council v. United States, 57 F. 85, 6 C.C.A. 258; Duplex P. P. Co. v. Campbell P. P. Co., 69 F. 250, 252, 16 C.C.A. 220; Thompson v.

Nelson, 71 F. 339, 18 C.C.A. 137; 16 Am. & Eng.Ency.L.(2d Ed.) 345; 10 Ency.Pl. & Pr. 983-985, and authorities there cited; 2 High on Inj. § 1696. We have purposely refrained from reviewing the evidence offered at the trial, or expressing any opinion as to the weight thereof. These are matters to be determined upon the final hearing. Our conclusion is that the court below was authorized by the pleadings and the proofs, as shown by the record herein, to act in the premises, and that in granting the injunction it did not violate any established rule of law or principle of equity.

The order appealed from is affirmed, with costs.