M2
, 'FEDltRAL REPORTER.
date of payment." Upon presentation of this order, and demand of payment, the trust company declines to pay interest at any greater rate than 1 per cent'. per annum" claiming that such rate was agreed uP9n, and that its charter does not require it to pay interest at a rate of not less than 3 per cent. per annum, where a different rate has been agreed will. upon; nor to accept any depOSit, or on any terms, By the coarter of the Union: Trust Company (Laws 1864, c. 316) it is given power "to receive moneys intrust and to accumulate the same at such rate of interest as may be agreed on, or to allow such interest as may be agreed, not exceeding in either case the legal rate." (Section 1.) The act also provides (section 3) that "every court into. which moneys may be paid by parties, or be brough.t by order or judgment, lIlay I by order, direct the same to be deposited with the said company." And it is further expressly provided (se'Ction 4) that" on any sum, of money, not .less than 8100, ,which shall be poUected or received by the said conlPany in its capa.city,ofguardian, .receiver, ordepositaryofmQneys in court, interestshall be allowed by the .llaidcompany of· qQt less than 3 per cent. ann\Ul.lly.,"etc. Manifestly.,in the absence of,any to .the contrary, the. pornpany, .if it takes court moneys, must pay ,thereon 3 per cent.: interest. Whether it can refuse to take such moneys, or may take them,$t an agreed rate lower than 3 per. OOI:lt., need not be now decided. No agreement for a less rate is shown here. ,.The order was notice to the company that,the $15,321 was "moneys in court." None but the court, which held these inoneys in tr.ust for. owners not then ascer.tained,andwhich under the. rule had the choice of depositories, could make such an.agreementwiththecompany. If the company not cal'e to take ·a. dap;osit, of court at .the statut.e rate: it shoUld decline to receive ,them· 'Unless the order or decree, :which a ,spealone evidences the court's Muon or cial rate. Upon the argument attlilltion was called to:thecircumstau(le that the order directing the deposit is silent as to rate of interest. That fact will nQtfl,va,il the Gompany"howeyer, because. in the ab$enoo of express provision,the statute rate :will apply·
"11
. HAMrtTON fl. SOUTllERN
NEV.
GOLD
& l::1ILVER
Co.
,(Uif'cuit 001l,.t, D. Neoada. December ,28, 1887.)
. The Ip.cator pf mining ground under U. S: Rev. St., prior to the actualJ)ay. ment oHtUl' purchase money; and the reception' by'hIm of the receipt 'there· -for, issued 11JY"'le register anllreceiver· of the. prO,lJlet a mere to purcllase,the, property, and a constable's sale of tlie l1line before payl1IeIlt, only passes that 'privilege. If the sale valid, .the purcnaser .can only step ·intothe shoes of the execution debtor, and th'ereby obtain a rigbl go. oIl; perform the necessary acts, pay the purchasemonllY, contest .rights,of other claimants, and the entry Bn4 receive the cer· '. tiBcate'of purchase himself..' If the judgment debtor subsequently performs
MIImiG:-LocATION OP,-RIGHTS UNDER..
,.,.
. .'
HAMILTON V. SOUTHERN NEV. GOLD & SILVER MIN. CO.
563
thllslil acts himself, and receives the title from the government. a new and further title becomes vested in the judgment debtor, which does not pass by virtue ohhe officer's deed. ' 2. PUBLIC LANDS,.....TITLlll. TO-PAYMENT-REOEIPT.
A party paid the purchase money, and received the certificate of purchase, is the owner of the land. The United States has ceased to have any pecuniary interest in it. It holds the naked, dry, legal title for the holder of the certificate; Such a certificate of purchase cannot be collaterally assailed.
8.
SAME.
4. LmrTATION OF ACTIONS-MINING CLAIM-ADVERSE POSSESSION.
Possession of a mining claim. in order to vest a title under the statute of limitations, must be opell. notorious, exclusive. and continuous, and not a loose, ullcertain, scrambling, and mixed possession. Under an application for apatent for ground. under sections 2325, and receiver of 2326, Rev. St., unless adverse claims are filed WIth the the proper land-office within 60 days after the first pubhcation of the notice, such adverse claims are waived. and the applicant is entitled to a patent upon the payment to the proper officer of the statutory fees and costs. and it shall thereafter be assumed that no adverse claim exists; and·thereafter no objection from third parties to the issue of the patent shall be heard, except that it be shown that the applicant has failed to comply with the terms of the statute. The interest or'title obtained by a purchaser ata constable's sale {lrior to the expiration of the pUblicati0Il of the notice is an adverse claim WhICh, un' less filed as the statute provides, is waived. ,
IS.
MINES AND. MINING-ADVEnsE CLAIMS-PUBLICATION OF NOTICE.
6.
SUIIIl.
'1.BAME. .
The statute makes such a proceeding, regularly prosecuted,.when the period of notice is completed without the presentation of an adverse claim, absolutely conclusive against adverse claims. The proceeding is in the nature of a proceeding in rem. and is binding upon all the world, so far as any unllresented adverse claims are concerned.
8., JUDICIAL SALE-TITLE OF PURCHASER. The purchaser at a judicial sale acquires only the present interest of the judgment debtor. No after-acquired title is affected by such a sale. The sheriff's deed can, at most, only have the operation of a quitclaim deed in the strictest sense. 9. EQUITY-M4STER-OBJECTIONS BEFORE. , The general objection "irrelevant and incompetent, "made before the master in aD equity case, is not sufficiently specific to be entitled to consideration upon the hearing.
10.
SAME-PRACTICE-OBJECTlpN TO TESTIMONY-AMENDMENT OF PLEADINGS.
Where an objection to the relevancy or competency of the testimony is made specific for the'tirst time in the closing argument for the complainant in an equity case. the court will permh the defendant.to so amend his pleadings as to obviate the objection, where the tcstimonyia before the court showi.Qg a proper case therefor.
(SyllabuB by the Oourt.)
In Equity. This is a suit brought by plaintiff, Hamilton, against the Southern Nevada Gold & Silver Mining Company , to determine an adverse claim of title to amine. R. S. Measickand M. N. Stone, for complainant. J. MeM. Shafter, W. a. Belcher. and ScrivnerOc Boone, for defendant. SAWYER,'J. is ,8 suit in equity, brought under the statute of Nevada, by.a party claiming to be in possession against a party alleged to, be outo( ,possession, to determine an adverse claim of title to a mine.
564
The was conveyed to defendant June 30, 1880, and the complainant alleges that he has obtained the title so conveyed to defendant, through sales on certain judgments made subsequently to the said conveyance ofJune 30, 1880. A constable sold the premises on ajudgment rendered by a justice of the peace against defendant, said sale having been made July 21, 1882. Such title, as passed by that sale, has been conveyed to complainant. An appeal from said judgment was taken to the district court,' and on such appeal a judgment was rendered in the district- court for the amount recovered below, and subsequent costs. Under this judgment, for the same indebtedness, the property was again sold on October 11, 1883,and such title as passed by this sale has also become ves.ted in complainant.. It is insisted that the judgment of the justice of the peace is void,on the ground that, it not being a court of record, ita jurisdiction must affirmatively appear, and that the record does not show jurisdiction over the person; also, for numerous other reasons. It is also claimed, and if it be so I do not see how the conclusion avoided, that the justice's court, not having obtained jurisdiction, the appeal from this void judgment could not give the distriot court jurisdiction, and its judgment is also·void. On the other hand if, the justice's judgment and the sale under it be valid, the sale under the district court judgment is claimed to be void because the sale was for a much larger amount than was due, the judgment for the entire indebtedness having been fully satisfied by the sale in the court below. It is also claimed that the judgments and sales upon .both judgments are void for many other reasons. The defendant also claims title under another judgment, and sale thereunder, .made April 29, 1882, to one Purcen,""';' an older sale than either of those under which complainant claims. If this sale is valid, it cut offdefendant's original title before the sales under which complainant holds, and they took nothing by those sales, and the title upon which he relies fails. The title derived under this sale, which was outstanding at the commencement of this suit, has been conveyed to defendant since the suit was commenced. But since it intercepted the very title under which complainant holds, and is the same title upon which he relies, His just as effectual outstanding as a defense as if it were in the defendant at the institution of the suit, even if, as comphdnant claims, his objection to the evidence, because not set up by supplemental answer, was sufficiently specific to reject it, which is, at least, doubtful. But the validity of this judgment and sale is also assailed on various grounds. It may well be considered doubtful whether any of . these judgments and sales are valid. The statute of limitations is also relied on by complainant·.. But that title is disputed by defendant, on the ground that there was no notorious, exclusive, and continued adverse possession· by complainant; that the aetsof possession were 80 obscure that defendant was not even aware that complainants were in possession at all, or claimed title. The only evidence ofactual possession for the prescribed time, was, going upon th6 land once, and looking at its boundaries, and afterwa.rds doing the annual hundred dollars worth of work in tunnels where those doing it were
HAMILTON 'I,'. SOUTHERN NEV. GOLD'" SILVER MIN. CO.
565'
unseen, during that time, for the purpose of not forfeiting complainant's rights, and not rendering the claim liable to relocation. While defendant also claims and introduces testimony showing, or at least tending to show, that it also did the annual work required by the statute to preserve its rights during the same period for the same purpose, and so was itself in possession; that its possession was better than, or at least as good, as that of complainant. Evidently Euch a loose, uncertain, scrambling, and mixed possession is not sufficient to vest a title under the statute of limitations. , But the defendant relies upon another defense, and the view we take of it renders it unnecesary for us to decide the numerous other points made, already referred to. On August 5, 1882, defendant filed an application inthe proper land-office to purchase the premises in question, in pursuance of sections 2325, 2326, Rev. St. The 60 days for publication expired October 7,1882, and on May 8, 1886; defendant paid for the land, and. a certificate of purchase was issued to it. Neither the complainant, nor any of his grantors, before the expiration of the time, or at any time, filed any adverse claim with the register and receiver of the land-office. And the statute provides that"If no adverse claim shall have been filed with the register and receiver of of publication, it shall be the proper land-office at the expiration of sixty assumed that the applicant is entitled to a patent upon the payment to the proper officer of four dollars per acre, and that, no adverse claim 8i¥Jists: And thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter." Thus the statute itself makes a proceeding, regularly prosecuted, when the perioJ of notice is completed without the presentation of an adverse claim, absolutely conclusive against all adverse claimants. The proceeding is in the nature of a proceeding in rem, and is binding upon all the world, so far as any unpresented adverse claim is concerned. The title, such as it was, good or bad, derived under the constable's sale of July 21, 1882, was an existing adverse claim during the proceedings of ant for purchase under sections 2325,2326, Rev. St., and was lost by failure to present it. This sale, therefore, valid or void, can afford no grounds for the relief sought. But complainant insists that his title under the second sale on the judgment on a.ppeal did not exist at the time pf the application to purchase, .and during the running of the notice, and as complainant and his grantors had no adverse claim at that time they cannot be affected b)T failure to present one; that he is a successor in interest to defendant, and not an adverse claimant, and, as such, is entitled to the benefit of defendant's .application and purchase. Conceding that judgment to be valid, for the purposes of this suit, though I by no' means satisfied that it is. the most that could pass by the sheriff's sale was the then present interest or ,eState of the defendant. It could not carry any subsequently acquired interest. The then present interest of the defendant was only a mere privilege to purchase, which he might abandon if he chose. A sheriff's
am
56.6
QDIj:RALREPORTER.
deed I1t most, only have the operation of.a quitclaim defd in its strictEl,St sense. It cannot pass an interest which the owner did not have but which-he subsequently acquires! Ifth.e purchase at sheriff's .aale was valid, and the purchaser then stepped the shoeg of the i:lxecution debtor, it only gave him a right to goon himself, pel'fOl'Ql the necessary acts :tp be performed, pay the purchase mone,'!' himself, coptest. the rights of other adverse claimants, such as the Northern Belle, ml1ke .the entry, and" upon payment, receive the certificate of purchase. Since that sale the complainant has done nothing, but the defendant has itself gone on and prQcured the title from the United Stutes upon. further and new considerations, in which complainant has no inter6!!t, and a new further title to the premises has become vested in defendant. It is a right at law. If complainant has any equities he might enforce by. the defenclant such equities as the nature of the case :r;equires, but 1 do not say that. he has, he has not framed his bill, upon any such theory. His bill goes upon the theory that .heis seized of a legal title already to this mining land, whereas the title derived from the government is vested in the defendant, and it was acquired since the sheriff's sale to complninantls. grantors. The defendant having p!loid the money, defended the suits. on adverse claims, and received ,the certificate of sale, is the ownerofthe land. The United States hasceaaed to have liWY peouniary interest in it. They hold the naked, dry · legal title for the holder of the certificate. People v. Shearer, 30 Cal. 648j.Gwynne v.A'"iJJwanger, 15 Ohio, 3&8; AstriYm v. Hammond, 8 McLean; H>8HJarroU v. Perry, 4 McLean, 28; Ross \-. Supervisors, 12 Wis. 38; Goodlet v. Smithson, 5 Port. (Ala.) 24&; OarroU v. Safford, 3 How. 441; WilherlfJJOO'n v. Duncan, 4 Wall. 218,219; Hughen. U. S., Id. 232; Wirth v. Branson, 98 U. S. U8; Mining Co,. v. Dangberg, 2Sawy. 455. This certificate be oollaterally assailed, and, as before said, if are. any in favor of complainant,they must be enforced bya.bill framed for aJ;ld /lorlapted to the purpose. It is insisted that the certificate was, irregularly obtained, and that it is void on that ground, for the reason that there was pending litigation between and to settle the title to the mining the certificate was issued. Within. the ground time allowed by statute, after the publication of notice, the Northern Belle Mining Company filed an adverse claim, and in due time commenced several suits against the defendant to determine the rights of the respective claimants. These suits were the occasion of the delay in the issue of the certificate to defendant. They were continued along, for S0111e reason, without any active prosecution, for several years. Finally, the defendant, in the absence of any representative of the Northern Belle Mining Cowpany, procured a dismil¥lal of those sl.lits for want of prosecution. After their dismissal, the defendant presented transcripts of the records to tqe .lanJ-office, showing that fact,. and .thereupon the purchase money was received froOl, and the, certificate of purchase issued to, the defendant. Afterwards, ,Ipon a showing on the part of the Northern Belle Company, the. diilWissals in th.e several suits were set aside, and
HAMILTON V. SOUTHERN NEV. GOLD &: SILVER MIN. CO.
567
the causes restored to the calendar for further proceedings, and they still . remain, undetermined. I do not perceive how that condition of things can avail the complainant in this suit. He does not claim under the Northern Belle Company, or hi any way conneethimself with the rights. involved in those suits. . He is not in privity with the Northern Belle Company. The title hasstiU passed to the defendant from the Un,ited States in a course of proceedings apparently regular, and it can only be divested in some direct appropriate to the case. If the Northern BEme should succeed in establishing the superior right in the pending suits, it may be that it will be able to control the title for its own benefit,upon a proper bill in equity against detendant, filed for that purpose. But whether it can or not is no concern of the complainant in this suit. Till divested by some proper proceeding, the right to a patent will remain where it now is. ' Conceding the adverSe possession to be sufficient to set and keep th& statute of limitations in motion, it has not in any event run long enough to be of any avail to cut ofl' the new right vested in defendant under the certificate Of entry so recently issued.' Indeed, it has not yet begun to run. This suit was commenced on March 29, 1886, and the certifiCate of entry was issued on" May 8, 1886, since the commencement of the suit.. . It is objected that this certificate is not available in this suit for the reason that it was not pleaded in the ans:wer. As it'was obtained since the commencement of this suit, it is insisted that this title shoUld have been setup ina supplemenW answer, Ilond, as this was not done, ifeannot be considered at all. It would, undoubtedly, have been the proper practice to 8.et it up in a snpplementalanswer. ,But I am by nO means certain 'that it was absolutely necessary to so set it up in order tq render it available, ' The right to the certificate had its inception at the making of the application, but its issue was dela.yed by the adverse. claim and suits by 'the Northern Belle. When issued, however, the right related back to the time of its inception by making the application, so far as supporting the right of defendant is \:loncerned; But this specifi'c objection was not made at all before the master, nor e\1eo in the opening argumentofcomplainant. It was only first in complainant's closing argument, in reply to the argument of defendant, wherein this title was earnestly pressed and relied 'on. The party offeringevi4ence is entitled to have the particular portion of evidence objected to pointed out,and the oj obj6CtWn Butted, in order that he may obviate the obJ&:tion.Satterlee v. Blisa, 36 Cal. 489,511; Cochran v. O'Keeje,34 Ca.l. 554, 558. Objection that evidence offered is "irrelevantandincompetent" is not sufficiently specific, even in a criminal ca.-se. People v. Frank, 28 Cal. 519. "Irrelevancy" is too general and insufficient. "The party must state the exact point of his objection." Owen v. Firnk, 24 Cal. 177. 'fhe general objection "irrelevant and incompetent," made before the master, it appears to me, is not sufficiently specific to be entitled to consideration now. The real point of the objection, that the title perfected since the commencement of the suit should have been set up in a
568
FEDERAL REPORTER.
supplemental answer, should have been specified. The defendant would then have been able to obviate it by obtaining leave to set it up. But. this objection was reserved till closing argument .of the complainant at thefiIla"l hearing of the case. III my judgment, the failure to call attention to it before the master was a waiver of the objection. When particular grounds of objection are specified, such specification is exclusive, and all grounds not specified are waived. Evanston v. Gunn, 99 U. S. 665; v. Meagher, 104 U. S. 279. "If a general objection to evidence is made, but no ground of objection is specified, the objection will not If a ground of objection is stated, all grounds not specbe ified are considered waived." Fischer v. Neil, 6 Fed. Rep. 90; see, also, Wood v·. 104 U. S.795; Camden v. Doremus, g How. 529: Burton v. !Jriggs,20 Wall. 133. . .' . But if wrong in these views,-as to the sufficiency of the. specification of the objection, or as to waiver; and if necessary to set this title up in the. answer in order to make it available, notwithstanding its relation back toltsinception, or as showing want of title in complainant,-the objection is. technical purely. The evidence is all before the court, together with the evidence introduced by complainant to meet and over.throw thedefense.It is, therefore,a.proper caSe in which to allow the defendant to amend by setting up this supplemental matter and conform it to the pr90'£s. to file such .an amendment would undoubtedly have beerlJlsked and granted, had the objection been brought to the notice .of at any tiUl.e before the final hearing. To reject it now would be oIlly to entail further litigation in another suit. It would not conduce to"the due administration of justice to reject this defense now, all the means are before the court for doing equity between the parties. Neq,lev. Neales, 9 Wall. 1, 8; Lakin v. Mining 00.,11 Sawy. 249, 250,25 Fed. Rep. 337; Zeilin v. Roger8, 10Sawy. 298,21 Fed. Rep. 727. 103, per FIELD, C. J.; Coghlan v. Stetson, 19 Fed. The same objection is made in the same way to the title of defendant derived from. Purcell byaeed made since the commencement of the suit, and the saUle principles are applicable to that defense. But the sale, if valid, was sufficient to show that the title relied on by complainant had been anticipated and cut off without this deed to defendant. But I think entitled to set up both their defenses in a supplemental the answer so as ioavoid all questions as.to relevancy, and that the bill must ,be dismissed. Let defenflant have leave to amend by setting up these supplemental matters befqre the entry of tqe final decree, and let there be a decree entered dismissiJ,lg the bill, with costs.
CATLIN'll. DOUGLASS.
569
CATLIN 'l1. DOUGLASS
et 01.
(Circuit Oourt, D. Kan8aB. November 1887.)
1.
MECHANICS' LIEN-ENFORCEMENT-FILING OF LIEN-TIME.
Under Code Kan. § 632. 'regulating tbe time witbin which a contractor may file his statement for a lien on a building, such statement, if filed before com· pletion of the building, is premature, and constitutes no lien. The abandonment of work upon a building is to be deemed a completion of the building, for the purpose of filing a mechanics' lien.
2.
In Equity. On demurrer. This was a suit by Levi Catlin against Yates Douglass, the Chicago Lumber Company, and tbe Merrimac River Savings Bank,to foreclose a mortgage on certain real estate owned by tbe defendant Douglass. The petition alleged that the Chicago Lumber Company and the Merrimac River Savings' Bank had some liens upon, or claims to, the mortgaged property, and required them to set out the same. The bank contested the claim of the lumber company, and the cause was beard upon a deDiurrer filed by the latter to the matter set up by the bank. W. W. Guthrie, for defendant Chicago Lumber Company. Jones & Mason, for defendant Merrimac River Savings Bank· . FOSTER, J. The Chicago Lumber Company, under an alleged. con· tract with the owners of the property, Douglass and Bixby, furnished them a large amount of lumber and material, to be used in the erection ofa flouring-mill and residence on tbe 40 acres of land set out in its -cross-bill. The material was delivered between the seventh day of No· vember, .1882, and the thirteenth day of December, 1883. On January 1,1884, the Chicago Lumber Company took a note from Douglass, due the first day of July following, for the balance due, to-wit, The note was not paid, and on or about the first day of July, 1884, the lumber company filed its claim for lien upon the property with the clerk of the district court of Mitchell county. In its statement for a lien it . .avers that the flouring-mill and dwelling-house were not yet completed, but did not aver that the work had been suspended or abandoned. The 'Chicago Lumber Company, by its cross-bill in this suit, (filed April 2, 1880,) for the first time took steps to .assert its lien. It charges in its bill that the work is not yet completed, and that Douglass and Bixby have abandoned the undertaking, but do not aver when they abandoned the undertaking or stopped the work. The Merrimac River Savings Bank, which has a mortgage lien on the property, contests the claim of the Chicago Lumber Company, and asserts thatits claim of a lien for material furnished was prematurely filed, inasmuch as it was filed before, and not after, the completion of the buildings; and further, if it had a lien, it was not asserted by suit within a year, and is barred by the statute.' To these two allegations the Chicago Lumber Corupany presents a and its oounsel takes the broad ground that under