Opinion
Case No. 3-84-00175-HAR In Chapter 11, ADV PROC NO 3-84-00175-001-HAR
July 22, 1996
MEMORANDUM DECISION [Bennie Leonard, Paul Wieler, Eric Wieler, Marianne Pilant, Lisa Rogers]
1. OVERVIEW; VISUAL AIDS — I presided over a bench trial concerning title to 15 mining claims located in the Kantishna Area Mining District, Fairbanks Recording District, Alaska. The dispute was mainly between Bennie Leonard, trustee of the Gold King Mines, Inc. bankruptcy estate, and four individuals. The four are the sons and daughters of John and Barbara Wieler.
The only active parties at the trial were: Bennie Leonard, Paul Wieler, Eric Wieler, Marianne Pilant (fka Marianne Wieler), and Lisa Rogers (aka Lisa Wieler). The other named defendants have been defaulted or have not opposed the complaint.
The facts regarding the trustee's claim of adverse possession are complicated by the remoteness of the property, and the interwoven analysis of 4 decedents' estates and a large family (with some dysfunctional branches). To summarize some of the main points decided by this memorandum:
The bankruptcy trustee has not been able to establish adverse possession against Marianne Pilant and Lisa Rogers (the "Sisters") because many of the events occurred so long ago and/or the heavy burden of proving adverse possession against co-owners by clear and convincing evidence of a remote mining claim.
Alternatively, a large percentage of the trustee's adverse possession claim, the portion traced from the Sisters' inheritance from estate of John Wieler, cannot be established because 11 U.S.C. 108(c) extends the time for the Sisters to sue.
The Sisters are not entitled to recover an enhanced interest in the mining claims that they might otherwise have inherited but for an alleged fraud on the Alaska Superior Court in the probate of Mark Rogers' estate because the bankruptcy trustee qualifies as a bona fide purchaser under 11 U.S.C. 544(a)(3) and rises above the fraud argument.
The facts regarding Eric and Paul Wieler's playing "fast and loose" with the bankruptcy court have been all too apparent and the Wieler brothers cannot now hide from them. The Wieler brothers will be judicially estopped from claiming that any portion of the mining claims traceable to any legal or equitable ownership interest they may have had as an individual or partner in the mining claims on the bankruptcy petition date are now instead owned by the bankruptcy estate under the administration of a chapter 11 trustee.
All this leads to a mathematical conclusion about who owns what with respect to these 15 mining claims located in the Denali National Park. Hopefully, this will put this old case one step closer to a successful reorganization or liquidation. If the history of this case is prophetic of the future, it may more resemble the division of Yugoslavia. I have determined that the percentage of ownership of the mining claims is:
Mining Claims 1-13 Bennie Leonard, Trustee 65.83333% Marianne Pilant 16.25000% Lisa Rogers 17.91677% Total 100.00000%
Mining Claims 14-15 Bennie Leonard, Trustee 81.66667% Marianne Pilant 7.50000% Lisa Rogers 10.83333% Total 100.00000%
As visual aids to assist in understanding these calculations, I have attached two flow charts. One is the Flow Chart of Ownership of Gold King Mining Claims 1-13 and the other is the Flow Chart of Ownership of Gold King Mining Claims 14-15. They will be hard for someone who has not lived this case to follow, but they will hopefully become clear as one reads through this Memorandum.
The flow chart for Mining Claims 1-13 is in two elements. The first starts with the 50% interest located by John Wieler, and the other, more complicated one is the 50% deriving from Mark Rogers' share.
One hint in comparing the flow charts is that the shares of ownership deriving from Mark Rogers' location on both charts are in the same ratios. The flow chart for Mining Claims 14-15 is simply a replication of the division of Mark's share as shown on the flow chart relating to Mining Claims 1-13, except the flow chart for Mining Claims 14-15 represents a 100% interest in Mark, instead of the 50% on the Mining Claims 1-13 flow chart.
The representation of Mark's share may look a little different on each of the flow charts, but only because there was more to squeeze on to one page in the flow chart relating to Mining Claims 1-13.
The flow chart for Mining Claims 14-15 depicts 100% of these claims as deriving from Mark's original location. This is based on the abandonment of the claims by Terry Chase, Mark's 50% partner in the original location, after Mark's death in 1964.
I have also represented these data in the form of a spreadsheet entitled Summary of Flow Charts Regarding Ownership of Mining Claims 1-15 which is the third attachment, to show the computations of my conclusion regarding ownership.
The mining claims are worth many millions of dollars (according to the Wielers), or perhaps, less. Time will tell. This is the oldest chapter 11 case without a confirmed plan in this district. It is, however, being actively pursued by Bennie Leonard, the trustee, in the face of environmental injunctions, bureaucratic intransigence, and the Wieler brothers (the principals of Gold King Mines, Inc., the debtor), who are a chore to deal with.
The Wieler brothers have been both a blessing and a curse to the trustee. They have done the annual labor to preserve the claims, but they have also interfered with the trustee's administration of the case and his dealings with the United States in trying to get just compensation for the claims.
The Wielers filed their own chapter 11 cases after the commencement of this adversary proceeding. Analytically, the decision to judicially estop them from denying that their alleged individual interest in the claims is property of the estate should place them in exactly the same rank vis-a-vis the creditors of the mining operation as if I had ruled in their favor. That is, they will share in the proceeds of the mining claims only after their creditors (who are virtually the same in the individual cases as the corporate case) are satisfied or protected. Whether they are judicially estopped or not in the present adversary proceeding, it is not likely that they will be calling the shots in dealing with the government (although, the trustee would surely invite their assistance, if they would cooperate). On July 18, 1996, I converted the Wielers' individual chapter 11 cases to chapter 7. A chapter 7 bankruptcy trustee will be appointed, and will control the interest of the Wielers' individual cases.
Thus, at the end of the day, this adversary proceeding really is to determine the interest of Paul and Eric Wieler's siblings in the mining claims.
2. FINDINGS OF FACT— The court finds the following facts pursuant to FRBP 7052 with respect to the claims for relief among Bennie Leonard, Paul Wieler, Eric Wieler, Marianne Pilant, and Lisa Rogers:
2.1. Stipulated Facts— The parties have stipulated to the following facts:
2.1.1. The "Mining Claims" referred to are the mining claims described as:
4 ABR 378 Gold King No. 1 through 15, located on Glen Creek, a tributary of Moose Creek, within T15S, R16W, Fairbanks Meridian, T16S, R16W, Fairbanks Meridian, T16S, R17W, Fairbanks Meridian, Fairbanks Recording District, Fourth Judicial District, State of Alaska.
2.1.2. John Wieler and Barbara Wieler were married and had the following children: John Harvey Wieler, Mark Wieler, Marianne Wieler, Eric Wieler, Paul Wieler, Scott Wieler and Lisa Wieler.
2.1.3. John Wieler and Barbara Wieler were divorced in 1953. Barbara Wieler married Eugene Rogers in 1954. Barbara Rogers and Eugene Rogers had one child, Lynn Rogers.
2.1.4. In 1962, Mining Claims 1-13 were staked and recorded by John Wieler and Mark (Wieler) Rogers.
2.1.5. In July of 1964, Mining Claims 14 and 15 were staked and recorded by Mark (Wieler) Rogers and Terry Chase.
2.1.6 On September 18, 1964, Mark (Wieler) Rogers died intestate. At the time of his death, Mark (Wieler) Rogers had no children and was not married. His estate was probated, in the Superior Court for the State of Alaska, Third Judicial District, Probate Division, Case No. 65-9(P).
2.1.7. On May 31, 1968, Barbara Wieler executed a quit claim deed, which was recorded, conveying to Scott, Eric, and Paul Wieler, equally, her interest in the Mining Claims.
2.1.8. In 1969, Scott Wieler died intestate. At the time of his death he had no children and was not married. No probate estate was opened.
2.1.9. Barbara (Wieler) Rogers executed a Last Will and Testament on October 28, 1971.
2.1.10. On December 24, 1971, Barbara Wieler died. She leaves a will and the probate estate is probated in the Superior Court of Washington County of Spokane, Case No. 93610.
2.1.11. On Sept 12, 1972, Eric Wieler conveyed his interest in the Mining Claims by recorded quit claim deed to Paul Wieler.
2.1.12. In 1977, Eric and Paul Wieler formed Gold King Mines, Inc., of which Eric, Paul and Loretta Wieler are the officers.
2.1.13. On March 4, 1977, Eric and Paul Wieler executed a quit claim deed, which was recorded, of their interest in the Mining Claims to Gold King Mines, Inc.
2.1.14. On August 17, 1978, John Wieler died at the Mining Claims. No probate estate was opened. At the time of his death, he was not married and had no children other than the children he had with Barbara Wieler (Barbara (Wieler) Rogers).
2.1.15. On July 19, 1984, Gold King Mines, Inc. filed a voluntary Chapter 11 petition for bankruptcy protection.
2.1.16. Bennie Leonard is the duly appointed Chapter 11 Trustee of Gold King Mines, Inc.
2.1.17. On June 21, 1994, defendant Terry Chase executed a quitclaim deed, which was recorded, of his interest in the Mining Claims to Gold King Mines, Inc., and executed a disclaimer of interest in the present action.
2.1.18. The Mining Claims are valid mining claims and all filing requirements have been met so that the claims are in good standing with the Park Service, Bureau of Land Management, and other governing agencies.
2.2. The Debtor, Gold King Mines, Inc.; The Chapter 11 Trustee—
2.2.1. Gold King Mines, Inc. filed a voluntary chapter 11 bankruptcy petition on July 19, 1984.
2.2.2. Bennie Leonard was appointed chapter 11 trustee on November 25, 1986.
2.3. A Brief Genealogy Of The Wielers And The Rogers— The vital statistics of some of the main characters are:
John Herman Wieler Born: 11/13/02 Died: 8/17/78 Katherine Barbara Pettit Born: 05/17/18 Died: 12/24/71 Divorced: 1948 Remarried: 1949 Last Divorce: 1953 (From John) Children: John Harvey Wieler Born: 08/06/37 Mark Francis Wieler (Rogers) Born: 01/28/38 Died:09/18/64 Marianne Wieler (Pilant) Born: 03/01/41 Eric Edward Wieler Born: 01/14/45 Paul Robert Wieler Born: 01/14/45 Scott Lee Wieler Born: 07/31/46 Died:05/25/69 Lisa Wieler (Rogers) Born: 07/24/51 Eugene Rogers Katherine Barbara Pettit Wieler Married in Willow 1954 Divorced, Spokane 1965/66 One child of that marriage: Lynn Ellen Rogers Born: 07/20/57 2.4. The Mining Claims—2.4.1. They are located in the Kantishna Mining Region and are within the Denali National Park. They are remote and accessible by primitive mining roads off the Denali Highway, which can be traveled by land vehicles only from about late May to about late September each year. They have been subject to an injunction against mining issued by U.S. District Judge von der Heydt, which has since been lifted.
2.4.2. These Mining Claims were located in two different groups. Claims 1 through 13 were located under the Mining Law of 1872, by John Wieler and his son, Mark Wieler (who generally went by the name Mark Rogers) in 1962. Claims 14 and 15 were located under the Mining Law of 1872, by Mark Wieler Rogers and Terry Chase, in July 1964.
2.4.3. The trustee has been attempting to negotiate a purchase of the claims with the government or reach a political resolution which will allow the sale of the Mining Claims to the government. Eric and Paul Wieler have argued that it would be beneficial to patent the claims. The trustee did not necessarily disagree, but also wanted to retain the option of selling the unpatented claims should it be available. There have been many contentious disputes in the bankruptcy case between Eric and Paul, on the one hand, and the trustee about the proper approach to the government.
2.5. Location, Annual Labor, And Title To Mining Claims 1-13—
2.5.1. See Stipulated Facts, 2.1.4, 2.1.6, 2.1.8, 2.1.9, 2.1.12, and 2.1.14. These reflect the location of the Mining Claims 1-13 in 1962, by John Wieler and his son, Mark Rogers (aka Mark Wieler). As shown on the attached Flow Chart of Ownership of Gold King Mines Claims 1-13, a portion of legal title to the Mining Claims 1-13 wound up in the name of the debtor, Gold King Mines, Inc., by deed from Eric and Paul Wieler.
2.5.2. From 1968, annual labor was performed by and/or on behalf of the Wieler brothers, generally for their own account. See, Exhibit 2 at pages 002053-002090, Affidavits of Annual Labor, beginning in 1963 through 1979. For the year 1976, Paul Wieler is listed as owner. (Exhibit 2 at page 002081-2.)
2.5.3. In 1977, the owner is shown as Gold King Mines, Inc. (Exhibit 2, page 002087). Gold King is also shown as owner on the annual labor affidavit in 1978 (Exhibit 2, page 002088), 1979 (Exhibit 2, page 002090), 1980 (Exhibit 2, page 002098), 1981 (Exhibit 2, page 002104), 1982 (Exhibit 2, page 002118), 1983 (Exhibit 2, page 002181), and 1984 (Exhibit 2, page 002204).
2.5.4. On August 23, 1984, a motion was filed in the bankruptcy case by George Atkinson for the appointment of a trustee. (Main case Docket Entry 21). Another motion was filed by Atkinson on July 31, 1985 (Docket Entry 66). In the Memorandum in Support, Atkinson indicates the Mining Claims have been operated in the corporate form and as a closely held corporation under the control of Paul and Eric. (Main Case Docket Entry 67, pages 3 and 5). The debtor objected, noting the debtor was seeking to sell the claims or finance operations. (Main case Docket Entry 77, September 23, 1985). Debtor noted Judge von der Heydt's order suspending mining operations as further grounds for not appointing a trustee or converting. (Main case Docket Entry 95, September 15, 1985). The motion was continued from time to time, and signed on December 1, 1986, by visiting judge David Naugle. (Main case Docket Entry 110).
2.5.5. It was only in late 1985, that Paul and Eric Wieler began showing ownership of the claims on the affidavit of annual labor as something other than "Gold King Mines, Inc." which it had been for the previous 7 or 8 years. In the 1985 annual labor affidavit, they showed the current owners as Eric and Paul Wieler. For the 1986 affidavit of labor, Eric Wieler filed an affidavit indicating that he was filing for "the heirs of John H. Wieler, Mark F. Rogers, Scott Wieler, Barbara Rogers, Eric E. Wieler, Paul R. Wieler, and Gold King Mines, Inc."
2.5.6. Paul Wieler admitted in testimony that the change was to protect the interests of the individuals listed against the intrusions of a trustee.
2.5.7. Bennie Leonard, the trustee, first heard of a possible interest of the Wieler brothers or members of their family in 1987, through a report given to him by Paul Paslay, an attorney then representing the brothers.
2.5.8. During the trial, it was disclosed that Eric Wieler's son recorded a deed purporting to transfer the same mining property comprising Mining Claims to the son from Moneta-Porcupine, a defunct Canadian mining company. Mark Rogers had prospected for Moneta at about the same time he staked the Mining Claims. Though this is probably not binding on parties not included in this adversary proceeding, Mark Rogers did not stake the Mining Claims for Moneta-Porcupine which expressly did not seek location of gold claims (per testimony of Leo Mark Anthony, Mark Rogers' supervisor, and agent for Moneta at the time). Amongst the parties to this adversary proceeding, the transfer will be considered a sham devised by Eric or Paul Wieler to avoid the authority of the trustee to control the Mining Claims or some portion of them as an asset of the bankruptcy estate. This contrived claim by Eric's son (the "Moneta Gambit"), assisted by one of the Wieler brothers' friends, is indicative of the brothers' willingness to play fast and lose with the court, the trustee, and the creditors.
2.6. Location, Annual Labor, And Title To Mining Claims 14-15; Terry Chase's Various Quitclaim Deeds—
2.6.1. See stipulated facts, 2.1.5 and 2.1.6 regarding location of Mining Claims 14-15 in July 1964, by Mark Rogers and Terry Chase and Mark Rogers' death, intestate on September 18, 1964, and the conveyance of these Mining Claims to the trustee. See, the attached Flow Chart of Ownership of Gold King Mines Claims 1-13.
2.6.2. Annual labor was performed on Mining Claims 14-15 from 1968, in conjunction with the annual labor on Mining Claims 1-13 as discussed under 2.5.
2.6.3. Terry Chase may have executed several quitclaim deeds to Mining Claims to Marianne Pilant prior to 1994, but they have been lost and were never recorded. Marianne Pilant stipulated that she is making no claim by virtue of these lost, unrecorded deeds.
2.6.4. Terry Chase was named in this adversary proceeding. He was asked by Cabot Christianson, the trustee's attorney, to quitclaim his interest in the Mining Claims to the trustee. In exchange, he was told that the suit against him would be dropped or dismissed.
2.6.5. Terry Chase did give the trustee a quitclaim deed dated June 14, 1994, of his interest to Mining Claims 1-15, which the trustee recorded on June 17, 1994 (Exhibit 29). The trustee did not pay the $10 recited in the deed. The suit against Chase has not yet been formally dismissed, but the trustee has treated the matter as resolved, and it is.
2.6.6. Neither Cabot Christianson nor the trustee intentionally or negligently misrepresented, coerced, or improperly imposed upon Terry Chase to get the quitclaim deed and substantially complied with the understanding that on getting the deed, he would be dropped out of the active litigation. The failure to get a FRCivP 54(b) final order dismissing Chase is irrelevant.
2.6.7. Subsequent to the trustee recording a quitclaim deed from Terry Chase, at the request of Marianne Pilant, Terry Chase later gave Marianne Pilant a quitclaim deed of his interest in Mining Claims 14-15.
2.6.8. The court reiterates its findings in 2.5.8.
2.6.9. Terry Chase essentially abandoned any interest in the Mining Claims shortly after Mark Rogers died, and it is equitable to treat his share of Mining Claims 14-15 as having been abandoned, leaving ownership of these claims to be determined as if Mark Rogers had owned 100% of Mining Claims 14-15. See, Terry Chase's telephonic deposition taken November 3, 1995, at page 17.
2.7. History Of Gold King Mines, Inc.—
2.7.1. Gold King Mines, Inc. was formed in 1976, by Eric and Paul Wieler as a source of getting funding for a mining operation involving the Mining Claims.
2.7.2. The firm of Johnson, Christenson, Shamberg Link, Inc. (JCSL) represented the Wielers and the newly formed corporation, Gold King Mines, Inc.
2.7.3. JCSL represented the Alaska Teamsters Union. Some members of the Teamsters invested in Gold King. These were Nella and Robert Mitchell, Connie and Calvin Stroble, and Peggy and Fred Burgin. These parties invested in total about $53,000 for which they were to get 59 shares of stock apiece per couple. Eric and Paul Wieler were to get 500 shares of stock apiece for their "1/2 interest in gold mines." See, the Organizational Resolutions and Minutes Of The Special Meeting, at Exhibit 1, pages 001239-1246.
2.7.4. A quitclaim deed for the 15 Mining Claims was recorded on March 16, 1977, conveying the claims from Paul R. Wieler to Gold King Mines, Inc. See, Exhibit 1, pages 001247-1249. Eric Wieler had previously conveyed his interest in the claims to Paul by quitclaim deed on September 12, 1972. Nonetheless, Eric Wieler made a quitclaim deed himself to Gold King Mines, Inc., which was actually identical to the one that Paul did. See, Exhibit 1, page 001263.
2.7.5. There is no indication that legal title has ever been transferred from Gold King Mines, Inc. to any third party regarding the 15 Mining Claims.
2.7.6. Frederick Johns acted as accountant for the Wielers and Gold King Mines, Inc. He considers himself a owner in the Mining Claims in partnership with Eric and Paul.
2.7.7. Mr. Johns did the tax returns for the operations of the Mining Claims for various years. In 1976, he filed a partnership return. In 1977 through 1981, he filed corporate returns for Gold King Mines, Inc., and in 1982 through 1984, he filed partnership returns. No further tax returns have been filed. He testified that after 1980, Gold King Mines, Inc. ceased to function and the claims were operated by a partnership.
2.8. Eric and Paul Wieler And Their Use Of Gold King Mines, Inc. [Relating to Judicial Estoppel Argument Of The Trustee]—
2.8.1. Eric and Paul Wieler never contacted their siblings and advised them of or discussed with the siblings any potential interest the siblings might have in Gold King Mines, Inc.
2.8.2. Eric and Paul Wieler, either themselves or their corporation, Gold King Mines, Inc., have operated or developed the mines without accounting to the siblings for any income or requesting any expenses be paid.
2.8.3. Only late in 1994, after this adversary proceeding had been filed, did Eric or Paul Wieler contact the Sisters to advise them of an interest in the Mining Claims. This was done not out of any sudden feeling of love, obligation or loyalty to the Sisters, but because the brothers were under siege to lose their interest in the Mining Claims either in this adversary or through an execution by George Atkinson against the shares of Gold King Mines, Inc., stock owned by the Wieler brothers which were not protected by the automatic stay.
2.8.4. In the schedules filed in this case (Exhibit 4, page 004019), the debtor indicated that it owned the Mining Claims without reference to the rights of Paul, Eric, or any of the other Wieler or Rogers' siblings.
2.8.5. In testimony, Paul Wieler indicated he thought he had mentioned to the bankruptcy attorney, William Artus, about the ownership interest of the individuals, but Artus said that it need not be disclosed. Paul Wieler is either mistaken or he lied about this. In a previous affidavit in another lawsuit, the Wielers indicated that Artus was not aware of the Wielers' claim of individual ownership. (Exhibit 9, 6). Nor did the debtors indicate in their statement of affairs that they were holding the Mining Claims for individual parties. (Exhibit 4, page 004003).
2.8.6. In a lease of the Mining Claims before the bankruptcy, to Richard E. Lohr and Company, Inc., in 1983, Eric and Paul listed in a schedule of claims parties who might be making claims against Gold King Mines, Inc. or Eric and Paul themselves. The list includes the heirs of John Wieler, the heirs of Mark Wieler, and Terry Chase. (Exhibit 20, page 020018). The reason for not attempting to clear up any title issues at that time was that Eric Wieler felt it would open a "Pandora's box."
2.8.7. The Wielers would, if they had the option, have operated the mines to the exclusion of their siblings. It is, however, uncertain what tact they would have taken had they been confronted by one of their siblings prior to the bankruptcy.
2.9. The Sisters' Claims [Relating To Adverse Possession And Laches Arguments]—
2.9.1. The facts about an alleged sexual assault by Paul Wieler on his half-sister, Lynn Rogers are not probative regarding the issue of adverse possession, and will be disregarded.
2.9.2. The sisters, Marianne Pilant and Lisa Rogers, had a close relationship with their brother, Mark Rogers, until he died in 1964.
2.9.3. The sisters have had a distant relationship with Eric and Paul. Since the death of their mother, Barbara Rogers, in December 1971, there have been few contacts between the sisters and Eric and Paul.
2.9.4. After the divorce of Barbara and John Wieler, the relationship between the sisters and their father, John Wieler, was very limited. It consisted of only a few meetings which took place in the 1960s.
2.9.5 Lisa Rogers went to the Mining Claims in 1969 or 1970, with Eric and Paul to work as a camp cook. It did not work out and she left after a short while. She saw her brothers when she, Eric and Paul were all in Spokane during their mother's terminal illness at the end of 1971. She did not see them again until a brief chance meeting at a road house near Healy. She never asserted any interest in the Mining Claims until late 1994 or early 1995, after Paul or Eric contacted her to advise her of her potential interest. Neither Paul nor Eric made any attempt to apprize Lisa of her interest before that date.
2.9.6. Marianne Pilant visited the Mining Claims with her husband Wes and their children. Wes had helped Eric and Paul build sluice boxes and get ready for the 1971 or 1972 mining season. The Pilant family traveled to the Mining Claims but dispute broke out shortly after they arrived and they left.
2.9.7 Shortly after leaving the Mining Claims, on what appears to be rather unfriendly terms, Marianne contacted her mother, Barbara Rogers, to see if she could be given an interest in the Mining Claims, as her mother, Barbara Rogers, had given to Eric, Paul and Scott when Mark Rogers died. See, 2.1.8. Marianne had few if any contacts with her brothers until she was contacted by Eric or Paul in late 1994, to advise her of her potential interest in the Mining Claims.
2.10. Alaska Probate Of Mark Rogers' Estate [Relating to Res Judicata Argument Of The Trustee and Fraud on Court Argument Of The Sisters]—
2.10.1. Mark Rogers died intestate on September 18, 1964, in Alaska. His estate was probated in the Superior Court for the State of Alaska, Third Judicial District, Probate Division, Probate Case No. 65-9(P). See, Exhibits AL-AN for exhibits regarding Mark Rogers' probate estate.
2.10.2. Barbara Rogers was the personal representative. She alleged in the probate papers that she was the sole heir of Mark Rogers, although there is no evidence that she knew John Wieler had predeceased her (which he had not), and there is some indication she knew otherwise by virtue of a phone call she had with John while she was in Spokane and he in California, after Mark's death and before the probate decree. This evidence is weak since it relies on the memory of one of the Sisters of a phone call that took place about 25 years ago.
2.10.3. Barbara Wieler received a final decree from the Alaska probate court giving her all of Mark Rogers' estate.
2.11. The Matter Of Contribution By The Sisters Is Not Ripe— The Sisters and trustee attempted to raise issues about whether the Sisters are required to contribute to the trustee's efforts in liquidating the Mining Claims. These are not properly part of this adversary proceeding or ripe for decision.
3. CONCLUSIONS OF LAW— The following are my conclusions of law pursuant to FRBP 7052 with respect to the claims for relief among Bennie Leonard, Paul Wieler, Eric Wieler, Marianne Pilant, and Lisa Rogers:
3.1. Jurisdiction: Core Proceeding— The bankruptcy court has subject matter jurisdiction of this dispute under 28 U.S.C. 1334 and this is a core proceeding under 28 U.S.C. 157(b)(2)(A),(O).
3.2. Judicial Estoppel Of Eric And Paul Wieler— Eric Wieler and Paul Wieler are judicially estopped from denying that any legal or equitable interest in the Mining Claims which they had, as individuals, partners, or otherwise (except as shareholders of Gold King Mines, Inc.) or which they might have acquired from any source as of the date of the bankruptcy petition on July 19, 1984, became part of the bankruptcy estate and is under the rightful control of the trustee. The interest of Eric Wieler and Paul Wieler just described (which excludes their interest as shareholders) is deemed to be the property of the bankruptcy estate, currently under the control of Bennie Leonard, trustee, which holds the legal and equitable title to that interest. Eric Wieler and Paul Wieler are not legal or equitable owners of the property interest just described, because they are judicially estopped from claiming that they are.
3.3. Adverse Possession Of Shares Inherited From Barbara Rogers or John Wieler [Marianne Pilant And Lisa Rogers]— The trustee has not proven by clear and convincing evidence that the portion of the Mining Claims inherited by the Sisters from Barbara Rogers or John Wieler was adversely possessed by Paul Wieler and Eric Wieler, even tacking on the time of any of the Wieler brothers' successors (Gold King Mines, Inc.) or predecessors (John Wieler, Barbara Rogers, Scott Wieler, or Terry Chase).
3.4. Alternative Holding Regarding Adverse Possession Of Shares Inherited From John Wieler [Marianne Pilant And Lisa Rogers]— Regarding the shares of Mining Claims 1-15 which the Sisters inherited from John Wieler, the trustee has not established any adverse possession before John Wieler's death in 1978, and the filing of the chapter 11 bankruptcy within 7 years, in 1984, stayed the right of the Sisters to challenge the adverse possession in a court proceeding. 11 U.S.C. 108(c). Therefore, the time has not yet run under AS 09. 10.030 or AS 09.45.052(a).
3.5. Abandonment Or Waiver Of Sisters' Share— Neither the Sisters nor any of their predecessors-in-interest in the Mining Claims have abandoned or waived their rights to the interest which the Sisters are entitled to as shown in 3.10.
3.6. Fraud On The Alaska Probate Court— The trustee is in the position of a bona fide purchaser under 11 U.S.C. 544(a)(3) and therefore, any interest Barbara Rogers might have obtained from the estate of Mark Rogers by failing to acknowledge or disclose an equal right of her ex-husband, John Wieler, to have one-half of that share is not subject to challenge under AS 13.30. 840 (1962).
3.7. Terry Chase's One-Half Interest In Mining Claims 14-15 Was Abandoned By Him; Other Abandonments Or Defaults— Terry Chase's 50% interest in Gold King Mining Claims 14-15 was abandoned by him, and will be divided among the remaining parties entitled to share an interest in those claims. Any interest in the Mining Claims of any defendants who have been defaulted, filed non oppositions, or abandoned their interests in the Mining Claims shall be inure to the benefit of the parties shown in 3.10 in pro rata shares, and have been incorporated into that property division.
3.9. Lisa Rogers Will Be Permitted To Retain Lynn Rogers' Share Quit claimed To Her— In the context of this case, the court concludes there was sufficient disparity of interest between the trustee and Lisa Rogers to rebut any presumption of constructive trust. Lisa Rogers should be permitted to retain the transfers of interest from her sister, Lynn Rogers, without sharing it with her other co-owners.
3.10. Conclusions Regarding Percentage Of Ownership Of The Mining Claims-I conclude that the ownership of the Mining Claims amongst the parties to this adversary proceeding, under the facts is:
Mining Claims 1-13 Bennie Leonard, Trustee 65.83333% Marianne Pilant 16.25000% Lisa Rogers 17.91677% Total 100.00000%
Mining Claims 14-15 Bennie Leonard, Trustee 81.66667% Marianne Pilant 7.50000% Lisa Rogers 10.83333% Total 100.00000%
This conclusion is not intended to impinge on the title of the United States of America (or any other governmental entity) or the federal patent process.
3.11. Counter-Claim And Cross-Complaint Of Wielers Should Be Dismissed— The counter-claim and cross-complaint of the Wielers, contained in their answer (Docket Entry 5) should be dismissed with prejudice.
3.12. Costs And Attorney Fees— The costs and attorney fees among Bennie Leonard, Marianne Pilant, and Lisa Rogers shall be borne by each of those parties themselves. Bennie Leonard shall recover attorney fees and costs against Eric Wieler and Paul Wieler as awarded by the court after notice and hearing and taxed by the clerk respectively.
4. LEGAL ANALYSIS—
4.1. Subject Matter Jurisdiction, Core/Non core Status, And The Adequacy Of The Complaint— 28 U.S.C. 1334 provides:
(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.
(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
(c) [omitted; relates to abstention]
(d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate.
By an order of reference, the district court in Alaska has referred bankruptcy cases filed in this district to this bankruptcy court. The present adversary is filed in a pending bankruptcy case.
No one, at least not the bankruptcy court, is attempting to determine the rights of the federal government in this adversary proceeding as Paul and Eric Wieler imply. The Mining Claims were listed as estate property in the schedule of assets filed by Gold King Mines. This adversary proceeding involves a determination of whether the Mining Claims or some parts of them are property of the bankruptcy estate. Therefore, the court has subject matter jurisdiction. The determination of ownership of the Mining Claims amongst the present parties will surely affect the bankruptcy. In re Fietz, 852 F.2d 455 (9th Cir 1988).
Although the jurisdiction of debtor's property is exclusively in the district court in the case referred to this court, this does not mean that the bankruptcy court is the exclusive tribunal to decide many issues related to a bankruptcy case. It is not. Compare, In re Scheikart, 154 B.R. 616 (Bankr D RI 1993). On the other hand, the bankruptcy court is one of the appropriate tribunals to decide the issues raised in this adversary.
It is necessary to sort out the title to determine what the trustee owns. As such, this is a core proceeding in which the bankruptcy court can enter a final judgment. 28 U.S.C. 157(b)(2)(A), (E), and (O) are among the statutory grounds supporting this. See, also, In re Gardner, 913 F.2d 1515, 1518 (10th Cir 1990) ("Although determination of whether the marital property is part of the bankruptcy estate is a core proceeding, the later determination of the ownership of the marital property as between third parties . . . is not."); Bayless v. Crabtree Through Adams, 108 B.R. 299, 303-04 (WD Okla 1989), aff'd 930 F.2d 32 (1991) (a turnover proceeding, holding a determination of ownership was implicitly a core matter); In re Jacobs, 48 B.R. 570, 572 (Bankr SD Cal 1985) (with little discussion).
The Mining Claims are the centerpiece of the chapter 11 case. In deciding the case, the court has determined property issues regarding Paul and Eric Wieler under federal judicial estoppel principles because they arose in the bankruptcy case (see, 4.2 of this memorandum), applied bankruptcy law in determining the quiet title issue (s ee, 4.4 of this memorandum, applying 11 U.S.C. 108(c) and 362(a) analysis) and regarding the validity of the probate decree vis-a-vis the trustee (see, 4. 6 of this Memorandum, applying 11 U.S.C. 544(a)(3) analysis). These factors convince me that this is a core proceeding.
The question of whether this is a core proceeding is not free from doubt. There is case law to the contrary, that a quiet title action is related to a bankruptcy, but not a core matter. Cf Matter of GEX Kentucky, Inc., 85 B.R. 431 (Bankr ND Ohio 1987) (holding that an action to determine ownership of real property is a proceeding "related to" a bankruptcy case in which the judge had subject matter jurisdiction, could hear the case, and submit proposed findings of fact and conclusions of law to the district court under 28 U.S.C. 157(c)(1)). Also, in Bowen Corp., Inc. v. Security Pacific Bank Idaho, F.S.B., 150 B.R. 777 (Bankr D Ida 1993), the court found that an adversary proceeding which included a quiet title claim and which had been removed from state court was related to, but not arising under or in a bankruptcy proceeding. Bowen relied on In re Eastport Associates, 935 P.2d 1071, 1076-77 (9th Cir 1991) which discussed the definition of a core proceeding. That discussion appears to be dicta, however, since the issue of whether the matter in question was core or related was not appealed. Nonetheless, the Bowen case presents some arguments which are troubling me.
Although a plain reading of 157(b) does provide literal support for a holding that this is a core proceeding, Marathon requires that a literal reading not be given to the section where it raises constitutional problems (i. e, a bankruptcy court unconstitutionally usurping an Article 3 judge's powers). In re Castlerock Properties, Inc., 781 F.2d 159, 162 (9th Cir 1986).
There is a way to minimize this issue. Since the present adversary will probably be appealed, I suggest the parties opt out of a BAP appeal and have the matter referred to Judge Holland who has other aspects of the Mining Claims under consideration. Judge Holland can hear the matter as an appeal or decide the factual matters de novo, using the present Memorandum as proposed findings of fact and conclusions of law under 28 U.S.C. 157(c)(1) and FRBP 9033. To arrange for a coherent appellate/review procedure in front of Judge Holland, the court will extend the time to appeal to 30 days to file a notice of appeal on the one hand under FRBP 8002(c) if this is a core proceeding, and to 30 days to file objections under FRBP 9033(c) to the "proposed findings of fact and conclusions of law" if this is not a core proceeding.
The issue regarding the sufficiency of the complaint is clearer to me. The complaint alleges the trustee's interest was superior to that of certain defendants. The defendants complained this did not give them adequate notice. This is a facetious argument since all the defendants showed up loaded for bear to try the quiet title action. The pleadings are for notice, not to expound on every aspect of the case or legal theory. As such, I find they were adequate. Leatherman v Tarrant, 113 SCt 1160, 1163 (1993); FRCivP 8(a)(2). Compare, Miscovich v Tryck, 875 P.2d 1293, 1303-04 (Alaska 1994).
The Sisters, who got into the case late, said they would be ready for trial, and they were. Paul and Eric Wieler had several attorneys during this adversary and have had plenty of time to seek a more definite statement under FRCivP 12(e), but they did not. Therefore, I discount any arguments that the pleadings did not adequately plead a quiet title action, or that the defendants did not understand the trustee was seeking such relief.
4.2. The Wielers Are Judicially Estopped From Denying That Their Interest In The Mining Claims, From Whatever Source, Is Property Of The Estate— Eric and Paul focused much of their trial defense on the fact that the location notices and recorded notices, if reviewed by the trustee, would have led him to discover that Gold King Mines, Inc., did not own all, or even a substantial portion, of the Mining Claims. They argue that the trustee cannot attack the title of a co-owner. This misses the thrust of the trustee's case against the brothers.
The trustee argues that the brothers, as majority (if not sole) owners of Gold King, caused a chapter 11 petition to be filed in July, 1984. In its schedules, the debtor claimed sole ownership of the Mining Claims. The bankruptcy was filed to forestall a foreclosure on a judgment lien by George Atkinson.
The debtor and the brothers obtained the benefit of the automatic stay which prevented Atkinson from moving on the claims while keeping the brothers' personal estates out of bankruptcy for the time being. It is only in 1995, when Atkinson sought to acquire the equity ownership position of the Wielers, that they were forced into personal bankruptcy.
And, it was only after George Atkinson filed several motions for the appointment of a trustee that the Wieler brothers revised the information on the affidavits of annual labor to indicate that they, or they and their relatives, owned the Mining Claims.
It is not the court's intention to deny the brothers their rightful interest in the Mining Claims. Since the creditors are substantially the same in their personal bankruptcies as this corporate bankruptcy, Eric and Paul should have a position subordinate to the creditors. This present adversary (which was filed before the brothers filed their own chapter 11 cases) is not so much about the brothers' position vis-à-vis the creditors, but who will control the property. As the trustee points out in his supplemental closing brief, this should be accomplished by a judgment against them in this adversary proceeding, and, if not that, by converting their individual chapter 11 cases into chapter 7 cases with their own trustees.
The brothers want to either trump the interest of Bennie Leonard, the Gold King chapter 11 trustee, or be his cotenant. They do not seek a subordinated position. The brothers have attempted to manipulate the bankruptcy process by first claiming that title was in the debtor when it suited them, and then claiming that they held title in their individual names when they began losing control. This is playing it "fast and loose" with the creditors, the trustee, and the court in my book.
The state of the judicial estoppel doctrine in the 9th Circuit is discussed in United States v Garcia, 37 F.3d 1359, 1367-68 (9th Cir 1994), cert den 115 SCt 1699 (1995):
The doctrine of judicial estoppel is invoked to preclude a party from abusing the judicial process by taking inconsistent positions in the same litigation. Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993) (citation omitted). A court invokes judicial estoppel at its discretion. Id. Thus, we review for an abuse of discretion.
There are two varying views in the circuit courts regarding judicial estoppel. This circuit has not, as yet, adopted either the majority or minority view of judicial estoppel. Id.
We recently reiterated the two views of judicial estoppel as follows:
Under the majority view, judicial estoppel does not apply unless the assertion inconsistent with the claim made in the subsequent litigation "was adopted in some manner by the court in the prior litigation." Under the minority view, judicial estoppel can apply even when a party was unsuccessful in asserting its position in the prior judicial proceeding, "if the court determines that the alleged offending party engaged in 'fast and loose' behavior which undermined the integrity of the court."
Britton v. Co-op Banking Group, 4 F.3d 742, 744 (9th Cir.1993) (quoting In re Corey, 892 F.2d 829, 836 (9th Cir.1989)).
The trustee has shown a pattern of deceit by the brothers in other dealings, such as the Donnelly case. They claimed, in that case, that all the assets were in the corporation and they had no personal responsibility for wages.
I need only rely, however, on the facts in the bankruptcy case, and not any misbehavior in other courts or prior to the bankruptcy petition. Under either test for the application of judicial estoppel cited by Garcia, the Wielers should be estopped from denying that the title of the trustee in the Mining Claims is superior to their title.
A bankruptcy is generally composed of the main case and a series of separate proceedings. In the main case and in various proceedings, Eric and Paul Wieler have relied on or implied that the Mining Claims were property of the bankruptcy estate. They did this on the initial schedules and Statement of Affairs, and during their objections to George Atkinson's motions for appointment of a trustee. They cannot now, in this adversary proceeding, take a different tack. The fact that they began to assert individual ownership and raise the specter of title problems when the corporate facade no longer served their purposes should not allow them to whip the court, the trustee and the creditors around.
4.3. The Trustee Has Not Established Adverse Possession Against The Sisters Who Are "Co-Owners"— The trustee attempts to establish adverse possession of the Mining Claims against the Sisters directly or against their predecessors, including John Wieler, their father. The trustee relied on both AS 09. 45.052(a), which requires uninterrupted adverse notorious possession under color and claim of title for a period of 7 years, and AS 09.10.030, the 10-year statute, not under color of title.
To refocus on the facts and some of the critical time limits in analyzing the quiet title aspect of this matter in 4.3 and 4.4 of this Memorandum Decision, I will summarize or restate some of the facts. I will ignore the precise percentages of the claims involved since focusing on them obscures the quiet title issue. To analyze the quiet title aspects of this adversary proceeding, there are different periods of holding adversely which apply to different chains of title:
(a) The Mark Rogers-Scott Wieler-Barbara Rogers Chain — The Sisters inherited part of the claims from the interest traced from Scott Wieler's death in 1969, and then the death of Barbara Rogers in 1971 (see, the attached Flow Charts). The annual assessment work of the Wieler brothers predated 1971 by about 3 years. One must analyze what Eric and Paul, Gold King Mines, and the bankruptcy estate might have done between these dates (between 1968, on the one hand, and 1994, when this adversary was filed, on the other hand) to see if the facts establish adverse possession. There is little evidence the brothers held adversely to their brother, Scott Wieler, or their mother, Barbara Rogers, or Terry Chase, so the period of adverse holding could have begun no earlier than 1971 for this chain.
(b) The Mark Rogers-Scott Wieler-John Wieler Chain Secondly, the Sisters inherited part of the claims from the interest traced from Scott Wieler's death in 1969, and John Wieler's death in 1978 (see, the attached Flow Charts). The annual assessment work of the Wieler brothers predated 1978 by about 10 years. One must analyze what Eric and Paul, Gold King Mines, and the bankruptcy estate might have done between these dates (between 1968, and 1994, when this adversary was filed) to see if the facts establish adverse possession. I have concluded, however, that there is little evidence the brothers held adversely to Scott Wieler (their brother) or John Wieler (their father), or Terry Chase, so the period, realistically, could not have begun before 1978 for this chain.
(b) The John Wieler Chain — Finally, the Sisters inherited part of the claims stemming from their father's original location of Mining Claims 1-13. This interest is traced from John Wieler's death in 1978 (see, the attached Flow Chart regarding Mining Claim 1-13). The annual assessment work of the Wieler brothers predated 1978 by about 10 years. One must analyze what Eric and Paul, Gold King Mines, and the bankruptcy estate might have done between these dates (between 1968 and 1994, when this adversary was filed) to see if the facts establish adverse possession. I have concluded, however, that there is little evidence the brothers held adversely to their father, so the period, realistically, could not have begun before 1978 for this chain.
The bankruptcy court is bound to adopt the state law regarding adverse possession to determine the extent of the debtor's interest in the Mining Claims since Congress has not abrogated state law rights and substituted federal rights in their place. See, 11 U.S.C. 541(a)(1) and In re Farmers Market, Inc., 792 F.2d 1400, 1402 (9th Cir 1986). Under Alaska law, the trustee must prove his adverse possession case by clear and convincing evidence. Curran v Mount, 657 F.2d 389, 391-92 (Alaska 1982).
A thorough survey of the Alaska law regarding quiet title is found in a law review note, "When in Nome. . . .": Custom, Culture and the Objective Standard in Alaskan Adverse Possession, Grantland M. Clapas, 11 Alaska LR 301 (Dec 1994).
There are two Alaskan statutes which apply to quiet title actions. AS 09. 10.030, the 10-year statute, provides:
A person may not bring an action for the recovery of real property, or for the recovery of the possession of it unless the action is commenced within 10 years. An action may not be maintained for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of the action.
The 7-year statute, AS 09.45.052, provides in part:
(a) The uninterrupted adverse notorious possession of real property under color and claim of title for seven years or more is conclusively presumed to give title to the property except as against the state or the United States.
The requirements for establishing adverse possession were explained in Alaska National Bank v Linck, 559 P.2d 1049, 1052 (Alaska 1977):
Alaska has two adverse possession statutes. Under AS 09.25.050 [now, AS 09.45.052], when possession is under 'color and claim of title' the statutory period is seven years. In other cases, under AS 09.10.030 the statutory period is ten years. . . . [footnotes omitted]
The adjectives used to describe the requirements of adverse possession are numerous. AS 09.25.050 has three: uninterrupted, adverse and notorious. These represent the three concepts underlying the law of adverse possession: (1) the possession must have been continuous and uninterrupted; (2) the possessor must have acted as if he were the owner and not merely one acting with the permission of the owner and (3) the possession must have been reasonably visible to the record owner. See 7 R. Powell, The Law of Real Property 1013-15 (1968). We will consider each of these three in turn. [footnote omitted]
What are the legal requirements of quieting title against a co-owner? The Sisters argue that this can only be done by "advertising out." This is a procedure under which a co-owner of a mining claim who is contributing to the annual assessment work on a mining claim gives notice to a non-contributing co-owner that the non-contributor's interest will be forfeited unless contribution is paid. See, 30 U.S.C. 28, AS 38.05.220, and Sisters' Memorandum on Advertising Out, dated November 17, 1995, attaching an excerpt from the American Law of Mining, 2nd ed, 30.05[10] and 46.04[1]. See, also, Cornwall v Baird, 730 P.2d 156 (Alaska 1986) and McIntyre v Parkin, 8 Alaska 41, 43, 47 (1928). The Sisters argue that this is the only way a co-owner of the Mining Claims (whether it be Eric or Paul, Gold King Mines, or the trustee) can acquire the interest of the Sisters in a nonconsensual manner.
The trustee acknowledges that there is no evidence of any attempt to advertise out the Sisters in this case, but says that the concept of advertising out does not preempt the doctrine of quieting title. I conclude that the adverse possession remedy is available without resorting to advertising out. There is little or no case law which directly indicates that a quiet title remedy is not available against a co-owner of a mining claim. Many of the doctrines relating to real property interests apply to mining claims, including quiet title. Kasey v Molybdenum Corp. of America, 336 F.2d 560, 565 (9th Cir 1964).
Nonetheless, the trustee has a high evidentiary burden to establish adverse possession in Alaska. In Alaska, adverse possession must be shown by clear and convincing evidence under Curran v Mount, 657 P.2d at 391-92. For "clear and convincing" proof to be established, "there must be induced a belief that the truth of the asserted facts is highly probable." Saxton v Harris, 395 P.2d 71, 72 (Alaska 1964).
The critical nuance in law of adverse possession in the Sisters' case is that they were co-owners of the Mining Claims to some degree by virtue of inheritance of an interest from their mother, Barbara Wieler, who died in 1971, and their father, John Wieler, who died in 1978. A special threshold showing of notice or knowledge is generally required to prove adverse possession against a co-owner of real property. Yin v Midkiff, 481 P.2d 109, 111 (Hawaii 1971):
That one cotenant may hold adversely to another cotenant is recognized in this jurisdiction. [citing Hawaiian cases]. And traditionally courts have held that a cotenant relying upon a claim of adverse possession has the burden to show the following essential requirements in order to acquire exclusive title as against the ones out of possession: (1) a clear intent to claim adversely; (2) adverse possession in fact; and (3) knowledge or notice of the hostile holding brought home to the cotenant or cotenants out of possession. Chicago, P. St. L. Ry. v. Tice, 232 Ill. 232, 83 N.E. 818 (1908); Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906).
Cases often state that the notice or knowledge must be brought home by some repudiation of the interest of the co-owner out of possession. Cases cited by the trustee to show that a quiet title remedy is possible against a co-owner, acknowledge the requirement of clear and definite notice or knowledge of the adverse claims. E. g., in Kasey v Molybdenum Corp. of America, 336 F.2d at 570, the court said "[w]e can understand the legal requirement that a repudiation be so clear that the [co-owner out of possession] can easily understand it to be such" (although, the court noted there was only a very limited co-ownership interest in that case).
Other cases emphasize the need for a definite "ouster" of the cotenant so that there is no question that the property is not being held under the ordinary presumption that it is for the benefit of the co-owner, and not adversely. Jordon v Warren, 602 So.2d 809, 815 (Miss 1992); Sadler v Duvall, 815 S.W.2d 285, 289 (TexApp 1991); Keys v Keys, 614 A.2d 975, 980-81 (MdApp 1992). Anyone wanting to do further research should check the West Digest topic, Tenancy In Common, Key No. 15(2), entitled, "Necessity of actual ouster or notice of adverse claim"or WestLaw key number 373k15(d) for about 140 hits, almost all on point. The cases are mainly fact driven. A general statement of the ouster rule is found in Jordon said at 815:
An ouster is the wrongful dispossession or exclusion by one tenant in common of his cotenants from the common property of which they are entitled to possession. It differs from the acts constituting an ouster in cases not involving tenants in common only in the type of evidence by which it may be established. As between persons who admittedly took title as tenants in common, the proof of ouster of one of them by the other must be much stronger than between strangers. 86 C.J.S. Tenancy in Common 27 (1954). An ouster of a cotenant not in possession must be unequivocal notice of some kind to the cotenant not in possession that the one in possession intends to hold and claim ownership of the property to the exclusion of all others. Monaghan v. Wagner, 487 So.2d 815, 819 (Miss. 1986). The cotenant in possession must effect an ouster of the other cotenant of an unequivocal nature and distinctly hostile to the rights of the other so that the intent to possess adversely is clear and unmistakable. Davis v. Davis, 508 So.2d 1062, 1065 (Miss. 1987).
The trustee relies on Guerin v American Smelting Refining Co., 236 P.2d 684 (Arizona 1925) to show that actual knowledge is not a prerequisite to quieting title against a co-owner. While it is true that "actual" notice or knowledge is not required, Guerin is not a quiet title case. "As the title or interest claimed by plaintiff in the mine is only incidentally involved, we will not undertake to decide whether she has lost such title or interest by limitation. . . ." Guerin at 686.
While the background facts in Guerin might be analogized to our adversary proceeding, the plaintiff there sought an accounting for moneys received in the operation of a mining claim. She charged the defendants transferred the claims to themselves to defeat her rights to share as a co-owner. The gravamen of her complaint was fraud. She alleged the defendants held the proceeds which she claimed were hers in constructive trust. The defendants argued that the statute of limitations on fraud actions had expired. Plaintiff argued that the statute does not apply to claims involving property held in constructive trust. The court noted a split of authority and decided that the statute of limitations should apply. In doing so, it noted that "actual notice" is not necessary.
The trustee notes that the Guerin court cited Elder v McClaskey, 70 F 529, 542 (CCA 6th Cir) cert den 16 SCt 1201, for the proposition that actual notice is not necessary against a co-owner in a quiet title action, but such notice can be given by conduct sufficiently clear to bring the message home. The Elder court said at 542:
Where one enters avowedly as tenant in common with others, his possession is the possession of those others, so long as the tenancy in common is not openly disavowed. Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant, to him. He must, in the language of the authorities, 'bring it home' to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner. Said Mr. Justice Bradley in Re Broderick's Will, 21 Wall. 503, 519:
'Parties cannot, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all transactions of the past. The world must move on, and those who claim an interest in persons and things must be charged with the knowledge of their status and condition, and of the vicissitudes to which they are subject.'
In Elder, the dispute involved 161 1/4 acres of land in the suburbs of Cincinnati, Ohio. The defendants, who numbered over 200, and their predecessors, had been in possession of the land since 1839. The plaintiffs claimed an interest in title through an heir who died in 1860. The law suit was filed in December 1886. The Ohio statute of limitations was 21 years. There had been numerous title disputes and probate cases involving the property from 1847 on. One probate or inheritance matter reached the United States Supreme Court. The matter was still in several litigations when Elder was decided. The property had been subdivided many times and improved greatly with a number of buildings. Ownership had passed from hand to hand through conveyance and death — over 500 times.
Notwithstanding this background, the trial court held "a possession begun by defendants as tenants in common with the claimants could not become adverse until actual notice of the intent to disseise them was brought home to the claimants, and no such notice was shown in this case." Elder at 537.
Elder cited numerous cases at 542-47 to show that this was too strict an interpretation of the law regarding adverse possession by the trial court. The appellate court decided for the defendants (the ones in possession at the time of suit) vis-a-vis the plaintiffs (the ones seeking to avoid having title quieted against them). In a nutshell, the court's reasons included the overwhelming facts and equities in that case, the numerous litigations asserting an adverse claim even before the 1860 death of the party upon whom plaintiffs based the beginning of their chain of title, and the numerous transfers of titles and improvements to the property. The court concluded that "it is difficult to imagine a case in which the legal presumption of knowledge of the adverse character of the possession could be stronger, as against the owners of the outstanding interests." Elder at 547.
The demography of the Alaskan bush is much different from the suburban Cincinnati of Elder. There are Alaskan quiet title cases explaining the application of the doctrine to more remote areas, where evidence of hostility and adversity to the ownership rights of others is more subtle. Nome 2000 v Fagerstrom, 799 P.2d 304 (Alaska 1990) and Peters v Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).
Fagerstrom involved a rural parcel, outside Nome, Alaska. It was usable, during the warmer weather, as a homesite for recreation and subsistence. During the colder season, it was not usable. The Fagerstroms, the parties claiming adverse possession:
brought a small quantity of building materials to the site in 1966 for a cabin;
staked 4 corners for a Native allotment in 1970 or 1971;
in 1970, they built a small picnic area, including a gravel pit and beachwood blocks for chairs, firewood and a 50-gallon barrel stove;
in 1974, and through 1978, they placed a camper trailer on the property, leveled on blocks; it was placed there annually from June through late September;
built a fish rack and outbuilding eventually; planted some spruce; built an 8x8 foot reindeer enclosure;
were on the land every other weekend and a couple of times a week when the weather was good;
used the parcel mainly at its north-end parcel, although they had footpaths, and walked over the entire parcel (these paths were present before the Fagerstroms started using the parcel);
generally allowed others to pick berries there; although they excluded some people for burning the planted trees.
Attempting to refute the adversity, Nome 2000 offered proof that this use was consistent with a traditional Native Alaska land use system. This included a common, shared use, not relying on the traditional concepts of exclusive ownership. Fagerstrom at 307-308, 314 (map).
Nome 2000 argued that the use of the parcel did not, as a matter of law, show adverse possession because of a lack of significant improvement and activity. Id at 309. However, the court stated the controlling principals (Id at 309):
Whether a claimant's physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity. Indeed, this area of law is not susceptible to fixed standards because the quality and quantity of acts required for adverse possession depend on the character of the land in question. Thus, the conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. Alaska National Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977) (One test for determining continuity of possession is to ask whether the land was used as an average owner would use it.); Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 831 (Alaska 1974) ("[P]ossession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use."). Where, as in the present case, the land is rural, a lesser exercise of dominion and control may be reasonable. See Linck, 559 P.2d at 1052 (citing Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957) for the proposition that "pasturing of sheep for three weeks a year is sufficient where land is suitable only for grazing"), 1053 (citing Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55, 56 (1951) for the proposition that "6 visits per year to hunting cabin plus some timber cutting found sufficient where land was wild and undeveloped"); Peters, 519 P.2d at 831 (citing Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3 (1929) for the proposition that exclusivity is not destroyed as to beach property commonly used by others).
The character of the land in question is also relevant to the notoriety requirement. Use consistent with ownership which gives visible evidence of the claimant's possession, such that the reasonably diligent owner "could see that a hostile flag was being flown over his property," is sufficient. Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977). Where physical visibility is established, community repute is also relevant evidence that the true owner was put on notice. Id. [footnote omitted]
Applying these principals, the Supreme Court of Alaska found that the use of the northern portion of the parcel (for the cabin site, picnic area, reindeer pen, fish drying racks, etc.) was adversely possessed. Conversely, they reversed the trial court and held that the use of the southern portion of the parcel (use of trails and picking up litter) was not a sufficient showing of dominion to warn a reasonably diligent owner that it had better take steps to protect its ownership interests. Id at 309-11.
Another significant holding concerned the character of the Fagerstroms' beliefs or intentions. The court said at 310:
What the Fagerstroms believed or intended has nothing to do with the question whether their possession was hostile. See Peters, 519 P.2d at 832 (with respect to the requirement of hostility, the possessor's "beliefs as to the true legal ownership of the land, his good faith or bad faith in entering into possession . . . are all irrelevant."); The Law of Property at 761 (citing, inter alia, Peters for the view "of most decisions and of nearly all scholars, that what the possessor believes or intends should have nothing to do with [hostility]"). Hostility is instead determined by application of an objective test which simply asks whether the possessor "acted toward the land as if he owned it," without the permission of one with legal authority to give possession. Hubbard, 684 P.2d at 848 (citing Peters, 519 P.2d at 832). As indicated, the Fagerstroms' actions toward the property were consistent with ownership of it, and Nome 2000 offers no proof that the Fagerstroms so acted with anyone's permission. That the Fagerstroms' objective manifestations of ownership may have been accompanied by what was described as a traditional Native Alaskan mind-set is irrelevant. To hold otherwise would be inconsistent with precedent and patently unfair.
The trustee has noted some of the analogies which can be drawn between the facts of this adversary proceeding and cases like Fagerstrom. The Mining Claims are remote. They can only be reached, for practical purposes, during the short Alaskan summer months. The Mining Claims are suitable principally for mining valuable minerals. Paul and Eric Wieler kept their siblings in the dark about their activities on the claims, did not offer them any information, nor did they seek contribution. They were hoping, it seems, that the siblings would just ignore or never focus on any interest they might have in the Mining Claims.
They were hoping, it seems, that the siblings would just ignore or never focus on any interest they might have in the Mining Claims.
The distinction in the facts in this adversary proceeding from those in Fagerstrom, which the trustee seeks to downplay, is the co-ownership status of the Sisters. What might be adverse to the world or a completely separate legal owner, is not necessarily adverse to a co-owner. See, Elder v McClaskey. It is true that the brothers leased the Mining Claims to others, and kept the proceeds, but it is not clear that they, in fact, ever made a net profit on the mining venture. The inference from the testimony, however, is that they have invested much of their lives' effort on the claims and have received relatively nominal financial benefits in return.
The brothers now disavow that they ever thought of keeping the Mining Claims for themselves, to the exclusion of the Sisters. They testified that they always recognized their Sisters' interests. This is self-serving testimony. I believe that they acknowledge the Sisters' interests only to create an impediment to the trustee's management of the Mining Claims in a manner contrary to their wishes. When the trustee began to assert control of the destiny of the Mining Claims in a way that did not meet with the brothers' approval, they began showing the interest of the heirs of John Wieler on the affidavits of annual labor. This is probably more in the nature of throwing sand in the gears of the trustee's intentions regarding the Mining Claims than any concern for the Sisters' actions.
The keystone of the trustee's quiet title case against the Sisters is the fact that they had virtually no contact with the Mining Claims for over 20 years before showing a sudden interest in 1995, after one of the Wieler brothers advised them of their potential interest to enlist their support in opposition to the trustee's assertion of control over the Mining Claims. The Sisters argue that they were truly in the dark about their purported interest in the Mining Claims until then. The evidence of adversary possession against anyone, other than Marianne and Lisa, is weak. There is little or no credible evidence that Paul or Eric ever held adversely against their parents, Scott Wieler, or Terry Chase.
The Sisters' explanation sounds a little suspicious given the Sisters' close relationship to Mark Rogers, their brother, and with their mother. One might infer that ownership of the Mining Claims was discussed at some time. Also, the investigation of Marianne to see if her father's estate was probated, her attempts in the early 1970s to get deeds to the Mining Claims from Terry Chase and her general interest in mining might lead to an inference she knew more about the mining claims than she has let on.
Nonetheless, under Curran v Mount, supra, the trustee must prove a quiet title action by clear and convincing evidence. The suspicions he has raised about the Sisters' knowledge of the claims is not clear and convincing and cannot prevail. If I were required to determine the adverse possession question on a "preponderance of the evidence" standard and there were no co-ownership question, I might be persuaded by the evidence and the Fagerstrom language regarding remote sites to rule for the trustee. On the other hand, focusing on the "clear and convincing" standard of proof, and the extra burden of proving an adverse possession case against a co-owner as described in Elder, I must hold that the trustee has not proved his case of adverse possession against the Sisters.
4.4. Alternatively, 11 U.S.C. 108(c) Stopped The Time Limits In The Alaska Quiet Title Statutes From Expiring On Any Inheritance From John Wieler— In this 4.4 of this Memorandum, I will focus on the interest the Sisters acquired by inheritance from their father, John Wieler. They acquired this in 1978, when he died at the Mining Claims. The trustee has not established by clear and convincing evidence that Eric and Paul (or their successors, Gold King Mines and the trustee) have adversely possessed against John Wieler, their father. The evidence, in fact, is very weak that the brothers intended or did hold adversely to their father. Paul testified he had asked his father, just before his death in 1978, if he would convey his interest to the brothers. He said his father agreed to do this, but died at the Mining Claims before he had a chance.
While Paul's credibility is not high, I cannot say that he was clearly lying about this. There are many nuances in the evidence which show the brothers' relationship with their father was much more normal than the dysfunctional relationship with their sisters.
Thus, adverse possession on the share the Sisters' inherited from John Wieler could have begun no sooner than 1978. In 1984, when the bankruptcy was filed, the time limits under neither AS 09.10.030 nor AS 09.45.052(a) had expired. To reach these time limits of 7 or 10 years, it would be necessary to tack on the time accrued after the debtor filed bankruptcy. Can the trustee do this? I do not believe he can.
11 U.S.C. 108(c) provides:
(c) Except as provided in section 524 of this title, if applicable non bankruptcy law, an order entered in a non bankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of —
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.
The automatic stay has never been lifted to allow the Sisters a determination of the quiet title issue. 11 U.S.C. 362(a) prohibited such a suit. Had the stay been lifted and the Sisters done nothing for a number of years, there might be an argument that the time kept running, but since no suit was filed until the present adversary, under a literal reading of 108(c), the Sisters still have a minimum of 30 days after notice of a termination of the stay to file such an action. The time has not expired. See, Aslandis v U.S. Lines, Inc., 7 F.3d 1067, 1073 (2nd Cir 1993) (holding the statute of limitations continues to run, and is not tolled, and where it has run out during the bankruptcy, only 30 days are left after the stay is lifted).
The trustee might argue that the Sisters could have broken the exclusivity chain which is required for adverse possession by taking steps, outside of suing the trustee, thus sidestepping 108(c). It is a close question whether the Sisters' use of self-help to assert possession would violate the automatic stay. Perhaps the automatic stay would not stop a co-owner from going on the land if she has a right to do so anyway. Having such a right should not, I think, prohibit a co-owner from instead seeking a legal remedy in a court. The extension of time under 108(c) in this case is lengthy because it has been active so long due to its unusual nature. In a normal bankruptcy case, a 108(c) extension would be of much shorter duration.
11 U.S.C. 362(b) provides certain exceptions to the automatic stay. For example, a creditor with a lien right, may file the lien even after the bankruptcy petition has been filed and the automatic stay goes into effect. 362(b)(3) provides the automatic stay does not prevent "any act to perfect, or to maintain or continue the perfection of an interest in property to the extent that the trustee's rights and powers are subject to such perfection under section 546(b) of this title." 11 U.S.C. 546(b) (the pre-1994 Bankruptcy Reform Act version applying to this adversary proceeding):
(b) The rights and powers of a trustee under sections 544, 545 and 549 of this title are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection. If such law requires seizure of such property or commencement of an action to accomplish such perfection, and such property has not been seized or such action has not been commenced before the date of the filing of the petition, such interest in such property shall be perfected by notice within the time fixed by law for such seizure or commencement.
Having perfected a lien, however, a creditor is protected by 11 U.S.C. 108(c) from having to file a suit to enforce such a lien perfected post-petition. Hunters Run Limited Partnership, 875 F.2d 1425, 1427-29 (9th Cir 1989). And, there is no requirement of "seizure" or nonjudicial intervention as the only means of breaking an adverse possession. By analogy to Hunters Run, the requirement that the Sisters take legal action against the trustee to prevent the running to the prescriptive statutes is stayed and still available to them.
4.5. The Sisters' Claim of Fraud on the Alaska Probate Court with Respect to Mark Rogers' Estate Is Not Available Against the Trustee in Bankruptcy — Mark Rogers was the brother of the Sisters. He was co-locator of Mining Claims 1-13 with his father, John Wieler and of Mining Claims 14-15 with Terry Chase, both on a 50/50 basis.
When Mark died in a plane crash in 1964, his mother, Barbara Rogers, acted as the personal representative of his intestate estate which was probated in Alaska. She erroneously or perhaps fraudulently represented to the probate court that she was, as Mark's mother, the sole heir entitled to inherit. She did not mention the fact that John Wieler, Mark's father, might be alive. A final decree was signed by Judge Fitzgerald, then on the Anchorage Superior Court in 1968.
In 1968, she conveyed her interest in Mining Claims 1-15 to her sons, Paul, Eric and Scott Wieler in equal one-third parts. The effect of this was to convey the one-quarter interest in the Mining Claims to which she was rightfully entitled and the one-quarter interest which arguably belonged to John Wieler. The result was that Paul, Eric and Scott each got a 16% share of Mining Claims 1-15 (or 50% in total), instead of an 8% share each (or a 25% total).
In 1968, Scott died intestate and no estate administration was ever opened. The parties agree that Scott's interest passed by intestate succession one-half to his mother, Barbara Rogers (i.e., she reacquired one-half of what she deeded to Scott) and the other half to his father, John Wieler.
The Sisters are challenging the extra 8% shares which went to Paul and Eric. They want these two 8% shares attributed to John Wieler, who died in 1978, leaving the Sisters as two of his heirs. The Sisters' share of any intestate succession from John would be thus enhanced.
They, in a like manner, claim that had Barbara Rogers only conveyed to Scott an 8% of Mark's interest in Mining Claims 1-15, as they say she should have, the other 8% would have gone to John, and Barbara would only have received back 4-1/6% instead of 8%.
At trial, the Sisters said their claim in connection with this issue was limited to an argument that the court should correct a fraud on the court. In the Sisters' Opening Post-Trial Brief they rely on AS 13.30.840 (1962), contained in the Article 8 of the Probate Code entitled "Determination of Heirship," which provides:
Effect of Adjudication. The adjudication is conclusive in favor of an innocent purchaser relying on its verity and as to others prima facie evidence of matters therein contained. However, for the purposes of appeal, the adjudication is considered a part of the decree allowing or disallowing the final account.
The Sisters argue that Gold King Mines, Inc., and the trustee took nothing from the Mark Rogers' estate, and therefore do not qualify as a BFP under this section. However, any legal title held by Gold King which derived from Mark's estate is protected by the trustee's strong-arm rights in bankruptcy under 11 U.S.C. 544(a)(3) which provides:
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by —
. . . .
(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.
This is an appropriate case in which to hold that the trustee's strong-arm powers under 544(a)(3) prevail over any claim of interest the Sisters might assert by virtue of AS 13.30.840 and 11 U.S.C. 541(d) (which provides that when a trustee holds bare legal title to property at the petition date, but not legal title, the trustee's interest is limited to the legal title). In re Tleel, 876 F.2d 769 (9th Cir 1989).
Therefore, without addressing the fraud on the court argument, I conclude the trustee primes the Sisters with respect to the portion of the Mining Claims which John Wieler should have inherited from Mark Rogers when he died in 1964, but which Barbara Rogers deeded to herself as sole heir. She took Mark's half interest in Mining Claims 1-15, instead of taking 25% for herself and giving John Wieler 25%. By virtue of 544(a)(3), the Sisters' cannot recover their share of the 25% which John should have gotten, but did not.
4.6. Inurement Of Benefit Of Property Interests Acquired From Terry Chase (By Abandonment Or Quitclaim), Lynn Rogers (By Quitclaim), And From Harvey Wieler (By Default)— After filing this adversary proceeding, the trustee received a deed from Terry Chase for any interest Chase had in Mining Claims 14-15. Chase testified in his telephonic deposition that he had given a quitclaim deed to the trustee at the request of Cabot Christianson, in exchange for being dismissed out of the case. While Chase has not been technically dismissed, the intent of the trustee's promise has been accomplished (getting Chase out of the litigation in the real sense), but not in precisely the terms discussed. Thus, there is no failure of consideration. Chase also testified that he had essentially abandoned his interest in the claims after Mark Rogers died in 1964.
The Sisters and the Wieler brothers argue that the Chase quitclaim deed should be for the benefit of the co-owners of Mining Claims 14-15, not just the trustee. There is support for a theory that, because of a presumed duty of each cotenant to protect the common title, any reacquisition of an interest by one cotenant of an adverse interest inures to the benefit of the remaining cotenants. There are a number of exceptions to this doctrine, also. See, "D. Acquisition of Outstanding Title, Interest, or Claim, [76-89]," Cotenancy and Joint Ownership, 28 AmJur2d 175-185.
I will treat Terry Chase's interest as having been abandoned, according to his own testimony. Alternatively, I would apply the general doctrine (that the interest acquired inures to the other co-owners) to the interest acquired by the trustee from Terry Chase by quitclaim, and, also, to the defaulted interest of Harvey Wieler, one of the 5 children of John Wieler and Barbara Rogers. Both these interests are of the type that the general rule would apply.
On the other hand, I will allow Lisa Rogers to keep the interest her half-sister, Lynn Rogers quit claimed to her in Mining Claims 1-15. It is the relatively small interest which Lynn inherited from Barbara Wieler, who had previously inherited it from Scott Wieler on his death.
4.7. Abandonment By The Sisters And John Wieler Or Laches— In Alaska, abandonment of a mining claim must be shown to be an intentional relinquishment by a voluntary act, established by objective acts carrying out that intention. Additionally, abandonment must be shown by clear and convincing evidence. Miscovich v Tryck, 875 P.2d 1293, 1298 (Alaska 1994). There is not enough evidence to establish that the Sisters knew of their rights in the Mining Claims to have abandoned them. There is even less evidence of abandonment regarding John Wieler.
Likewise, the equitable defense of laches against the Sisters' claim of title applies when there is unreasonable delay in the assertion of rights resulting in prejudice to the other party. Miscovich at 1302. Despite the passage of 20 or more years, that is not per se controlling. The time periods in Miscovich were as long as those in this adversary proceeding, and yet did not result in laches. Under the facts of this case, the defense of laches is not available to the trustee.
4.8. Miscellaneous— After-Acquired Property Doctrine— I have not discussed the after-acquired property issue as it relates to Eric and Paul's quitclaim deed to Gold King Mines in 1977, or whether the 1977 deed applies retroactively to their inheritance from John Wieler in 1978. I think the trustee is not correct when he argues that the after-acquired property (what the Wieler brothers inherited from their father John when he died in 1978) would be treated as property conveyed retroactively by the 1977 deed the brothers gave to Gold King Mines. Willis v City of Valdez, 546 P.2d 570 (Alaska 1976) does not support that conclusion in this case. There, the transfer by quitclaim was of rights which existed of the transferor (although not in the form of patent) at the time of the quitclaim. Here, the transfer was of rights in 1977, which had not yet been acquired by Eric or Paul from their father's estate until 1978.
Adequacy of Consideration for Chase's Quitclaim to Trustee— I also do not need to discuss the argument regarding lack of consideration for the Terry Chase deed. However, I suspect there was adequate consideration as shown by the Alaskan cases cited by the trustee. The issue of the Terry Chase interest is best handled as an abandonment, so it is not an issue.
Default of the Estate of Barbara Rogers Does Not Trump the Sisters' Right to Recover the Shares of the Mining Claims that the Estate Held— While the probate of Barbara Rogers' estate in Spokane has not been completed, the testimony proved that the 6 Wieler children were her heirs of any interest she had in the Mining Claims. The fact that the trustee defaulted the defendant, Estate of Barbara Rogers, is not fatal to the Sisters.
Lynn Rogers and Lisa Rogers are the personal representatives of Barbara Rogers' probate estate which is pending in Spokane, Washington. To the extent I set aside the default for Lisa Rogers and Marianne Pilant, I would do the same for the Barbara Rogers' Estate to reach the same results on the merits. In any event, Lisa and Marianne, as heirs, qualify as real parties in interest with a right to participate in this adversary proceeding in their own names to protect their inheritance. See, FRCivP 17(a), (b).
5. POST-SCRIPT— A final judgment will be entered separately. When it is filed, along with this Memorandum Decision, I will concurrently advise Judge Holland that this may be a matter for a review as a noncore matter. See, the discussion at 4.1 of this Memorandum Decision.
Flow Chart of Ownership of Gold King Mining Claims 1-13 WebMaster: Note: This document was created because the original is unsuitable for scanning — font is much to small. The original document is available for viewing in the case file located in the Clerk's Office in Anchorage. Mark Rogers Barbara Rogers (50%) (usurped John's Died: 9/18/64 50% share) (Deed 1969) Paul Weiler Gold King Mines, Inc. (16 2/3%) (16 2/3% by '77 Deed or judicial estoppel) Eric Weiler Gold King Mines, Inc. (16 2/3%) (16 2/3% by '77 Deed or judicial estoppel) Barbara Rogers (8 1/3%) Died 12/24/71 Lynn Rogers Lisa Rogers (1 2/3%) (1 2/3%) Lisa Rogers (1 2/3%) Marianne Pilant (1 2/3%) Paul Wieler Gold King Mines, Inc. (1 2/3%) (1 2/3%) by '77 Deed or judicial estoppel Eric Wieler Gold King Mines, Inc. (1 2/3%) (1 2/3%) by '77 Deed or judicial estoppel Harvey Wieler (defaulted) Scott Wieler (16 2/3%) Died 5/25/69 John Weiler Lisa Rogers (8 1/3%) (2 1/12%) Died 8/17/78 Marianne Pilant (2 1/12%) Paul Wieler Gold King Mines, Inc. (2 1/12%) (2 1/2%) by judicial estoppel Eric Wieler Gold King Mines, Inc. (2 1/12%) (2 1/2%) by judicial estoppel John Wieler (50%) Died 8/17/78 Lisa Rogers (Wieler) (12 1/2%) Marianne Pilant (12 1/2%) Paul Wieler Gold King Mines, Inc. (12 1/2%) by judicial estoppel Eric Wieler Gold King Mines, Inc. (12 1/2%) by judicial estoppel Harvey Wieler (defaulted) Flowchart of Ownership of Gold King Mining Claims 14-15 WebMaster: Note: This document was created because the original is unsuitable for scanning — font is much to small. The original document is available for viewing in the case file located in the Clerk's Office in Anchorage. Mark Rogers (100%) Died 9/18/64 Barbara Rogers (usurped John's 50% share) (Deed 1968) Paul Wieler Gold King Mines, Inc. (33 1/3%) (33 1/3%)('77 Deed or judicial estoppel) Eric Wieler Gold King Mines, Inc. (33 1/3%) (33 1/3%)('77 Deed or judicial estoppel) Scott Wieler (33 1/3%) Died 5/25/69 Barbara Rogers (16 2/3%) Died 12/24/71 Lynn Rogers Lisa Rogers (3 1/3%) (3 1/3%) Lisa Rogers (3 1/3%) Marianne Wieler Pilant (3 1/3%) Paul Wieler Gold King Mines, Inc. (3 1/3%) (33 1/3%)('77 Deed or judicial estoppel) Eric Wieler Gold King Mines, Inc. (3 1/3%) (33 1/3%)('77 Deed or judicial estoppel) Harvey Wieler (defaulted) John Wieler (16 2/3%) Died 8/17/78 Lisa Rogers (4 1/6%) Marianne Wieler Pilant (4 1/6%) Paul Wieler Gold King Mines, Inc. (4 1/6) (4 1/6%) by judicial estoppel Eric Wieler Gold King Mines, Inc. (4 1/6%) (4 1/6%) by judicial estoppel Harvey Wieler (defaulted) Summary of Flow Trustee's Marianne's Lisa's Combined Charts Regarding Ownership Ownership Ownership Ownership Ownership of Mining Percentage Percentage Percentage Percentages Claims 1-15 Claims 1-13/John's 50% to Sisters 12.50000 12.50000 25.00000 to Erik to GKMI 12.50000 12.50000 to Paul to GKMI 12.50000 12.50000 Claims 1-13/Mark's 50% From Barbara to Paul to GKMI 16.66667 16.66667 From Barbara to Erik to GKMI 16.66667 16.66667 From Barbara to Paul (via Scott) to GKMI 1.66667 1.66667 From Barbara to Erik (via Scott) to GKMI 1.66667 1.66667 From Barbara to Lynn to Lisa (via Scott) 1.66667 1.66667 From Barbara to Sisters (via Scott) 1.66667 1.66667 3.33333 From John to Sisters (via Scott) 2.08333 2.08333 4.16667 From John to Paul (via Scott) to GKMI 2.08333 2.08333 From John to Erik (via Scott) to GKMI 2.08333 2.08333 Total Percentages (Claims 1-13) 65.83333 16.25000 17.91667 100.00000 Claims 14-15/Marks 100% From Barbara to Paul to GKMI 33.33333 33.33333 From Barbara to Erik to GKMI 33.33333 33.33333 From Barbara to Paul (via Scott) to GKMI 3.3333 3.33333 From Barbara to Erik (via Scott) to GKMI 3.3333 3.33333 From Barbara to Lynn to Lisa (via Scott) 3.33333 3.33333 From John to Sisters (via Scott) 4.16667 4.16667 8.33333 From John to Paul (via Scott) to GKMI 4.16667 4.16667 From John to Paul (via Scott) to GKMI 4.16667 4.16667 Total Percentages (claims 14-15) 81.66667 7.50000 10.83333 100.000