Opinion
Trenmor Coffin, for plaintiff.
H. C. Dillon and Torreyson & Summerfield, for intervener.
HAWLEY, District Judge (orally, after stating the facts as above).
Is the evidence in this case sufficient to justify a decree in favor of the plaintiff?
1. Has the intervener any such standing in this court as to entitle him to be heard? Upon the hearing the plaintiff moved the court (1) to dismiss the complaint in intervention upon the ground that the intervener introduced no evidence in support of his allegations; (2) that no sufficient facts were stated in the petition entitling him to intervene. This motion is denied upon the ground that plaintiff, having filed a replication to the complaint in intervention, has waived the objections to its sufficiency. If any of the original parties to the suit desired to contest the petitioner's right to intervene, it was their duty to make their objections when the petition for intervention was filed. Leave to intervene, when granted, should be by order; but, if the suit is proceeded with without objection, the entry of the order will be waived. Myers v. Fenn, 5 Wall. 205; French v. Gapen, 105 U.S. 509, 525. As the receiver of the property of the Keystone Mining Company, upon an interest in which plaintiff seeks to obtain a lien, the intervener had the right by leave of the court to file a bill of complaint pro interesse suo in the nature of a bill of interpleader. The intervention may contain a statement of the petitioner's view of the case, and pray, in addition to intervention, for the final relief which he desires. French v. Gapen, supra. Being entitled to appear, he has the right to rely upon the insufficiency of the evidence to sustain a decree in plaintiff's favor. The fact, therefore, that no testimony was taken by the intervener in support of his affirmative averments, does not authorize the dismissal of his complaint. Graves v. Hall, 27 Tex. 148, 154.
2. The articles of incorporation of the Keystone Mining Company declare that 'the name and style of this corporation shall be and is 'the Keystone Mining Company' of Nevada. ' The intervener contends that the words 'of Nevada' are an essential part of the name of the corporation. The real corporation is before the court, represented by the receiver, and is designated in the evidence as the 'Keystone Mining Company.' The words 'of Nevada' in the articles of incorporation would seem to be only the description of the place where the corporation is engaged in conducting its business of mining. In any event, the objection is technical, and the intervener is not in a position to raise this question.
3. Did the subsequent purchasers of the mine have knowledge of the contract made between Godbe and the plaintiff? The Keystone Mining Company, having made default, admits the allegations of the complaint that it had notice of the terms and conditions of the contract. The receiver is the superintendent of the corporation. It is not claimed that the default of the corporation is collusive or fraudulent, or that the receiver has any interest in or lien upon the property of the corporation. He is therefore not in a position to assert that he was entitled to any notice of the contract. He is bound by the admissions of the corporation as to its knowledge of the contract. Moreover, the record shows that plaintiff, a few days after the commencement of the suit, filed a lis pendens in the recorder's office of Lincoln county, setting up the equitable interest claimed by plaintiff.
4. It is next urged that plaintiff is not entitled to the relief prayed for in his complaint on the half interest in the mine formerly owned by Godbe and the plaintiff, because the testimony shows that plaintiff sold his one-fourth interest in the mine to one Blake on February
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25, 1893, and received therefor the sum of $20,000, which would cover 'the full amount advanced by him for said purchase from Jones Taylor,' and his lien upon the property would be satisfied when said amount 'shall have been returned to him. ' But the fact is that plaintiff is not asking for any relief against the one-fourth interest in the Keystone and his one-fourth interest in Whatnot mines. The testimony is silent as to what was paid for the interest in the Keystone and what was paid for his interest in the Whatnot. There is nothing in the testimony which disproves any of the allegations of plaintiff's complaint as to the amount due plaintiff upon the contract in so far as it relates to the one-fourth interest of Godbe.
5. The only guaranty of title given by Perry to Blake was in relation to his one-fourth interest in the Keystone mine. Perry did not convey to Blake his claim upon the one-fourth interest held by Godbe, nor did he guaranty that that interest was free and clear from any incumbrance or lien. Perry says, 'I only conveyed him my interest, which had nothing to do with Godbe's interest at all. ' But all controversy upon this question is set at rest by the bond executed by plaintiff and Godbe, which was introduced by the intervener upon the cross-examination of plaintiff, which recites the facts that whereas, Blake has purchased from Perry 'an undivided one-fourth interest in and to the Keystone lode mining claim and an undivided one-fourth interest in and to the Whatnot lode mining claim, thereto adjoining; * * * and whereas, the said Isaac E. Blake has accepted a deed made of said property without any opportunity to examine the title thereof, and relying solely upon the representations of the said Charles O. Perry and Samuel T. Godbe that the said Charles O. Perry was the owner of a clear and unincumbered title to one-fourth (1/4) interest in said property, free and clear from all judgments, liens, incumbrances, and charges whatever, including liens of miners and mining partners: Now, therefore,' etc. Upon the pleadings and proofs, the plaintiff is entitled to the relief prayed for.