APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF MONTANA.
MR. JUSTICE BROWN delivered the opinion of the court.
By Rev. Stat. sec. 2319, all valuable mineral deposits in lands belonging to the United States are declared to be free and open to exploration and purchase "by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law." By sec. 2324, the miners of each mining district may make regulations not in conflict with the laws of the United States, or of the State or Territory, governing the location, manner of recording and amount of work necessary to hold possession of a mining claim, subject to the requirement, among others, that "upon each claim located after May 10, 1872, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year." By sec. 2325, a patent for any land so claimed and located may be obtained by filing in the proper land office an application, showing compliance with the terms of the act, together with the plat and field-notes, showing the boundaries of the claim, which shall be distinctly marked by monuments, and by posting a copy of such plat, with the notice of such application for a patent, in a conspicuous place on the land, etc. Sec. 2326 provides also for proceedings upon filing adverse claims, declaring that it shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment.
The sole question in this case is whether the con ract between these parties is not within the Statute of Frauds. Sec. 217 of the compiled Statutes of Montana declares that "no estate or interest in lands . . . shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing," etc. To take the case out of the operation of the statute,
plaintiffs claim, first, that the transaction constitutes a trust by operation of law, and is, therefore, within the express exception of sec. 217: second, that there was such part performance, by taking possession under the contract, as takes it out of the statute.
1. While there is no doubt of the general proposition that a trust results to him who pays the consideration for an estate, where the title is taken in the name of another; that such trust is not within the statute, and that parol evidence is admissible to show whose money is actually paid for the property; it is equally clear that the trust must have arisen at the time the purchase was made, and that the whole consideration must have been paid or secured at the time of or prior to such purchase; Olcott v. Bynum, 17 Wall. 44; White v. Carpenter, 2 Paige, 217, 241; Buck v. Swazey, 35 Maine, 41; 1 Perry on Trusts, sec. 133; 2 Pom. Eq. Jur. sec. 1037. But, as before stated, parol evidence is competent to prove that the consideration actually moved from the cestui que trust. Boyd v. McLean, 1 Johns. Ch. 582; Baker v. Vining, 30 Maine, 121; Whitmore v. Learned, 70 Maine, 276; Page v. Page, 8 N. H. 187, 195; 2 Pomeroy Eq. Jur. sec. 1040. It follows that the bill or complaint should show, without ambiguity or equivocation, that the whole of the consideration appropriate to that share of the land which the plaintiffs claim by virtue of such payment, was paid before the deed was taken. Tested by these rules, we think the plaintiffs have failed to make out their case with that clearness which the law demands. They aver that after they had delivered up possession of the premises to the defendant, "they withdrew all objections, protest and adverse claims to or against the defendant's claim, and abstained from filing any adverse claim or protest in the United States Land Office against defendant's application, and thereby permitted and enabled the defendant to procure a patent for said premises, and from time to time thereafter paid to defendant their share of the purchase-money of said premises, and that thereafter, to wit, on or about the 15th day of May, 1881, the defendant, in pursuance of said agreement and of said trust, purchased from the
United States of America for the use and benefit of the plaintiffs, an undivided half of said premises," etc. And they further aver in a subsequent allegation that "if there be, or if defendant claims that there is, anything or any amount due by plaintiffs in connection with the procuring of said patent, or with said agreement, the plaintiffs are ready and willing and fully able to pay the same and offer to do so; that the defendant has refused to inform plaintiffs whether there was, or whether he claimed that there was, any money or thing due from the plaintiffs, although requested to do so, and that plaintiffs had many times offered to pay defendant whatever he might claim that there was due in said connection, and that defendant has refused, and that on account of said refusals of defendant plaintiffs are not informed in relation to said matter." Not only is there a failure to aver when and how much money was paid before the purchase was made, but the first allegation above quoted leaves a doubt whether the payment was made before or after the patent was taken. In one place they say that they thereby permitted and enabled the defendant to procure a patent for said premises, and from time to time thereafter paid the defendant, and immediately follow it by an averment that thereafter, to wit, on or about the fifteenth day of May, the defendant made the purchase. The subsequent allegation throws additional doubt upon the question, and, in fact, is susceptible of the implication that plaintiffs were by no means confident that they had paid any considerable amount, but were willing to pay their share upon being informed of the amount still due.
We think the contention of the plaintiffs that a trust is made out by operation of law is not sustained. The allegations amount to nothing more than that they made certain advances of money to defendant for the purchase of this interest; but when or in what form or at what time such advances were made is left entirely unanswered. As plaintiffs have chosen to stand upon their complaint without apparently asking leave to amend, which we cannot doubt would have been readily granted, we are constrained to hold the allegations insufficient to create a trust.
. Was there a part performance of the parol contract with the defendant sufficient to take the case out of the statute? The only act alleged in that connection is the surrender of possession to the defendant; or in the language of the complaint, that "relying upon the good faith and honesty of the defendant, plaintiffs thereupon relinquished and delivered their possession of said premises to the defendant, and that the defendant then and there was admitted and went into possession of the same in compliance with and under said agreement and said trust." This, however, must be taken in connection with the prior allegation that the "defendant was about to proceed to procure a patent" to himself for the same premises, "under a pretended location and claim designated by him as the Odin lode;" whereupon plaintiffs apprised him that they "claimed, owned, and possessed said premises," and would adverse and contest his application. Now conceding that the surrender of possession to the defendant is a sufficient performance to take a case out of the statute, such surrender must be made in pursuance of the contract, and be referable to it. In short, it must be a new possession under the contract, and not merely the continuance of a former possession claimed under a different right or title. Pomeroy on Contracts, sec. 116, 123; Morphett v. Jones, 1 Swans. 172; Wills v. Stradling, 3 Vesey, Jr. 378; Anderson v. Chick, 1 Bailey's Eq. 118; ...