there existed within the boundaries of the the court, is not to prove title under the loplacer claim a well-known lode or vein; that cation itself, but for the purpose of showing the applicants for placer patent did not apply that this vein was known to exist at the time for patent to such lode or vein and the same when he located it by Charles Colbert, and was excepted from the placer patent; and to show what was done by Charles Colbert that all acts done by defendants were done and others with reference to working the upon such known lode or vein. Thereafter vein." In O'Donnell v. Glenn, 8 Mont. 248, Hall and others filed a complaint in inter- 19 Pac. 302, this court held that a declaravention, in which they set forth substantially tory statement which does not contain the the same facts as those pleaded affirmatively required affidavit is void, and that decision by the defendants, and other facts to which has been followed uniformly since. See Hickreference will be made hereafter. They de- ey v. Anaconda Copper Min. Co., 33 Mont. scribe particularly the ground claimed by 46, 81 Pac. 806. Since the Morning Star dethem, and conclude with a prayer for general claratory statement was void, the receipt in relief. Issues were joined upon all the af-evidence of a certified copy of it was error. firmative allegations contained in the answer [4] It is apparent from the statement of and the complaint in intervention, except that plaintiff admitted that its only claim of ownership is by virtue of mesne conveyances from the original placer patentees. The trial court found in favor of the defendants and interveners, and rendered a decree in favor of interveners, adjudging them to be the owners of the ground claimed by them. From the decree and an order denying it a new trial, the plaintiff has appealed.

counsel made when the copy was offered that the purpose of introducing it was to show general knowledge on the part of the people of the community that a vein existed within the boundaries of the placer prior to the application for patent, presumably upon the theory that proof of such condition in 1877 would tend in some degree to establish knowledge of a similar condition when the application for placer patent was made in Febru[1] 1. Error is predicated upon the action ary, 1880. That a void instrument cannot imof the trial court in overruling plaintiff's depart constructive knowledge to any one is murrer to the affirmative defense pleaded in elementary; and the fact that the trial court the answer of defendants. But we think admitted this evidence, and that in finding there is not any merit in the contention; for No. 1 reference is made to the Morning Star even assuming that sufficient facts are not location, and the further fact that the court pleaded to entitle defendants to affirmative did not find specifically that the placer patrelief-and they do not seek any-still the entees had actual knowledge of the existence facts, which, if true, show the existence of a of the vein at the time when they applied known vein within the ground claimed by for patent, but only that they had such knowlplaintiff at the time the application for placer edge, actual or constructive, seem to justify patent was made, state a defense to plaintiff's the conclusion that the court must have atcause of action; for, if such known vein tached some importance to the contents of existed, it remained public property of the this declaratory statement. United States, and plaintiff will not be heard to object to defendants carrying on mining operations upon it. Reynolds v. Iron-Silver M. Co., 116 U. S. 687, 6 Sup. Ct. 601, 29 L. Ed. 774.

[2] 2. Complaint is made of the action of the court in admitting evidence of the condition upon the ground, particularly as to the character and extent of the vein disclosed by development made since the placer application. The question involved was determined by this court adversely to appellant in Noyes v. Clifford, 37 Mont. 138, 94 Pac. 842.

[3] 3. As a part of their proof, interveners introduced in evidence, over the objection of plaintiff, a certified copy of the declaratory statement of the Morning Star quartz lode mining claim. This declaratory statement purports to have been made by Charles Colbert in 1877, and recites that on July 2, 1877, Colbert made discovery of mineral-bearing rock in place at a point which is now within the boundaries of the ground claimed by plaintiff. It is conceded that the declaratory statement was not verified as required by the law in force at the time; but in offering the certified copy counsel for interveners say:

[5] In order to exclude a lode from a placer claim, the lode must have been known at the time the application for placer patent was made; but actual knowledge on the part of the placer applicant is not absolutely essential. In Iron-Silver Min. Co. v. Mike & Starr G. & S. Min. Co., 143 U. S. 394, 12 Sup. Ct. 543, 30 L. Ed. 201, it is said: "It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government." This rule has been followed in the mining states generally. Brownfield v. Bier, 15 Mont. 403, 39 Pac. 461. It seems a fair inference from this record that the placer patentees who denied actual knowledge of the existence of a vein within the boundaries of their placer claim at the time of their application for patent were charged with knowledge of the existence of such vein by the evidence furnished by this declaratory statement.

statement was offered to prove the extent or character of the work done by Colbert, it was subject to the objection that it was not the best evidence, in addition to the other objection considered.

the original placer patentees, to Emory, Tong, and Colbert, dated April 19, 1880, and conveying the following described property: “All that portion of lot numbered seven in section eighteen, T. 3 N. R. 7 W., lying north of a [7] The immateriality of the evidence is line drawn parallel with the south boundary also apparent, since neither plaintiff nor in-line of said Lot No. 7, 10.91 chains distant terveners claimed under the Morning Star therefrom; excepting that piece conveyed location. In fact, the evidence shows that to George W. Maston." It appears sufficientthat claim was abandoned. ly that lot 7, mentioned above, is placer 765; 4. The interveners also introduced in evi- but, since there is not any description whatdence, over the objection of plaintiff, a dep-ever given in this record of the portion which osition of Charles Colbert, taken in 1895, had theretofore been conveyed to Maston, it in an action entitled Montana Central Rail- is impossible to know whether Colbert ever way Company v. Midgeon et al. The deposi-owned the land in controversy, whether he tion was not taken in a case in which any owned it at the time the declarations were of the parties in this action were interested, made, or whether plaintiff derived its interbut it is contended that it was competent to est from Emory, Tong, and Colbert, or is the prove by it declarations made by Colbert to successor in interest of Maston. Under the the effect that there was a known lead, lode, pleadings, it was unnecessary for plaintiff or vein within the boundaries of placer 765 to prove its chain of title from the original at the time the application for placer patent placer patentees; and, since the interveners was made, and this upon the theory that at had the burden of showing that Colbert was the time the declarations were made Colbert the grantor of plaintiff and failed, the decowned the placer ground now claimed by the larations made by Colbert were hearsay and plaintiff, and that the declarations were inadmissible against the plaintiff, under the against interest. provisions of the Code section cited above.

[9] But the declarations were inadmissible for a further reason. Whatever interest Colbert acquired in placer 765 he retained until 1900. It appears, also, that he was one of the locators of the Green Copper quartz claim, which location it is alleged in the complaint

[8] If the admission of these declarations | Harrell v. Culpepper, 47 Ga. 635. can be justified at all, it must be done under the provisions of section 7866, Rev. Codes, as follows: "Where, however, one derives title to real property from another, the declaration, act or omission of the latter, while holding the title in relation to the property is evidence against the former." This sec-in intervention was made in 1891, and it is tion is but declaratory of the common law. It does not add to or subtract from the rule as it existed prior to the adoption of the statute. Frink v. Roe, 70 Cal. 296, 11 Pac. 820. In this last case the California court said: "Any declarations, acts, or omissions of the grantor while holding the title in relation to the property, and which could have been introduced against him while an owner, may be introduced against his grantee-nothing more." In 1 Jones on Evidence, § 241, the reason for the rule is given as follows: "The principle upon which such evidence is received is that the declarant was so situated that he probably knew the truth, and his interests were such that he would not have made the admissions to the prejudice of his title or possession, unless they were true. The regard which one so situated would have to his interest is considered sufficient security against falsehood." See, also, 2 Wigmore on Evidence, § 1080.

fairly inferable that whatever interest, if any, he acquired in the quartz location he retained until after 1895. If we assume, then, that the portion of the placer conveyed to Colbert included the ground now claimed by plaintiff, and that the Green Copper was a valid quartz location, neither of which appears as a fact from this record, then we are confronted with this situation: Colbert while claiming a piece of ground as placer, and also claiming a portion of the same under a quartz location, makes a declaration against his placer interest and in favor of his quartz claim; that is to say, his declaration is to the effect that there was a vein-the one upon which the Green Copper was locatedwithin his portion of the placer at the time the application for the placer patent was made. The effect of this declaration, if true, is to prove that the extent of his placer claim is less than it purports to be; and, having conveyed away all that his placer purports However, when a declaration of this char- to have been, the direct effect of this declaacter is offered, the party making the offer ration is to destroy title to that portion of must show (a) that it was made while the the placer crossed by the vein, and a strip declarant was holding the title to the prop-of 25 feet on either side thereof. In other erty in controversy; (b) that the declarant words, his declaration destroys the record was in fact the grantor of the party against whom the declaration is offered; and (c) that the declaration was against interest. The only evidence in this record touching Colbert's title to any portion of placer 765 is furnished by a deed from Marsh and Nichols,

title to that portion of the placer. In Dodge v. Freedman's Savings & Trust Co., 93 U. S. 379, 23 L. Ed. 920, the Supreme Court of the United States said: "Such declarations are competent only to show the character of the possession of the person making them, and

by what title he holds, but not to sustain or open to the construction given it is apparent. to destroy the record title."

[10] 5. In a number of instances the court permitted the interveners to show, over plaintiff's objection, that there had never been any placer mining carried on on placer 765. The evidence was altogether immaterial. The placer patent to Marsh and Nichols established conclusively the fact that the ground was and is placer; and the effect of the patent cannot be overcome by evidence that placer mining operations were never carried on. Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. 74, 33 L. Ed. 324; Butte & Boston Min. Co. v. Sloan, 16 Mont. 97, 40 Pac. 217.

It is an admission by plaintiff that interveners acquired whatever rights were obtained by the locators of the Sunbury and Green Copper claims, and the Green Copper as amended; but it does not admit that any one of these claims was a valid location, or that the locators ever acquired any rights whatever by virtue of them. The stipulation did not go further than to relieve interveners from deraigning their title after proving valid locations of those claims. Upon the record before us, interveners were not entitled to affirmative relief. Assuming the existence of a known lode within the placer at the time the application for patent was made, such lode is open to location at this time, so far as we are informed by this record; and, if so, the trial court cannot by its decree preclude the plaintiff or any one else from locating it.

[11] 6. The trial court found that at the date of the application for placer patent there was a well-known lode within the boundaries of placer 765 disclosed in workings at the Morning Star shaft; that the vein was such as to except it from the general grant of the placer patent, under section 2333, U. S. Rev. As said above, the interveners apparently St. (U. S. Comp. St. 1901, p. 1433). The com-based their claim upon the Green Copper loplaint in intervention alleges that in June, cation as described in their amended declar1889, Henry L. Haupt made discovery of min-atory statement; but they pleaded that eral-bearing quartz in place within the bound- Haupt in 1889 located the Sunbury claim, aries of placer 765, and upon the same lode while the Green Copper was not located unor vein which was known to exist at the time til 1891, and the evidence discloses that the application for placer patent was made; that Green Copper discovery shaft is within the Haupt made and completed his location, des- boundaries of the Sunbury claim; that, if ignating it the Sunbury quartz lode mining the Sunbury was a valid location, it is difficlaim. It is also alleged that in January, cult to understand how they can predicate 1891, Ginsberg and others made discovery any right upon the Green Copper claim, or of mineral-bearing quartz in place upon the the same claim as described in their amended same vein within the boundaries of placer declaratory statement. 765; that they made and completed the lo- Other questions are suggested in the briefs, cation of the Green Copper quartz lode min- but they are not necessary to a determination ing claim; that by mesne conveyances the of the cause upon this appeal, and may not interveners became the successors in interest arise again; but for the errors heretofore conof the locators of the Sunbury and Green Cop-sidered the judgment and order are reversed per claims, and thereafter filed for record and the cause is remanded for a new trial. an amended declaratory statement of the Green Copper claim, "and ever since have held and owned tue property under said amended declaratory statement." All these allegations were denied. Upon the trial, the interveners did not offer any evidence in support of the allegations above. It is insisted, however, by counsel for interveners that they were relieved from making such proof by a stipulation entered into by counsel for the respective parties at the trial, as follows: "First, that the plaintiff has acquired whatever right was given by [the placer] patent to the original patentees to the premises that are herein in dispute; second, that the interveners have acquired whatever right was obtained by the location of the Green Copper, the Sunbury, and the Green Copper as amended."

In finding No. 8 the trial court accepted interveners' theory, and decreed to them the vein and 25 feet on each side for 1,500 feet, and thereby carved out of the ground claimed by plaintiff a parcel 50 feet wide and about 1,500 feet long. That the stipulation is not

Reversed and remanded.

BRANTLY, C. J., and SMITH, J., concur.

(20 Idaho, 1)

ROSE v. DUNBAR, Probate Judge. (Supreme Court of Idaho. May 16, 1911.) (Syllabus by the Court.)

1. EXECUTION (§ 69*)-ISSUance.

Under section 4475 of the Rev. Codes, exement debtor for the enforcement and collection cution may be issued after the death of the judgof a judgment, where the judgment is for the recovery of real or personal property, or for the enforcement of a lien thereon.' Cent. Dig. §§ 155-158; Dec. Dig. § 69.*] [Ed. Note. For other cases, see Execution, 2. EXECUTION_(§ 69*) ISSUES DEATH OF JUDGMENT DEBTOR-JUDGMENT FOR ENFORCEMENT OF LIEN.'

lection of a debt, and an attachment is issued Where an action is instituted for the coland levied on property of the debtor and judgment is thereafter entered, and prior to the issuance of an execution the judgment debtor dies, an execution cannot issue for the collection of the same, under the provisions of section 4475, Rev. Codes, for the reason that such

a judgment is not a judgment for the "recovery issue an execution for the collection of the of real or personal property, or the enforcement judgment rendered and entered prior to the of a lien thereon," but is a simple money judgment, and does not fall within the purview of death of the judgment debtor. Counsel bases section 4475, Rev. Codes. this contention upon the provision of section 4475, Rev. Codes; that statute, in so far as it bears upon the question here in issue, reads as follows: "Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced as follows. (2) In case of the death

B. P. Bradford, for plaintiff. Wyman & of the judgment debtor, if the judgment be for the recovery of real or personal property, Wyman, for defendant. or the enforcement of a lien thereon." It is

[1] It is conceded by counsel for the plain-the judgment debtor on a plain money judg tiff, in the first place, "that under the common law, if defendant died after judgment and before issuance of execution, no execution could issue upon such judgment." It is contended, however, by counsel that the statutes of this state have modified the common-law provision to such an extent that it was the duty of the court in this case to

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

1. WATERS AND WATER COURSES (§ 263*) When we commenced to plow on the hillside,