the most experienced can tell but little of the length or breadth of ore deposits in place, nor see much further in the ground than those of less experience.

§ 625. Delay bars enforcement. - Laches will defeat the right to an enforcement of a mining contract, as well as other rights of an equitable nature,1 and a delay in applying for the enforcement of the contract is a complete defense, if of a sufficient length of time. Three months

has been held to bar the remedy; 3 five months; 4 eleven months; 5 two years and a half; 6 and three years.7 But because of the varied conditions of the facts of given cases as well as the different constitutions and temperaments of the courts no exact time limit can be set at which such actions would be barred; each case must

void, whereby twenty feet on the Comstock lode had been set off as the several property of the plaintiff and another; and defendant had purchased such twenty feet from the plaintiff, both parties treating the decree as valid, the plaintiff having received his price, and the defendant having, by its expenditures, greatly increased the value of the property, there is no such mistake as a court of equity will correct. Equity will act upon the same hypothesis on which the parties have acted." Kinney v. Con. Virginia M. Co., 4 Saw. 383; M. M. D. 239. If a party, in making a conveyance of part of a mining claim, makes a mistake against himself as to the amount conveyed, and in another part of the same conveyance makes a mistake in his favor of a corresponding amount in another portion of the same mine, and the grantee obtains no more in the aggregate than he purchased and paid for, the equities are equal, and a court of equity will not, on the application of the grantor, reform the conveyance by correcting the mistake against him to the injury of the other party upon the entire transaction." Kinney v. Con. Virginia M. Co., 4 Saw. 383; M. M. D. 239.

1 Pollard v. Clayton, 13 M. M. R.334.

2 Bowman v. Irons, 13 M. M. R. 313.

3 Glasbrok v. Richardson, 23 W. R. 51.

4 Hathorn v. Llewellyn, 21 W. R. 570.

Allen v. Hilton, 14 Ves. 58; Pollard v. Clayton, 1 K. & J. 462.

6 Walker v. Jeffrys, 1 Ha. 341.

7 Eads v. Williams, 4 De G., M. & G. 674.

necessarily depend largely upon the condition of the record in that case. Three months has been held not to bar a vendor, seeking enforcement of a contract of sale of a mine,1 and seven months, under the peculiar facts of another case, was held to be no bar to the action.2

§ 626. Waiver of performance. Where, under the contract, the consideration is to be paid, on the execution of the conveyance, it does not have to be sooner tendered, and a refusal to execute the conveyance would dispense with a tender of the consideration.3 But a parol waiver of a written contract to convey mining property must be clear and explicit, and a refusal to accept a conveyance, because of a misunderstanding over the description of the property, would not excuse performance, or amount to a waiver of the enforcement of the contract, but the court would decree performance, notwithstanding such disagreement. 4

1 Haywood v. Cope, 25 Beav. 140. 2 Colby v. Gadsden, 34 Beav. 416. "Bill for specific performance praying conveyance of one-seventh of the Iron Mountain tract,' Missouri, an account of ores, etc.; dismissed on the ground of nonperformance, by complainant, laches, etc.; but without any distinction as to the law with reference to the property as a developed mine except incidentally." Boone v. Missouri Iron Co., 17 How. 341; M. M. D. 334. "Bill for the specific performance of an agreement to take a lease for forty-two years, of iron and coal mines and machinery for the purpose of trade, dismissed on account of delay on the part of the lessor in making out his title and in giving possession at the time stipulated in the agreement, to the extent of defeating the benefit of the purchase." Parker v. Frith, 1 Sim. & Stu. 199; M. M. D. 333. For a case where laches was held to prevent enforcement, after lapse of time and increase of value of the property, see Mahon v. Leach (N. D. 1902), 90 N. W. Rep. 807.

3 Huffman v. Hummer, 2 M. M. R. 242.

4 Huffman v. Hummer, supra.

CHAPTER XIV.

RECEIVERS OF MINES.

SECTION 627. Grounds of equity's jurisdiction.

628. Of the property transferred to receiver.

629. Discretionary - Refused in doubtful cases.

630. Same-Possessory actions - Solvency of possessor.
631. Receivers of corporations.

632. When cotenant entitled to.

633. As between copartners.

634. Mortgagee may have, pending foreclosure.

635. At instance of mortgagor.

636. Defrauded purchaser, before hearing.

637. Delay or laches will prevent.

§ 627. Grounds of equity's jurisdiction.-On account of the fluctuating value of mining property and the fact that the operation of a mine is a removal of a portion of the corpus of the estate, and where the party in possession is irresponsible, those out of possession would be practically remediless, where the working is continued, courts of equity exercise a discretionary jurisdiction in the matter of application for receivers of mines, more readily than where other kinds of property are concerned.1 In other species of property, since a receivership takes the property out of the possession of those interested, courts are loath to exercise their jurisdiction, but in the case of mines, both upon

1 Bar. & Adams Mines, p. 737; MacSwinney Mines, p. 111, and note; Deep River Gold Min. Co. v. Fox, 4 Ired. Eq. (N. C.) 61.

2 MacSwinney, p. 111; Smith on Rec., Chap. I. "Where the property of a mining corporation organized in one State consists of real property (mines) in another State, the title to such property cannot pass to a receiver appointed in the court of a State where the property is not situate." Simpkins v. Smith & Parmelee G. M. Co., 56 How. Pr. (N. Y.) 56; M. M. D. 235. The power of the court, before hearing, is limited to appointment of receiver and preservation of property; it cannot order a

grounds of public and private policy, receivers are usually preferable to an injunction or other equitable remedy that would interrupt the continuity of the mining operations.1

3

- Pend

§ 628. Of the property transferred to receiver. ing a final decree in a proper case, a court of equity has the power to order the whole property of a mining concern or company placed in the hands of a receiver or manager,2 and it is usually not necessary to first have the value of the property ascertained by a jury. But, ordinarily, the court can only control the property subject to the jurisdiction of the court and amenable to its process. The appointment of a receiver in one State would not affect the title to property in another State, and such property would, usually, be subject to the dominion of the owner and liable for his debts the same as though a foreign receiver had not been appointed."

sale. St. L. Coal Co. v. Sandoval Coal Co., 111 Ill. 32; 17 Enc. Pl. & Pr. 712. The property, for which receiver is asked, ought to be specifically described. Hale-Berry Co. v. Iron Co., 94 Ga. 61.

1 Bar.& Adams Mines, p. 737; Deep River Co. v. Fox, 1 M. M. R. 296; Hill v. Taylor, 12 M. M. R. 568; 22 Cal. 191; Parker v. Parker, 12 Idem, 596; Falls v. McAfee, 2 Ired. Law, 236; Galloway v. Campbell, 142 Ind. 324; Goodale v. Dist. Ct., 56 Cal. 26. "Equity should be very cautious in granting injunctions to stop mining operations, because such stoppage is alike opposed to public policy and to private justice due to the party, who might ultimately be found to be the owner. The better course is not to prevent the working of the mine but to appoint a receiver." Deep River G. M. Co. v. Fox, 4 Ired. Eq. (N. C.) 61; M. M. D. 253.

2 Crawshay v. Maule, 11 M. M, R. 223.

3 Whitney v. Buckman, 10 M. M. R. 428.

4 Simpkins v. Smith Co., 12 M. M. R. 589.

Simpkins v. Smith Co., supra. In the absence of an order a receiver will generally be held to have no power to sell the property in his charge at private sale. South Bal. Brick Co. v. Kirby, 42 Atl. Rep. 913. But a receiver's sale is not subject to collateral attack. Marine Phosphate Mining Co. v. Bradley, 105 U. S. 175; Anderson v. Chicago Title &c. Co., 101 Wis. 385; Nat. Bank v. Neel, 53 Ark. 110; Warren v. Bank, 157 N.

§ 629. Discretionary Refused in doubtful cases. As the appointment of a receiver is the exercise of an auxiliary power to a proceeding in equity, such appointment is the peculiar subject of the chancellor's judicial discretion.1 Before appointing a receiver and taking the property from the possession of those interested, the court should be convinced that it is a necessary remedy, and requisite to subserve the equities of the real parties in interest. If not so convinced, on account of the stringency of the measure, the court should refuse a receiver in all doubtful cases.3

Y. 259; 17 Enc. Pl. & Pr., p. 834. Receiver can maintain suit to collect rents and profits of property. Grant v. Buckner, 172 U. S. 232. The court may compel the conveyance of defendant's property to receiver. St. L. Coal Co. v. Sandoval Coal Co., 111 Ill. 32; but see Amy v. Manning, 149 Mass. 487, and 17 Enc. Pl. & Pr. 748. A receiver's possession dates from his appointment; the property is in custodia legis from that time and no valid levy can subsequently be made. In re Lenox Cor., 167 N. Y. 623; 60 N. E. Rep. 1115. A party who consents to a receiver being a party to an action, cannot, for the first time after judgment, question the regularity of his appointment. Pitts v. New Mammoth Gold Min. Co. (Utah, 1901), 65 Pac. Rep. 1076.

1 Chicago Company v. U. S. Co., 12 M. M. R. 571.

2 Ante, idem. "The appointment of a receiver is a matter of sound discretion, and the court must be convinced that it is needful. It is a strong measure and cannot be exercised doubtingly." Chicago Oil Co. v. U. S. Petroleum Co., 57 Pa. St. 83; M. M. D. 308.

3 Bar.& Adams, p. 739; Chicago Co. v. U. S. Co., 12 M. M. R. 571. "The exercise of the power to appoint a receiver rests very much in the discretion of the court, exercised in view of the circumstances of the case, one circumstance being the probability of the plaintiff being ultimately entitled to a recovery, and the party asking for a receiver must first show a prima facie case." Copper Hill M. Co. v. Spencer, 25 Cal. 11; M. M. D. 308. Where, from the pleadings, or from all the facts alleged, it is doubtful if the final relief asked will be granted, the application for receiver should be refused. Copper Hill Mining Co. v. Spencer, 25 Cal. 11; Hopper v. Davies, 70 Ill. App. 682; Ogden v. Bear Lake Co., 16 Utah, 440; Norris v. Lake, 89 Va. 513; 17 Enc. Pl. & Pr. 743. A receivership is an ancillary remedy, to preserve property, pending litigation. Whitman v. Buckman, 26 Cal. 448; Wolfe v. Claflin, 81 Ga. 65;