actor in the proceeding,1 although this is denied in many States. 2

§ 649. Laches and estoppel as effecting. In suits to quiet title, as in other equitable proceedings, in regard to mines or minerals, on account of the peculiar nature of the property and its susceptibility to sudden fluctuations, as to value, a party should be vigilant in the assertion of his rights. The granting or withholding of relief is largely a matter within the sound discretion of the chancellor, and where the plaintiff has, by his conduct, induced the defendant to purchase an outstanding title or go to expense to perfect his title, he would generally be refused relief in a suit to quiet title.5 And although plaintiff may not have actively, by his overt acts, induced the defendant to make expenditures, relying upon the fact that he had a title, if the plaintiff, with mere knowledge of the defendant's claim, permits him, for a great length of time, to remain in possession and claim the property, he will not be permitted, after the defendant has made valuable discoveries of mineral and the property has greatly appreciated

1 Scorpion Sil. Min. Co. v. Morsano, 10 Nev. 370; 12 Mor. Min. Rep. 502; Golden Fleece Min. Co. v. Con. Gold Min. Co., 12 Nev. 320; Stuart v. Lowry, 49 Minn. 91. But see, generally, as to burden of proof, 17 Enc. Pl. & Pr. 350; Toland v. Toland, 123 Cal. 140.

2 Adams v. Crawford, 116 Cal. 495; Pierce v. Thompson, 26 Kan. 714; Dyer v. Baumeister, 87 Mo. 137; Sklawer v. Abbott, 19 Mont. 228; 17 Enc. Pl. & Pr. 351. As to estoppel of defendant to deny the regularity of proceedings, by course assumed in litigation, see Johnson v. MinaRica Gold Min. Co., 128 Cal. 521; 61 Pac. Rep. 76. Where the defendant's pleading admits the possession of the plaintiff of the mining claim for certain years, he is afterwards estopped to deny that he had performed the assessment work necessary for these years. Wright v. Killyan, 132 Cal. 56; 64 Pac. Rep. 98.

3 Four Mile Land & Coal Co. v. Gibson (Ky.), 49 S. W. Rep. 954.

4 Stewart's App., 78 Pa. St. 88; 12 Mor. Min. Rep. 491.

5 Maine Boys Tunnell Co. v. Boston Co., 37 Cal. 41; 12 M. M. R. 247.

in value, to then come forward and assert the title.1 But since knowledge of one's rights is one of the essential elements of an estoppel, no one could be deprived of a right to maintain a suit to remove a cloud until notice of the adverse claim or title was brought home to the plaintiff, and unless there was then some active conduct on his part that would make the subsequent assertion of his title inequitable, it is doubtful if any mere lapse of time short of the period of the statute of limitations should be held to defeat his remedy.3

1 Four Mile Land & Coal Co. v. Gibson (Ky.), 49 S. W. Rep. 954. "Where, for years, defendant and those under whom he claims have been in adverse possession of the land, and it appears that plaintiff's claim is due to sudden appreciation in the value of the property, because of discovery of ore, a suit will not lie to remove a cloud." Four Mile Land & Coal Co. v. Gibson (Ky.), 49 S. W. Rep. 954. "The defense of laches applies with peculiar force to a bill seeking to set aside a sale or lease of mineral property." Ernest v. Vivian, 33 L. J. Ch. 513; M. M. D. 160.

2 Schenck v. Wicks (Utah, 1902), 65 Pac. Rep. 732.

3 O'Neill v. Wilcox (Iowa, 1901), 87 N. W. Rep. 742. "Where land has remained wild until shortly before the commencement of suit for its possession, plaintiff's claim is not stale, for until there was an interference with the possession no necessity arose for resorting to legal remedies." Penrose v. Doherty, 67 S. W. Rep. 398 (Ark. 1902).

CHAPTER XVI.

RESCISSION OF MINING CONTRACTS.

SECTION 650. The subject generally.

651. Discretionary - Not absolute right.

652. Contract upheld or disaffirmed in entirety.
653. Parties placed in statu quo.

654. Same Contract for mining stock.

655. Sales of mineral-Inferior quality.

656. Fraudulent sales of mines and mining land.

657. Same-Evidence of fraud - Statements of value.
658. Violation of confidential relation.

659. When mistake will justify rescission.

660. Delay bars recovery.

§ 650. The subject generally. The general subject of rescission of contracts, like many of the other remedies, treated of specifically in the second part of this work, can be found by the practitioner and more thoroughly exammined in any good text-book upon the subject, or in many of the works upon pleading, or equity pleading, and no doubt many references to mining cases can also be found in such general treatises. For this reason a general discussion of the subject will not be attempted here, but only a brief reference to such general principles and such an application of those doctrines as the reports of mining decisions have disclosed are of the most practical importance to practitioners in this special branch of the law.

§ 651. Discretionary Not absolute right. The equitable remedy of rescission, like that of specific performance and many other remedies administered by a court of chancery, is not recognized in every case as a matter of absolute right, but the granting or refusal of a decree in a given case rests in the sound discretion of the court, to be

exercised according to the equities of each case, in the light of all the facts and circumstances in evidence.1 As a general rule the jurisdiction of the court should be carefully and sparingly exercised, for where the parties to a contract have reduced their understanding to writing and regularly executed the same, such agreement should not be canceled by the court, except in a very clear case.2

§ 652. Contract upheld or disaffirmed in entirety, A party to a contract cannot retain the benefit of the agreement in so far as it may be to his interest to do so and disaffirm it in its onerous conditions, but must rescind or uphold the contract in its entirety.3 The rule is the same in regard to both real and personal property and the injured party must elect to rescind the contract in toto and return everything of value he has received by virtue of the agreement, or retain the property and sue in damages for the injury, since there can be no partial rescission or affirmance, but the entire transaction must be negatived or affirmed as a whole.4

§ 653. Parties placed in statu quo. As a general rule the rescission of the contract must be complete, before the institution of the action, and if the plaintiff has received anything of value, he must make restitution, as a condition precedent to his right to seek a cancellation of

1 Hamilton v. Thompson, 14 M. M. R. 696. As to necessary averments of bill see Reynolds v. Excelsior Coal Co., 100 Ala. 296.

2 Stewart's App., 11 M. M. R. 491. Rescission is the converse of specific performance. In the one case the contract is terminated, while in the other it is perfected. 18 Enc. Pl. & Pr. 749. "Canceling an executed contract is an exertion of the most extraordinary power of a court of equity." Atlantic Delaine Co. v. James, 94 U. S. 207.

3 Byard v. Holmes, 6 M. M. R. 599; 33 N. J. Law, 119.

4 Grant v. Law, 3 M. M. R. 81; Nolle v. Virginia Midland Co., 88 Va.

the contract by the court. The court would be slow to rescind the contract, unless the parties could be placed in statu quo, and where this was impossible, would only grant relief in a case where the equities of the parties would imperatively demand it. But as the law does not require the doing of useless things, no tender back would be required, where the consideration received by the plaintiff was entirely worthless and without value, or, even if the property received by the plaintiff had some value, no tender or offer to return it would be required, if, at the time, the plaintiff had a valid off-set against the defendant, in an amount equal to, or in excess of the value of such property.

§ 654. Same Contract for mining stock. In a suit for the rescission of a contract for the sale of mining stock, because of fraud practiced upon the plaintiff, in the sale of such stock to him, his petition should usually allege a rescission or tender of the stock or that the property received by him was without value. But where the stock had been deposited by the seller in a bank for the plaintiff, the latter would not be required to redeliver or tender the certificates to the vendor before filing suit." And while the purchaser could not rescind, after a sale of such stock by him, the fact that he had sold a portion of the stock

1 Byard v. Holmes, 6 M. M. R. 599; 33 N. J. L. 119.

2 Grymes v. Sanders, 10 M. M. R. 445; Watson Coal Co. v. Casteel, 68 Ind. 476.

3 Mining stock without value need not be tendered back. Gifford v. Carville, 6 M. M. R. 558; 29 Cal. 589.

4 Watts v. White, 13 M. M. R. 11; 13 Cal. 3 21; Thockroth v. Haas, 119 U. S. 499.

Gifford v. Corville, 6 M. M. R. 558; 29 Cal. 589.

Pence v. Langdon, 13 M. M. R. 32; 99 U. S. 578; McCabe v. Burns, 6 M. M. R. 665.

7 Maturn v. Fredimick, 13 M. M. R. 15.