ceiver's receipt was issued to him by the receiver of the land office acknowledging payment in full for the entire lode; and on April 20 he conveyed an undivided one-fourth interest to George E. McClelland, by deed recorded December 6, 1886, and another undivided one-fourth to one J. S. Allison, by deed recorded May 19, 1886. On March 17, 1887, the appellee, Sawyer, filed this bill charging the patent to have been procured to the appellant, Turner, by false and fraudulent representations as to ownership, and praying that the title to an undivided five-eighths of the lode be decreed to belong to the appellee, and that Turner convey the same to him. Upon the hearing in the court below it was found that at the time Turner applied for the patent and received the receipt therefor he was not the legal owner of an undivided five-eighths of such lode, and it was decreed that he convey the same to appellee Sawyer, and the other defendants were enjoined from interfering. From this decree an appeal was taken to the supreme court of the United States by Turner and McClelland. The court, speaking through Mr. Justice Brown, after noticing that Sawyer was not made a party to the Teal suit, and consequently that Teal acquired no rights as against Sawyer under his decree and sale, proceeded to say: "It remains then to consider whether Turner acquired such interest by the publication of his forfeiture notice against Sawyer for the annual labor of 1884. The notice was as follows: "To A. A. K. Sawyer, residence unknown: "You are hereby notified that I have performed the annual labor required by law for the year 1884, upon the Wallace lode, situated in Cascade mining district, Clear Creek county, Colorado. And that unless in the time prescribed by law you pay your proportionate amount of said expenditure, your interest in said lode will be forfeited to me under the provisions of section twenty-three hundred and twentyfour of the Revised Statutes of the United States. Turner.'" Robert This notice was published pursuant to that portion of section 2324 quoted in a previous section of this chapter. After observing this the court proceeds to say: "It will be observed that the right to give this notice for a claim for contribution is limited to a co-owner who has performed the labor. Turner was not a co-owner with Sawyer at any time during 1884, as Albert A. G. Sawyer did not receive his deed from Amos Sawyer until January 12, 1885, and Turner did not receive his deed from the sheriff until March 3, 1885. He did, however, hold an inchoate title by virtue of White's purchase at the execution sale of June 2, 1884, and the subsequent assignment August 25, 1884, of the sheriff's certificate to him. He appears also to have obtained the assignment of certain other judgments which had been recovered by William Hunter against Sanderson and Smith. These judgments were assigned to him August 27, 1884; the sale was made under them January 12, 1885, and certificates of sale issued to Turner, who thus became the purchaser under these judgments. Neither of these, however, made him a co-owner during the year 1884 within the meaning of the statute, which, providing as it does for the forfeiture of the rights of a co-owner, should be strictly construed." After passing upon other questions as to the effect and extent of interest acquired under a certificate of sale, which are unnecessary to notice here, the court held that inasmuch as Turner had not acquired the interest of Sawyer nor of Finch by any of these proceedings, he therefore held the title as to five-eighths in trust for Sawyer, and the judgment of the lower court was affirmed.1 530. Only liable for legal assessment work. The remedy by forfeiture of the co-owner's interest, as we have already observed, is limited to the amount required by statute; and while the remedy is clear and positive as to that, the co-owner cannot be compelled to pay one penny more 1 Turner v. Sawyer, 150 U. S. 580. sum. than the legal assessment work, that is, the amount required by congressional law, besides, of course, the cost of advertising in the proper case. His co-owner may expend any sum he chooses upon the claim, but he will not be compelled to contribute more than his share of the statutory An eminent law writer and mining lawyer thus states the law: "Although one co-owner has expended more than enough to hold the claim, the delinquent co-owner, to save forfeiture under the act of congress, is only required to pay or tender his proportion of the amount which the law required to be expended upon the claim." Thus it is that the right of the co-owner to recover any excess is dependent wholly upon contract, and can be enforced only in that way, and in such case the contract must first be proved.? In a California case brought to partition a certain mining claim in Nevada, where the plaintiff and defendant were tenants in common for equal portions, the court ordered the sale of the land, and a dispute arose as to the division of the proceeds. The plaintiff claimed, out of the proceeds of the sale, moneys paid out authorized by defendant, for obtaining patent, besides assessment work, and the court held that the plaintiff was properly allowed such sums, the first upon his contract, and the second upon his statutory liability, and a judgment was entered dividing the balance equally.3 § 531. Notice Manner of making and serving.- The statute seems to contemplate, and it is but following the general rule of law, that personal service of the notice is preferable, and should be made wherever practicable before resorting to constructive notice by publication in a newspaper. Of course, where more than one is served and personal notice is impossible or impracticable as to all, the plain 1 Morr. Min. Rights (8th ed.), p. 77. 2 Neuman v. Dreifurst, 9 Colo. 128, 11 Pac. Rep. 98; McCord v. Oakland Q. M. Co., 64 Cal. 134; Hol brooke v. Harrington (Cal., 1894), 36 Pac. Rep. 365. 3 Holbrooke v. Harrington, supra. authority of the statute is that notice may be served by publication. But the safer and better rule, while not the only one that would be legal, would require service personally whenever possible. Of course, by the plain reading of the statute, the service is complete when it is made personally upon the delinquent co-owner, or upon such legal representative as the law permits. As to notice by publication, the service is complete ninety days after the first publication of the notice. Of course, it goes without saying that a notice of forfeiture is inoperative in any case when the facts upon which it is based are untrue, or where the federal statute excuses the performance of annual labor.2 § 532. Notice - To whom directed - Heirs and administrators-More than one year.- Nearly all of the cases involving forfeiture of co-owners for annual labor have turned upon the sufficiency of the notice, or the competency of the person giving the notice. Thus, in one case, as we have seen, the notice to Sawyer by a person who was not at the time a co-owner was correctly held insufficient. But in practice it is a very common thing to direct the notice to the last known co-owner who co-operated with the co-owner giving the notice in working the claim, or to the person who was last known to him to be the owner of the interest; and in such case it would hardly seem necessary that he should, at his peril, either search the record and determine who was the owner, or who were the lawful assigns or heirs of such owner. It is sufficient that he direct it to the person last known by him to own the interest, specifically, with the additional direction generally to the heirs or assigns of such person. As was said by the Dakota court in the 1 Turner v. Sawyer, 150 U. S. 578; Billings v. Aspen M. Co., 2 C. C. A. 252, 51 Fed. Rep. 358; affirmed, 3 C. C. A. 69, 52 Fed. Rep. 250; Brundy v. Mayfield, 15 Mont. 201, 38 Pac. Rep. 1067; Copp, Min. Lands, p. 222; Re Grampion Lode, 1 L. D. 544; 2 Royston v. Miller, 76 Fed. Rep. case just cited: "The other objections made to the admission of the published notice, it seems to us, do not merit very much consideration. The objection that the heirs are not individually named in the notice cannot be sustained. To require the co-owner to ascertain, at his peril, the names of all the heirs of delinquent co-owners, would be to impose upon him a burden the law never intended should be imposed, and one that could be of no possible benefit to any one, as the heirs, if personally named, would be no more likely to obtain actual notice than when named simply as heirs. Neither do we think there is any merit in the objection that in the notice the expenditure for eight years is included. Certainly, if the parties interested intended to pay, and thus protect their interest in the claim, they would be greatly benefited by grouping them all in one notice. If they did not intend to pay, the grouping would be immaterial to them. The law does not prohibit it, and we can discover no valid reason why it should not be done. The objection that the notice was fatally defective because addressed to Rufus Wilsey and administrators, as well as heirs, and to all whom it might concern, is not tenable. It was one method of designating by whom the claim was located. Perhaps a notice addressed to the heirs of Rufus Wilsey, deceased, would have been more technically correct; but we think the form is not material, so long as the statute is substantially complied with. The insertion of the administrator could do no harm, even if there was none."1 § 533. State statutory provisions as to annual labor.Many of the states and territories have enacted statutes in imitation and in the exact language of the federal statute upon this subject, as well as on others. These statutes will be found at length in the Appendix, and it is therefore unnecessary to reproduce their provisions here. It is sufficient to observe with reference to them that they are supererogatory to say the least, and are of doubtful efficacy 1 Elder v. Horseshoe M. Co., 9 S. Dak. 636. |