The first ground urged for a rehearing is "that the plaintiff does not pretend to sue except in his own behalf, and it certainly affirmatively appears from the complaint and the admissions in the case that he alone filed a protest in the United States Land Office against defendant's application for a patent, and therefore the appellant claims that this court erred in assuming, as it does in the opinion, that the plaintiff claimed in his protest or in this action said Fraction Mine for himself and his alleged coöwners, George Nesbitt and A. Borth as tenants in common." *Page 286
Counsel are in error in the above contention. By the complaint it is alleged that the plaintiff and his coöwners as tenants in common are in possession and entitled to the possession of the Fraction Mine, etc. Also, that the plaintiff filed in the United States Land Office his and his cotenants' adverse claim to that portion of the Sleeper Mine embraced within the Fraction Mine, and plaintiff prays that the title to said Fraction Mine be quieted in him and his cotenants, and such is the decree of the trial court. The adverse claim, filed as aforesaid, alleges, substantially, that the affiant (the plaintiff here) and his cotenants (naming them), George Nesbitt and A. Borth, are the owners, etc., of the Fraction Mine as tenants in common.
By the answer it is alleged "that said plaintiff and the said George Nesbitt and A. Borth base their rights to such possession (of a portion of the Sleeper Mine) upon the alleged pretended location called by them the Fraction mine." * * *
Where a claim is owned by more than one individual, it is customary to select one to act in behalf of all, for which purpose a special power of attorney is executed and filed with the application, but this is not necessary. (Lindley on Mines, sec. 681.) The practice of the department has been to recognize such application, signed by one joint owner in behalf of himself and the remaining owners. (Lindley on Mines, sec. 681; Ayers v. Dailey, 3 Copp's L. O. 196.) Unquestionably an act manifestly done by one coöwner for the benefit of all would be presumed to be authorized or at least ratified. (Lindley, sec. 681.)
The contention of petitioner that neither the certificates of sale of the interests of DeBeck and Stevens in the Fraction Mine nor the deeds of the officer show color of title in Nesbitt Brothers, we think, is not correct. The certificates are regular in form and fully comply with section 3253, General Statutes of Nevada, which provides that: "Upon a sale of real estate (under execution) the purchaser shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor thereto, and when the estate is less than a freehold of two years unexpired term, the sale shall be absolute. In all other cases the real property shall be subject to redemption *Page 287 as provided in this chapter. The officer shall give to the purchaser a certificate of sale containing, * * *. A duplicate of such certificate shall be filed by the officer in the office of the recorder of the county." All of which the officer did.
The deeds are also regular in form and purport to convey by the officer said interests of DeBeck and Stevens in said mine to Nesbitt Brothers.
Petitioner further claims that, if the judgment is affirmed, the patent will be issued to the plaintiff, and that DeBeck and Stevens will be robbed of possibly immensely valuable property. But it does not appear that DeBeck and Stevens would be robbed of anything, or, if they were, how the appellant would be affected thereby. It does not appear that they have or claim to have any interest in said mine. It appears that they left the state about five years ago, and there is no intimation that they ever intend to return. It appears that after the location of said mine they did nothing to preserve their interests therein, and that nothing was done for them in that respect. Besides, this action is a continuation of the proceedings instituted in the United States Land Office, and it does not appear that DeBeck and Stevens, or either of them, filed any protest or adverse claim in that office, or that any was filed in their behalf. (Wolverton v. Nichols, 119 U.S. 485; Doe v. Waterloo M. Co., 43 Fed. 219.)
"The statute makes such a proceeding regularly prosecuted when the period of notice is completed, without the presentation of an adverse claim absolutely conclusive against adverse claims. The proceeding is in the nature of a proceeding in rem, and is binding upon all the world so far as any unrepresented adverse claim is concerned." (Hamilton v. Southern Nevada G. S. M.Co., 13 Saw. 113.)
"The publication and posting of notice of the application for patent is a process which brings all adverse claimants into court — a summons to all persons whose interests may be affected by the issuance of a patent to the tract applied for to appear and file their adverse claim." (Lindley on Mines, sec. 713, and cases cited.)
"It is so well established as to be axiomatic, that a failure *Page 288 to file an adverse claim within the time fixed by law operates as a waiver of all rights which were the proper subject of such a claim." (Lindley, sec. 742, note 1.)
We find no valid reason for granting a rehearing. It therefore is denied. *Page 289