The plaintiff alleges that he is the owner of the undivided two thirds of certain mining claims, called the “Caledonia Claims,” including flumes, sluices, etc., situate in Hevada County; that an undivided third is in possession of one Wood, and that plaintiff and Wood are tenants in common of the same; that defendant, Horrie, asserts some claim in and to said mining ground, but denies that he has any estate or interest therein; that said plaintiff and Horrie, since July, 1864, and said plaintiff, Horrie and Wood, since January, 1866, have worked said claims in partnership; and asks that an account may be taken and said partnership dissolved, and the assets distributed among said partners, according to their respective rights; and that said mining claims may be partitioned, and -to that end a sale may be had, and the proceeds distributed among the respective owners according to their respective interests therein. Defendant, Horrie, answers, denying the averments of the complaint as made, and then, as a ground for affirmative equitable relief sets up the facts as substantially found by the Court, with the exception hereinafter noticed, and seeks to charge the plaintiff as trustee for his benefit, to the extent of one undivided third, and asks that plaintiff be adjudged to convey to defendant.
The facts, as found by the Court, are as follows: In April, 1860, J. Pollard, S. Dempsey, and O. M. Loveridge, being then the owners of the claims in question, mortgaged them to one Seiden, to secure the payment of two thousand five hundred dollars, and interest at two per cent per month. In January, 1863, defendant, Horrie, purchased and took a conveyance of Dempsey’s interest, being an undivided third, and he has been in possession ever since, and has never sold or conveyed it. Plaintiff and Wood appear to have become owners, respectively, of the other two interests, the plaintiff *100having purchased in July, 1864. In July, 1865, Seiden obtained a judgment foreclosing his mortgage, under which the claims were sold in August, 1865, and Seiden became the purchaser and received the Sheriff’s certificate of sale. There was- a redemption from this sale of the undivided third owned by defendant, "Wood, but no redemption of the third owned by Norrie, or by plaintiff. “ On the 10th of November, 1865, Seiden assigned his certificate of sale to the plaintiff’, and on the 14th of February, 1866, no redemption having been made except by Wood, as aforesaid, and the time for redemption having expired, the plaintiff received a deed from the Sheriff of the said two thirds of said defendant, Norrie, and of plaintiff. Plaintiff paid Seiden for the certificate three thousand five hundred dollars in gold coin. Defendant, Norrie, was a party defendant in the Seiden foreclosure sale, and was a redemptioner under the said Sheriff’s sale. About the time plaintiff received the assignment of the certificate from Seiden, it was agreed and understood by and between plaintiff and defendant, Norrie, that the certificate should be purchased for three thousand five hundred dollars; that Norrie should advance his portion, viz: one third of the purchase money; that the assignment should be taken in the name of plaintiff for the benefit of both; and that when the time for redemption should have expired, the plaintiff should take and receive the deed from the Sheriff in his (plaintiff’s) own name, and should hold the undivided one third of said premises for said defendant, Norrie, and should convey the same to said Norrie upon demand, and after settlement and payment by Norrie to plaintiff of all advances made upon said claims by the latter over and above his proportionate share. At the time of this agreement Norrie advanced and paid to plaintiff the sum of one thousand seven hundred dollars,e in gold coin, to be applied on the purchase of the certificate. This was more than Nome’s share; and the balance was to be applied on another lien on the property held by one Henderson. As a matter of fact, plaintiff" had actually purchased the certificate of sale from Seiden a few days before the *101above agreement was made; but this circumstance was not known to defendant, Horrie, at the time. Defendant, Horrie, relied on the good faith and validity of this agreement during the redemption period, and until after it had expired, and remained in possession. Before the commencement of this suit defendant, Horrie, tendered to plaintiff the amount due upon an accounting between them as owners in said Caledonia claims.”
The Court found nothing in the evidence to show “that the property was held or worked differently from the claims of ordinary mining companies in California.”
By consent of parties the right to the interest in question was first tried and determined.
The Court, as a conclusion of law, finds that the plaintiff holds the legal title to one undivided third in trust for defendant, Horrie, and by its judgment, directs a conveyance to be made. Plaintiff appeals, and in a very elaborate, ingenious, and able argument, his counsel insist that there is no resulting trust, and, consequently, that the case is within the Statute of Frauds, on the ground that it is found by the Court that the plaintiff actually purchased the certificate of Sheriff’s sale from Seiden a few days before the agreement between him and defendant was made; that the equitable, conditional estate, therefore, vested in plaintiff by the purchase of the certificate of sale, leaving only the naked legal title in the defendant to the judgment', which became absolute by the lapse of time, and subject to be finally divested by the Sheriff’s deed, and, as there was no resulting trust vested at the moment of the purchase of the certificate, in accordance with well settled principles, none could arise by virtue of an agreement, in point of fact, subsequently made.
We see no difficulty, however, under the circumstances of the case, in sustaining the judgment on this point, without trenching upon the principles established by any of the authorities cited.
We think the plaintiff cannot now be heard to say, that he made the purchase prior to the arrangement made with *102the defendant. It does not appear, when he paid the money, or that he paid for the certificate originally with his own money. But suppose he did. "We do not think it would affect the question.
The agreement found by the Court was made “about the time plaintiff received the assignment of the certificate from Seiden,” and it was, “that the certificate should be purchased for three thousand five hundred dollars; that Horrie should advance his proportion, viz: one third of the purchase money; that the assignment should be taken in the name of plaintiff for the benefit of both.”
This agreement contemplated a future, not a past transaction. It did not purport to relate to an interest in a purchase already made by plaintiff, but to the purchase, on joint account, of an interest still held by Seiden. This is the basis upon which the arrangement was made, and upon this view, “at the time of this agreement Horrie advanced, and paid to plaintiff the sum of one thousand seven hundred dollars in gold coin, to be applied on the purchase of the certificate.” How, if plaintiff had actually received the assignment, and paid for it, before this agreement, “this circumstance was not known to defendant, Horrie, at the time.” lie then deliberately misled Horrie, entered into the agreement as though the purchase had not yet been made, and received Home’s share of the purchase money upon that basis, and for the purposes of this action the purchase must be taken as though it had been made in fact after, and in pursuance of the agreement. If plaintiff could be heard to say, under these circumstances, and contrary to his own acts and representations, that the purchase was made, and the title vested in him before that time, and consequently, that there was no resulting trust, the Statute of Frauds would become the instrument by which as great a fraud would be perpetrated as any which it is likely to prevent. There was no redemption by Horrie, and none was necessary, for he was entitled.to rely upon his agreement with plaintiff. Feeling perfectly secure under his agreement, he did not redeem. If he fails now to establish a *103trust, he will be deprived of the property through the act of plaintiff in knowingly misleading him, and inducing him to enter into an agreement upon a supposed state of facts which plaintiff knew did not exist.
It is argued, however, that in this view the judgment is not according to the allegations, and that there can be no recovery except in strict accordance with the averments of the answer. The allegation, it is true, is that the purchase from Seiden was after this agreement, and made in pursuance of it, and nothing is said in the answer of want of notice of the prior purchase, and in this respect the allegations are different from the findings. It was developed in the evidence, and so found, that plaintiff had made the purchase a few days before, and then made the agreement with defendant without notice to him, and received from defendant his share of the purchase money, as though the act of purchase was still to be performed. This is a technical variance as to one circumstance of the fraud, which was peculiarly within the knowledge of the plaintiff. But the contract, "as made by the parties, also as performed on the part of the defendant, and as he supposed it to be performed by plaintiff, and we have seen, as he has a right to claim it to be in fact, is correctly alleged. It does not appear that any objection was made on the ground of variance before the judgment in the Court below. Had the point been then made, this technical objection might have been obviated by amendment. The plaintiff could not have been surprised, and the variance as to one circumstance of the transaction is not of sufficient importance to justify us in reversing the judgment upon this point raised here for the first time.
Judgment affirmed, and remittitur directed to issue forthwith.