Mining lanas: Spanish grant: location ol mines. 1. The question to be determined is whether the appellant has by his bill stated a case which entitles him to any relief in a court of equity. A suit in ejectment involving the same mining claim, which is the subject of this litigation, was before this court, and the opinion deciding it will be found reported under the title of Lock-hart v. Wills, 54 Pac. Rep. 336. The appellees contend that upon the allegations of the bill, the remedy of the appellant is at law, and not in equity. We think this contention is well founded, and that the action of the court in sustaining the demurrer was correct. In the case of Lock-hart v. Wills, supra, we held that the ground in controversy was subject to location under the mining laws of the United States. In that case it was stipulated by the parties that the decree of the Court of Private Land Claims, confirming the private land claim within which it was alleged the ground in controversy was located, eliminated the mine from the gra'nt. We held, however, that although that decree had not been rendered at the time the attempted locations of the “Sampson” and “Washington” mines were made, nevertheless, the ground was subject to exploration, location and entry under the mining laws of the United States. After fully discussing the contention of the parties and the law applicable to the facts, we said: “We conclude that they” (lands within unconfirmed Mexican or Spanish grants) “are not reserved lands and are 'lands belonging to the United States’ within the meaning of section 2319 of the Revised Statutes of the United States.” We deem it unnecessary to again discuss this question and refer to our opinion in that case.
Equity: pleading: demurer. The demurrer admits the truth of all the allegations in the bill which are well pleaded. If any of the allegations in the bill, however, are ambiguous, they are to be construed more strongly against the appellant. “A demurrer only admits facts well pleaded: it does not admit matters of inference and argument, however clearly stated.” Dillon v. Barnard, 21 Wall. 430. There must be sufficient equity on the facts of the bill to warrant the relief prayed for, and the material facts on which the plaintiff relies must be so distinctly alleged as to put them in issue. Harding v. Handy, 11 Wheat. 103. “The rule is familiar that the court will refuse to decree unless the substantial ground work of the case on which the relief is sought is distinctly alleged in the bill.” Pelham v. Edlmyer, 15 Fed. Rep. 262. “It may be affirmed as an elementary rule of the most extensive influence, that the bill should state the right, title or claim of the plaintiff with accuracy, and clearness, and that it should in like manner, state the injury or grievance of which he complains, and the relief which he asks of the court:” Story on Equity Plead., Sec. 241. Applying these principles to the allegations of the bill, we find that the bill alleges that the defendant Pillcey under the contract between him and the appellant and Ben Johnson, located the “Sampson Mine,” and performed all the acts necessary to complete a valid location, except the filing of the location notice in the county recorder’s office within ninety days after the making of the location, on July 10, 1893. It alleges that the defendants caused and procured the defendant Pilkey “to fail and neglect to record the said location notice so by him posted thereon as aforesaid, and the said defendants or some of them wrongfully removed the said location notice from-said claim, and after the removal of the said location notice * * * a copy thereof was procured by your orator * * * and the same was filed in the office of the recorder on December 9, 1893." It fails to allege when the posted copy was removed, or when the copy filed for record was procured by the appellant. So far as the allegations of the bill are concerned, the copy may have been in possession of the appellant long before the expiration of the ninety days within which the law required it to be filed. It was certainly within the powe'r of the defendant to have definitely alleged when he procured this copy, and thereby show, if such was the fact, that he did not file it sooner because he could not obtain it. He does not allege how or from whom he obtained it.
The failure to file a location notice for record works a forfeiture of a mining location, and leaves the claim open to relocation. Lockhart v. Wills, supra. There is no allegation in the bill showing that the appellant could not himself have filed this location notice for record within the ninety days. It contains no allegation that appellant relied upon the defendant Pilkey to file it. It is true that there is an allegation that the defendants caused and procured the defendant Pilkey to fail and neglect to record it, but this in the absence of an allegation that the appellant was relying upon the defendant to file it, does not account for the delay in doing so until December 9, following. The bill alleges “that on or about the first of October, 1893, the precise date thereof being unknown” to appellant, “an agreement was .made and entered into by some of the defendants with Pilkey who was then in possession of the mine, that he should transfer and deliver possession of the said mine to the last named defendant without the knowledge or consent of the defendant and Ben Johnson and by an instrument in writing, the precise terms of which he can not set up, because it is in possession of the defendants, Pilkey conveyed an undivided four-fifths interest in said Sampson mine to the defendants, retaining one-fifth conveyed to defendant Walker to be held in secret trust by Walker for said Pilkey, and that in pursuance of said agreement they procured the defendant Pilkey to withhold said location notice from record.” This allegation does not, however, excuse the absence of the allegations in the bill as to delay in filing the notice already pointed out.
The bill alleges that' the defendants entered into the possession of the mine under this agreement, but it does not allege when the defendants so entered into possession of said mine. This is an important allegation. Appellant’s counsel insists that possession was so taken after the expiration of the loth day of October, within ninety days from the location of the “Sampson,” There is no’ allegation in the bill upon which to base this contention. Counsel appeals to the first ground stated in defendant’s demurrer as establishing this fact. We do not know of any principle of pleading by which defective allegations in a bill can be aided by a demurrer filed to it.
2. Under the allegations of the bill, if the defendants, by collusion with Pilkey or otherwise, intruded upon the possession of the appellant, which the bill alleges was actually held by Pilkey under the terms of the contract, up to the time of the actual entry and exclusion of the appellant and his co-tenant, Johnson, by the defendants, the appellant could recover possession in an action at law. This action could be sustained both against Pilkey and the defendants entering under him. If Pilkey made the agreement alleged in the bill, the defendants became co-tenants with the appellant. Pilkey could by the conveyance alleged in the bill only convey his undivided third interest, and ejectment lies against a co-tenant, or a grantee of a co-tenant attempting to hold adversely to his co-tenants. Prior possession under such circumstances is sufficient to maintain ejectment. Freeman on Co-tenancy and Part., Sec. 290; Cristy v. Scott, 14 How. 282; Burt v. Punjaub, 99 U. S. 180; Campbell v. Rankin, 99 U. S. 261. In a similar case it is said : “Claiming, as both parties did, under Payne and Cook, the regularity of the location of the mining claims, are not in question, and when in 1862 the plaintiff purchased from one of the owners of the claim an undivided interest therein, and went into possession with his grantor and with others deriving title from the original locators * * * he,became a tenant in common with those who were then the owners. He was such when the Union Gold and Silver Mining Company purchased the interest of other owners. By that purchase, that company succeeded to a tenancy in common with him and so did the defendant, when it became the purchaser. * * * The possession of his co-tenants was his possession. They held it for him until he was ousted. That this is a settled rule of law is not denied.” Mining Co. v. Taylor, 100 U. S. 40. The only acts alleged in the bill as having been done by Pilkey which deprived the appellant of his rights are the surrender of the possession and the failure to record the location notice.
3. If. Pilkey surrendered the possession prior to the tenth day of October, 1893, the appellant would, in an action of ejectment, be excused from perfecting his location. In such a case the Supreme Court of the United States has said: “They could not be deprived of their inchoate rights by the tortious acts of others; nor could the intruders and trespassers initiate any rights which would defeat those of the prior discoverers.” Erhardt v. Boaro, 113 U. S. 534. “A location can only be made where the law allows it to be done. Any attempt to go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law allows no such thing to be done.” Belk v. Meagher, 104 U. S. 284. “The record shows actual possession in the appellees, which is prima facie evidence of title, and as we said in Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 380, 'entering upon premises in the actual possession of another for the purpose of performing the acts necessary to -constitute location and possession, amounts only • to a trespass, and cannot form the basis for the acquisition of a titled ” Weise v. Barker, 7 Colo. 178, 2 Pac. Rep. 921.
We think it clear that under the allegations of the bill the appellant could obtain the relief actually prayed for in an action at law. Neither the alleged contract of Pilkey with the defendants, nor any other fact alleged would prevent him from obtaining a plain, speedy and adequate remedy by a suit in ejectment.
4. The allegations do not show such a state of facts as would justify the granting of an injunction or the appointment of a receiver. This relief could only be had, provided the bill contained proper .allegations, and was filed in aid of a suit at law.' Fussell v. Gregg, 113 U. S. 554-5; Hipp v. Babin, 19 How. 271; Parker v. Manfg. Co., 2 Black, 545; Grand Chute v. Winegar, 15 Wal. 373; Lewis v. Cocks, 23 Wal. 466; Killian v. Ebbinghaus, 110 U. S. 568. A bill for injunction can not be maintained simply as a substitute for an action of ejectment.
Bill held bad on demurrer. 5. The bill prays that the Washington location be declared void and for possession. The appellant now asks under the prayer for general relief that the Washington location be held valid, and the holders thereof be held as constructive trustees. The allegations in the bill do not justify any such relief. It is essential that the facts and circumstances which constitute the fraud complained of should be set out clearly, concisely and with sufficient precision to apprise the opposite party of what he is called upon to answer. 9 English Enc. of Plead. & Pr., 687 and many authorities there cited. Charging generally that what was done was “colorable fraud,” “a breach of trust” and a “scheme” themselves are allegations of legal conclusion which a demurrer does not admit. Fogg. v. Blair, 139 U. S. 127; Van Weel v. Winston, 115 U. S. 237; Brooks v. O’Hara, 8 Fed. Rep. 532; Phelps v. Elliott, 35 Fed. Rep. 453, 455; Lafayette Co. v. Neely, 21 Fed. Rep. 744. For the purpose of sustaining this contention, the appellant now insists that the intrusion of the defendants upon the possession of appellant took place after the tenth day of October. As already shown, if it took place before that date it would.be tortious and the rights of the appellant would not he thereby affected. The bill is fatally defective for not alleging conclusively whether it took place before or after that date. In the prayer for general relief, only such relief as is agreeable to the case made by the bill can be granted. English v. Foxall, 2 Peters, 612; Hobson v. McArthur’s heirs, 16 Peters, 182: Boon v. Childs, 10 Peters, 177. “Now it is perfectly clear, according to the practice of the court, where a specific relief is prayed for, even though there be a prayer for general relief, the court cannot grant relief which is inconsistent with, or entirely different from that which is asked for.” Wilson v. Graham, 4 Wash. C. C. 53; 30 Fed. Cases, No. 17,804. “It is true that there was a prayer for general relief, but relief given under the general prayer must be agreeable to the case made by the bill.” Allen v. Pullman Palace Car Co., 139 U. S. 662: Hayward v. National Bank, and authorities cited, 96 U. S. 614; Georgia v. Stanton, 6 Wall. 77. “In order to entitle a plaintiff to a decree under the general prayer, different from that specifically prayed, the allegations relied upon must not only be such as afford a ground for the relief sought, but they must have been introduced into the bill for the purpose of showing a claim for relief, and not for the mere purpose of corroborating the plaintiff’s right to the specific relief prayed, otherwise the court would take the defendant by surprise, which is contrary to its principles.” 1 Daniel’s Ch. Pr. 386; Curry v. Lloyds, 22 Fed. Rep. 264. “But, even, when a prayer for general relief is sufficient, the special relief prayed at the bar must essentially depend upon the proper frame and structure of the bill; for the court will grant such relief only, as the case stated will justify; and will not ordinarily be so indulgent, as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced thereby.” Story Eq. Plead. Seel 42; 3 Ency. PI. & Prac. 350, et seq., and notes. The allegations- contained in the bill are not adapted to the relief now urged by counsel for «appellant in his brief. The bill was not framed to secure the holding of Pilkey or any other defendant as a trustee under the Washington location.
Oiiorro upon title, 6. The bill prays that the instrument of writing alleged to have been executed by the defendant, Pilkey, conveying to his co-defendants interests in the “Sampson” location, be declared fraudulent and void as against the plaintiff, and that it be cancelled and annulled. This agreement was not upon record, and is not a cloud upon the title of the plaintiff. It in no way prevents him from recovering possession in an action at law. It could convey as against the appellant, only the interest which the defendant, Pillrey, had in the Sampson. Hartford, etc., Ore Co. v. Miller, 3 Mor. Min. Rep. 353. “Tho facts set forth in the bill of the plaintiff clearly show that he has a plain, adequate and complete remedy at law for the injuries of which he complains. Pie alleges that he is the owner in fee, as trustee, of certain described lands in Iowa, and his injuries consist in this: That the defendants are in the possession and enjoyment of the 2*roperty claiming title under certain documents purporting to transfer the same, which are fraudulent and void. If he is the owner in fee of the premises, he can establish that fact in an action at law, and if the evidences of the defendant’s asserted title are fraudulent and void, that he can also show. There is no occasion for resort to a court of equity, either to establish his right to the land or to put him in possession thereof.” Whitehead v. Shattuck, 138 U. S. 150.
to quiet title. 7. It is also contended that this bill can be sustained under section 4010, of the Compiled Laws of New Mexico, relating to suits to quiet title. We do not think that the allegations contained in the bill bring appellant’s case within the provisions of this statute. They do not show why he can not recover in a suit at law. Neither does the allegation of ownership of an interest in an unconfirmed grant entitle the appellant to such relief. Pinkerton v. Ledoux, 129 U. S. 351; Astiazaran v. Santa Rita Mng. Co., 148 U. S. 80. These cases hold that until the question of title to an unconfirmed grant has been settled by Congress or the tribunal established by it for that purpose, it can not be contested in the ordinary courts of justice.
For the reasons above stated, we are led to the conclusion that the ruling of the Court below in sustaining the demurrer to the second amended bill of complaint and dismissing the suit was correct, and the decree of the court is, therefore', affirmed.
Mills, C. J., and McFie, J. concur; Crumpacker, J., having heard the case below, and Leland, J., being absent, did not participate in this decision.