The petitioner asks for a rehearing, on the ground that the court took an erroneous view of the case in basing its decision as to the statutory bar upon the assumption that the complainant in the court below sought relief on the ground of fraud. It is insisted that the action was in its nature ex eontrcoetu; that the allegations of fraud were pleaded as mere matter of inducement, and that the plaintiff’s right to recover, if he had such right, arose out of a vested right whieh he had in the property in controversy by virtue of the copartnership between him and the two defendants, Peely and Ells-worth.
We think it is a sufficient answer to this ground of the petition to say that the property having been, prior to the suit, conveyed by Peely and Ellsworth to Bradbury and the other defendants, the relief asked in the complaint was against these latter defendants, as grantees of the property, who certainly were not parties nor privy to any contract with plaintiff.
The real ground of relief as set out in the complaint, was the conveyances of Peely and Ellsworth, made in fraud of the rights of the plaintiff as a copartner with them in the first staking of the mining claim. That right was in the partnership and in whatever property the partners should acquire title to thereby.
The title to the property in question was in Peely and Ells-worth at the time of their conveyance by reason of their location of it in their own names sufficient to pass it to their grantees without other notice than the deeds themselves.
The character of these deeds and their legal effect in passing title are sufficiently discussed in the opinion in chief, and in the absence of other authority against the views therein expressed, need not be further noticed here. The petition for rehearing will be denied.
Petition denied.