Decided June 28, 1910.
On Motion to Dismiss.
[109 Pac. 1118.]
Opinion
Per Curiam.This suit was begun to foreclose an equitable mortgage founded on certain agreements respecting mining claims, and the defendants appealed from an adverse decree. The plaintiff’s counsel have moved to dismiss the appeal, on the ground that the contract in question expired by limitation March 16, 1910, thereby leaving for consideration no question but that of costs and disbursements, and relegating the parties to their respective actions at law for a redress of their grievances. We conclude that the motion should be denied for the present, with leave to renew it at the trial of this cause on the merits; and it is so ordered. Motion Denied.
Statement by Mr. Justice Slater. This suit was brought to foreclose an alleged equitable mortgage arising out of a contract executed on March 16, 1907, by T. K. Anderson, H. A. Williamson, and Albert Phillip on the one part, and Grant Phegley on the other part, and is against the latter and his assignee, Emma G. Robinson. The lien created thereby was upon a group of placer mining claims previously owned by the Galice Consolidated Mines Company, a corporation. Anderson sues in his own right and as the personal representative of Williamson, who died since the execution of the contract on which this suit is based. Phillip also is a party plaintiff. The principal facts giving origin to the agreement are that the parties first mentioned therein owned a placer claim adjoining similar property possessed and operated by the said corporation, and had obtained two judgments against the corporation for $2,500 and $2,600, respectively, which judgments had become a lien upon the mining claims in question. Defendant Phegley had a mortgage thereon, amounting to $2,000 and interest, which was prior to the plaintiffs’ judgments, and he also owned a second mortgage lien which was subsequent and inferior thereto. The parties to the contract were desirous of acquiring the title to the mortgaged premises either by sale under execution on the judgments, or by foreclosure of Phegley’s mortgages, and then make a consolidation of the encumbered property with plaintiffs’ property and the water rights appurtenant to both, for the purpose of effecting a joint sale thereof; hence the contract mentioned was entered into on the date named. So far as material tó the case, it provides that, under certain contingencies, the plaintiffs should cause execution to issue on their judgments and the property of the corporation sold, and it was agreed that the plaintiffs, or some one in their behalf, should bid in the property, and, if necessary, should bid the amount due upon Phegley’s two mortgages with like effect, as if plaintiffs were the owners thereof, and that Phegley should then receipt to the sheriff for the amounts due on said mortgages, which receipt should stand in lieu of actual cash payment, but, in case execution were not issued on plaintiffs’ judgments, then Phegley was to foreclose his mortgages and cause a sale of the property thereunder, to the end that he should acquire title for the purposes of the pooling agreement, in which case the latter was to bid in the property for the full amount due upon the mortgages and the judgments as if he were the owner of both. In that event, the plaintiffs were to receipt to the sheriff in full for the amount due on their judgments, which would stand in lieu of the payment of cash to the sheriff. It was further agreed that whoever should bid in the property should hold the title in trust, so as to preserve the respective rights of the parties under their liens, with due regard to the existing priorities.