Opinion of the Court.

plaintiff failed in proving his case, and we are thus relieved from determining whether the defendants could escape from responding to their contract by setting up its invalidity on the grounds of public policy; whether, even if the contract was illegal and not enforceable in a court of equity, an account might not be compelled within the doctrine of the case of Brooks v. Martin, 2 Wall. 70, and whether such a contract would be within the statute of frauds of the State of Minnesota.

The evidence upon which the court below acted in finding that the plaintiff had failed to maintain his allegation that a contract had been entered into with Kittson and Hill comprises nearly two thousand pages, and it largely turns upon the testimony of Farley and of Fisher, his clerk, on behalf of the plaintiff, and of Hill, one of the defendants, on the part of the defence. Kittson, the other defendant, died before his testimony could be taken, although he had employed counsel to defend the case.

It is argued that, as it thus appears that the question of fact as to the existence of such a contract is in equilibrio as between Farley and Hill, the testimony of Fisher, Farley's clerk, but who is not a party, should turn the scale; and this might be just reasoning if the question in issue had to be determined upon the testimony of those three witnesses. But, as is pointed out in the opinion of the court below, there is an inherent improbability in the plaintiff's story — not in the assertion that he had become interested with others in the ownership of bonds and in the proposed purchase of the railroads, for such agreements are not unusual, but by reason of the absence of any writing expressing the agreement. A man of affairs, as the plaintiff was, would not be likely, in a matter of such magnitude, to rely upon a merely verbal agreement, and, as the transactions occupied a considerable time, we would expect, if such a contract really existed, to find letters or memoranda relating to it; but such are not produced. On the contrary, the letters and conversations that we find in the record, though trifling and inconsequential in themselves, do not point to or imply any subsisting agreement between Farley and Kittson

and Hill.

Opinion of the Court.

It is not necessary for us to say, or to think, that Farley and Fisher, in testifying as they did, perpetrated intentional falsehood. It is altogether possible that, from desultory conversations with Kittson and Hill, and from an exaggerated sense of his own importance in the matters in hand, Farley was led to believe that he was entitled to participate in the venture.

But a court cannot act upon such uncertain conjectures. A contract of the kind asserted by the plaintiff must be established to the entire satisfaction of a court of equity before its intervention can be demanded.

The utmost effect that can be given to the plaintiff's evidence is that he had reason to expect that he would be included as a party in the project of buying bonds and bidding at the sale of the railroads. But it is clear, from his own evidence, that he was not included in the actual transaction. He furnished no part of the moneys used, and is not shown to have contributed any special or peculiar information important to the syndicate. His bill, therefore, is filed for an account of a partnership or enterprise in which he really did not participate. His remedy, if he is entitled to any, would seem to be an action at law for damages, though it is difficult to see that there was any consideration proceeding from him, either in money contributed or in personal services of any kind, out of which a legal obligation could arise, or which could furnish a measure of damages.

Our conclusion is that the court below was right in dismissing the bill, and its decree is accordingly

VOL. CL-37

Affirmed.

Statement of the Case.

TURNER v. SAWYER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 70. Submitted November 6, 1893. Decided December 11, 1893.

In a suit in equity to have T. declared a trustee, for the use of S., of an interest in a mine, and to compel a conveyance of the same to S., T. set up two sources of independent title in himself: (1) the purchase of a portion of the interest at an execution sale under a judgment in a suit in which process was not served upon S., no appearance entered for him, no judgment entered against him, and in which he was never in court; (2) proceedings under Rev. Stat. § 2324 by T. against S. as an alleged "coowner" of the mine to compel him to contribute to the payment of the annual labor on the mine for the year 1884, by which proceeding it was claimed that the interest of S. in the mine became forfeited to T. At the time when the labor was done for which contribution was demanded, S. had not received the deed for his interest, and the sheriff's deed to T. of the interest which he claimed was not delivered until March, 1885. Held,

(1) That T. acquired no interest in the share of S. in the mine by the sheriff's deed;

(2) That T. was not a coöwner in the mine with S. during the year 1884, within the meaning of the statute, which, as it provides for the forfeiture of the rights of a coöwner, should be construed strictly.

By the laws of Colorado, title to land sold under execution remains in the judgment debtor till the deed is executed.

Cotenants stand in a relation of mutual trust and confidence towards each

other, and a purchase by one of an outstanding title or incumbrance, for his own benefit, inures to the benefit of all, and when acquired, is held by him in trust for the true owner.

The general rule laid down in Garland v. Wynn, 20 How. 6, following in principle Comegys v. Vasse, 1 Pet. 193, 212, and maintained in Monroe Cattle Co. v. Becker, 147 U. S. 47, 57, that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate their conflicting claims, is announced to be the settled doctrine of this court.

THIS was a bill in equity filed by the appellee Sawyer against Robert Turner, George E. McClelland, and J. S.

Statement of the Case.

Allison, the purpose of which was to have the defendant Turner declared a trustee for the use of the plaintiff of an undivided five-eighths interest in what was known as the "Wallace lode," which had been previously patented by the government to Turner, and to compel a conveyance of the same to the plaintiff.

The case was submitted upon an agreed statement of facts, which was substantially as follows: The Wallace lode, so called, was discovered and located by John Clark on September 20, 1878. On August 12, 1882, Clark conveyed an undivided three-fourths of this lode to Amos Sawyer and Marcus Finch. On May 1, 1882, Clark conveyed the other one-fourth interest to William Hunter, but the deed was never recorded, the parties supposing it to be lost, and on October 25 he made another deed to Hunter, which contained a recital that it was made to supply the place of the other. On October 26, 1882, Amos Sawyer and Marcus Finch reconveyed the undivided one-half of the lode to John Clark. On January 8, 1883, Marcus Finch conveyed an undivided oneeighth to Alice E. Finch. On March 16, 1883, Clark and Hunter conveyed three-fourths of the Wallace lode to Amos. Sawyer and John S. Sanderson.

At this time, then, the lode was owned as follows: Amos Sawyer, one-half or four-eighths; John S. Sanderson, threeeighths; Alice E. Finch, one-eighth.

It so remained from March 16, 1883, to January 12, 1885, when Amos Sawyer assumed to convey his undivided onehalf interest to Alfred A. K. Sawyer, who also became possessed of the one-eighth interest of Alice E. Finch, November 3, 1886.

The controversy arose over a lien filed August 14, 1883, by one John F. Teal for annual labor done upon the lode at the request of John S. Sanderson and Amos Sawyer. Teal claimed a lien for the sum of $148.10, and filed notice thereof in the recorder's office of Clear Creek County. One Charles Christianson also filed a similar notice, claiming a lien for $227.95. On January 12, 1884, Teal instituted a suit in the county court of Clear Creek County to enforce his lien, and

Statement of the Case.

made John S. Sanderson, Marcus Finch, P. F. Smith, and Sawyer defendants as the owners thereof. There was no service upon Sawyer, and he was not in court. On June 2, 1884, Teal proceeded to sell the interest of John S. Sanderson, Marcus Finch, and P. F. Smith to pay the amount of his decree, at which sale A. K. White became the purchaser, took his certificate of purchase from the sheriff, and sold and assigned it to Turner, who obtained a sheriff's deed on March 3, 1885. This deed purported to convey the whole Wallace. lode. Christianson instituted a suit against the same defendants, as in the Teal suit, which was pending at the time, to enforce his lien against the same.

On April 24, 1885, Turner, who had done the annual labor on the claim for the year 1884, before he obtained a sheriff's deed, published a forfeiture notice against the appellee Sawyer under Rev. Stat. § 2324, but no forfeiture notice was published against Alice E. Finch, who still owned an undivided one-eighth of the lode, nor against Amos Sawyer, who owned one-half of the lode during the year 1884, and until January 12, 1885, as above stated. Appellant Turner declined an offer made January 18, 1885, to pay five-eighths of the $100 for the annual labor of 1884 on behalf of Alice E. Finch and Amos Sawyer, on the ground that the records showed only Sanderson and Sawyer as having any remaining interest. On October 27, 1885, Turner filed in the office of the clerk and recorder of Clear Creek County an affidavit that Alfred A. K. Sawyer, the appellee, had wholly failed to comply with the demands contained in the forfeiture notice. Subsequently, and about November 1, Turner instituted proceedings in the United States land office at Central City, Colorado, for the purpose of procuring a patent for the lode in his own name, and on April 13, 1886, a receiver's receipt was issued to him by the receiver of the land office, acknowledging payment in full for the entire lode, and on April 20 he conveyed an undivided one-fourth interest to George E. McClelland by deed recorded December 6, 1886, and another undivided one-quarter to J. S. Allison by deed recorded May 19, 1886.

On March 17, 1887, the appellee Sawyer filed this bill, charg