lation has no reference to proceedings under section 2326.

94. Any party applying to make entry as trustee must disclose fully the nature of the trust and the name of the cestui que trust; | and such trustee, as well as the beneficiaries, must furnish satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry.

III. DECISIONS.

1. "No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damage to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession." Sec. 910, U. S. Rev. Stat. See Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 241.

7. Where a claim is sold on execution after application for patent has been made therefor and notice given thereof, the vendee merely takes a right to make entry of the claim, if he chooses so to do, and if he allows the applicant to make entry of the claim he has no legal remedy against the entryman, who, by entry, acquired a new and further title, which had not been sold to the judgment vendee. Hamilton v. Southern Nevada M. Co., 13. Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314.

8. The abstract of title required to be filed by an adverse claimant who claims as transferee of a locator need not be furnished if the records have been lost. Hawkeye Placer v. Gray Eagle Placer, 15 L. D. 45.

9. A defective abstract of title may be explained or supplemented by affidavits. Com'r to Helena Office, Sept. 26, 1894, In re Grubstake & Homestead Lodes.

1. Abstract.

3. An application for a mineral patent must clearly show possessory title to the claim applied for. Montana Co., 6 L. D. 261.

4. Where the office of the custodian of the records from which abstracts of title must be made is far removed from the land office, the abstract of title to the mining claim should not be required to be brought down to date of filing of application for patent. Daniel Cameron, 4 L. D. 515.

5. Possessory title of an applicant for a mineral patent must be clearly shown. One claiming under a certificate of sheriff's sale of a mining claim until the execution of a sheriff's deed therefor does not hold legal title. Departmental decision of April 24, 1896, In re I. X. L. and Ophir Quartz Mine and Mill Site.

6. Under the Colorado statute legal title to land sold on execution remains in the judg ment debtor until execution of the sheriff's deed. Hayes v. New York M. Co., 2 Colo. 273; Laffey v. Chapman, 9 Colo. 304; Manning v. Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; Turner v. Sawyer, 150 U. S. 578.

11. An entry may be allowed to stand although record title is imperfect by reason of the fact that no deeds were made at the time the claim was purchased by the entryman, as shown by affidavit. Departmental decision Sept. 8, 1892, In re Oxford Lode & Mill Site.

12. Proceedings in a mining application in case of defective abstract of title. J. Q. S. Lode, 10 C. L. O. 206.

13. The location notice and certificate of the mill site in this case was signed by a certain party who proved to be the agent of the owners of the mill site. In view of the facts presented, and that no adverse claim on his behalf was filed, the title is held to be in the applicants for patent. John W. Bailey, 11

C. L. O. 277.

14. When the given name of a party executing a deed differs from his name as found on the location notice, identity of persons must be shown. Kempton Mine, 1 C. L. O. 178.

15. Where a locator of a mining claim conveys the same with an agreement that he shall secure patent therefor in his own name, he may be allowed to make application and entry for the claim, notwithstanding his lack of title. A. P. Smith, 3 L. D. 340.

4 L. D. 515.

17. When entry is made by the assignee of the applicant the abstract of title should be brought down to the date of entry. Com'r to Moses M. Strong, August 3, 1891, In re Reed & Hillary Lode.

18. In an application for a mining patent a complete abstract of title only is required. Kempton Mine, 1 C. L. O. 178.

19. Contracts for conveyance before application for mining patent are sufficient title upon which to base entry, if full title was acquired before patent issued. Prince of Wales Lode, 2 C. L. O. 2.

20. An entry may be passed to patent which was made by one claiming under a deed which was in fact a mortgage, where perfect legal title has since become vested in | the entryman. White Extension West Lode, 22 L. D. 677.

21. Where an applicant for a patent for a mine claims title through a deed signed by a party as an executor of a deceased party, he should file a certified copy of letters testamentary, with copy of will attached. N. E. Extension of Yosemite Mine, 3 C. L. O. 18.

22. Where the possessory title to a mining claim becomes vested (either by location or conveyance) in one who dies before applying for a patent, if application for patent and entry are made by the heir, devisee, executor or administrator, patent will issue in the name of the decedent, and the persons claiming under the decedent's title will be left to adjust their rights in the local courts. Com'r to Helena Office, March 25, 1896, In re Broad

water Placer.

23. One basing his title upon a relocation is not required to show title back of such relocation, even if he were one of the original owners. Gold Dirt Lode, 10 C. L. O. 119.

24. Title will not be traced by the Land Department beyond the entryman. F. P. Harrison, 2 L. D. 767; Whittaker v. Southern Pacific R. R. Co., 7 C. L. O. 85; Ophelia Pope Lowe (on review), 9 C. L. O. 192.

25. Title will be traced beyond the date of entry if a relinquishment of entered ground is made, for the purpose of ascertaining whether the entryman had title at date of

26. All of the claims embraced in one application must be held in common by all the applicants. But if an entry, regular in all other respects, is made for claims not so held, separate patents may be issued thereon. Com'r to Central City Office, June 20, 1891, In re Morrell & Conemara Lode.

27. An entry so allowed will be canceled as to those claims not owned in common. Com'r to Helena Office, Aug. 5, 1893, In re Forest & Louis G. Lodes.

28. If title to the claim applied for is not clearly shown a patent will be refused. Brown v. Lewis, 1 C. L. O. 50.

29. "A party who is not an applicant for patent under sec. 2325, U. S. Rev. Stat., or the assignee of such applicant, is not entitled to make entry under said section, and in no case will the name of such party be inserted in the certificate of entry. This regulation has no reference to proceedings under sec. 2326.” Circular, June 8, 1883, 2 L. D. 725; J. C. Baker Fraction Placer, 23 L. D. 112.

2. Adverse.

(See ADVERSE, p. 284.)

30. In an adverse suit each party must prove his right to a patent by a compliance with the statutes, State and Federal, and miners' rules and regulations in force relative to location, in order to recover a judgment for the ground in controversy. Mere failure on the part of the plaintiff to prove his case does not relieve the defendant from proving his title. Jackson v. Roby, 109 U. S. 440; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Wolverton v. Nichols, 119 U.S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309: Garfield M. & M. Co. v. Hammer, 130 U. S. 291; 6 Mont. 53; 8 Pac. Rep. 153; Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621; Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329; Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) Bryan v. McCaig, 10 Colo. 309; 15 Pac. Rep. 413; Manning v. Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324; Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49;

Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292.

31. The decision on adverse suit "must show not only that the successful party is entitled to the possession as against his opponent, but also as against all others, including the government, and by a compliance with all the laws applicable." Burke v. McDonald, 2 Idaho, 646; 33 Pac. Rep. 49. (Citing McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329; Manning v. Strehlow, 11 Colo. 451; 18 Pac. Rep. 625; Thomas v. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019; Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324.)

32. In an adverse suit each party must prove his title, and if no proof is submitted the suit will simply be dismissed without judgment. Bay State S. M. Co. v. Brown, 10 Sawy. 243.

33. In an adverse suit, even if the plaintiff offers no testimony, the defendant is not entitled to a judgment unless he affirmatively proves his title. Becker v. Pugh, 17 Colo. 243; 29 Pac. Rep. 173. (First trial, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.)

34. The pleadings of each party to an adverse suit should show his title. Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 119; Cadierque v. Duran, 49 Cal. 356; Cronin v. Bear Creek G. M. Co., 32 Pac. Rep. 204.

35. The United States is not a party to a suit based upon an adverse claim filed under the provisions of section 2326, United States Revised Statutes, and is not concluded by any decision rendered on such a suit, the object of which is to try only the right of possession of the parties. (Citing and approving Alice Placer, 4 L. D. 314.) Perego v. Dodge, 163 U. S. 160. See S. C., 9 Utah, 3; 33 Pac. Rep. 221.

36. On adverse suit the court has to determine only the right of possession, not the right of either party to a patent. Doe v. Waterloo M. Co., 70 Fed. Rep. 455.

37. The judgment rendered by the court upon an adverse suit is conclusive upon the Land Department only as to the right of possession, and does not relieve the Department from its duty of requiring proof of compliance with the law by the adverse claimant. Alice Placer, 4 L. D. 314.

38. Actual possession is not required to entitle a person, holding under location, to bring suit under section 2326, United States Revised Statutes. Burke v. McDonald, 2 Idaho, 310; 13 Pac. Rep. 351.

39. Plaintiff in an adverse suit need not show possession of land in controversy, but is required to show right of possession. Golden Fleece G. & S. M. Co. v. Cable Cons. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450. 40. Defendant in an adverse suit cannot

defeat plaintiff's title by showing that a forfeiture notice given by plaintiff to co-owners was insufficient. That point may be raised only by the co-owners. Becker v. Pugh, 17 Colo. 243; 29 Pac. Rep. 173. See S. C., 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.

41. An adverse complaint should allege all material facts as to plaintiff's ownership; defendant; that suit is based on adverse that application for patent has been filed by claim duly filed, and should show conflict between the claims. Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419; Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310; Cronin v. Bear Creek Gold M. Co., 32 Pac. Rep. 204.

iff to be the owner of conflict by title adverse 42. An adverse complaint alleging plaintto defendant's, and that defendant's claim is without right, is sufficient. Rough v. Simmons, 3 Pac. Rep. 804; Rough v. Booth, 3 Pac. Rep. 805.

43. The sufficiency of an adverse complaint which simply alleges plaintiff to be the owner of the ground in controversy is waived by traversing his allegation. Bushnell v. Crooke M. & Sm. Co., 11 Colo. 247; 21 Pac. Rep. 931.

44. An adverse complaint under the Nevada statutes need only set up filing of mineral application by defendant, and adverse ownership by plaintiff. Rose v. Richmond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576.

45. Adverse suit must be brought in proper form. If plaintiff is in possession he should sue to quiet title. If not in possession he should bring ejectment. Wolverton v. Nichols, 119 U. S. 485. See 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

46. An adverse suit may be maintained by one in possession. Hamilton v. Southern Nevada M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314.

47. Dower interest in a mining location must be protected by an adverse claim under section 2326, United States Revised Statutes, as the possessory title which is subject to dower merges into the absolute fee-simple title on issuance of patent. Black v. Elkhorn M. Co., 49 Fed. Rep. 549.

55. Where an adverse claim is filed against an application for patent, the applicant may (1) suspend proceedings before the Land Department and litigate with the adverse claimant; (2) relinquish the ground in conflict from his application (litigating therefor), and take patent for the remainder of his claim; or (3) dismiss his application for patent in its entirety and continue to claim under his pos

49. An adverse claimant whose adverse suit has been dismissed will not thereafter be heard to attack the validity of applicant's title. Kannaugh v. Quartette M. Co., 16 Colo. 341; 27 Pac. Rep. 245.

50. One who files no adverse will not be allowed to question the legality of applicant's title thereafter. Lee v. Stahl, 9 Colo. 208; 11 Pac. Rep. 77. (Affirmed, 13 Colo. 174; 22 Pac. Rep. 436.) Hunt v. Eureka Gulch M. Co., 14 Colo. 451: 24 Pac. Rep. 550; Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Wight v. Dubois, 21 Fed. Rep. 693. 51. " The only place in which controversies between conflicting mineral claimants or adverse claimants can be heard is a court of competent jurisdiction." Bodie T. & M. Co. v. Bechtel Cons. M. Co., 1 L. D. 584; Frederick A. Williams, 17 L. D. 282.

52. The Land Department has no jurisdic

tion to determine or pass upon controversies between adverse claimants as to the right of possession of a mining claim, or upon any question as to the priority of such right. Bright v. Elkhorn M. Co., 8 L. D. 122.

53. The defendant in an adverse suit may set up title in his answer, and secure judgment declaring him to be the owner if he proves title. Perego v. Dodge, 9 Utah, 3; 33 Pac. Rep. 221. See 163 U. S. 160.

54. The owner of a mining claim, holding under possessory title, who has agreed to convey good and sufficient title thereto, the prospective transferee being in possession, has such an interest in the property as entitles him to file an adverse claim against an application for patent to a conflicting claim, and to have a trial thereon. This right cannot be affected by State laws relating to possessory actions. (Reversing the Supreme Court of Montana.) Wolverton v. Nichols, 119 U. S. 485. See 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

744.

56. "We can imagine several ways in which it can be shown that the adverse claim is waived without invading the jurisdiction of the court while the case is still pending. One of these would be the production of an instrument signed by the contestant, and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and his contest. Or, since the Act says that all proceedings shall be stayed in the land office from the filing of the adverse claim, and not from the commencement of the action in the court, within thirty days, such delay of thirty days is made, by the statute, conclusive of a waiver. A filing in the records of the court, by the plaintiff, of a plea that he abandons his cause or waives his claim, might authorize the land office to proceed." Richmond M. Co. v. Rose, 114 U. S. 576.

57. Reversal of a judgment on adverse suit denying the right of either party on appeal

by one party, reverses and vacates the entire decision, and the case should be tried de novo. Mattingly v. Lewisohn, 35 Pac. Rep. 111.