A verbal sale of a mining claim, accompanied with possession, is not sufficient to pass the title.
Theact of April 13, 1860, passed upon in Goller v. Fett (30 Cal. 481), has not been repealed by the code. If mining claims are to be considered as real estate, then section 1091 is absolute in requiring the transfer to be in writing. If this section does not relate to mining claims, then there is no law upon the subject of the mode of transfer, except the act of 1860. Section 1052 was not intended to repeal the statute of 1860, but was intended to meet the case of a transfer of property which is not provided for by the code or any existing statute.
OPINION By the Court:
The plaintiffs claim title to an undivided interest in the Earle Mine, through a verbal sale made by Earle. A mine is real estate, and an interest therein, other than an estate at will, or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. (Civil Code, Sec. 1091.)
The defendant was the owner of an undivided interest in the mining claim, and as such was entitled to the exclusive possession thereof, as against the plaintiffs--they not having shown any title in themselves.
Judgment affirmed.