At the time of making the agreement with Coward to purchase, Felger went into possession, and continued to work in and share in the management of the mine, and was thereby recognized by Coward as the owner of one eighth of it, and received one eighth of the profits until he was ousted. In May, 1865, the defendant first denied plaintiff's ownership; and then, on the pretense that plaintiff had forfeited his interest. The facts proved show a valid sale and transfer of possession of the property sued for. The sale is good and sufficient on which to maintain this action, whether regarded as a verbal sale with transfer of possession, or as a conveyance of a mining claim, evidenced by an instrument in writing not under seal. This is not an action between two purchasers from the same vendor, the first a verbal purchaser, and the second a purchaser by instrument in writing, without notice of the right of the first purchaser, as in Goller v. Fett, 30 Cal. 485; but the vendee sues his vendor for an undivided interest in a mine of which he had possession, but of which the vendor has since obtained possession, and now denies his right. The defendant's authorities are inapplicable to such a case.
JUDGES: Sanderson, J. Mr. Justice Sawyer expressed no opinion.
OPINION
SANDERSON, Judge
In Patterson v. The Keystone Mining Co., 30 Cal. 360, our attention was called to the statute of the 13th of April, 1860 (Stats. 1860, p. 175), in relation to the conveyance of gold mining claims, and we considered, arguendo, that it had abrogated the rule announced in the case of the Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198, to the effect that title to a mining claim would pass by a verbal sale, if accompanied by a transfer of the possession. In the subsequent case of Goller v. Fett, 30 Cal. 484, the effect of the statute came up for further consideration, and its construction became indispensable to the final disposition of that case, and the effect suggested in Patterson v. The Keystone Mining Co. was formally declared to be the effect of the statute, and that title to gold mining claims could be passed only by an instrument in writing. (See, also, King v. Randlett, 33 Cal. 318.)
The rule established in Goller v. Fett seems to be conclusive of the present case. It is an ordinary action of ejectment, and the plaintiff, at least, showed only a contract by the defendant to convey. His remedy was for specific performance, and, as incidental to that, delivery of the possession.
Order denying a new trial reversed and a new trial granted.