Opinion of the Court-Sullivan, C. J.

If plaintiff's evidence tended to establish the facts he contended for, it then became an issue of fact for the jury and not a question for the court, and the motion should have been denied. (Hayne, New Trial, sec. 117, and authorities cited.)

"Where one advances money to several persons in furtherance of an engagement they represent themselves to be jointly interested in, they may be sued jointly, notwithstanding one of them asserts that he was not in fact interested.". (27 Cyc. 876, 877; Goodnow v. Stryker, 61 Iowa, 261, 16 N. W. 487.)

Whenever a patent to a claim is issued to the patentees, it carries with it the presumption (in every case where the patent is introduced in evidence) that every prerequisite required by law to its issuance was complied with. It is not only prima facie evidence, but is primary evidence. The introduction of the patent proves this fact. (Polk's Lessee v. Wendal, 9. Cranch (U. S.), 97, 3 L. ed. 669; Summers v. Dickinson, 9 Cal. 554; Yount v. Howell, 14 Cal. 465; Durfee v. Plaisted, 38 Cal. 80; Upham v. Hosking, 62 Cal. 250; 1 Snyder on Mines, sec. 742.)

"If a party assumes to act (not for himself) for another without any authority, or the act exceeds the delegated authority, the subsequent ratification of the principal is obligatory upon him, whether the act be for his detriment or advantage." (Taylor v. Robinson, 14 Cal. 401.)

W. H. Casady, for Respondent, files no brief.

SULLIVAN, C. J.-This action was brought to recover $215.55, with interest thereon at the rate of 7%-one-third of the total cost and expense of doing assessment work upon the Tennessee Lode Mining Claim situated in Robbins Mining District in Idaho county, and of procuring a patent from the United States for said mining claim.

The answer admits that the defendant is the owner of an undivided one-third interest in said lode mining claim, and denies that the plaintiffs laid out or expended for assess

Opinion of the Court-Sullivan, C. J.

ment work on said mining claim any sum whatever; denies that defendant ever authorized plaintiffs to procure a patent from the government for said mining claim, and avers that defendant performed his proportion of the annual assessment work upon said mining claim for the three years mentioned in said complaint.

Upon the issues thus made the cause was tried by the court with a jury. Plaintiff McDonald testified on behalf of appellants that the respondent Moore owned one-third of said mining claim; that he and Wadham, as coplaintiffs, expended on said claim for the years 1903, 1904 and 1905, one hundred dollars for each year; that they thereafter procured a patent from the government and that the cost of said patent amounting to $345.65 was paid by himself and coplaintiff; that the defendant Moore had refused to pay any part of said expenses and refused to have anything to do with the patent proceedings, stating that "he didn't care to; that there was not $500 worth of work done on said claim."

The deposition of plaintiff Wadham was introduced on the trial in which he testified that said mining claim had been patented and was patented at the expense of McDaniel and himself; that witness had paid $248.90 for patent expenses; that the defendant Moore never contributed or paid any part of this money for the patent. On cross-examination he testified that defendant Moore never agreed nor consented to the procurement of the United States patent for said mining claim and did not to his knowledge protest against its procurement; that he never made any objections to the patent proceedings; that defendant Moore did his proportion of the annual labor for 1903 but did not do his proportion for 1904 and 1905. Plaintiffs' counsel thereupon introduced and read in evidence the patent of the government of the United States to C. V. Wadham, S. C. McDaniel and A. W. Moore for the Tennessee Lode Mining Claim, dated December 16, 1907, which patent describes the claim and states that the patentees had duly entered the claim and had paid for the same as required by law, and had fully complied in all respects with the law in procuring said patent.

Opinion of the Court-Sullivan, C. J.

Said patent is duly recorded in the record of patents in the recorder's office of Idaho county. Thereupon plaintiffs rested.

Counsel for respondent moved the court for a judgment of nonsuit, which motion was sustained and judgment of nonsuit entered. This appeal is from the judgment.

The first error assigned is, that the court erred in granting the motion for a nonsuit. It is contended by counsel for appellant that the evidence shows the plaintiff expended $645.65 in order to hold and patent said mining claim, onethird of which the defendant is liable for, provided the evidence was relevant and competent to prove an implied liability against the defendant Moore for money paid for annual work done on said mining claim, and to procure a patent therefor in his interest and for his benefit as a co-owner of the claim.

The question presented is: Was the evidence given on behalf of the plaintiffs relevant and competent to support an implied liability against Moore, the defendant?

It is contended by counsel for respondent that respondent cannot be held responsible for the assessment work on an unpatented mining claim, and that the remedy pointed out by sec. 2324, Rev. Stats. of the U. S., is the exclusive remedy in such cases; that the defaulting co-owner is not personally responsible for any part of the assessment work. As a general proposition, that is true. Counsel also contends that there is no implied contractual relation between cotenants and tenants in common; that one cotenant cannot bind the other without his consent for the expense incurred in developing and improving the common property, but must recoup, if at all, from the profits derived from the property. As a general proposition, that contention is correct. In Welland v. Williams, 21 Nev. 230, 29 Pac. 403, the court had under consideration the liability of a cotenant for the cost of improvements put upon the common property, and in the course of the opinion said: "In the absence of an express or implied agreement between cotenants that the expense of improvements made by one of them upon the common property is to be repaid, it is clear, under the authorities, that neither can

Opinion of the Court-Sullivan, C. J.

maintain an action against the other to recover and portion of such expense. (Freem. Coten., sec. 262; Calvert v. Aldrich, 99 Mass. 74, 96 Am. Dec. 693; Alleman v. Hawley, 117 Ind. 532, 20 N. E. 441.)" And held that circumstances may exist which amount to a ratification of such expenditure, and in such case the cotenant is liable. But in the case at bar the question is presented whether there is an implied liability on the part of the defendant to pay to the appellant his proportional part of the cost of the assessment work as well as his proportional part of the cost and expense of procuring the patent. The respondent does not plead in his answer as a defense said sec. 2324, U. S. Rev. Stats., but avers that he has performed his part of the assessment work on said Tennessee lode for the years 1903, 1904 and 1905. He also denies that the plaintiffs procured a patent for said mining claim from the government. The testimony of McDaniels shows that the defendant did not pay his part of the cost of the assessment work for the years 1903, 1904 and 1905, while the testimony of Wadham shows that he did not pay it for the years 1904 and 1905. The testimony clearly shows that a patent was issued to the respondent and the appellants by the general government for said mining claims, and that the plaintiffs paid the cost and expense thereof. The record shows that the respondent contended that sufficient work had not been performed upon said claim to satisfy the requirements of the statute for procuring a patent. But it appears that the government did issue a patent, and the presumption is that all of the requirements of the law had been complied with as to the amount of work required to be done upon the claim before a patent would issue, and that the assessment had been annually done; that the citizenship of the applicants was shown, and that every requirement of the law had been complied with. That being true, there was sufficient evidence introduced on the part of the plaintiffs to show an implied promise on the part of the defendant to pay his proportional part of said expenses. This court has held in

a number of cases that a cause should not be taken from the jury on motion for a nonsuit when there is any evidence

Points Decided.

whatever tending to establish the material allegations of the complaint, and that after the plaintiff has introduced his evidence and rested his case on application for a nonsuit he admits all of the facts which the evidence tends to prove. (Later v. Hayward, 12 Ida. 78, 85 Pac. 494.) The evidence on the part of plaintiff at least made a prima facie case.

That being true, the court erred in taking the case from the jury. The judgment must therefore be reversed and the cause remanded for a new trial. Costs are awarded to the appellants.

'Ailshie, J., concurs.

(December 14, 1910.)

WHITE PINE MANUFACTURING CO., Respondent, v. PETER MOREY, Appellant.

[112 Pac. 674.]

REVENUE-TAX SALE-TAX SALE CERTIFICATE-TAX DEED-CORRECTION OF TAX DEED-RIGHT OF REDEMPTION.

(Syllabus by the court.)

1. A tax sale certificate issued under the provisions of sec. 1759 of the Rev. Codes, which recites that the tax for which the property was sold was, "State and county, $28.00; penalty and costs, $3.05; total, $31.05," and leaves blank the spaces following the enumeration of poll tax, city, town, village and Independent School. district tax, is a substantial compliance with the statute, for the reason that such statement on its face excludes the idea that the taxes for which the property was sold included anything other than "state and county tax," and "penalties and costs."

2. Where a tax sale certificate shows on its face the year for which the tax was assessed, and a deed thereafter issued leaves the year blank and does not show upon its face the year for which the tax was assessed, it is competent and proper for the officer on discovering the mistake to execute a new deed for the correction of the error.

Idaho, Vol. 19 4