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from the cemetery, for the purpose of watching the copper. He had been there about an hour when the defendant Copertino came along the railroad tracks from the direction of South Plainfield, entered the cemetery, and immediately went to the place where the copper was located. Just before, or at about the same time that, Copertino reached the cemetery, the defendant Cucorello arrived there in an automobile. Both of them then began to load the copper in the automobile. In the meanwhile the detective who had gone to telephone returned, and he and his companion immediately proceeded to arrest the defendants. One of the defendants threw one of the bars of copper, which they had already loaded, from the automobile and attempted to drive away. Both were, however, very quickly apprehended and placed under arrest.

[1] The defendants denied having the copper in their possession, or having attempted to take it in their possession. While they admitted being in the cemetery, they sought to explain their presence there by stating that they had driven into the cemetery because the one who was driving the car mistook the entrance to the cemetery for a public highway which they wished to take to reach the place where they intended to go. At the close of the testimony, a motion was made on behalf of the defendants that the court direct a verdict of acquittal. The ground upon which the motion was based was that even though the copper had been stolen, and the defendants had it in their possession, either actual or constructive, at the time of their arrest, as charged, still they could not be convicted of the crime for which they were indicted, because the copper had lost its character of stolen property before it came into their possession. The refusal of the court below to direct a verdict is the principal reason relied upon for a reversal of the judgment. The verdict has, of course, established that the jury accepted the version of the Government's witnesses. It is claimed that the copper had lost its character of stolen property, because the discovery thereof by the detectives and their subsequent actions, as before detailed, had reinvested the Lehigh Valley Railroad Company, which for the purposes of this case may be considered the owner, with possession of it. Hence it is urged that the case falls within the principle of the decisions in Reg. v. Schmidt, 1 Crown L. C. 15, Reg. v. Dolan, 29 Eng. Law & Eq. 533, U. S. v. De Bare (D. C. E. D. Wis.) 25 Fed. Cas. 796, No. 14,935, and People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263, 7 Ann. Cas. 348.

As it would unduly burden this opinion to recite the facts in each of those cases, it will suffice to state that in each of them, before the stolen property reached the receiver, it had been recovered by the owner or his agent, and had actually been taken into his physical possession or that of his agent, and afterwards carried to the receiver, by either the original thief or the instrumentality through which the thief originally intended to convey it, at the express direction of the owner or his agent, for the purpose of entrapping the receiver, so that the property was actually delivered to the receiver by the authority of the owner and through his agency. The principle which underlay the decision in each of those cases was that such acts on the part

(256 F.)

of the owner or his agent had caused the stolen property to lose its character as such, and consequently that the person in whose possession it afterwards came could not be convicted of having received stolen property, when the property which he actually received was not, in a legal sense, stolen property.

While we may readily concede that the principle invoked is a sound one, yet we are unable to perceive that it is applicable to this case; nor can we conceive how, in reason, it can be extended to cover a set of facts such as has been developed in this case. The detectives did not take or attempt to take the stolen copper in their possession; they did not exercise or attempt to exercise any control or dominion over it. The most that they did was to watch it, presumably to see what would happen to it, if anything, and to prevent its eventually being carried away, until the "relief" for which they had sent could arrive. The copper had not, therefore, come into either the actual or constructive possession of the owner. Indeed, before the detectives attempted to exercise any control over it, the defendants appeared upon the scene and took actual possession of it. Neither did the detectives cause, or attempt to cause, the property to be delivered to the defendants. Hence it did not come into the defendants' possession by authority of the owner or through its agency. There is therefore missing from this case two elements which, manifestly, are necessary to bring the case within the principle of the before-cited cases. Consequently we do not think that the copper had lost its character of stolen property at the time the defendants took it into their actual possession. The remarks of one of the judges in Reg. v. Schmidt, supra, are very pertinent to the facts in this case. In discussing the question as to when the goods lost their character of stolen goods, he said:

"Suppose the policeman (who was acting for the owner and was in its employ), instead of opening the bundle, had simply watched it without saying anything to the porter (also the owner's agent); surely then the goods would not have ceased to be stolen."

This is precisely what the detectives did in this case. If their actions in this case could be said to have been a retaking of possession of the stolen property, so as to change its character as such, the difficulties in apprehending criminals in cases such as this would be immeasurably increased, and without reason. We are of opinion, therefore, that the learned trial judge committed no error in declining to direct a verdict.

[2] It is next urged, although no exception was taken to it at the trial, that the jury were instructed that mere possession of the stolen copper was sufficient to impute to the defendants knowledge that it had been stolen, and to cast upon them the burden of explaining their possession. We do not think, however, that any such construction can be placed on the charge. The jury were charged that, under the testimony in the case, an inference or conclusion that the defendants had possession of the copper with knowledge that it had been stolen would be justified. The testimony adduced on the part of the government regarding the defendants' connection with the stolen property, the method by which they acquired actual possession, the place where

they acquired it, and all of the surrounding circumstances, if unexplained, would clearly, if not inevitably, lead to the conclusion that 1 the defendants knew that the property had been stolen.

Finding no error in the record, the judgment below is affirmed.

BECKER-FRANZ CO. v. SHANNON COPPER CO.

(Circuit Court of Appeals, Ninth Circuit. April 7, 1919.)

No. 3256.

1. APPEAL AND ERROR 184-OBJECTIONS IN LOWER COURT-EQUITABLE SUIT -LEGAL TITLE-WAIVER OF OBJECTION.

Where no objection is raised in the trial court to the determination of the legal title to the land in an equitable suit for partition, the objection that such title should be determined at law is waived.

23(6)—AssessmENT WORK-Forfeiture of INTER

2. MINES AND MINERALS

EST-ADVERSE POSSESSION.

The right to forfeit the interest of a cotenant in a mining claim for his failure to do his share of the assessment work, given by Rev. St. § 2324 (Comp. St. § 4620), was properly denied, where the joint tenant was denied permission to enter the claira or to contribute to the assessment work. 3. MINES AND MINERALS 23(6)—ASSESSMENT WORK-RECOVERY FROM Co

TENANT.

One who had performed the assessment work on a mining claim cannot compel a cotenant to contribute therefor, where he claimed the entire claim adversely to the cotenant and refused to allow the latter to enter on the claim or contribute to the work.

Appeal from the District Court of the United States for the District of Arizona; Wm. H. Sawtelle, Judge.

Suit by the Shannon Copper Company against the Becker-Franz Company for partition. Decree for plaintiff, and defendant appeals. Affirmed.

In November, 1908, the appellant entered into an agreement with J. W. Bennie by the terms of which it agreed to convey to Bennie the mining claims here in controversy upon payment of the sum of $12,500, of which $100 was to be paid upon the execution of the agreement, and $6,150 upon the deposit by the appellant of an abstract of title, and the further sum of $6,250 on or before July 31, 1909. It was further agreed that Bennie might at any time prior to the last-named date reconvey to the appellant a 49/100 interest in said mining claims in lieu of the last payment, in which event Bennie was given the right to purchase the appellant's 49/100 at any time before December 1, 1910, for the sum of $10,000. The first two payments were made, but the $6,250 payment was not made. The appellant declared a forfeiture and brought suit in the superior court of the state of Arizona to quiet its title and therein obtained a decree quieting its title to the mining claims. Upon appeal to the Supreme Court of Arizona, the decree was reversed (Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280); the court holding that, although time had been made the essence of the agreement, that provision had been waived. A second trial was had in the superior court, and on June 28, 1915, a decree was again rendered in favor of the appellant herein. Upon a second appeal to the Supreme Court, the decree was reversed (Bennie v. Becker-Franz Co., 17 Ariz. 198, 149 Pac. 749); the court ruling that the Becker-Franz Company, while it held the legal title to the property, was

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(256 F.)

the owner of but an undivided 49/100 interest therein, and that Bennie was the equitable owner of the remainder thereof.

Thereafter, on September 4, 1915, a decree was entered in the superior court in accordance with that decision. During the years 1911, 1912, 1913, and 1914, pending the litigation, the annual assessment work was performed by the appellant, and on September 14, 1915, the appellant served upon Bennie a notice of forfeiture under paragraph 2324, Rev. Stats., for failure to pay his proportion of said assessment work. Bennie subsequently conveyed his interest in said property to the appellee herein, and the latter brought the present suit in the court below for partition of the mining claims. The appellant in its answer to the partition suit pleaded its acquisition of title to the appellee's interest by reason of the forfeiture before mentioned, and demanded that in case the appellee should be decreed to be the owner of 51/100 of the mining claims that the appellant have judgment against the appellee for 51 per cent. of the amounts so expended in assessment work. As against the appellant's claim of forfeiture, the appellee in its reply pleaded as estoppel the judgment of the Supreme Court of Arizona of June 28, 1915, whereby, the appellee alleged, the title of the respective parties in and to their undivided interests in the mining claims was quieted in each as against any and all claims, demands, or pretensions of the other, and the appellee further alleged that Bennie had made due tender to the appellant of his proportion of the cost of the assessment work of the claims for the years 1911 to 1914, inclusive, but that the tenders were refused and rejected by the appellant, and that during said years said J. W. Bennie as cotenant was ready and willing to perform his proportion of the assessment work, but that he was excluded from the possession of the property, and prevented by the appellant from entering upon the same for the purpose of doing the assessment work, and that the work so done was done in hostility to the appellee's title, and that of its predecessor in interest.

The court below denied the appellant's claim of title by forfeiture and its right to recover from the appellee any of the costs of assessment work for the years 1912 to 1914, inclusive.

Frank E. Curley, of Tucson, Ariz., and L. Kearney, of Clifton, Ariz., for appellant.

Thomas Armstrong, Jr., Ernest W. Lewis, and R. Wm. Kramer, all of Phoenix, Ariz., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). The decree of the court below made no specific disposition of the appellant's claim of title to the appellee's interests acquired through the forfeiture thereof for nonpayment of annual assessment work in pursuance of a notice of forfeiture given after the decisions of the state courts. It decreed only that the appellee was the owner of 51/100 of the property, and that the appellant was the owner of the remaining 9/100, and quieted the title of each, and found that the property could not be partitioned, and decreed that it be sold by a commissioner at public sale and provided for confirmation of the several sales by the court and for a final report by the commissioner, and that the appellant take nothing by its counterclaim.

[1] While the general rule is that equity has no jurisdiction to determine the validity of a legal title set up by the defendant in a partition suit and will suspend partition until the question of the legal title has been determined at law (20 R. C. L. 729; Clark v. Roller, 199 U. S. 541, 545, 26 Sup. Ct. 141, 50 L. Ed. 300; Gay v. Parpart,

106 U. S. 679, 689, 1 Sup. Ct. 456, 27 L. Ed. 256; Gilbert v. Hopkins [C. C.] 171 Fed. 704; Bearden v. Benner [C. C.] 120 Fed. 690; West v. East Coast Cedar Co., 101 Fed. 613, 41 C. C. A. 528; American Ass'n v. Eastern Kentucky Land Co. [C. C.] 68 Fed. 721), and while it is held in some jurisdictions, as in Litz v. Rowe, 117 Va. 752, 86 S. E. 155, L. R. A. 1916B, 799, and cases there cited that a controversy over the legal title arising in a partition suit belongs exclusively to a court of law, and no acquiescence or consent can create jurisdiction over it in equity, we think the rule to be followed in the federal courts is that where, as in the present case, no objection is raised in the trial court to the disposition of the question of the legal title by a court of equity, the objection is waived so far as an Appellate Court is concerned (Elder v. McClaskey, 70 Fed. 529, 17 C. C. A. 251 [certiorari denied 163 U. S. 685]; Reynes v. Dumont, 130 U. S. 354, 395, 9 Sup. Ct. 486, 32 L. Ed. 934).

[2] On the merits the appellant's claim to title by forfeiture under the provision of section 2324, Rev. Stats. (Comp. St. § 4620), was erly denied on the ground that the appellant was holding adverse possession of the mining claims during the period of time when the annual assessment work was done, and Bennie was denied permission to enter upon the claims or to contribute to the assessment work. Mining Co. v. Mining Co., 6 Utah, 183, 21 Pac. 1002, 5 L. R. A. 259; Mallett v. Uncle Sam Min. Co., 1 Nev. 188, 90 Am. Dec. 484; Field v. Tanner, 32 Colo. 278, 75 Pac. 916; Trevaskis v. Peard, 111 Cal. 599, 44 Pac. 246; Madison v. Octave Oil Co., 154 Cal. 768, 99 Pac. 176; Garvey v. Elder, 21 S. D. 77, 109 N. W. 508, 130 Am. St. Rep. 704.

[3] Nor was the appellant entitled to be paid out of the proceeds realized upon the partition sale any portion of the sums paid out by it for the annual assessment work for the years 1911 to 1914, inclusive, as demanded in its counterclaim. That a court of equity has jurisdiction in a partition suit to direct payment by one cotenant to another of his proportionate share of assessment work made necessary to maintain the life of a mining claim is not to be doubted. 30 Cyc. 230; McClintock v. Fontaine (C. C.) 119 Fed. 440; Hayne v. Gould (C. C.) 54 Fed. 951. But such a right to contribution is lost in a case where the cotenant in possession holds adversely to his cotenant, and denies him permission to enter upon the claim or to contribute his proportion of the expenses of maintaining the same, for in such a case the claim for contribution is inconsistent with the prior acts of the cotenant in possession, of such a character as to estop him to claim contribution. Victoria Copper Min. Co. v. Rich, 193 Fed. 314, 113 C. C. A. 238; Wistar's Appeal, 125 Pa. 526, 17 Atl. 460, 11 Am. St. Rep. 719; Van Ormer v. Harley, 102 Iowa, 150, 71 N. W. 241.

We find no error. The decree is affirmed.

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