Gwillim v. Donnellan, 115 U. S. 48, 5 Sup. Ct. Rep. 1110; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Stark y Starrs, 6 Wall. 418; Smelting Co. v. Kemp, 104 U. S. 636; Patterson Tatum, 3 Sawy. 172.

Under the act of congress of 1872, when a party applying for a patent to mining ground gives the proper notice as therein required, any other claimants can object to the issuance of the patent, either on account of its extent or form, or because of asserted prior location. They must come forward with their objections, and present them, or they will be precluded from objecting to the issuing of the patent. Therefore the doctrine of relation applies to patents to mining claims, so as to cut off intervening claimants, if any there should be, such as might arise from a subsequent location. Heydenfeldt v. Daney, 93 U. S. 640; The Eureka Case, 4 Sawy. 303; Deffeback v Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95, Courchaine v. Mining Co., 4 Nev. 374.

On the trial of the cause in the district court plaintiff, by his attorneys, offered to prove that the defendant, Griffin, did not perform, or cause to be performed, any work or labor upon said Great Eastern mine, or make any improvements thereon, from December 26, 1884, until the 28th day of December, A. D. 1886. Defendant, by his attorneys, objected to the evidence so offered, upon the ground that it was irrelevant, immaterial, and incompetent, under the admitted facts in the case. The court sustained the objection, and the plaintiff, by his attorneys, excepted. Did the court err in ruling out the proffered evidence? Title to mining claims may be acquired by possession and by purchase. Title by possession, being a mere right of enjoyment of the profits without purchase and upon conditions, may be defeated at any time by the failure of the party in possession to comply with the conditions, which are, marking the boundaries of his claim, and performing the labor or making the improvements as required by the statute. The equitable title accrues immediately upon payment of purchase money to the government, for the entry entitles the purchaser to a patent; and the right to a patent, once vested, is equivalent to a patert issued. Stark v. Starrs, 6 Wall. 418. When proofs are completed, and purchase money paid, the equitable title of the purchaser is complete; and the patent when issued is evidence of the regularity of the previous acts, and relates back to the date of entry, to the exclusion of all intervening claimants. Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. Rep. 95; Courchaine v. Mining Co., 4 Nev. 374. Upon the payment of the purchase money, and the issuance of the patent certificate by the authorized agent of the government, the purchaser is not required to do annual assessment work. Aurora Hill v. Tangerman, 12 Sawy. 355, 34 Fed. Rep. 515; Smelting Co. v. Smelting Co., 16 Pac. Rep. 565.

It follows from the views we have expressed that the court did not err in refusing to hear the offered evidence. Judgment affirmed.

DARLAND et al. v. LEVINS et al.

(Supreme Court of Washington Territory. January 29, 1889.)

CHATTEL MORTGAGES-RECORDING-PURCHASER WITH NOTICE.

The maker of a chattel mortgage, and one who purchases the mortgaged property with knowledge of the mortgage, cannot set up as against the mortgagee the fact that the mortgage is not made and recorded in accordance with the laws of Washington territory.

Error to district court, Yakima county; GEORGE TURNER, Judge.

Allen, Whitson, Gilliam & Parker, for plaintiffs in error. H. J. Snively, for defendants in error.

LANGFORD, J. This is a case wherein the plaintiff E. A. Levins has sued Drennan and others for the foreclosure of a certain mortgage on a flock of

sheep; Drennan being the mortgagor, and Levins the mortgagee. Drennan makes no defense, but J. L. Sperry and W. J. Furnish, partners, defend as mortgagees of Drennan. L. S. Darland and M. J. Savage defend as purchasers of the sheep. Each of these defendants, in their respective rights, dispute the validity of the mortgage from Drennan to Levins upon the ground that the mortgage does not sufficiently describe the sheep, and was not recorded in the proper county, and within the time prescribed by law. Levins sold 1,275 sheep to Drennan. Drennan gave a mortgage back, describing the sheep mortgaged as "1,275 head of sheep, their wool and increase," and nothing further. By agreement between the parties the description was afterwards amended by adding: "The sheep known as the Levins band of sheep, branded 5, and general ear-mark, a slit in the right ear, and a crop off the left ear." The contention is that, under the statutes of this territory relating to chattel mortgages, said mortgage is void for want of description, and because not recorded in the county in which the sheep were. We think the statute was made for the purpose of protecting creditors and subsequent purchasers and subsequent mortgagees by giving them notice by the records of the recorder's office. The limitations and provisions of the statute are all exclusively for that purpose, and did not intend to change the previous law as between the mortgagor and the mortgagee. This mortgage, without record, or without any other description than what was inserted in it, is certainly a good mortgage, so far as the mortgagor and the mortgagee are concerned. The mortgage of Sperry & Furnish was taken with full knowledge and agreement that the prior mortgage of Levins was good, and that it was held as a security for the payment of the purchase price of the sheep; and it was taken only to secure Sperry & Furnish out of the residue of the proceeds of the sheep after the first mortgage had been satisfied. That is all that was intended by Drennan when he mortgaged the sheep to Sperry & Furnish, and all that Sperry & Furnish expected to get was a lien on the residue of the sheep after Levins' mortgage was paid; and hence the decree, in so far as it orders that the sheep shall be sold, and the proceeds applied to the payment, first, of Levins, and next, of Sperry & Furnish, is strictly in accordance with the contract of the parties. After these two mortgages had been executed, Drennan pretended to sell the same sheep to Darland and M. J. Savage. They had full knowledge of the two previous mortgages when they pretended to purchase; and if they ever paid anything to Drennan upon this pretended sale it was after they had full knowledge of these two previous claims or mortgages. Indeed, the circumstances, as shown by the evidence, indicate very strongly that Darland and Savage never agreed upon any particular price that should be paid for the flock of sheep, nor how many were in the flock of sheep, and they never made any actual payment which would show that they purchased the sheep at all in good faith. The decree, therefore, of the district court is affirmed.

BASTON & ARIZONA SMELTING & REDUCTION Co. v. LEWIS

(Supreme Court of Arizona. January 19, 1889.)

1. APPEAL-REVIEW-HARMLESS ERROR.

A harmless error is not ground for reversal.

2. SAME-PRESUMPTIONS.

Where a cause is tried by the court without a jury, if there is sufficient evidence to sustain the judgment it will be presumed the court disregarded incompetent evidence.

(Syllabus by the Court.)

Appeal from district court, Cochise county; PINNEY, Judge.

Action by the Baston & Arizona Smelting & Reduction Company against R. A. Lewis, to defeat the application for a patent to a mineral claim. Judgment for plaintiff, and defendant appeals. Haynes & Mitchell, for appellant.

W. H. Stilwell, for defendant.

PER CURIAM. This is a suit adverse to the application for a patent to a mineral claim, alleging that defendants, in their application for a patent to the Merry Christmas claim, had included a portion of the Knoxville claim. The pleadings attack the Knoxville location, alleging that it was not marked on the ground by monuments; also that, if ever properly located, it has been abandoned by failure to do annual assessment work. The cause was tried by the court without a jury. The evidence is very voluminous, and very conflicting. We find in the record much testimony incompetent, because hearsay, admitted over the objections of defendants, and much testimony objectionable in character that seems to have been admitted, but not formally ruled upon. Had this cause been tried by a jury, a verdict rendered with this evidence before them could not stand. But, in appeals from a trial before the court, the court of last resort will look into the record to see if the conclusion is right after discarding the incompetent evidence; assuming that the trial judge did not consider the same. A harmless error will not be ground for reversal. We have to that end carefully examined this record, and conclude that the findings should not be disturbed. There is competent legal evidence to sustain the conclusions in this case, and we cannot consider its weight; that is for the trial court.

The judgment of the court below is affirmed.

BRYAN v. KALES et al.

(Supreme Court of Arizona. February 15, 1889.)

MORTGAGES-FORECLOSURE-ACTION TO SET ASIDE-ESTOPPEL-LACHES.

A judgment in foreclosure, and the proceedings thereunder, will not be set aside as void, where the mortgagor stood by and saw the property sold, made no attempt to defeat the proceedings, nor to redeem, and for nearly four years saw the property greatly increasing in value, and being sold from time to time to purchasers în good faith.

Appeal from district court, Maricopa county.

Goodrich, Smith & Street and C. H. King, for appellant. Clark, Churchill, Baker & Campbell and D. H. Pinney, for appellees.

PORTER, J. The bill in this case sets forth that plaintiff is a resident of Maricopa county; that some of defendants reside in same county, and others in places outside the territory; that one Jonathan M. Bryan, on or about the 20th day of August, 1883, died intestate, and at his death was the owner, seised and possessed, of several tracts of land described in the bill, all situated in the county of Maricopa; that on or about the 24th day of September, 1883, letters of administration upon the estate of Jonathan M. Bryan, deceased, were issued by the probate court of Maricopa county to M. W. Kales, defendant herein; that during the life-time of Bryan he executed to Kales certain promissory notes, for the security of the payment of which he also executed and delivered to Kales a mortgage on all the real estate described in the bill; that said Kales, without presentation for allowance of his debts in the probate court, commenced an action in the district court of the second judicial district for Maricopa county in his own proper person and name, and in his individual capacity, against himself in his representative capacity as administrator, and made answer to the complaint in such representative capacity. Whereupon, on the 9th day of October, 1883, a judgment of fore

closure was made and entered, and on the 8th day of November, 1883, he district court made an order of sale of said premises; that in pursuance thereof sales were made of the different parcels of the land, the defendant Robert Garside being the purchaser of one piece, M. W. Kales of two other separate pieces, and defendant William Gilson of another portion; that after the sales, and before the making of any deeds by the sheriff, Kales sold one quarter section to J. T. Simms, and the certificate of purchase was set over to Simms; that Kales, before the making of any deed, assigned to defendant D. H. Pinney block 98 of the city of Phoenix, it being a part purchased by Kales at sheriff's sale; that on June 16, 1884, the sheriff executed and delivered to Garside a deed of the part he bought, and that Garside, on May 27, 1887, sold the same to defendant J. De Barth Shorb; that on June 10, 1884, the sheriff executed and delivered a deed to Simms, as assignee of the certificate of purchase from Kales, the parcel of land so purchased by him; that defendant Simms, on February 28, 1887, sold the same to defendant George T. Brassius, who subdivided the same into blocks and lots, with streets running through said property, which is now known and designated as "Central Place;" that Brassius sold a lot therein to John W. Jeffries on May 3, 1887, and on May 5, 1887, sold another lot to defendant Henry W. Ryder; that on June 19, 1884, the sheriff executed a deed to defendant William Gilson for the part purchased by him, who on April 6, 1886, sold the same to defendant Cordelia L. Beckett; that on the 16th day of June, 1884, the sheriff executed a deed to D. H. Pinney, who on the 10th day of September, 1886, sold a portion thereof to defendant the Bank of Napa, Cal., and that said Pinney, on November 18, 1886, conveyed another part of said block to defendant F. Q. Story, who thereafter sold the same to defendant M. H. Sherman, who is now in possession of the same. The bill further states that, at the time of the death of said Jonathan M. Bryan, Vina Bryan was the wife of Bryan, and did survive him without issue, and said Bryan left no descendants; that all of the property was community property, and that she thus acquired title to the property, and so held the same, until the 29th day of June, 1887, when she conveyed the same to plaintiff, Thomas J. Bryan, for a good and valuable consideration. The bill alleges that the price bid and paid for each respective piece of property was an inferior price, and less than each was worth in open market; that of all the facts so alleged the defendants, and each of them, had full notice; that the defendant D. H. Pinney was the judge of the district court, and acted as such in all the proceedings had in said action, and was the judge of said court at the time of the assignment of the certificates of sale to him. It is alleged that the premises are of the value of $125,000. The prayer of the bill is that all the proceedings made by the district court in the action where M. W. Kales was plaintiff and M. W. Kales was administrator be annulled, and the sales and certificates of sale be declared void, and the different parcels of the property conveyed, or attempted to be conveyed, be decreed to have been received with notice and in trust for Vina Bryan and her grantee, this plaintiff; that it be decreed that each respective part be decreed to be held in trust for this plaintiff, and that each of the defendants claiming to own any portion of said land by each, respectively, do convey to the plaintiff; that they be enjoined from selling the same. The defendant demurred for several causes, among them that the bill is insufficient to require him to answer thereto. The district court sustained the demurrer, because of laches in not bringing this action sooner, allowing plaintiff to amend his bill so as to show that there were no laches, which plaintiff declined to do, and appealed to this court. All of this property was sold at a judicial sale. The price paid in the aggregate, as shown by the bill, amounted in round numbers to $5,000. It is now alleged to be worth $125,000.

It appears that the grantor of plaintiff stood by and saw all this property sold, and had a right to redeem the same in six months after the sale; that

her residence was in Maricopa county, at the death of her husband, and its continuance will be presumed to be there, the contrary not having been alleged; that there was no action brought to set aside the judgment; that from the 8th day of November, 1883, till the 9th day of June, 1887, nearly four years, she saw the property greatly enhancing in value, saw it sold time and time again, then sells it to the plaintiff, who now comes into a court of equity and asks a cancellation of all those sales.

If the bill had shown, and which plaintiff was allowed to show, that any disability existed on the part of any one having an interest in the property at the time of sale, we would grant the prayer of the bill. No such disability being shown, can we think of allowing the party who has so long slept upon her rights to divest the present owners of their valuable property?

It may be argued that these parties buying property which had been sold under a decree of court should have looked into the validity of the judgment; that they, seeing an action of M. W. Kales against M. W. Kales as administrator, should have gone further, and inquired if they were the same persons. Granting that,-and upon which we express no opinion,-equity requires that the action in equity should have been sooner commenced. It is true that in an action at law under the statute five years to commence an action is allowed. In the case of Harwood v. Railroad Co., 17 Wall. 78, "Harwood and others, representing that they were stockholders in the Cincinnati & Chicago Railroad, filed on the 25th of December, 1865, a bill in the district court against the Air-Line Railroad Company and others, to vacate a decree rendered in the same court in the early part of the year 1860, in a suit by George Carlisle as trustee of a second mortgage on the road for the benefit of a certain second issue of bonds against the said Cincinnati & Chicago Railroad Company. The bill in the case at bar alleged fraud and collusion in that suit between Carlisle and his confederates and certain other persons, lessees of the road, and in its possession, and who had agreed to pay the interest on the mortgages. It alleged that by the concurrence of these several parties the road had been allowed to lose credit, and that the payment of interest on its second mortgage bonds was willfully neglected in order that the property might be sold; that this arrangement had been carried out, and that the road had been sold and purchased in by the conspirators for about $25,000, when it was really worth $2,000,000 above a first mortgage of the same sum to which it was subject, and that the stockholders in the original road were injured by this collusive and fraudulent sale."

Let us read a part of the opinion of the supreme court, and see if it do not exactly fit the case before us. The court says: "We are of the opinion, also, that there has been too great delay in initiating this suit, and that no sufficient excuse is given for it. The sale was made five years before the commencement of this suit, and it is fairly to be inferred from the bill that the plaintiffs were aware of the proceedings as they progressed. Their knowledge of the mortgage sale is expressly admitted. The allegation of ignorance is, in general terms, of the fraudulent acts and arrangements. They do not allege when they acquired the knowledge, nor give a satisfactory reason why it was not sooner obtained. For aught that appears, they have slept upon their knowledge for several years. Without reference to any statute of limitations, the courts have adopted the principle that the delay which will defeat a recovery must depend upon the particular circumstances of each case. This case does not show a sufficient degree of diligence to justify the overthrow of a decree of foreclosure, under which new rights and interests must necessarily have arisen." See, also, Diefendorf v. House, 9 How Pr. 243; The Key City, 14 Wall. 653.

If in any case "the principle that the delay which will defeat a recovery" will apply, it is the one at bar, the presence of the grantor of plaintiff, seeing improvements on the property; seeing it first gradually improving from