Heinze v. Butte & Boston Consolidated Min. Co.

Citations

• 126 F. 1
• 61 C.C.A. 63
• 1903 U.S. App. LEXIS 4279

Syllabus

<p>1. Partition — Possession to Support Suit — Montana Statute.</p> <p>To support a suit for partition under Code Civ. Proc. Mont. § 1340, which authorizes such suit by co-tenants “who hold and are in possession of real property as joint tenants or tenants in common,” actual physical possession is not essential, and need not be alleged, but such possession as the law imputes to the holder of the legal title is sufficient.</p> <p>2. Same — Title of Complainant — Dental by Defendants.</p> <p>The bare denial of complainant’s title, on information and belief, by defendants in a suit for partition, who do not allege adverse title in themselves, does not put such title in issue, so as to require the court to stay the suit until it shall be established at law.</p> <p>8. Same — Cross-Bill Setting Up Equitable Title — Procedure.</p> <p>Where an intervener in a partition suit files a cross-bill setting up an equitable title to the interest claimed by complainant, and prays that certain deeds be canceled on the ground of the insanity of the grantor and of fraud, and that he be decreed to be the owner of such interest, there is no occasion for the court to stay the partition suit, but it may properly proceed and try all the issues raised at the same time, the effect necessarily being to defer any action as to partition until the issues raised by the cross-bill have been determined; and especially is such pro- • cedure appropriate where the cross-bill contains all the essentials of an original bill for affirmative relief, and in effect prays for partition.</p> <p>4. Same — Power to Appoint Receiver.</p> <p>In a suit for partition of mining property, in which the ownership of one of the interests is in dispute, the court has power to appoint a receiver for the share of the ore being mined by the co-tenants in possession, pertaining to such interest, where necessary to protect the rights of all the parties.</p> <p>5. Same — Receivers—Power to Direct Operation of Mines.</p> <p>Pend