Gildersleeve v. New Mexico Mining Company
The relief sought by appellant in the lower court was to have the New Mexico Mining Company, to whom certain letters patent were issued by the United States for a Mexican mining grant, declared a trustee for his benefit to the extent of a one-fourth interest in the land covered by said letters patent.

The territorial district court held that the statute of limitations barred the suit, and therefore dismissed the bill. The supreme court of the territory affirmed the decree of dismissal (27 Pac. 318), holding the plea of the statute of limitations good, and also sustained the mining company's contention that Mrs. Ortiz, under whom they claimed, acquired title through a valid mutual will, executed by herself and her husband in 1841. The cause was then brought to this court by appeal. From the findings in the record the following facts are extracted:

The property in controversy, covered by the United States patent, embraced a mining grant made by the government of Mexico in 1833, to Jos e Francisco Ortiz and Ignacio Cano. This grant consisted of a gold mine or vein, and a small extent of surface ground, as also commons of pasture and water to the extent of four leagues from each of the four cardinal points of the mine. Some time prior to the cession of New Mexico to the United States, under the treaty of February 2, 1848, Cano sold and transferred all his interest in the grant in question to Ortiz, his co-owner. On August 15, 1841, Ortiz and his wife executed before a Mexican alcalde and two attending witnesses a mutual will, in which it was provided that the survivor should be the universal legatee or heir of the other to all the property, both real and personal, of every kind whatsoever. Ortiz died before his wife, July 22, 1848, at Santa F e, N. M.; and thereupon Mrs. Ortiz entered into the possession of the mine and the enjoyment of the privileges connected therewith, and retained this possession up to December 20, 1853, when she sold and delivered the possession thereof to John Greiner, the deed to whom was recorded in the office of the probate clerk of Santa F e county on December 29, 1853. Greiner remained in possession until August 19, 1854, when he transferred the property to Elisha Whittlesley and six others. Contemporaneous with the execution of the deed to Whittlesley et al., they and one other person executed articles of association under the name of the New Mexico Mining Company; and on February 1, 1858, the members of the association were incorporated by the legislature of the territory of New Mexico, under a similar designation.

On November 8, 1860, Whittlesley et al., as representing the New Mexico Mining Company, petitioned the then surveyor general of the territory to examine their title to said grant. That official complied with the request, and made a favorable report to congress, which, by an act approved March 1, 1861 (12 Stat. 887), confirmed the grant, the claim being designated as 'private land claim No. 43.' A survey of the grant was thereafter made, and was completed on August 14, 1861, but such survey was not approved by the secretary of the interior until April 22, 1876. On May 20, 1876, a patent issued in the name of the New Mexico Mining Company, the lands embraced therein being stated to contain 69,458.33 acres, less 259 acres in conflict with another grant.

In addition to the possession by Mrs. Ortiz, before stated, her grantee, Greiner, and his assigns, held actual, open, and notorious possession of the property in question from the conveyance to Greiner in December, 1853, until the commencement of this litigation in 1883. Such possession was held by employing an agent or agents to live on the property at the village of Dolores, near the said mine, and by making large and extensive improvements on the property, in building a large stamp mill at Dolores, near said mine, and many other acts, open and notorious, indicative of ownership of the property. No attempt was ever made by those through whom Gildersleeve claimed to interfere with such possession or enjoyment of the property, or to actively assert any right or interest in said property, except through a suit brought in 1880 by Brevoort, as hereinafter stated. None of said parties ever intervened in the proceedings instituted before the surveyor general looking to the confirmation of the grant to the New Mexico Mining Company, nor after the surveyor general's report to congress was an objection raised to the passage of the act confirming the grant, nor, indeed, at any time did the complainant or those under whom he claims object to the mining company's assertion of title to the property, or to the issuance of letters patent to the company.

The complainant bases his right to the equitable relief prayed for in his bill upon the assertion that the authentic mutual will of Ortiz and his wife heretofore referred to was void, because not executed with the formalities required by law as to the number of witnesses, etc., and that, subsequently, Ortiz died intestate, leaving no direct but certain collateral heirs, who conveyed in 1873 the interest inherited by them from Ortiz, to one Brevoort, who in 1880 conveyed an undivided one-half interest in the property thus acquired by him jointly to appellant and Knaebel. The consideration of the last conveyance from Brevoort to Gildersleeve and Knaebel, they being attorneys at law, was money advanced and services rendered and to be rendered to Brevoort for the maintenance of a suit then or about to be instituted to enforce Brevoort's alleged title to the mine.

At the July, 1880, term of a district court of the territory, Brevoort, through the attorneys in question, filed a bill against the New Mexico Mining Company, asserting his equitable title to an undivided interest in the land covered by the patent; but after the taking of testimony, and the hearing of exceptions, upon the report of a master, the court, on July 16, 1884, dismissed the cause.

At the February term, 1883, of the same court, certain alleged heirs and legal representatives of Ignacio Cano instituted suit against the New Mexico Mining Company and others, based upon the claim that Cano had never conveyed his interest in the mine to Ortiz, and that, in consequence, he was seised at the time of his death of an undivided interest in the property. The court, however, sustained the plea of a former adjudication based on an action which had been instituted in 1865 by the same persons or others with whom the  were in privity, and dismissed the bill. Brevoort was a party defendant to this second suit of the Cano claimants. He filed a cross bill, denying the rights of the heirs of Cano, and setting up title in himself to an undivided part of the mine and land covered by the patents by virtue of the conveyances aforesaid from the collateral heirs of Ortiz, and asked the same relief as that prayed for in his former suit. Subsequently, the mining company compromised their controversy with Brevoort and Knaebel, and Brevoort was dismissed from the cause. Thereupon Gildersleeve intervened, and was permitted by the court to set up his rights, under the conveyance from Brevoort to himself, with the same effect as though he had originally been made a defendant. The court, treating the compromise between Brevoort and the mining company as inoperative against Gildersleeve, by its order allowed Gildersleeve to assert his rights, nunc pro tunc, as if they had been advanced at the time Brevoort filed his cross bill.

The issue thus formed between Gildersleeve and the New Mexico Mining Company thereupon proceeded as a new action, with Gildersleeve as complainant.

In 1880 the mining company transferred the property embraced in the letters patent to Stephen B. Elkins and Jerome B. Chaffee, but the greater portion of the property was reconveyed to the company in 1884.

It is not material, however, to notice the disposition made by Chaffee and Elkins of the land not reconveyed by them to the mining company.

The issue between Gildersleeve and the mining company, as heretofore stated, resulted adversely to complainant in the territorial courts.

Thomas Smith, for appellant.

Joseph Larocque, for appellee.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court. 

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