Felger v. Coward

Opinion — Sandersov

By the Court, Sandersov, J. :

In Patterson v. The Keystone Mining Co., 30 Cal. 360, our attention was called to the statute of the 13th of April, 1860, (Stats. 1860, p. 175,) in relation to the conveyance of gold mining claims, and we considered, arguendo, that it had abrogated the rule announced in the case of the Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198, to the effect that title to a mining claim would pass by a verbal sale, if accompanied by a transfer of the possession. In the subsequent case of Goller v. Fett, 30 Cal. 484, the effect of the statute came up for further consideration, and its construction became indispensable to the final disposition of that case, and the effect suggested in Patterson v. The Keystone Mining Co. was formally declared to be the effect of the statute, and that title *653to gold mining claims could be passed only by an instrument in writing. (See, also, King v. Randlett, 33 Cal. 318.)

The rule established in Goller v. Fett seems to be conclusive of the present case. It is an ordinary action of ejectment, and the plaintiff, at least, showed only a contract by the defendant to convey. His remedy was for specific performance, and, as incidental to that, delivery of the possession.

Order denying a new trial reversed and a new trial granted.

Mr. Justice Saavyer expressed no opinion.