Patterson

(dissenting).

The record of the case on the present appeal, as well as the record before us on the former appeal ( 220 F. 21 , 135 C.C.A. 597 ), shows without dispute that the $5,174.66 in the registry of the court below was 5 per cent, of the gross amount of gold taken from the Daly Bench mining claim by H. C. Hamilton under the assignment made to him by H. J. Patterson of the lease to the latter from Wickersham. In the judgment of the court below dismissing the former suit appears the following respecting that money: “And it further appearing from the records of this action that, on the 17th day of May, 1912, an order was made in this cause, directing H. C. Hamilton, as lessee of the Daly Bench, described in the complaint herein, [to] deposit with the clerk of this court 5 per cent, of the gross amount of gold mined by him upon said mining claim during the pend-ency of this action, as royalty accruing to the owner of the undivided one-fourth interest in said Daly Bench, the title to which is in controversy in this action, to be held to await the determination thereof, and that the value of the said 5 per cent, of the gross amount of gold so mined by the said Hamilton is…

(after stating the facts aá above).

The appellee asserts that the question for decision is whether or not the deed made by Patterson to his wife on November 27, 1911, carried with it an assignment or conveyance of the sublease made by Patterson to Hamilton on the same day, under which sublease Patterson retained 5 per cent, of the gross output of the whole claim. We think the question for decision is not thus limited, and that it involves a broader view of the equitable rights of *615 Mrs. Patterson as the owner of a one-fourth interest in the mining claim. The proof on the second trial clearly established that the money furnished by Mrs. Patterson, whereby the one-fourth interest was so acquired, was her individual and separate property.

The situation should be viewed as it would be if the marriage relation did not exist. It may be expressed in this manner: A. holds the legal title to a one-fourth interest in a mining claim, in trust for B., who is the equitable owner thereof. The owner of the three-fourths interest enters into an agreement of lease with A., whereby the latter is to operate the whole claim, and pay the former 25 per cent, of the total output. A month later, and…