Appeal from the District Court of the United States for the District of Arizona; Wm. H. Sawtelle, Judge.

Suit by the Shannon Copper Company against -the Becker-Franz Company for partition. Decree for plaintiff, and defendant appeals.

In November, 1908, the appellant entered into an agreement with J. W. Bennie by the terms of which it agreed to convey to Bennie the mining claims here in controversy upon payment of the sum of $12,500, of which $100 was to be paid upon the execution of the agreement, and $6,150 upon the deposit by the appellant of an abstract of title, and the further sum of $0,250 on or before July 31, 1909. It was further agreed that Bemiie might at any time prior to the last-named date reconvey to the appellant a 49/ioo interest in said mining claims in lien of the last payment, in which event Bennie was given the right to purchase the appellant’s 40/ioo at any time before I>eccm-ber 1, 1910, for the sum of $10,000. The first two payments were made, but the $6,250 payment was not made. The appellant declared a forfeiture and brought suit in the superior court of the state of Arizona to quiet its title and therein obtained a decree quieting its title to the mining claims. Upon appeal to the Supreme Court of Arizona, the decree was reversed (Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280); the court holding that, although time had been made the essence of the agreement, that provision had been waived. A second trial was had in the superior court, and on June 28, 1915, a decree was again rendered in favor of the appellant herein. Upon a second appeal to the Supreme Court, the decree was reversed (Bennie v. Becker-Franz Co., 17 Ariz. 198, 149 Pac. 749); tie court ruling that the Becker-Franz Company, while it held the legal title to the property, was the owner of but an undivided 49/ioo interest therein, and that Bennie was the equitable owner of the remainder thereof.

Thei eafter, on September 4, 1915, a decree was entered in the superior court in accordance with that decision. During the years 1941, 1912, 1913. and 1914. ponding the litigation, the annual assessment work was performed by the appellant, and on September 14, 1915, the appellant served upon Bennie a notice of forfeiture under paragraph 2324, Rev. Stats., for failure to pay his proportion of said assessment work. Bennie subsequently conveyed his Interest in said property to the appellee herein, and the latter brought the present suit in the court below for partition of the mining claims. The appellant in its answer to the partition suit pleaded its acquisition of title to (.lie appellee’s interest by reason of the forfeiture before mentioned, and demanded that in case the appellee should be decreed to be the owner of ¡>Vioo of the mining claims that the appellant have judgment against the appellee for 51 per cent, of the amounts so expended in assessment work. As against the appellant's claim of forfeiture, the appellee in its reply pleaded as estoppel the judgment of the Supreme Court of Arizona of June 28, 1915, whereby, the appellee alleged, the title of the respective parties in and to their undivided interests in the mining claims was quieied in each as against any and all claims, demands, or pretensions of the other, and the appellee further alleged that Bennie had made due tender to the appellant of his proportion of the cost of the assessment work of the claims for the years 1911 to 1914, inclusive, but that the tenders were refused and rejected by the appellant, and that during said years said J. W. Bennie as cotenant was ready and willing to perform bis proportion of the assessment work, but that lie was excluded from the possession of the property, and prevented by the appellant from entering upon the same for the purpose of doing the assessment work, and that the work so done was done in hostility to the appellee’s title, and that of its predecessor in interest.

The court below denied the appellant’s claim of title by forfeiture and its right to recover from the appellee any of the costs of assessment work for the years 1912 to 1914, inclusive.