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that, if it be not well taken, the record dis- | Malley and Ross, and Thatcher conveyed a closes other grounds, not considered by that fraction of his interest to Healey. Because court, for reversing the judgments and order- of these transfers, and with the court's aping a new trial. And he further urges that, proval, Faubert was eliminated as a party if the decision of the Circuit Court of Appeals and Cole, Malley, Ross and Healey came in be right, it is not sufficiently comprehensive as plaintiffs. Thus the changes in title pendto serve as a guide to the court and the par-ing the suit were followed by corresponding ties upon another trial. The plaintiffs insist changes in the parties plaintiff. that the judgments in the District Court were right and should be affirmed.
 In the circumstances it is open to us to deal only with the matter considered by the Circuit Court of Appeals and to remand the cases to it for any needed action upon other questions, or to proceed ourselves to a complete decision. The latter course seems the better inasmuch as counsel have united in presenting to us all questions thought to arise upon the record and the litigation already has covered a considerable period.
[2, 3] Criticism is made of the complaints. As presented in the state court they fully met the requirements of the local Code, Rev. Laws 1912, § 5526, and there was no request after the removal into the federal court that they be recast to meet any further requirements prevailing there. Apart from the local Code, each sufficiently stated a cause of action in the nature of ejectment, save as some allegations were wanting in precision and it was left uncertain whether the defendant was in possession. The latter defect was cured by an affirmative statement in the answer that the defendant was in possession. Texas & New Orleans R. R. Co. v. Miller, 221 U. S. 408, 416, 31 Sup. Ct. 534, 55 L. Ed. 789. If the other defects embarrassed the defendant he should have interposed a timely objection, which doubtless would have resulted in propriate amendments. Instead, he permitted the matter to pass until the trial was in progress and then sought to obtain some advantage from it. This he could not do; by his failure to make timely objection the defects had been waived. We here dispose of a related question by saying that, in our opin*291
[4, 5] At all the times mentioned the title was in a sense affected by an outstanding contract, executed by the original locators, which invested Thatcher and Forman with a right to a specified share in the output or proceeds of the claim, and possibly with a right to have it worked and thereby made productive. The contract was not recorded, but this is not material, for the contract was good between the parties and no subsequent purchaser is calling it in question. See Rev. Laws 1912, §§ 1038-1040. Unlike Thatcher, Forman had no interest in the claim other than under this contract. He did not join in filing the adverse claim or in bringing the suit, but with the court's approval came in as a plaintiff before the trial. We think his in*terest was not such as to make him an essential party to the adverse claim or to the suit, and yet was such as to make him an admissible party to either. Of course the acts of those having the title in filing the adverse claim and bringing the suit inured to his benefit. And had they proceeded in his absence to a judgment in their favor the same Would have been true of it. But this does not prove that he could not be admitted as a plaintiff. He had an interest—a real interest
in the maintenance and protection of the ap-claim which was the subject of the suit, and in view of the liberal provisions of the local statute, Rev. Laws 1912, §§ 4998, 5000, we think the court did not err in allowing him to come in as a plaintiff. It is not asserted that his presence was prejudicial to the defendant and we perceive no ground for thinking it
ion, the *complaints, with the answers, put in issue the validity of the lode locations, including the requisite mineral discovery.
The defendant insists that necessary parties did not join in filing the adverse claims in the land office, that in the suits there was a misjoinder of plaintiffs and a failure to join essential plaintiffs, and that deeds showing title in some of the plaintiffs were erroneously admitted in evidence in that they were without the requisite revenue stamps. We think this insistence is untenable in all its phases.
As respects the Guy Davis placer, Davis and Faubert were the original locators and Faubert soon conveyed a fraction of his interest to Thatcher. These three filed the adverse claim and brought the suit, the title being in them at the time. Thereafter Faubert transferred his remaining interest to Cole,
could have been.
 As respects the Homestake placer, Murray Scott and John J. Healey were the original locators and the title was still in them when the adverse claim was filed and when the suit was begun, unless there be merit in the defendant's contention that Scott's interest had then passed to others under attachment proceedings and that Healey's interest had then passed to his wife. Neither branch of the contention is, in our opinion, well grounded. The attachment proceedings, although commenced before the adverse claim was filed, did not result in a transfer of Scott's title until after the present suit was begun. The purported conveyance of Healey's interest to his wife, to which the defendant directs attention, recites that it was made upon a consideration paid in money at the time, and this is in no wise explained. There is no evidence that the consideration was paid out of any separate prop
erty of the wife, or that the conveyance was stamp provision, such as the imposition of intended as a gift to her, or that she ever listed the subject of the conveyance as her separate property. In these circumstances, according to the laws of the state, the Healey interest was community property, of
which the husband had the "entire *management and control" and the "absolute power of disposition." He could lease or convey it without the wife's concurrence and could sue in respect of it in his name alone. Rev. Laws 1912, §§ 2155-2160; Crow v. Van Sickle, 6 Nev. 146; Lake v. Bender, 18 Nev. 361, 384, 385, 4 Pac. 711, 7 Pac. 74; Adams v. Baker, 24 Nev. 375, 55 Pac. 362; Malstrom v. People's Ditch Co., 32 Nev. 246, 260, 107 Pac. 98.
There was here a contract with Thatcher and Forman like that relating to the Guy Davis, and this gave them a real interest in the claim, as already explained.
 The adverse claim was filed and the suit was brought by Scott, Healey, Thatcher and Forman. Afterwards, and following the consummation of the attachment proceedings, the entire interest of Scott was transferred to Cole, Malley, Ross and Davis, and by reason of this, and with the court's approval, Scott was eliminated as a party and Cole, Malley, Ross and Davis came in as plaintiffs. Thus there was no misjoinder of plaintiffs, nor any failure to join an essential party. Of course, those who succeeded to Scott's interest pending the suit were entitled to the benefit of what he had done while he held the title.
 In one of the adverse claims Healey's name was given as Frank J. instead of John J., but this was a mere inadvertence, did not mislead or prejudice any one, and rightly
was disregarded by the District Court.
 As to the absence of revenue stamps, it is true that the deeds showing title in some of the plaintiffs-they were produced in evidence over the defendant's objection-were without the stamps required by the Act of October 22, 1914, c. 331, § 22, Schedule A, 38 Stat. 762. But this neither invalidated the deeds nor made them inadmissible as evidence. The relevant provisions of that act, while otherwise following the language of earlier acts, do not contain the words of those acts which made such an instrument invalid
money penalties, fines and imprisonment. The decisions upon which the defendant relies arose under the earlier acts and were based upon the presence in them of what studiously was omitted from the later one.
As a preliminary to considering other contentions it will be helpful to refer to some features of the mineral land laws, Rev. Stat. § 2318 et seq. (Comp. St. § 4613 et seq.), about which there can be no controversy, and also to what actually was in dispute at the trial and what not in dispute.
By. those laws public lands containing valuable mineral deposits are opened to exploration, occupation and acquisition for mining purposes; and as an inducement to effective exploration the discoverer is given the right to locate a substantial area embracing his discovery, to hold the same and extract the mineral without payment of rent or royalty, so long as he puts one hundred dollars' worth of labor or improvements-called assessment work-upon the claim each year, and to demand and receive a patent at a small sum per acre after he has put five hundred dollars' worth of labor or improvements upon the claim.
 In advance of discovery an explorer in actual occupation and diligently searching for mineral1 is treated as a licensee or tenant at will, and no right can be initiated or *acquired through a forcible, fraudulent or clandestine intrusion upon his possession. But if his occupancy be relaxed, or be merely incidental to something other than a dili
gent search for mineral, and another enters peaceably, and not fraudulently or clandestinely, and makes a mineral discovery and location, the location so made is valid and must be respected accordingly. Meagher, 104 U. S. 279, 287, 26 L. Ed. 735; Union Oil Co. v. Smith, 249 U. S. 337, 346348, 39 Sup. Ct. 308, 63 L. Ed. 635, and cases
 A location based upon discovery gives an exclusive right of possession and enjoyment, is property in the fullest sense, is subject to sale and other forms of disposal, and the required annual assessment work preso long as it is kept alive by performance of vents any adverse location of the land. Gwillim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. 1110, 29 L. Ed. 348; Swanson v. Sears, 224 U. S. 180, 32 Sup. Ct. 455, 56 L. Ed. 721.
 While the two kinds of location-lode and placer-differ in some respects, 2 a dis
1 As to the status of an explorer or locator on oil-bearing land in advance of discovery, see the special provisions in Act June 25, 1910, c. 421, § 2, 36 Stat. 847 (Comp. St. § 4524), and Act March 2,
and inadmissible as evidence while not *properly 'stamped. Those words were carefully omitted, as will be seen by contrasting sections 6, 11, 12 and 13 of the Act of 1914 with sections 7, 13, 14 and 15 of the Act of 1898, c. 448, 30 Stat. 454. From this and a comparison of the acts in other particulars it is 1911, c. 201, 36 Stat. 1015 (Comp. St. § 4637). apparent that Congress in the later act de- 2 Clipper Mining Co. v. Eli Mining Co., 194 U. S. parted from its prior practice of making such | 220, 229, 24 Sup. Ct. 632, 48 L. Ed. 944; Webb v. instruments invalid or inadmissible as evidence while remaining unstamped and elected to rely upon other means of enforcing this
American Asphaltum Co., 157 Fed. 203, 84 C. C. A. Fed. 830, 120 C. C. A. 160; Harry Lode Mining Claim, 651; San Francisco Chemical Co. v. Duffield, 201 41 Land Dec. 403.
ther party, and, if so, which, has the exclusive right to the possession arising from à valid and subsisting location. A suit appro
covery within the limits of the claim is equally essential to both. But to sustain a lode location the discovery must be of a vein or lode of rock in place bearing valuable min-priate to the occasion must be brought by eral (section 2320 [Comp. St. § 4615]), and to the adverse claimant, and in that suit each sustain a placer location it must be of some other form of valuable mineral deposit (section 2329 [Comp. St. § 4628]), one such being scattered particles of gold found in the softer covering of the earth. A placer discovery will not sustain a lode location, nor a lode discovery a placer location. As is said by | Mr. Lindley,3 § 323:
"Gold occurs in veins of rock in place, and when so found the land containing it must be appropriated under the laws applicable to lodes. It is also found in placers, and when so found the lands containing it must be appropriated according to the laws applicable to *placers."
And again (section 419):
"It is the mode of occurrence, whether in place or not in place [meaning in rock in place], which determines the manner in which it should be located."
[13-15] Location is the act or series of acts whereby the boundaries of the claim are marked, etc., but it confers no right in the absence of discovery, both being essential to a valid claim. Waskey v. Hammer, 223 U. S. 85, 90, 91, 32 Sup. Ct. 187, 56 L. Ed. 359; Beals v. Cone, 27 Colo. 473, 484, 495, 62 Pac. 948, 83 Am. St. Rep. 92; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev. 543, 560, 138 Pac. 71; New England Oil Co. v. Congdon, 152 Cal. 211, 213, 92 Pac. 180. Nor does assessment work take the place of discovery, for the requirement relating to such work is in the nature of a condition subsequent to a perfected and valid claim and has "nothing to do with locating or holding a claim before discovery." Union Oil Co. v. Smith, supra, 249 U. S. 350, 39 Sup. Ct. 311, 63 L. Ed. 635. In practice discovery usually precedes location, and the statute treats it as the initial act. But in the absence of an intervening right it is no objection that the usual and statutory order is reversed. In such a case the location becomes effective from the date of discovery; but in the presence of an intervening right it must remain of no effect. Creede & Cripple Creek Mining Co. v. Uinta Tunnel Mining Co., 196 U. S. 337, 348-351, 25 Sup. Ct. 266, 49 L. Ed. 501, and cases cited; Union Oil Co. v. Smith, supra, 249 U. S. 347, 39 Sup. Ct. 308, 63 L. Ed. 635.
When an application for a patent to mineral land is presented at the local land office and an adverse claim is filed in response to the notice required by the statute (section 2325 [Comp. St. § 4622]) further proceedings upon the application must be suspended to await the determination by a court of competent jurisdiction of the question whether ei
Lindley on Mines, 3d Ed.
party is deemed an actor and must show his
The situation developed by the evidence presented and admissions made in the course of the trial was as follows: At the outand it remained such save as the locations set the land was public and unappropriated, in question or some of them may have changed its status. The lode locations were made, one in 1897 and the other two in 1907, and the placer locations in September, 1913. The title under the latter already has been sufficiently traced. That under the lode locations passed to the Glasgow & Western Exploration Company soon after they were made, and the defendant, Ralph, claims under a deed executed by that company's liquidator in 1914. The principal controversy was over the presence or absence of essential discoveries within the lode locations, the other that a vein or lode of rock in it being denied on one hand and affirmed on
place bearing valuable mineral was discovered in each location before the placer locations were made. It was not controverted, but, on the contrary, conceded, that that point of time was the important one in the inquiry. Thus when the presiding judge in
latter were persuasive, but it was not without noticeable infirmities, among them the following: The defendant testified that no ore was ever mined upon any of the lode claims, and that "there was no mineral exposed to the best of my [his] knowledge which would stand the cost of mining, transportation and reduction at a commercial profit." In the circumstances this tended to discredit the asserted discoveries; and of
dicated his view by saying, "My idea is that you can't take advantage of any discoveries made since the placer locations, and I don't believe there can be any dispute about that," counsel for the defendant responded, "No, your honor, there is none," and on another occasion counsel said, "We are undoubtedly limited to proving that there was a discovery of mineral in place on each of our lode claims prior to the location of the placer claims." In all particulars other than dis-like tendency was his unexplained statecovery the regularity and perfection of the lode locations were conceded. Closely connected with the controversy over lode discoveries was another over the applicability and effect of section 2332 of the Revised Statutes (Comp. St. § 4631), but it will be passed for the moment and separately considered later. As to the placer claims, it was shown that they were based upon adequate discoveries of placer gold within their limits, and counsel for the defendant announced, "We don't deny this ground is of placer character." Their boundaries were properly marked, and the requisite notices were posted and certificates recorded. The only questions respecting their validity that were presented and need present mention were, first, whether at the time the placer locations were made the lode locations had become valid and effective claims, thereby precluding any adverse location of the same ground, and next, if the lode locations had not then become valid and effective, whether the placer locations were initiated and made through wrongful intrusions or trespasses upon any actual possession of the lode claimant. The defendant, as is admitted in his brief in this court, did not claim that any lode or vein was or should be excepted from the placer claims, but only that they were of no effect for the reasons just indicated.
*The evidence bearing upon the presence or absence of lode discoveries 4 was conflicting. That for the plaintiffs tended persuasively to show the absence of any such discovery before the placer claims were located, while that for the defendant tended the other way. Separately considered, some portions of the
ment, referring to the claims grouped in this patent application, that "some of them have not a smell of ore, but they can be located and held on the principle of being contiguous to adjacent claims"-an obviously mistaken view of the law-and his further statement, referring to vein material particularly relied upon as a discovery, that he "would hate to try to mine it and ship it." As respects the initiation and working of the placer claims, the plaintiffs' evidence indicated that the locators entered openly, made placer discoveries, performed the requisite acts of location, excavated several shafts in the "wash" from 35 to 57 feet in depth, ran drifts from the bottom along the bedrock, and mined a considerable amount of placer gold; and that these acts covered a period of between two and three months. None of this was contradicted; and there was no evidence that the locators met with any resistance or resorted to any hostile, fraudulent or deceptive acts. But there was evidence of such ownership of buildings, comparatively recent prospecting, and maintenance of a watchman, on the part of the lode claimant as made it a fair question whether he was in actual possession when That he was the placer locators entered.
in possession of the buildings and the ground where they stood was made certain, but that he had any actual possession beyond that was reasonably debatable under the evidence.
The buildings were all on the same claim and covered only a part of it. One was a mill formerly in use but then dismantled and stripped of its machinery. All had been used in connection with mining operations upon other claims, but the operations had then been suspended. The buildings were The following extracts from Chrisman v. Miller, 197 U. S. 313, 322, 25 Sup. Ct. 468, 470 (49 L. Ed. not disturbed by the placer locators, nor was 770), show what constitutes an adequate discovery: there any attempt to appropriate them. A "The mere indication or presence of gold or sil-watchman was in charge, but so far as apver is not sufficient to establish the existence of a lode. The mineral must exist in such quantities pears he made no objection to what was as to justify expenditure of money for the develop- done. Although a witness for the defendant ment of the mine and the extraction of the mineral." "Where minerals have been found and the evi
dence is of such a character that a person of ordi
nary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."
"The facts which are within the observation of the discoverer and which induce him to locate, should be such as would justify a man of ordinary prudence, not necessarily a skilled miner, in the expenditure of his time and money in the development of the property."
and in his employ, he was not interrogated upon this point. Of course, ownership of the buildings did not in itself give the lode claimant any right in the land or prevent others from entering peaceably and in good faith to avail themselves of privileges accorded by the mineral land laws; but the presence of the
5 The lode claimant at that time was either the liquidator of the Glasgow & Western Exploration Company or the company itself.
were therefore invalid." And the court in charging the jury said:
"The burden is on the plaintiffs in the first instance to show that when they went on these claims to locate the placers the ground was open to location, and that there was at the time no valid, subsisting location where their discoveries were made."
It therefore is plain that the burden of proof was dealt with and carried in a manner which does not admit of criticism by the defendant.
 It is objected also that the court refused to direct verdicts for the defendant. But what has been said sufficiently shows that, in our opinion, the evidence presented several disputable questions of fact which it was the province of the jury to determine. This was the view not only of the judge who presided at the trial but of another judge who in overruling the motion for a new trial said:
Even if the lode claimant was in actual possession of all, it still was a disputable question under the evidence whether there had not been such acquiescence in the acts of the placer locators in going upon the ground, making placer discoveries and marking their locations as gave them the status of lawful discoverers and locators rather than wrongful intruders or trespassers, that is to say, the status of explorers entering by permission and then making discoveries. See Crossman v. Pendery (C. C.) 8 Fed. 693. The questions of fact to which we have adverted were all submitted to the jury under a charge which was comprehensive, couched in plain terms, and in substantial accord with the legal principles hereinbefore stated. And, while the defendant criticizes some portions of the charge, we think they neither included nor omitted anything of which he rightfully can complain. As has been said, the jury returned general verWere we less satisfied than we are upon the dicts for the plaintiffs, and also special ver- point we should hesitate to disturb the condicts finding that no lode had been discov-curring conclusions of those judges. ered within any of the lode locations before the placer ones were made.
 But it is objected that the court, instead of requiring the plaintiffs to take the burden of proving the absence of essential lode discoveries, subjected the defendant to the burden of proving that there were such discoveries. This is not in accord with the record. It there appears that the plaintiffs undertook at the outset to establish the absence of any lode discovery and persisted in that course, a large, if not the larger, part of their case in chief being directed to that point. When they rested the defendant moved that the evidence produced by them "as
to the absence of lodes, or the failure or inability of the witnesses to find or discover
lodes or mineral-bearing *rock in place" with-
"I think that not only is there substantial evidence to support the verdict, but the preponderance is upon that side."
 *It is urged that the court erred in not holding that the placer claimants had admitted the validity of one of the lode locations by relocating the ground as a lode claim. A short statement of what was done will show, as we think, that it did not involve any such admission. After the placer claimants made their placer discovery a representative of theirs posted on the ground a notice stating that they had relocated it as a lode claim. The next day he substituted another notice stating that they had located it as a placer claim. The first notice did not accord with
their discovery and the other did. Nothing was done or claimed under the first and all the subsequent steps were in accord with the other. Evidently the first was posted by mistake and the other as the true notice. No one was misled by the mistake and it was promptly corrected. In these circumstances, the first notice was of no effect and no admission could be predicated of it. Zeiger v. Dowdy, 13 Ariz. 331, 114 Pac. 565.
 The further objection is made that no probative force was given to recitals of discovery in the recorded notices of location of the lode claims. The notices were admitted in evidence and no instruction was asked or given respecting the recitals. In one nothing is said about discovery, and what is said in the other two is meager. But, passing this, the objection is not tenable. The general rule is that such recitals are mere ex parte selfserving declarations on the part of the locators, and not evidence of discovery. Creede & Cripple Creek Mining Co. v. Uinta Tunnel Mining Co., 196 U. S. 337, 352, 25 Sup. Ct.