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nite, it could bind neither Foss nor Bissell until Hunter was consulted and agreed to it. If Hunter declined, the matter was at an end, and there was no obligation on either Foss or Bissell to purchase for themselves or themselves and Hunter.
The record shows, and counsel for Bissell contend, that Foss told Hunter about the arrangement, in reference to the purchase, between himself and Bissell. There is no proof that Hunter assented to the arrangement made between Foss and Bissell. It is clear that he did not assent, for he made a different arrangement with Foss, by which he was to purchase and pay for two-thirds of the share of the Missourians, and Foss the other third, and by which he was to advance all the money to make the purchase, leaving the funds of the associates on deposit in the Miners' Exchange Bank untouched. It is plain, therefore, that the project of Foss and Bissell for the purchase, for the joint benefit of themselves and Hunter, of the share of the Missourians fell through. It could not be carried out without the assent of Hunter,
and he did not assent.
To show the fraudulent conduct of Foss and Hunter, stress is laid by counsel for the appellant on the fact that they deceived the Missourians by the pretense that Hunter was willing to sell, and that he did actually sell, his onefourth to Foss for $15,000, and thus induced them to sell at the same price. But as the Missourians were the only persons injured by this stratagem, if any one was injured, and they do not complain, we do not see how it concerns the appellant. The device by which Foss and Hunter made the purchase at $15,000 did not add to or detract from the rights of the appellant. And, as he is seeking to get the benefit of the contract thus fraudulently made, as he alleges, it does not lie in his mouth to complain of a fraud of which he is seeking to share the fruits. Bissell had no ground upon which he could base any contract right to an interest in the purchase made by Foss for himself and Hunter. He paid no money on the purchase, and he could not have been compelled to pay any, either by the Missourians with whom he had no contract, or by Foss, who, after Hunter had declined to acquiesce in the arrangement between Bissell and himself, could not have demanded of Bissell that he and Foss should buy for themselves. And if Foss had actually bought for himself and Bissell, he could not have compelled the latter to pay his half of the purchase money, for Bissell had never agreed to such a purchase. The agreement could not bind Foss unless it also bound Bissell. Bissell therefore did not, by reason of his agreement with Foss, acquire any interest in the share purchased by Foss and Hunter of the Missourians.
But the appellant insists that there was a mutual agreement between Bissell and Foss that if either made the purchase it should be for the benefit of all, and that this agreement, although not amounting to a contract which could be specifically enforced if it had been made with a stranger, created between parties who sustained to each other the confidential and trust relations which existed between these parties a constructive trust which would be enforced in equity. The contention is that these three parties were in such relations to each other that if one bought a share in the common property and business, it inured in equity to the benefit of all, subject to the payment by each of the associates of his share of the purchase money. The relations from which this result springs are stated to be those, first, of joint tenants, and, second, of partners; and that, by reason of these relations, Foss and Hunter became trustees for themselves and Bissell in purchasing the share of the Missourians. It is true that one of two or more tenants in common, holding by a common title, cannot purchase an outstanding title or incumbrance upon the joint estate for his own benefit. Such a purchase inures to the benefit of all, because there is an obligation between them, resulting from their joint claim and community of interest, that one of them shall not affect the claim
to the prejudice of the others. Rothwell v. Dewees, 2 Black, 613; Van Horne v. Fonda, 5 Johns. Ch. 388; Lloyd v. Lynch, 24 Pa. St. 419; Adm'rs of Downer v. Smith, 38 Vt. 464.
But this rule cannot apply to Hunter and Foss. They purchased no outstanding title or incumbrance to the prejudice of the other tenant in common. They did what any tenant in common with entire good faith might do, namely, purchased the interest of some of their co-tenants without consulting the others. The title which they purchased of the Missourians was not antago nistic or hostile to the title of Bissell. Their purchase did not in any degree tend to injure or damage his interest. His share was just as valuable after as before the purchase, and his rights were the same. In such a purchase no trust or confidence is violated. Nor do we think that the relations of the parties as partners prohibited Foss and Hunter from making the purchase in question for their own benefit to the exclusion of Bissell. The association of Bissell, Foss, Hunter, and the Missourians was not an ordinary partnership. It was what is known as a mining partnership, which is a partnership sub modo only, and is thus described by Mr. Justice FIELD in Kahn v. Smelting Co. 102 U. S. 641: "Mining partnerships, as distinct associations, with different rights and liabilities attaching to their members from those attaching to members of ordinary trading partnerships, exist in all mining communities; indeed, without them successful mining would be attended with difficulties and embarrassments much greater than at present." He then quotes a passage from the opinion in Skillman v. Lockman, 23 Cal. 203, to the effect that a mining partnership is governed by many of the rules relating to ordinary partnerships, but also by some rules peculiar to itself, one of which is that one person may convey his interest in the mine and business without dissolving the partnership, and then proceeds as follows: "The same doctrine is asserted in numerous other cases, not only in that court but in the courts of England. Associations for working mines are generally composed of a greater number of persons than ordinary trading partnerships; and it was early seen that the continuous working of a mine, which is essential to its successful development, would be impossible, or at least attended with great difficulties, if an association was to be dissolved by the death or bankruptcy of one of its members, or the assignment of his interest. A different rule from that which governs the relations of members of a trading partnership to each other was therefore recognized as applicable to the relations to each other of members of a mining association. The delectus persona, which is essential to constitute an ordinary partnership, has no place in these mining associations. Duryea v. Burt, 28 Cal. 569; Settembre v. Putnam, 30 Cal. 490; Taylor v. Castle, 42 Cal. 367."
This case settles two propositions: First, that the members of a mining association have no right to object to the admission of a stranger into the association who buys the share of one of the associates; and, second, that the sale and assignment by one of the associates of his interest does not dissolve the mining partnership. It follows from these propositions that one member of a mining partnership has the right, without consulting his associates, to sell his interest in the partnership to a stranger, and that such a sale injures no right or property of the other associates. Much less does a purchase by one associate of the share of another inflict any wrong upon the other members of the partnership. There is no relation of trust or confidence between mining parties which is violated by the sale and assignment by one partner to a stranger, or to one of the associates, of his share in the property and business of the association. It results as a conclusion from these premises that Bissell has suffered no wrong at the hands of either Hunter or Foss, on the ground that they were his tenants in common or partners, by reason of any contract made between the latter in reference to the purchase of the
share of the Missourians in their joint enterprise. There has been no viola tion of any trust and confidence arising from the relations existing between Bissell, Foss, and Hunter.
The appellant, it is therefore clear, cannot demand any part of the twothirds interest purchased by IIunter in the share of the Missourians. If he is entitled to participate in any way in the purchase made by Foss and Hunter, it can only be in the one-third interest purchased by Foss. But this demand cannot be based on any contract between Bissell and Foss, for the contract arrangement between them was conditioned upon the consent of Hunter, and Hunter did not consent. It was also an element of the agreement that the money of the associates on deposit in the bank should be sufficient, and should be available to pay a large part of the money required for the purchase of the share of the Missourians. But this condition also failed. He was, therefore, bound by no contract with Bissell to make the purchase.
The only question which remains is, was Foss bound, when he learned that the arrangement he had made with Bissell for the purchase of the share of the Missourians could not be carried out, to inform Bissell of the fact, and give him a chance to join in the purchase made by him and Hunter? It cannot be denied that, under the circumstances, there was an obligation on Foss to inform Bissell of the failure of their plan before making another with a third person. But it was not a legal obligation capable of enforcement in foro externo, but only a natural obligation to be disposed of in foro conscientiæ. Story, Eq. Jur. § 2. It was one of those obligations which was binding on the honor and conscience of the party, but one not the subject of a suit, and not to be enforced in a court of either law or equity.
We are of opinion that the decree of the circuit court was right. It is therefore affirmed.
BRADLEY and MATTHEWS, JJ., dissenting.
1114 U. S. 218)
LAMAR, Ex'r, etc., v. Micou, Adm'x, etc.1
(March 30, 1885.)
1. GUARDIAN AND WARD-ACCOUNTING IN STATE OF APPOINTMENT-DOMICILE OF WARD. A guardian, appointed in a state which is not the domicile of the ward, should not, in accounting in the state of his appointment for his investment of the ward's property, be held, unless in obedience to express statute, to a narrower range of securities than is allowed by the law of the state of the ward's domicile.
2. SAME-INFANT RESIDING WITH GRANDPARENT.
Infants having a domicile in one state, who after the death of both their parents take up their residence at the home of their paternal grandmother and next of kin in another state, acquire her domicile.
3. SAME-JUDICIAL NOTICE OF LAW OF STATE.
The courts of the United States take judicial notice of the law of any state of the Union, whether depending on statutes or on judicial opinions.
4. SAME REHEARING.
Lamar v. Micou, 112 U. S. 452, S. C. ante, 221, confirmed.
Appeal from the circuit court of the United States for the Southern District of New York.
S. P. Nash, for petition.
*GRAY, J. This is a petition for a rehearing of an appeal from a decree of the circuit court of the United States for the Southern district of New York, upon a bill filed against the executor of a guardian by the administratrix of his ward. Gazaway B. Lamar was appointed in 1855, by a surrogate's court in New York, guardian of the person and property of Martha M. Sims. The bill alleged that at the time of the appointment the ward resided in New York. The answer alleged that at that time she was temporarily residing there, and was then, as well as in 1861, a citizen of Alabama. The hearing of the merits of the case was had in the circuit court upon the pleadings, and upon certain facts stated by the defendant and admitted by the plaintiff, which, so far as they affected the domicile of the ward, were as follows: William W. Sims, the ward's father, died at Savannah, in the state of Georgia, in 1850, leaving two infant daughters and a widow who in 1853 married a citizen of New York, and thenceforth resided with him in that state until 1856, when they removed to Connecticut, and resided there until her death in 1859. The two infants lived with their mother and step-father in New York (where Lamar was appointed in 1855 guardian of both infants) and in Connecticut from her second marriage until her death, and then went to Georgia, and thenceforth resided with their father's mother, and her daughter and only living child, their aunt, at first in Georgia and afterwards in Alabama.
Upon those facts, this court assumed the domicile of William W. Sims to have been in Georgia, and held that the domicile of his children continued to be in that state throughout their residence with their mother and her second, husband in New York and Connecticut, and until their return to Georgia upon the death of their mother in 1859, and was thereafter in Georgia or Alabama; that whether the guardian's domicile was in Georgia or in New York, he should not, in accounting for his investments, be held to a narrower range of securities than was allowed by the law of the ward's domicile; and that many of his investments were justified by the law of Georgia or of Alabama; and therefore reversed the decree of the circuit court, which had held him to account according to the law of New York for the manner in which he had invested the property. 112 U. S. 452; S. C. ante, 221.
The questions so passed upon, though hardly touched by either counsel at the first argument, arose upon the facts admitted, were vital to the determination of the rights of the parties, and could not be overlooked by this court.
'S. C. 1 Fed. Rep. 14, and 7 Fed. Rep. 180.
The importance and comparative novelty of some of the questions induced the court to invite the submission of a full brief in support of the petition for a rehearing. But, upon careful consideration of the petition and brief, the court has seen no ground for changing its opinion, and has not thought it necessary to add anything, beyond what has been suggested by examination of the authorities cited for the petitioner.
In Pritchard v. Norton, 106 U. S. 124, S. C. 1 SUP. CT. REP. 102, the point decided was that the validity and effect of a bond, executed in New York, to indemnify the obligee therein against his liability upon an appeal-bond executed by him in a suit in Louisiana, was to be governed by the law of Louisiana. The decision was based upon the fundamental rule, or, in the words of Chief Justice MARSHALL, the "principle of universal law". "that in every forum a contract is governed by the law with a view to which it was made. Wayman v. Southard, 10 Wheat. 1, 48. And reference was made to two recent English cases of high authority, in which, by force of that rule, the effect of a contract of affreightment, and of a bottomry bond, given by the master, was held to be governed, not by the law of the place where the contract was made, nor by that of the place where it was to be performed, nor yet by the law of the place in which the suit was brought, but by the law of the country to which the ship belonged. Lloyd v. Guibert, 6 Best &*S. 100; S. C. L. R. 1 Q. B. 115; The Gaetano & Maria, L. R. 7 Prob. Div. 137.
In Lloyd v. Guibert, Mr. Justice WILLES, delivering the judgment of the court of exchequer chamber, said that when "disputes arise, not as to the terms of the contract, but as to their application to unforeseen questions, which arise incidentally or accidentally in the course of performance, and which the contract does not answer in terms, yet which are within the sphere of the relation established thereby," "it is necessary to consider by what general law the parties intended that the transaction should be governed, or, rather, to what general law it is just to presume that they have submitted themselves in the matter." 6 Best & S. 130; S. C. L. R. 1 Q. B. 120. And in The Gatano & Maria, Lord Justice BRETT, with whom Lord COLERIDGE and Lord Justice COTTON concurred, pointed out that the matter before the court was "not the question of the construction of a contract, but of what authority arises out of the fact of a contract having been entered into." L. R. 7 Prob. Div. 147.
The question in what securities a guardian may lawfully invest, is not one of mere construction of the contract expressed in the guardian's bond, or implied by his acceptance of the guardianship, but rather of what is "within the sphere of the relation established thereby," or "what authority arises out of the fact of a contract having been entered into." And the very terms of Lamar's bond do not point to the law of New York only, but impose a general obligation to “discharge the duty of a guardian to the said minor according to law," as well as to render accounts of the property and of his guardianship to any court having cognizance thereof. See 112 U. S. 455; S. C. ante, 223.
The view heretofore expressed by this court, that the domicile of the guardian is immaterial, and that, as a general rule, the management and investment of the ward's property are to be governed by the law of the domicile of the ward, although, so far as the remedy is concerned, the accounting must conform to the law of the place in which the liability of the guardian is sought to be enforced, accords with the statements of Bar, as well in the passage quoted by the petitioner as in that referred to in the former opinion; and the only decision of a Scotch court brought to our notice tends in the same direction, although the Scotch commentators treat the question as an open one. Bar, Internat. Law, §§ 87, 106; (Gillespie's translation,) 357, 359, 438, 445, note; Lamb v. Montgomerie, (1858,) 20 Scotch Ct. Sess. Cas. (2d series,) 1323; Fras. Parent & Ch. 609.