persons named hold in their names the receiver's receipt for the Butte Hardware Company's one-eighth interest of the Yellow Jack mining claim. Under those circumstances, why should they not convey it? It is not a question of proving a trust, by parol or otherwise. The simple situation is, four persons have in their names title to real estate which belongs to another. They admit that fact, and Cobban is not a person to controvert it. It is our opinion that they are trustees, and should be, as they were, decreed to convey to their cestui que trust. There seems to be no occasion for the creating or declaring of a trust, or offering evidence that it was created or declared, or relying upon the deed from the Butte Hardware Company to Schwab, Cummings, Hauser, and Fitchen. The existence of the trust is uncontroverted.

The action is to quiet title, and remove a cloud. Appellant claims that plaintiff was not in the possession of the premises, the two thirty-seconds undivided interest in the mining claim, at the commencement of the action. Section 366, Code Civil Proc. His specification in this regard, on motion for a new trial, is as follows: "The evidence is insufficient to sustain the decision and the decree of the court, for the reason that the evidence establishes the fact that the defendant George A. Cobban was in possession of a portion, at least, of the premises in controversy at the time of the institution of said action, as was found by the court in its special finding No. 8." Finding 8 is as follows: "Did said defendant Cobban, in pursuance of his purchase of said two thirty-seconds of said mining claim, enter upon a certain portion thereof, and construct and erect a house thereon? And was such house so upon said premises covered by it at the time that this action was commenced? Answer. He had built a foundation for a house, which foundation was partly upon a portion of said premises." Appellant contends that this is a finding that respondent was not in possession of the premises, the subject of the action. The subject of the action was two thirtyseconds undivided interest in a mining claim. That defendant had put a foundation for a house partly upon the mining claim, we think, is not a finding that defendant was in possession of plaintiff's claimed two thirty-seconds undivided interest in the premises, or, in effect, that plaintiff was not in such possession.

It is contended that plaintiff, as a commercial corporation, is not empowered to hold or claim an interest in a mining claim. It appeared that plaintiff was occupying a portion of the surface of the claim with a warehouse which it was using in its business. The defendant Cobban is not an appropriate person to raise that question. What Cobban claims as to title comes from plaintiff. If Cobban could be said to own

anything, (which, as we have seen, cannot be said,) he owned it from plaintiff as grantor behind Schwab and Cummings. Bank v. Roberts, 9 Mont. 331, 23 Pac. Rep. 718. The judgment is affirmed.

PEMBERTON, C. J., having been counsel in this case, does not participate in the decision.

HARWOOD, J., (concurring.) My concurrence in affirming the judgment of the trial court proceeds upon the ground that the facts shown give rise to a trust in the grantees of the patent, in favor of the plaintiff, for the eighth interest which it owned in said property when patent was issued therefor, and that appellant, Cobban, acquired his alleged claim thereto with knowledge of the equities existing in favor of plaintiff. For the purpose of this review the receiver's final receipt has been regarded by both parties as equivalent to a patent, and therefore the case is considered as if patent had issued. It is not disputed that after patent was applied for, and notice had run, plaintiff came into ownership of an eighth interest in said lode claim, nor that the Largey deed, purporting to convey plaintiff's interest to Schwab, Cummings, Hauser, and Fitchen was void. But through the appearance of said void deed the United States government was induced to convey the whole of said claim to the other co-owners above named, thereby carrying the legal title of plaintiff's interest to the grantees in the patent. Now, the title to plaintiff's interest in said claim having passed away from it by the circumstance of said void deed being recognized as valid, the grantees of that interest became trustees thereof, holding the same for the use and benefit of the real owner, the same as if the title, by mistake, had been conveyed and recorded in the name of a stranger. That trust is implied by operation of law upon the circumstances mentioned, and does not depend upon the alleged express agreement for reconveyance claimed to have been made by Largey, on behalf of plaintiff, at the time the void deed was executed, nor upon any action of Largey, because his attempted conveyance was void, as all parties admit, and in fact did not divest plaintiff of its interest. The void deed figured in the transaction as the mere circumstance which misled the government to grant plaintiff's interest, along with the rest of the lode, to the grantees above named. Plaintiff did not own or claim an interest adverse to any other claimants in said lode, but it owned an interest in conjunction with, and recognized by, the other claimants and patentees of said lode. Hunt v. Patchin, 35 Fed. Rep. 816. And plaintiff having come into ownership after application for patent, for the sake of convenience in obtaining the patent, it was thought expedient, by those assuming to act, that plaintiff's interest should be deeded over

to the other grantees in the patent, in order to make it appear to the government's agents that the persons to whom the patent was issued were the owners of the whole of said claim. But that deed was void, and therefore when the patent was issued the legal title of plaintiff's interest, which it had not parted with, was conveyed to the grantees named in the patent. It appears that the grantees in the patent, although made parties to this action, have never come in and denied the foregoing facts; and the record shows that Cobban obtained such conveyance for a mere nominal sum as consideration, and with knowledge of the facts upon which the law raises a trust in the patentees of said land, in favor of plaintiff, to the extent of its interest. 2 Pom. Eq. Jur. § 1048. So that Cobban is in no position to claim equities in his behalf which the grantees of It apsaid patent could not have invoked. pears to me to be a case of constructive trust, arising by operation of law, and should be executed, as directed by the judgment of the trial court. Hunt v. Patchin, supra; Lakin v. Mining Co., 25 Fed. Rep. 337; Hardy v. Harbin, 4 Sawy. 536; Wilson v. Castro, 31 Cal. 421; Salmon v. Symonds, 30 Cal. 301.

The point is raised that plaintiff was not competent to receive and hold said interest in the mining claim, because the acquisition of such property was not specially within the scope of the object and purpose of the corporation, as expressed in its articles of incorporation. I do not think that point could be maintained, so as to avoid the title of plaintiff to said property, in favor of a stranger. A corporation organized for special purposes, specified in the articles of incorporation, might, in transacting that business, necessarily come into the ownership of property of a class not within the objects for which it was incorporated. The collection or enforcement of obligations due the corporation might necessarily, in the course of the transaction of its business, bring it into ownership of property, the acquirement of which is not within the special object and purpose for which the company was organized, as expressed in its articles of incorporation. But it would hardly be seriously urged, in such event, that the title of the corporation, as to such property, was void, in favor of a stranger, who undertook, unlawfully, to assume and hold the property in question. Of course, cases arise where agents of a corporation have been held liable to the stockholders or others interested and injured by a departure from the scope and purpose of the company in its transactions, but such complainants are not strangers, or without interest in the conduct of the corporation. And the commonwealth may also interfere, and forfeit the charter, and wind up the affairs of the corporation, in certain cases, for abuse of its charter privileges by unlawful use or departure therefrom.

But

(13 Mont. 302)

DE WITT, J. This appeal is from the judgment of the district court made upon the hearing of the application of Evalena Newell for a writ of habeas corpus. The pro

ceeding was brought by the relator to obtain possession of her infant child, of the age of nine months. The respondent is relator's husband. They were living separate and apart, the wife being at the home of her parents. The district court, by its judgment, gave the custody of the child to the mother, but with the condition that she should allow the father to visit the child twice a week. The judgment also taxed the costs against the respondent. Upon the hearing, the court took the testimony of a number of witnesses. It appeared that the child was between nine and ten months of age, and not in robust health. It would seem that it had been weaned, but that the mother was engaged, as she said, in the care and nursHer parents, ing and rearing of the infant. with whom she was living, were supplying the wants of the mother and child, and were able and willing to continue so to do. There was testimony by relator and respondent as to the cause of their separation, each claiming the other to be in fault, but there was no claim made, and no attempt whatever to show, that the mother was a person of immoral character, or in any way unfit to care for the infant. We are of opinion that the district court exercised a perfectly sound dis

*

The Code of Civil Procedure provides, in reference to costs, as follows: "Costs may be allowed, of course, to the plaintiff, upon a judgment in his favor, in the district court, in the following cases: *Fourth, in special proceedings in the nature of an action." Section 495, Code Civil Proc. "A judgment is the final determination of the rights of the parties in an action or proceeding." Section 238, Id. The disposition by the district court of the application for a writ of habeas corpus was a judgment. It was the final determination of the rights of the parties. That judgment was in favor of the relator. The question, then, is, whether this is a judgment in a special proceeding in the nature of an action. Section 495, supra. If such, it would seem that the costs should be allowed to the relator. We are of opinion that the proceeding upon habeas corpus is in the nature of an action. There are parties to the proceeding. In practice they are not usually called "plaintiff" and "defendant," but "relator" and "respondent;" but we do not consider that this matter of the names of the parties in the title of an action is important. Anderson's Law Dictionary defines an action as follows: "The lawful demand of one's right (3 Bl. Comm. 116) in a court of justice. McBride's Appeal, 72 Pa. St. 483." Another definition in the same dictionary is: "An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows." The definition cites Harris v. Insurance Co., 35 Conn. 310. In that case the court, speaking of "suit" or "action," says: "But by a suit, within the meaning of this provision of the policy, [of insurance,] is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances." Black's Law Dictionary, under the title of "Action," gives this definition: "The legal and formal demand of one's rights from another person or party, made and insisted on in a court of justice." In the Milligan Case, which was a habeas corpus proceeding, Mr. Justice Davis, delivering the opinion of the court, said: "In any legal sense, 'action,' 'suit,' and 'cause' are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence, and the proceeding which he set in operation for that purpose was his cause or suit. It was the only one by which he could recover his liberty. He was powerless to do more. He could neither instruct the judges, nor control their action, and should not suffer because, without fault of his, they were unable to render a judgment.

has been given by this court. One of the questions in Weston v. City Council of Charleston [2 Pet. 449] was whether a writ of prohibition was a suit; and Chief Justice Marshall says: "The term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him.' Certainly, Milligan pursued the only remedy which the law afforded him. Again, in Cohens v. Virginia [6 Wheat. 264] he says: 'In law language, a suit is the prosecution of some demand in a court of justice;' also, 'to commence a suit is to demand something by the institution of process in a court of justice, and to prosecute the suit is to continue that demand.' When Milligan demanded his release by the proceeding relating to habeas corpus, he commenced a suit; and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jennison [14 Pet. 540] was whether, under the 25th section of the judiciary act, a proceeding for a writ of habeas corpus was a suit. Chief Justice Taney held that, if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court to recover his liberty.' There was much diversity of opinion on another ground of jurisdiction; but that, in the sense of the 25th section of the judiciary act, the proceeding by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that 'suit' and 'cause,' as used in the section, mean the same thing." Ex parte Milligan, 4 Wall. 112, 113. Under these views of the word "action," and especially the opinion of the United States supreme court as to a habeas corpus proceeding, we are satisfied that subdivision 4 of section 495 of our Code of Civil Procedure is applicable to the inquiry in hand; that is to say, that this habeas corpus matter is a special proceeding in the nature of an action. It is a proceeding to determine between these parties the right to the custody of their infant child. Referring to one of the definitions above cited, it is a "proceeding for the purpose of obtaining such remedy as the law allows." The result of the proceeding is the judgment which we are reviewing, and section 495 says that upon such judg ment, in such special proceedings, costs shall be allowed to the plaintiff. We cannot believe that the fact that the prevailing party is called "relator" instead of "plaintiff" is of any importance. The sense of the word "plaintiff" is that the person so called is the complaining party,-the party who is coming into court asking for rights which he claims. That is what the relator does in this proceeding, and we believe that the spirit and intention of section 495, when it uses the word "plaintiff," is to include such complaining and demanding party as the relator in a habeas corpus proceeding, even

though by custom he is called by a name other than "plaintiff." The judgment of the district court is therefore affirmed.

ment. There was no controversy raised in the action as to the furnishing of said building materials by plaintiff, or the use thereof by defendants in the erection of said

concur.

(13 Mont. 269)

BONNER ▼. MINNIER et al. (Supreme Court of Montana. Sept. 5, 1893.) MECHANIC'S LIEN-WHAT CONSTITUTES-LIABILITY OF HOMESTEAD.

A lien for materials furnished is a "mechanic's lien." within the meaning of Code Civil Proc. § 323, providing that such a lien shall not be affected by the provisions for homestead exemptions. De Witt, J., dissenting.

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by E. L. Bonner against Michael Minnier and others. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Reversed. Statement of the case by HARWOOD, J.: This action was brought to obtain judgment, and foreclose a lien to enforce payment, for materials furnished and used in the construction of a certain house in the village of Champion, Deer Lodge county. It appears that said house was built upon a piece of land theretofore vacant, being part of a quartz lode mining claim, purchased by defendant Minnier from one Baudet, which purchase was originally evidenced by a bill of sale executed by Baudet to Minnier. But it appears to be conceded that the money used in said purchase belonged to defendant Mrs. Minnier; that, while the title to the property stood in that condition, the defendant Minnier, with the knowledge and approval of his wife, commenced the erection of a house on said land, and purchased from plaintiff, and used in said structure, certain lumber and other materials; that, to secure payment for said building material, plaintiff filed his account thereof, and notice of lien on said property, as provided by law; that, some time after the commencement of the construction of said house, a formal conveyance of said premises was made by said original owner, Baudet, and defendant Minnier, to his wife, Mrs. Minnier. Said house appears to have been constructed and arranged so as to be used for residence purposes, or as a place of business, or for both such purposes; that, as soon as the house was sufficiently constructed to admit of habitation, defendant and his wife moved therein, and occupied the same continuously as their home, and Mrs. Minnier also fitted up and operated a barber's shop in one room of said house; that defendants own no other real property as a homestead or otherwise; that defendants failed to pay for said building materials, wherefore this action was brought to foreclose said lien, and subject said premises to sale to enforce such pay

alleged. The only defense set up was that defendants claimed said premises as their homestead, and that the same, being a homestead, was not subject to a lien for said building materials so purchased and used in the improvement thereof. There was some controversy in the case as to whether said premises constituted the home of defendants at the time said materials were furnished and used in the improvement thereof; but the trial court sustained the contention of defendants that said premises constituted their homestead, and the court further held that the statutes of this state exempt home steads from the charge of a lien for building materials procured and used in the erection of improvements thereon, and judgment was rendered accordingly, from which judg ment, and an order overruling plaintiff's motion for a new trial, this appeal was prosecuted.

Brantley & Scharnikow, for appellant. W. H. Trippet, for respondents.

HARWOOD, J., (after stating the facts.) We think, under the facts shown in this case, the premises in question were properly held to constitute defendants' homestead. The important question of law involved in this appeal is whether a homestead is exempt from foreclosure and sale to satisfy a lien created by law in favor of one who furnishes materials purchased and used by the owners of such homestead in the improvement thereof. It is not disputed that by the provisions of chapter 82, p. 1028, of the Compiled Statutes of this state, a lien is expressly created in favor of parties furnishing materials contracted for and used by the owners of land in making improvements thereon, without any exception in favor of homestead premises. But it is contended by respondents that, notwithstanding the provisions of that statute, the statute providing exemption of homesteads and other property from forced sale on execution (sections 321-330, Code Civil Proc.,) withholds the homestead from the operation of such lien if it accrued for material alone, furnished and used in the improvement of the homestead. To maintain this proposition, respondents rely on a strict and very narrow interpretation and application of the clause of section 323, Code Civil Proc., which provides that "such exemption shall not af fect any laborer's or mechanic's lien, or extend to any mortgage thereon lawfully ob tained." It is argued that this provision is not broad enough to include the lien de clared by statute in favor of one who simply furnishes materials used in the improve ment of a homestead; and that, consequent

ly, the plaintiff, who furnished material only, which was procured and used by defendants in the improvement of their homestead, is barred of relief, by way of enforcement of said lien. In the case of Merrigan v. English, 9 Mont. 126, 22 Pac. Rep. 454, the court refused to so construe and apply. the provisions of the exemption statute just cited as to deny the enforcement of a lien on a homestead for material furnishednamely, a mantel-in favor of the mechanic who furnished the same, as well as the labor involved in setting said mantel in the building. The only real difference between that case and the one at bar appears to be that, in the former case, the lien claimant occupied the position of furnisher of material, as well as labor, on the premises, in shaping the material so furnished into the building; whereas, in the case at bar, the lien claimant furnished and delivered material, without any labor towards the erection of the building on the premises. If the view urged by respondents is adopted, the effect of such holding would appear to be that one who manufactured, hauled, and delivered the brick, or quarried, cut, hauled and delivered the stone, or went into the forest, cut, manufactured, transported, and delivered the lumber contracted for, and used in the erection of improvements on a homestead, would be denied enforcement of the lien which the law declares he shall have to secure payment for such materials, because he would be simply the furnisher of material for the structure, like the plaintiff, and would, according to such construction and application of the exemption statute, not be included within the meaning and intent of the legislature in declaring that such exemptions shall not affect the liens of laborers and mechanics. We do not think such a view gives effect to the intent of the legislature, as manifest in these statutes. Even without any further expression of the legislative intent on this point than the clause of section 323 above referred to, we could not adopt the view urged by respondeats as giving effect to the intent of the law. We are satisfied that, in providing that such exemptions shall not affect any laborers' or mechanics' liens, the legislature referred to the liens for material and labor provided for by the statutes of this state commonly mentioned as the "Mechanic's Lien Law." Such improvements, in fact, comprise labor bestowed upon material, both on and off the premises where the improvement is placed. Payment for the material is payment for the labor expended upon it through all the changes it has undergone, from its natural raw state, until placed in the structure.

But if, in looking at section 323 of the exemption statute alone, there is room to raise doubts as to the intent of the legislature, and room for contention that a homestead claimant may obtain material for improve

ment on his homestead, and enjoy the same without payment, in case no property can be found over and above the exemption, there is still another provision in the same statute which seems to give further light as to the intention of the legislature on the point under consideration, namely, a provision of section 328, wherein it is declared "that this act shall not be construed as to in any manner relate to judgments or decrees renderd on the foreclosure of mortgages, either equitable or legal." The lien under consideration is a specific incumbrance, existing through a positive enactment of the legislature, operating upon certain facts, and the lienor would seem to be entitled to his judgment of foreclosure, on showing the facts and a compliance with the statute, the same as a party, on making out his case, is entitled to judgment for debt, although the debtor may not have property subject to an dinary execution. Now, when it comes to the execution of these judgments, it is found that the legislature has made a distinction between them in the statute relating to exemptions, declaring, in effect, that such exemptions shall not be construed to affect judgments or decrees of foreclosure of specific incumbrances. If this is not the plain intendment of the provisions of the exemp tion statute last above quoted, we think it would be difficult to conceive or

or

reason

ably explain the intent those provisions manifest. The rules of construction that several provisions of statutes relating to the same subject shall be considered and construed toegther, so that all the provisions shall be given reasonable force and effect, if possible, (section 631, Code Civil Proc.,) and that, "when a statute is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted," (section 638, Id.,) both, we think, demand such a construction of the statutes in question as will give force and effect to appellant's lien. Respondents cite, in support of their position, Richards v. Shear, 70 Cal. 187, 11 Pac. Rep. 607, wherein the court held that the homestead was not subject to sale in satisfaction of a lien for material alone, furnished in the improvement thereof. While there is some likeness, but not entire similarity, in the provisions of the California statute and the clause of section 323 of our Code above quoted, it does not appear that the California court was aided by such a general proviso as we have in section 328 to show the intendment of the legislature. It has been shown that the exemption statute of Montana was not taken from California, in Lindley v. Davis, 7 Mont. 207, 14 Pac. Rep. 717, and Merrigan v. English, supra; and considering the difference of form, as well as additional provisions we have to construe and apply, it would seem to be an abdication of reason to follow the holding in the California case just cited. It should be further ob