APPEAL from a judgment of the Superior Court of the County of Pinal. E. L. Green, Judge. Judgment affirmed.
Mr. J. E. Morrison and Mr. Luther P. Spalding, for Appellant.
Messrs. Cox, Moore & Janson, Mr. George P. Stovall, and Mr. O. B. De Camp, for Appellee.
[37 Ariz. 544] ROSS, J.
On January 5, 1905, Sam Thorpe and J. T. Arrowsmith duly located two mining claims, under the names "Dixie King" and "Superior King," situated in the Pioneer mining district, Pinal county. Together they performed the annual representation work on the claims until in 1908, when Arrowsmith died, leaving surviving him his wife, Henrietta, and a minor child named Lee. Thereafter, during the years 1911, 1912, 1913, 1914 and 1915, Thorpe performed labor and improvements upon each of said mining claims of the value of $100 for each year.
December 9, 1916, Thorpe conveyed by deed all his right, title and interest in and to said mining claims to the Sam Thorpe Mining Company, a corporation. This company for the year 1916 did the annual assessment work and for the years 1917, 1918 and 1919, in lieu of doing the annual work, filed with the county recorder of Pinal county, under acts of Congress providing for such procedure, its notice of desire to hold the claims. The Sam Thorpe Mining Company did the annual work of $100 on each claim for the years 1920 and 1921. On March 7, 1922, the Sam Thorpe Mining Company made out a notice of forfeiture, directed "To J. T. Arrowsmith, his heirs, personal representatives, executors, administrators and assigns, and to whom it may concern," reciting in detail therein that it and its predecessor in interest had done and performed the annual assessment work on said mining claims as required by section 2324 of the Revised Statutes of the United States (30 U.S.C.A., § 28), relating to the performance of annual labor upon unpatented mining claims, and demanded therein that it be reimbursed one-half of said [37 Ariz. 545] expenditures, or the sum of $50 per claim for each annual period. This notice was personally served on the widow, Henrietta, on the said seventh day of March by handing her a copy thereof. On the same day she took such notice to her home and there handed it to the minor, Lee, who was then about eighteen years old.
Neither the surviving wife nor the son paid, or offered to pay, to the Sam Thorpe Mining Company any part of the assessment work after the expiration of the ninety days from the service of notice of forfeiture, or at all.
The notice of forfeiture and affidavit were not placed of record as required by paragraph 4042 of the Revised Statutes of Arizona, Civil Code of 1913.
On February 11, 1927, the widow and the son, Lee, who had arrived at his majority, conveyed to Kimball Pomeroy, the plaintiff, by a quitclaim deed, an undivided one-half
interest in said mining claims; and thereafter, on November 5, 1927, Pomeroy brought this action against the Sam Thorpe Mining Company and several other defendants to quiet his title to such interest. The other defendants were dismissed from the case.
The facts as we have stated them were either admitted in the pleadings or conclusively established by the evidence.
The defendant interposed several defenses, briefly stated as follows: (1) Forfeiture for the failure on the part of the Arrowsmith heirs to do their share of the annual assessment work, or to reimburse the defendant or its predecessor in interest at the expiration of ninety days after notice and ...