be sold, transferred, mortgaged, and inherited without infringing the title of the government. They may be sold to enforce a lien for taxes. Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; State v. Second Judicial Dist. Ct., 24 Mont. 330, 61 Pac. 882. We cannot do else, in the light of authority, than hold that unpatented mining claims are real estate, and that therefore a judgment duly docketed as provided in section 1197, supra, is a lien upon them, with all other real estate belonging to the judgment debtor. The point is raised by respondents that a judgment, if a lien, would not be such after sale of the mining claim,-he giving up possession to the vendee,-for the reason that such sale would be an abandonment, and all his rights would be gone, and the lien with them. In support of this position counsel cite Murley v. Ennis, 2 Colo. 300, which declares that title by location may be lost by abandonment, and that if, without writing, he yield up the possession to another, "the right of the first occupant is gone by abandonment, and by virtue of his occupancy a new right has arisen in him who succeeds." It is to be noted that the transfer is said to be abandonment if made without writing. The alleged transfer from Ritchie to Frank was in writing; hence the authority does not fit the averment of the complaint. Respondents also cite Derry v. Ross, 5 Colo. 295, but we find nothing in that case to support the contention that a conveyance to another works an abandonment; for the court holds that mining claims are "rights which may be devested by sale, gift, or abandonment." This language is very far from a statement that a sale is an abandonment, but is very strong in its implication that it is not. Section 2332, Rev. St. U. S., clearly contemplates the buying and selling of mining claims, as it provides that, upon application for patent, evidence may be offered to show the possession of and work done by the applicant's grantors. It would be absurd to permit sales for the benefit of the vendees, and then declare such sales proof of abandonment of all rights of the grantor. Should a judgment creditor adverse the application of the judgment debtor or his grantee for a patent? We think that there is neither law nor logic suggesting such a thing. In Hamilton v. Mining Co. (C. C.) 33 Fed. 562, 13 Sawy. 113, 117, it was held that the interest obtained by a purchaser at a constable's sale prior to the time of expiration of the publication of notice is an adverse claim, which, unless filed as the law requires, is waived; but the very reason given for this is the reason why a lienor, merely, cannot adverse. The purchaser at the execution sale has stepped into the shoes of the judgment debtor, the owner of the claim; and if the sale be valid he can go on to perform the work and other things necessary to be done, pay the purchase money, contest the rights of other claimants, and procure the title from the government, which does not pass by virtue of the officer's deed. Such deed from such officer, selling on execution, passes only the present interest, and not an after-acquired title, and can only have the effect of a quitclaim deed in its strictest sense. Hence, if he have such deed, he must adverse. If he have merely a judgment lien on all the realty of the debtor, he cannot adverse, because he is not yet in the place of the debtor, and, further, because the lien continuing will be a lien on the realty of the debtor after as well as before patent,-no more, no less. In case of a special lien, such as a mortgage, the lienor need not adverse the debtor's claim to a patent, as the patent will inure to his benefit. Lindl. Mines, 719. The same reason will, we think, apply to a judgment lien; and, further, such lien, doubtless, is included within the provisions of section 2332, Rev. St. U. S., which declares that nothing in the chapter of the Revised Statutes which relates to the location, holding, and procuring title to mining claims and to adverse claims, etc., shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of the patent. After execution levied and officer's deed made and delivered, the purchaser should adverse. bcause the lien is gone as a lien. Before such deed made and delivered, no adverse claim may be made. We come now to the consideration of the point made by respondents' counsel: "Does a judgment rendered against a locator or a holder of a possessory title to an unpatented mining claim attach to the government's title, where the locator only has the right to purchase from the government of the United States upon certain conditions, where he has failed to exercise that right, and has abandoned the same by conveying his possessory right to another?" This question is petitio principii. It begs the question, for that it assumes that conveying one's possessory rights is abandonment, which, as we have heretofore shown, is not the case. The question in this cause is this: Did Ritchie own and convey valid mining claims to Frank by his quitclaim deed, and did Frank prove up on those claims so conveyed to him, and get patents therefor; his right to patents depending, in whole or in part, upon any rights of Ritchie actually conveyed to him by said quitclaim deed? If he did, he bought and took the claims with all the disabilities of the grantor attaching thereto; that is, he bought real estate from the owner, against whom there was a valid, docketed, and existing judgment in the district court, and the patent would inure to the benefit of the judgment creditor, and the sheriff's deed, after execution sale, would convey title to the purchaser. But does the complaint state facts showing such a case as last referred to? The counsel for plaintiff proceeds upon the theory that Ritchie was the owner of said claims; that Frank took title from Ritchie; that Frank had patented certain mining claims located by Ritchie or some predecessor of his, his right to patents depending upon the acts of Ritchie and his predecessor; and that plaintiff is the owner by and through the sheriff's deed. The amended complaint does not thus state. It does not reasonably imply that these alleged facts are true. The statement that Davis conveyed by "deed absolute" to Ritchie, and that Ritchie conveyed all his interest by quitclaim deed to Frank, is not a statement that Davis or Ritchie owned the property or any interest therein, or even located or represented it or any part thereof. The deed of Davis might estop him from denying that he had sold the property to Ritchie, but he is not a party to this action. Certainly an ad quitclaim deed. To conclude as to this point, there is neither an allegation that Ritchie ever owned any property on which the judgment was a lien, nor an allegation that Frank ever got any property or title from, by, or through him; but, on the contrary, there is implication of doubt as to his title from Ritchie. To allege that Frank took a quitclaim deed while he was in possession and control of the property does not reasonably rebut the idea that he owned the claim as a locator or as assignee of some locator (not Ritchie), and that he procured a patent upon such ownership. It is not unreasonable to conclude from the amended complaint that Frank, in order to prevent the annoyance of a contest in the United States land office, procured such quitclaim deed. The allegation of plaintiff's ownership ever since the sale by the sheriff is no more than a statement that it owns whatever property was actually acquired by and through such sale, whereas, as we have seen, there is no averment that Ritchie had ever any to sell either to Frank or through the sheriff. It must clearly appear from the complaint that the plaintiff has a right to the thing demanded, or such an interest in the subject-matter of the action as will authorize him to bring a suit concerning it. Failing in this, a general demurrer to the bill for want of equity will lie. 6 Enc. Pl. & Prac. 400, and cases cited. mission by Frank, if such should be made, that Davis made a deed of conveyance-a "deed absolute"-to Ritchie, and that Ritchie made a quitclaim deed to him (Frank) would not be an admission that Davis was the owner when he conveyed to Ritchie, or that Ritchie owned said property when he (Ritchie) made the quitclaim deed. A quitclaim deed implies a doubtful title in the grantor, and, such being its character, it should not be held to pass anything more than a doubtful title. 9 Am. & Eng. Enc. Law (2d Ed.) 106, note; Kerr v. Freeman, 33 Miss. 292; Emmel v. Headlee (Mo.) 7 S. W. 22. In Anderson v. Boom Co., 57 Mich. 216, 23 N. W. 776, it was held that a quitclaim deed from a party not shown to have been in possession at the time it was executed is no evidence of a title, much less when the party claiming under the deed was already in possession of the land at the time that the deed was given. There is nothing in the amended complaint in the case before us to show that Ritchieor, Davis even-was ever in possession; but there is a statement in the amended complaint that Frank was in possession and control of said claims at the dates connected with him in said amended complaint, and the date of the quitclaim deed (May 21, 1891) certainly relates to him as well as to the grantor, so that he must have been in possession and control of the property when the quitclaim deed was made, so that, as said in Anderson v. Boom Co., supra, the quit--proved up and got his patents by and claim deed was no evidence of title conveyed to Frank. It cannot be held that in Montana an after-acquired title relates back to a quitclaim, and passes to the grantor in it, if the grantor had no equitable title at the date of the quitclaim deed. How, then, can it be reasonably inferred that, if Frank got a patent, it inured to the benefit of Ritchie's judgment creditor, when it would not even presumptively appear that, if it were in the amended complaint alleged that a patent for the land had been issued to Ritchie, it would convey the title to Frank? There is no allegation or presumption that Ritchie had the legal or equitable title at the date of the Where a seasonable attack is made upon the complaint for want of substantive allegations, the court should indulge, as against the pleader, the presumption that he has stated his case as strongly as he can. Conrad Nat. Bank v. Great Northern Ry. Co., 24 Mont. 178, 61 Pac. 1. The amended complaint does not state facts sufficient to warrant the court in affording relief. The demurrer having been submitted without argument, we cannot tell upon what ground the court sustained it; and it does not seem that counsel are agreed upon the points upon which the controversy turned, or upon which it is before us on appeal. Counsel seem to assume in their brief that certain averments therein are contained in the complaint; that is, allegations setting up that Frank got the property from Ritchie, through Ritchie's quitclaim deed, and title conveyed thereby. But there are no such averments. This case is before this court on appeal from the judgment, which judgment was, on demurrer, sustained to the amended complaint, for want of substance; plaintiff abiding its complaint. The court was right in its decision on the demurrer. The judgment is right, and must be sustained. The court may have, in sustaining the demurrer, done so for a wrong reason, but we have nothing to do with its reasons. Our duty is to pass upon the correctness of its action. If the act of the court in sustaining the demurrer was right, the court must be sustained. Hayne, New Trials & App. p. 839. The silence of counsel as to the defects found by this court in the said complaint cannot in such a case as this be regarded as a restriction upon the legal scope of the general objection raised by the demurrer. The judgment is affirmed. Affirmed. BRANTLY, C. J., concurs. PIGOTT, J. (dissenting). I concur with the majority of the court in holding that an unpatented mining claim is real property, subject to the lien of a docketed judgment; that the holder of such a lien is not an adverse claimant, within the meaning of congressional legislation; and that the conveyance of an unpatented mining claim is not an abandonment. The complaint is, I think, defective in the particulars adverted to in the opinion; and, if they had been pointed out or even suggested in this court, I should not hesitate to concur in the judgment of affirmance. But neither party has suggested that the complaint is wanting in substance because the allegations which this court deems necessary have been omitted therefrom. In their briefs and arguments counsel do not intimate that the complaint is Insufficient for want of the averments mentioned. On the contrary, all the arguments are devoted to the question whether the complaint in other respects fails to state facts sufficient to constitute a cause of action. So far as the present appeal is concerned, this court should, I think, examine the complaint for the purpose of determining whether it is obnoxious to the specific objections urged, and should not affirm the judgment below upon a point not made, but practically waived, in this court. It would be eminently just and proper in reversing the judgment to call attention to the seeming defect, so that upon remand appropriate steps might be taken; the complaint being susceptible of amendment according to the facts. But the complaint is now held to be insufficient, and the judgment is affirmed, because of a defect not relied upon by the respondents. It is true that in Wilson v. Harris, 21 Mont. 374, 54 Pac. 46, a complaint was declared to be insufficient upon a ground not specifically relied on by the defendants; but that was a very different case from the one at bar, and there the judgment was reversed and a new trial ordered on appeal by the defendants, thereby affording an opportunity for amendment. I am therefore constrained to dissent from the judgment of affirmance. (25 Mont. 343) MENDENHALL et al. v. LYON et al. (Supreme Court of Montana. May 20, 1901.) APPEAL AND ERROR-BRIEFS-ORAL AGREEMENT-AFFIRMANCE. Where no brief is filed and submitted to the appellate court, nor any oral argument made pointing out any of the matters on which appellants rely for relief, the judgment will be affirmed. Appeal from district court, Park county; Frank Henry, Judge. Action by Susan A. Mendenhall and another against G. M. Lyon and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. Campbell & Stark, for appellants. BRANTLY, C. J. Appeal by the defend. ants from a judginent and an order denying them a new trial. No brief has been filed and submitted in this court, nor has any oral argument been made pointing out any of the matters upon which the appellants rely for relief. The judgment and order are therefore affirmed, on the authority of Killhonic v. Nuss, 24 Mont. 292, 61 Pac. 648. Affirmed. PIGOTT and MILBURN, JJ., concur. (25 Mont. 385) WALTER v. MITCHELL. (Supreme Court of Montana. May 3, 1901.) INSANE PERSONS-INJURIES-ASYLUMS-NEG LIGENCE-PLEADING. Under Code Civ. Proc. § 745, providing that, in pleading a judgment of a court, it may be stated to have been duly given or made, a complaint alleging that an insane person was "so declared by a court of competent jurisdiction," and "was duly committed to the insane asylum," does not show the duty of the keeper of the asylum to receive and keep such person, under Pol. Code, § 2308, providing that the insane person, together with the order of the judge and certificate of the physicians, must be delivered to the keeper of the asylum, since the allegation does not show the name of the court. or that any order was made or delivered to the keeper. Appeal from district court, Deer Lodge county; Theo. Brantly, Judge. Action by Martha Walter against A. H. Mitchell for negligently causing the death of her husband. Judgment for defendant. Plaintiff appeals. Affirmed. Rodgers & Rodgers, for appellant. T. J. Walsh, Wm. H. De Witt, and Ed. Scharnikow, for respondent. MILBURN, J. This cause is an appeal from a judgment, and heard on motion to dismiss on the ground that the action has abated by reason of the death of the defendant. The case came before the district court on demurrer to the amended complaint on the ground of want of substance. The demurrer was sustained, and plaintiff abided her complaint. Judgment was thereupon rendered for the defendant. Since the appeal the defendant has died and his executrix has been substituted. We shall not consider the motion to dismiss. It is apparent that the court was right in its ruling on the demurrer, and the judgment must be sustained. Several reasons are set forth by defend ant's counsel why the complaint does not state a cause of action. It will be sufficient to pass upon one ground only. It is attempted to charge the defendant with responsibility for the death of the husband of plaintiff; the law invoked being section 579 of the Code of Civil Procedure: "When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just." It is averred in the plaintiff's pleading that defendant, being charged by the terms of his contract with the state of Montana with the duty of keeping, caring for, maintaining, properly treating, and restraining at the insane asylum at Warm Springs, Mont., all persons adjudged insane within the state, one James Roads was, on the 19th day of March, 1896, while the defendant was charged with the duty aforesaid, "an insane person, and so insane and deranged in mind as to be dangerous to life, persons, and property, and was on said day so declared by a court of competent jurisdiction within the state of Montana to be an insane person, and sufficiently deranged in his mind to endanger life, person, and property, and was duly committed to the said insane asylum at Warm Springs, in the county of Deer Lodge, state of Montana, and was so an inmate thereof at the time said Mitchell and Mussigbrod undertook and entered into said contract, and was committed and came into their hands as an insane person, and under their contract they undertook to keep, provide for, maintain, and restrain said Roads at said insane asylum at Warm Springs, county of Deer Lodge, state of Montana." To establish, prima facie, the duty of the defendant to keep the alleged insane person in his custody, and not to permit him to be at large, it was necessary to allege, or state facts to show, that the insane person was turned over to the defendant under a commitment such as the law required, from a competent tribunal, stating the name and style of the court, and that the person had been found insane and a proper subject for commitment. Section 2308 of the Political Code, in force at the time of the alleged commitment, is as follows: "The insane person, together with the order of the judge and certificate of the physicians, must be delivered to the sheriff of the county, and by him must be delivered to the officer in charge of the insane asylum." When the officer in charge of the insane asylum has the insane person thus turned over to him, and has received the order of the judge and the certain certificate of the physicians, he stands char ged with the duty to keep the insane person in his custody, and to care for, maintain, and treat him as provided in the contract, presumably made in conformance with the law, and so to do until the person is lawfully discharged from the asylum. The only allegation in the complaint as to the manner of the entry of Roads into the asylum is the language heretofore set forth, being the same, substantially, in each of the two counts of the amended complaint. There is not anything stated in the amended complaint which even tends to show that the officer in charge of the insane asylum ever was required by any tribunal of this state to receive or keep in his custody the man Roads. There is only one way to charge the officer with such duty, and that is to turn the insane person over to him under the order of a competent tribunal; and the order should show on its face that it was issued and made by a competent tribunal. There is nothing in the pleading to show that any such order, good or bad, was ever made by any judge, or ever received or brought to the notice of the defendant. Section It cannot be inferred from the amended complaint that any district judge in the state, under the law then in force, ever made any order that Roads "be confined in the insane asylum." Section 2307 of the Political Code of 1895. The only reference to the court is in the statement that on a certain day in March, 1896, Roads was declared insane, etc., "by a court of competent jurisdiction within the state of Montana." In pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. 745, Code Civ. Proc. The name of the court certainly must appear, and words equivalent to "duly given or made," in referring to the judgment, if a judgment is relied on, must be used. Harmon v. Cattle Co., 9 Mont. 243, 23 Pac. 470. "Declared by a court of competent jurisdiction within the state of Montana" is not a phrase informing this court of the style and character of the tribunal which it can judicially notice as competent. To connect such a phrase with the words "was duly committed" by the conjunction "and" is not to make a statement from which we can notice or properly infer that the offcer received Roads upon a commitment of a court of this state, acting in the matter within its jurisdiction and directing that he be confined in the asylum, or that there was any order by any judge ever given or made, or by the officer ever had or received. There is nothing in the pleading to show that the officer was ever charged with the duty of confining Roads. The court below did not err in sustaining the demurrer. It is not intended that from anything said in this opinion it is to be inferred that, if the insane person was regularly committed, and was allowed to go at large as alleged, the defendant would be liable, under said section 579, in damages for the death of plaintiff's husband by the hand of the insane man allowed to go at large, as claimed by plaintiff. We do not decide this point. Judgment affirmed. PIGOTT, J., concurs. BRANTLY, C. J., having tried the cause in the court below, takes no part in the foregoing decision. (26 Nev. 113) STATE v. ERNST et al. (Supreme Court of Nevada. May 31, 1901.) TAXATION-BOARD OF EQUALIZATION-AUTHORITY-ASSESSMENT-CHANGE -VALIDITY. Comp. Laws, § 1098, provides that the board of equalization shall have power to determine the valuation of any property assessed, and may change and correct any valuation, either by adding thereto or deducting therefrom, and to require the assessor to enter upon the assessment roll property which has not been assessed. The assessor returned an assessment of E.'s property for 1897, and subsequently the board of equalization ordered the assessor to add to E.'s assessment the name of the M. Land Co., and to add certain land and 10,000 head of sheep to the assessment of E. and the land company. The assessor had returned no assessment against the land company, and there was no evidence that it had any interest in the property assessed against E., or that E. had any interest in the land company except as a stockholder, and there was evidence before the board that the land added to the assessment of E. and the land company belonged to a third party, and that E. did not own the sheep. Held, that the order of the board was void, as exceeding its powers, since it had no authority to make an original assessment, or to assess property to a person who is not shown to be the owner of it. Appeal from district court, Nye county; A. L. Fitzgerald, Judge. Action by the state against Ernst & Esser and others for delinquent taxes. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed. W. D. Jones and Trenmor Coffin, for appellants. F. L. Butler, Dist. Atty., P. W. Bowler, and Peter Breen, for the State. MASSEY, C. J. This is the statutory form of action to recover a judgment for taxes alleged to be delinquent in Nye county for the year 1897. The verdict of the jury and the judgment of the court were for the respondent. This appeal was taken from the judgment and from the order denying the motion for a new trial. A great number of errors have been assigned, but it is necessary to consider and determine one only, and that one presents the question of the validity of the action of the board of county commissioners of said county acting as a board of equalization, raised by the answer and proof. It appears that the appellants Ernst & Esser, a co-partnership, by George Ernst, a member thereof, returned in the year of 1897 a statement of the taxable property of said firm to the assessor of said county, upon which, and apparently other sources of information, the assessor made an assessment against that firm for that year, and carried the same upon the assessment roll. On the 22d day of September, 1897, the board of equalization made an order to the effect that the Monitor Land & Live-Stock Company, one of the appellants herein, a corporation organized and existing under the laws of the state of California, be added to the as sessment list of Ernst & Esser, and directed the assessor to add to the assessment of Ernst & Esser and the said Monitor Land & Live-Stock Company certain lands and personal property described therein, including 10,000 head of sheep at $1.50 per head, and certain other described land owned by one M. S. Eisner. It appears from the assessment roll that the order was literally complied with. Prior to this action, but on the same day, it appears that witnesses were called before the board, sworn, and examined as to the ownership of the sheep, and it was shown by their testimony that said sheep were owned by the Monitor Land & Live-Stock Company. It further appears, and is not disputed, that the Monitor Land & Live-Stock Company had no interest in, or claimed any in, the property included in the statement of Erust & Esser, and assessed by the assessor to said firm. It further appears that the Monitor Land & Live-Stock Company was the sole and exclusive owner of the sheep, and that neither the firm of Ernst & Esser nor M. S. Eisner had or claimed any interest in said sheep, other than such interest George Ernst may have had in the same as one of the stockholders of said corporation. It is not claimed or pretended that either the firm of Ernst & Esser or the Monitor Land & Live-Stock Company owned or claimed any interest in the land added to the assessment as the land of M. S. Eisner. Under these facts the jury returned a verdict for the gross amount of the tax against all appellants, and judgment was rendered thereon accordingly. The appellants contend that the order of the board of equalization of September 22d is absolutely null and void, and, if this contention is tenable, then the order and judgment should be reversed. The board of equalization in this state is a creature of the statute. It possesses only limited and special powers, and in the exercise of those powers its action must comply with the provision of the statute creating it. It can only exercise such powers as are expressly granted. State v. Board of Washoe Co. Com'rs, 5 Nev. 319; State v. Ormsby Co. Com'rs, 6 Nev. 95; State v. Central Pac. R. Co., 9 Nev. 89; Id., 21 Nev. 270, 30 Pac. 693. It is made the duty of the county as sessor by our statute to ascertain by a diligent inquiry and examination during a certain period of each year all real and per |