location. Now, upon that, plaintiff here claims that the lode in controversy, or ground in controversy, if there is a lode in it, originates in its territory by its top or apex, and descends upon its dip through and under the other claim; and they have sought, by numerous witnesses and elaborate preparation, to maintain that view before you. And the question, as it is presented to my mind, is a very simple one. Upon that I have written something here for your instruction, which I will read.

case.

Whether in the ground in controversy there is a vein or lode bearing silver, within the meaning of the act of congress, is the principal question in this case. The words used in the statute to designate a mineral deposit in rock in place are vein, lode, and ledge, and these are supposed to be nearly synonomous in meaning. However these words may differ in meaning, it is not important in this case to look for a distinction between them. Nor is it important to define their meaning in a manner that may be accepted in all cases. Any effort so to define them would probably result in a failure; but we must seek for a meaning which will enable us to reach a conclusion in this So proceeding, it is enough to say that a vein or lode is a body of mineral or mineral-bearing rock within defined boundaries in the general mass of the mountain. This is a sufficient description, certainly, as to all bodies of ore that may be found within the lines of the location. As to what may be found in the body of the claims, there being no conflicting location, it is not very important to consider whether it is in place. But the statute, giving the right to pursue the lode beyond the lines of the location in a downward course, refers to veins or lodes in place, and whenever such right may be claimed or asserted, it is important to consider whether the vein or lode, or that which may be alleged to be such, is in place within the meaning of the act of congress. And, first on that point, it may be said that if the ore body is continuous to the extent that it may maintain that character, it is in place. So far as the ore body is continuous, it must have been deposited in that form or removed bodily, and with its inclosing rocks, to the place in which it may be found. And in either case, as to such continuous ore body, it is proper to say that it is in place within the meaning of the act. And this is the point in controversy between the parties. You will remember that the witnesses for the plaintiff unite in saying that the ore extends with more or less uniformity, and that it is practically continuous from the plaintiff's claim into and through the defendants' claim, so far as it has been explored. The plaintiff produced assayers to testify that

samples of ore were taken from all parts of the vein, and found to contain silver and lead. The maps put before you by plaintiff to show the condition of the ground give the vein as extending from one claim to the other; and clearly that is the position assumed.

On the other hand, defendants contend that the ground in controversy is so broken, and the several parts so intermingled, that there is not, and cannot be, a body of ore extending for any considerable distance through any part of it. They have many witnesses to testify to that condition of the ground. They concede that in the ground in controversy there are detached fragments, particles, and perhaps masses of ore intermingled with the country rock in the like fragments, particles, and masses; but they deny that there is anything like a continuous body or sheet of ore extending from one claim to the other. And this is the question in issue. It is pretty nearly a direct issue between the witnesses for the plaintiff and the witnesses for the defendants, and, as you give credit to one party or the other, you should find the fact. I don't think that I can in any manner make it clearer to you. I have to say, also, that the burden of proof is upon the plaintiff by a preponderance of testimony to establish the facts which are necessary to support a finding in its favor; and the fact mainly in issue, as I have stated to you, is: What is the condition of this ground extending from one of these claims into the other?

A good deal has been said by the witnesses as to whether there is a top or apex of the vein. That depends, gentlemen, very much as to whether there is any vein or lode there. If you find that there is a vein or lode, to my mind the evidence is clear enough that the top of it is in the Lime location; and if there is none there, of course that which does not exist, does not exist in any part-it does not exist by its top nor by its bottom, nor anywhere between the two points. So that it is, gentlemen, a question of the credibility of witnesses. The testimony is strongly conflicting-I don't think I have ever known a case in which it was more so; and, as I have said, the question is as to which one of these theories you will accept.

Now, I ought to say to you, further, that as to this ore body that I have spoken of, whether it is of greater or less extent that is, whether it is very thin or very thick-is immaterial. If it extends, as claimed by the plaintiff, from their claim to and into the other, the strength of the vein is not material. Their position is, as you remember, that it extends all the way from their claim to and into the other, so far as it has been explored, and it is not material whether it is strong or weak, if it extends in the manner described by them.

But if the territory is, as claimed by the defendant, so broken up, jumbled, and mixed, the several parts together, that there is nothing continuous, of course there can be no lode extending from one claim to the other.

CONNECTICUT MUT. LIFE INS. Co. v. JONES.

(Circuit Court, E. D. Missouri. January 26, 1880.)

1. EVIDENCE-JUDGMENT-MERGER.

A judgment upon a note merges it, and becomes the only evidence of the debt.

2. PLEADING-PARTIES.

The wife is not a proper party in an action of ejectment for property in her husband's possession in which she holds no separate estate in her own name. 3. HOMESTEAD-CONVEYANCE OF.

A homestead may be mortgaged or sold, in Missouri, by the joint deed of husband and wife.

4. DEED OF TRUST-JUDGMENT-WAIVER.

The holder of a note waives no rights, under a deed of trust securing it, by obtaining judgment thereon against the maker, and having a general execution issued.

5. SAME-SALE.

A sale under the deed of trust would be valid though made after the execution issued, and before the return-day.

Ejectment. Motion for New Trial.

Overall & Judson, for plaintiff.

Thomas S. Espy, for defendant.

MCCRARY, C. J. On the seventh day of November, 1867, the defendant borrowed from plaintiff $6,000, for which he executed his promissory note, to secure which he and his wife joined in the execution of a deed of trust, by which they conveyed the real estate in question (a lot in the city of St. Louis) to one Albert Todd, as trustee. On the nineteenth of April, 1879, plaintiff recovered in this court a judgment at law upon said promissory note for $6,226, upon which execution was issued, and a small sum collected by levy upon and sale of personal property was duly credited upon the judgment. The property covered by the deed of trust is the homestead of the defendant. The deed of trust contained a provision in the usual form authorizing the trustee, upon default in payment of the note, to proceed to sell the property, after notice, to the highest bidder for cash. The judgment rendered upon the note being unsatisfied, (except as to the small sum made upon general execution,) the plaintiff procured

the trustee to sell under the deed of trust. After due notice the sale took place, on the first day of July, 1879, and the plaintiff was the purchaser, for the sum of $6,000. A deed from the trustee to the plaintiff was duly executed, and to obtain possession under this purchase the present suit was brought. Upon trial before a jury there was verdict and judgment for the plaintiff. Defendant moves to set aside the verdict and for a new trial, upon grounds which will now be stated and considered.

1. It is insisted that the note should have been produced and offered in evidence in connection with the deed of trust. We are of the opinion, however, that the production of the note was not necessary. It had been merged in the judgment, and the latter had become the evidence of the debt secured by the deed of trust. It is well settled that where judgment is rendered upon a note it ceases to be and the judgment becomes the evidence, and the only evidence, of the debt. Wyman v. Cochrane, 35 Ill. 154; Ohio v. Gallagher, 93 U. S. 206; Hagg v. Charlton, 26 Pa. St. 202; Freeman on Judgments, 180, 181. It does not follow, as contended by defendant's counsel, that the plaintiff lost or waived any right under the deed of trust by attempting to collect the debt due from defendant by means of a judgment at law and a general execution. A deed of trust, under the laws of Missouri, is simply a mortgage with power of sale, and it is very clear that a change in the form of the debt from that of a promissory note into a judgment did not in anywise affect the rights or obligations of the parties under the deed of trust. The debt remained unsatisfied, and the deed of trust given to secure it continued. in full force. Jones on Mortgages, §§ 1215, 1220, 1221; Lichty v. McMartin, 11 Kan. 565; Van Sant v. Allmon, 23 Ill. 30; Dunkley v. Van Buren, 3 John. Ch. 330.

2. It is also insisted that the court erred in refusing the application of the wife of defendant to become a party to this suit, and to be heard as such. It is very earnestly contended by counsel that inasmuch as the property in question was the homestead of defendant and his family, that therefore the wife of the defendant has, under the homestead law of this state, a present right of possession in her own right, independently of her husband, and that she is therefore a necessary party to the present action of ejectment.

The law of Missouri relating to homestead exemptions contains no provision limiting in any way the power of the husband and wife to alienate their homestead by deed of conveyance either with or without conditions. The power of the owner of a homestead to convey or mort

gage the same is not restricted except by the regulations applicable to conveyances of real estate in general. The statute is not framed with a view to interfere with the right of the owner of homestead property to dispose of it by deed, but to protect it from sale under execution during the life-time of the owner, and to secure it to his widow and children as a homestead after his death. Such property, within a certain valuation, is exempt from sale under execution, and upon the death of the owner is vested by law in the surviving members of his family. But there is nothing in the statute, and certainly nothing outside of the statute, to support the proposition that the wife of the owner, during his life-time, has any right of possession or claim of any kind in the homestead that may not be divested by a conveyance in which she joins; nor is there any force in the suggestion of counsel that the wife in this case released her dower interest only, and not her homestead right. She joined in the deed, and must be held to have conveyed all her interest. When the legal title to a lot occupied, or a homestead, is in the husband, he and his wife, by joining in an absolute conveyance thereof, may undoubtedly make the purchaser a good title; and their right to make a conditional sale, to execute a mortgage or deed of trust, is equally clear, unless the same. is prohibited by statute. In re Cox, 2 Dill. 320; Babcock v. Hoey, 11 Iowa, 375; Pfeiffer v. Rhein, 16 Cal. 643.

It is conceded that in general the wife is not a proper party to an action of ejectment for property in the possession of the husband, and in which she holds no separate estate in her own name. The possession of the husband is the possession of the wife. Bledsoe v. Simms, 53 Mo. 305.

But it is insisted that because the property here is a homestead a different rule should prevail. We have already seen that as against her own deed the wife can have no separate present right of possession, and we are therefore constrained to hold that the general rule is applicable to this case, and that she is not a proper party.

3. It is said that the sale under the deed of trust was void because the general execution was still in the hands of the marshal, and the defendant had until the fifteenth of September, the return-day of the writ, in which to satisfy the same by payment. It is true that the execution remained in force and was not necessarily returned prior to that date, but it is not true that the defendant had the right to postpone the sale under the deed of trust until the expiration of that period. He could deprive plaintiff of its rights under the deed v.8,no.5-20