performance of these conditions.

*

But the vested right of the settler attaches to the land at the time of his entry, and is liable to be defeated only by his own failure to comply with the requirements of the law. Until forfeited by his own failure to perform the conditions of his purchase, this right of property acquired by his entry must prevail, not only against individuals, but against the government itself." In Carner v. Railroad Co., 43 Minn. 375, 45 N. W. 713, which was an action by a claimant under the timber-culture act, the court, in referring to what had been said in the Red River v. Sture Case, supra, added: "The rights under the homestead acts, though differently acquired, are no greater than those under the timberculture act. * His rights are analo

gous to those of one in under a contract to purchase." In Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, Fuller, C. J., in discussing the rights of a homestead claimant, quotes with apparent approval the opinion of Attorney General MacVeagh, in an opinion to the secretary of war, July 15, 1881, in which the learned attorney general held in substance the same as in the case of Railroad Co. v. Sutre, supra. See, also, Railroad Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112; U. S. v. Ball, 31 Fed. 667; U. S. v. Turner, 54 Fed. 228. The consensus of these opinions is to the effect that the homestead entry operates as an appropriauon and reservation of the lands embraced within the same, segregates the tract from the public domain, and vests in the claimant an equitable interest therein which is good as against all the world, the government included, until forfeited by failure to perform the conditions of the act of congress.

The similarity of the provisions of the timber-culture act places claimants thereunder in the same category with homesteads; and, while the comparatively recent period of its adoption prevents the existence of but a limited number of cases thereunder, it is not doubted but that the rule as to an equitable interest in lands taken thereunder should be held the same as in cases of homestead. And as the act of congress of June 14, 1878 (20 Stat. 113), which provides for the issue of patents to the applicant, or, in case of his death, to his representatives or heirs, does not declare to whom the title shall inure, such title, when perfected, inures to him in whom the equitable title vested at the date of the issue of the patent. The equitable interest which David Cooper had in the homestead he could pass by devise. 1 Pom. Eq. Jur. § 105.

It follows that the evidence as to the probate of the last will of David Cooper, the probate proceedings, including the decree of distribution of the land in question to defendant's grantor as the devisee of said David Cooper, as well as the evidence of the mortgage by the widow of said Cooper, the

foreclosure and sale thereunder, etc., was properly admitted; and the judgment and order appealed from should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(108 Cal. 49) LOCKE v. MOULTON et al. (No. 18,260.) (Supreme Court of California. July 11, 1895.) JURY TRIAL-DEFENSE IN EJECTMENT.

In ejectment, wherein defendant alleged that the instrument under which plaintiff claims was in fact intended as a mortgage, the fact that the answer closed with a prayer that it be "adjudged that plaintiff is not the owner of the property described," does not render the defense an equitable one, so as to deprive defendant of his right to trial by jury.

Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county; Joseph H. Budd, Judge.

Action of ejectment by George S. Locke against C. S. Moulton and A. M. McCloud. There was a judgment for plaintiff, and from an order denying a new trial defendants appeal. Reversed.

Carter & Smith and Frank H. Smith, for appellants. L. W. Elliott and W. L. Dudley, for respondent.

VANCLIEF, C. Action of ejectment to recover possession of a half section of land. The complaint is in the most general form, alleging, in substance, that plaintiff owns, and is entitled to the possession of, the demanded premises, and that the defendants are in possession, and wrongfully withhold it from the plaintiff. In their answer the defendants deny that plaintiff ever owned the land, or that he was entitled to the possession thereof at the time of the commencement of the action; and, as a further answer, allege that on October 2, 1885, the defendant Moulton, who was then the owner and in possession of the land, executed to plaintiff a bargain and sale deed thereof, absolute in form, but which was intended by the parties thereto to operate only as a mortgage to secure payment to plaintiff of a debt of $6,127.50, with interest; and that it was understood and expressly agreed by the parties, at the time the deed was executed, that upon payment of the said debt the plaintiff would reconvey the land to Moulton. As a further answer, the defendants alleged adverse possession for a period of five years, etc. The answer closed with the following prayer: "Wherefore defendants pray that plaintiff take nothing by reason of this action; that it be adjudged that plaintiff is not the owner of, or entitled to the possession of the real property described in the complaint; that it be decreed that the instru ment in writing herein described was and is

BRITT, C. From the agreed statements of facts on which this case was submitted in the court below it appears that G. A. Clark and C. H. Humphreys, partners engaged in business at the city of Los Angeles under the firm name of Clark & Humphreys, being in failing circumstances, both as individuals and as a partnership, entered into a written contract of date December 15, 1892, with the plaintiffs, Sabichi, Minor, and Holt, as trustees, and 10 named creditors of Clark & Humphreys, by the terms of which contract Clark & Humphreys agreed to convey all their property, partnership and individual, to said trustees, "in trust to be collected, sold, and disposed of and converted into money and divided ratably" among said designated creditors; the surplus, if any, to be returned to Clark & Humphreys. By the terms of this agreement it was also stipulated that upon the execution of such conveyance Clark & Humphreys should be released from all liability to said creditors; that the trustees might borrow money on certain of the property; purchase outstanding claims against the partnership; carry on the business of the firm, and employ assistants for that purpose; sell real and personal property on such terms as they might deem best, call a meeting of creditors named every six months during the continuance of the trust, and report their proceedings to such meeting; and receive a reasonable compensation for their services. Such agreement was signed by all the said parties thereto, and by a number of other persons not named as parties therein, but who were also creditors of said partnership, and the trustees were chosen by Clark & Humphreys in conjunction with all the said creditors. Accordingly, on December 17, 1892, Clark & Humphreys, individually and as copartners, executed a conveyance (styled on its face a "deed of trust') of all their property, real and personal, to said trustees, the plaintiffs here. Such conveyance recited the said contract of December 15th, and purported to be made in consideration thereof, and to transfer the property described "in trust in accordance with" such contract. The deed was recorded in the recorder's office of Los Angeles county December 19, 1892. The plaintiff's accepted the trust, and took possession of all, or the greater part, of the property conveyed. Defendant, Chase, held the promissory note of Clark & Humphreys, secured by mortgage on land in Los Angeles county,-a parcel of that conveyed to said trustees,-which mortgage was of record in said recorder's office at the time of the transactions above stated. The note fell due August 15, 1893, and was not paid. The holder instituted an action to enforce payment and for the foreclosure of the mortgage. She obtained judgment and caused the mortgaged land to be sold for the satisfaction thereof. The proceeds of sale were insufficient for that purpose, and on January 15, 1894, judgment against Clark

& Humphreys was docketed in said action for the deficiency, amounting to $1,532.51. Execution issued thereon, and under that writ the sheriff levied on and sold to said Delia W. Chase a portion of the other lands previously conveyed to said trustees by the deed of December 17, 1892. Defendant, Chase, never assented to such transfer in trust. The parties agree that the said instruments of December 15 and December 17, 1892, respectively, were executed upon valuable and adequate consideration, and without actual fraud. The consideration moving to Clark & Humphreys seems to have been the release of their debts owed to the preferred creditors. The dispute here relates to the land sold under said execution. The superior court declared by its judgment that the defendant has the better right to such land; that as to her the said agreement of December 15, 1892, and the deed made to plaintiffs in pursuance thereof, are of no effect. Plaintiffs appeal.

By the settled rule of the common law, now expressed in our Code, "a debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another" (Civ. Code, § 3432); but parallel with this principle, and to be construed with it, is the rule of more recent legislative policy, that "an assignment for the benefit of creditors is void against any creditor of the assignor not consenting thereto, in the following cases: (1) If it give a preference of one debt or class of debts over another"; etc. Civ. Code, § 3457. The law virtually says to the embarrassed debtor, "You may pay or secure any creditor, and thus give him a preference; but your preferential payment or security must not be cast in the form of an assignment for his benefit." The question for decision, therefore, is whether the said instruments of December, 1892, constituted an assignment for the benefit of creditors within the meaning which the law attaches to those terms. If so, then plaintiffs concede that it was invalid, because violative of the statutory regulations of such transfers. Civ. Code, §§ 3419-3473. The statute attempts no definition of such assignments; but there are qualities (not so well ascertained, perhaps, as is desirable) which, when appearing in an instrument of transfer, characterize it as among those required to conform to the statute on the subject of those assignments or else be treated as void. It is the theory of the appellants that the trust deed here "was in the nature of a mortgage to secure the debts of the named creditors." The distinction between such an instrument and an assignment for the benefit of creditors has been thus stated: "If the conveyance is to a trustee, and the debtor intends to divest himself, not only of the title to the property, but of all control over it; if it is intended as an absolute conveyance of all of his property, and is made for the purpose

of securing a distribution of its proceeds among his creditors, or a portion of them, in legal effect it is an assignment for the benefit of creditors, no matter what name or designation the parties may have given it. On the other hand, if the intention of the debtor is merely to secure his debt to one or more of his creditors, and the conveyance is not intended as an absolute disposition of his property, but he reserves to himself a right therein, the conveyance will be treated as a mortgage, even though the debtor is insolvent at the time, and it covers all his property, and but a portion of his debts are secured by it." Bank v. Crittenden, 66 Iowa, 240, 241, 23 N. W. 646. And this seems to be a fair statement of the result of the authorities upon this much-vexed question, though great diversity is found in the adjudged cases, due largely to the differences which obtain in the statutes of the several states which have sought to regulate or suppress the evils supposed to arise from the unrestricted right to make preferential assignments allowed by the common law. See May v. Tenney, 148 U. S. 64, 13 Sup. Ct. 491. "The material and essential characteristic of a general assignment is the presence of a trust" (Brown v. Guthrie, 110 N. Y. 441, 18 N. E. 256; Burrill, Assignm. § 3); and while it cannot be said that every transfer of property to trustees for the benefit of creditors is an assignment within the statute (Lawrence v. Neff, 41 Cal. 566; Handley v. Pfister, 39 Cal. 283; cf. Priest v. Brown, 100 Cal. 626, 35 Pac. 323), yet, when a continuing trust is created, presenting the features prominent in this case, we think it must be held that the transfer is such an assignment as the legislature designed to regulate by the provisions of the Code (Civ. Code, §§ 3449-3473). If not, then those provisions would as well be repealed. It has been several times assumed in this court that such a trust indicates an assignment of that nature. Dana v. Stanfords, 10 Cal. 269; Wellington v. Sedgwick, 12 Cal. 469; Saunderson v. Broadwell, 82 Cal. 132, 133, 23 Pac. 36. The provision that a surplus of proceeds remaining after satisfaction of the claims of the creditors named should be returned to the grantors does not, as supposed by appellants, distinguish the contract as one of se curity only. Hall v. Denison, 17 Vt. 318; Lochte v. Blum (Tex. Civ. App.) 30 S. W. 925. The reservation of an interest in the possible surplus-not in the property itself -marks the transaction more clearly as an assignment for the benefit of creditors. Kenefick v. Perry, 61 N. H. 364.

Appellants argue that the defendant ought not to be considered a creditor having the right to object to the assignment, for the reason that at the date thereof her demand against the assignors was not yet susceptible of enforcement against them personally; she being required to first foreclose the mortgage. But the statute renders void such transfers

"against any creditor of the assignor not assenting thereto." Civ. Code, § 3457. No exception of creditors secured by mortgage is expressed, nor does the reason assigned warrant the implication of one. The judgment should be affirmed.

We concur: VANCLIEF, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(108 Cal. 95)

WHOLEY v. CALDWELL et al. (No. 18,407.) (Supreme Court of California. July 12, 1895.) RIPARIAN RIGHTS.

A lower riparian proprietor has no right, independent of contract, to go on the land of an upper proprietor to return the stream to its original channel, when it has been diverted there. from by natural causes.

Department 2. Appeal from superior court, Siskiyou County; J. S. Beard, Judge.

Action by James Wholey against Leona J. Caldwell and others for an injunction. From a judgment denying the injunction, but granting plaintiff relief in other form, defendants appeal. Reversed.

James F. Farraher, for appellants. L. F. Coburn, for respondent.

HENSHAW, J. Plaintiff is a lower, defendants are upper, riparian proprietors. Parks creek for many years had flowed over the land of defendants to a point on that land known as "Batterton Crossing," where it divided into two branches, called the "North Channel" and the "South Channel." About one-third of the waters of the creek passed on the plaintiff's land through the North Channel, while the remaining twothirds flowed down the South Channel. A third waterway, seemingly an ancient course of Parks creek, left the main stream about one-half a mile above Batterton crossing, and entered upon and extended over the land of plaintiff in a direction parallel with that of the North Channel. This last waterway was known as the "Spring Branch Channel." There was no direct surface flow from Parks creek into it, the point of separation being dammed by gravel, bowlders, and débris, but its bed was lower than the bed of the North Channel, and from North Channel by percolation and by small but defined surface streams water rose in this Spring Branch Channel and flowed over plaintiff's lands. The amount of water so rising bore direct relation to the amount of water flowing through the North Channel. Plaintiff relied upon the waters of the Spring Branch and North Channels for all beneficial purposes. Such were the conditions until the winter of 1890-91, when an extraordinary freshet deposited a bar of bowlders, gravel, and débris at the head of the North Channel, and thus

prevented the waters from flowing into it as had been their wont. At the same time the waters cut a new bed for themselves. This "New Channel" (so named) left the original stream from the south about a mile above Batterton crossing, extended in a general course parallel with it, and joined the South Channel, still on the lands of defendants, above the point where South Channel entered plaintiff's property, and thence flowed on by the accustomed South Channel. During the first year after this change some of the water passed down the old way to Batterton crossing. The rains of the following year deposited a bar in the original stream at the point where the New Channel had been cut, and thereafter all the waters of the creek flowed down this New Channel into the South Channel, and so on to defendants' lands, leaving dry the original water course down to Batterton crossing, and, consequently, also the North Channel and the Spring Branch Channel. Plaintiff then commenced this action, avering that these changes were occasioned wholly by natural causes, and asserting the right to enter upon defendants' land, and to take such necessary and proper steps as might be required to return the water to the channels wherein it flowed prior to 1889, and asking that defendants be enjoined from preventing him from entering upon their land and doing such proper and necessary acts. He also pleaded a grant to himself, from defendants' predecessor, of his land and of "the waters accustomed to flow in the Spring Branch Channel." Defendants denied the asserted rights, and by cross complaint pleaded the construction and maintenance for 30 years last past of a dam across the head of the North Channel sufficient to divert all the water thereof, during ordinary low stages from the North to the South Channel, and also their prescriptive right to divert twothirds of the water of the creek by ditches. He pleaded defendants' interference with these rights, and asked damages accordingly. Plaintiff was denied an injunction, but, as riparian proprietor and as grantee under the deed above mentioned, was decreed the right of "restoring and restraining the waters of Parks creek to the following channels: First, from the point where the New Channel cut from and left the former channel (original bed of the stream) down said former channel in a single body to the Batterton crossing; second, from the Batterton crossing in two channels in the following proportions, to wit: One-third through the said North Channel, and the remainder through said South Channel."

We cannot see that the rights of the parties in this action are in any way affected by the grant to plaintiff "of the waters accustomed to flow in the Spring Branch Channel." Aqua cedit solo. This grant accompanied the grant of the land bordering upon that channel. Whether the waters which flowed in it came from the North Channel

by percolation and seepage, or by well-defined subterranean or surface channels, can here make no difference. For, in either case, the utmost that could be claimed for the grant would be that it gave plaintiff full right to the waters against any asserted right of the defendants to them, and protected him from any use which defendants might make of the waters of the creek after the grant to the injury of their right in these waters. But the complaint of plaintiff does not declare upon any such invasion or infringement by defendants. It asserts the right to go upon the land of an upper riparian proprietor. and return a stream to its original channel which has been diverted therefrom suddenly and sensibly by natural causes. And plaintiff's warrant in doing this rests not upon any contractual relations with defendants, but upon his prerogatives as a lower riparian proprietor. We do not attach importance to the contention of appellants that the right of the lower riparian proprietor is merely to have the water enter his land by its accustomed channels, without regard to the quantity which these channels are wont to carry. The lower proprietor, as against the unwarranted acts of the upper, is entitled not only to have the water enter his land by its accustomed channels, but to have each channel carry its due amount of water. Any other rule would lead to untold hardship and oppression.

But we are here concerned only with the rights of the lower proprietor where the change in the channel has been caused, not by the act of man, but by the act of God. Does the right of the riparian proprietor to have the water enter his land by its accustomed channels stand superior to changes wrought in the flow of a stream by the act of Providence? Has such a proprietor a paramount right over the forces of nature, as well as over the acts of man, to insist that water which has once flowed upon his land shall always flow upon it? A somewhat extended examination leads to the conclusion that the assertion of such a right is new to jurisprudence. The right finds no recognition by the commentators of either the civil or common law, and no case has come under our observation in which the question is considered. Even Sir Mathew Hale, whose De Jure Maris is declared by Chancellor Kent to have exhausted the learning on the subject, makes no mention of so important a topic. This silence is Itself significant; for it is not easily to be believed that if this important right exists it would not have been asserted and announced in numerous instances. While thus lacking in authority, it is certain that the contention cannot find better support from principle or reason. The foundation of the riparian proprietor's rights rests upon the universally accepted maxim, "Aqua currit, et debet currere ut currere solebat ex jure naturæ." These rights thus draw their support from the laws of nature, but they do