the authority of that case the judgment of the district court is affirmed. Costs awarded to respondent.

(30 Idaho, 207)

REES v. GORHAM.

the said mining claims, and permitting appellant to enter into the possession thereof, with the understanding that appellant should not sell said property for less than $5,000, which was to be equally divided between re

(Supreme Court of Idaho. March 19, 1917.) spondent and appellant in case of a sale, and

47

The

respondent's note and mortgage in that event
were to be canceled and discharged.
trial court found, and the finding is support-

1. CANCELLATION OF INSTRUMENTS
MORTGAGE-SUFFICIENCY OF EVIDENCE.
Held, that the evidence in this case shown
by the record is sufficient to support the find-ed by the evidence, that:
ings and judgment of the lower court.

[Ed. Note.-For other cases, see Cancellation
of Instruments, Cent. Dig. §§ 102, 103.]
2. JURY 13(1, 14)-RIGHT TO JURY TRIAL
-CANCELLATION OF MORTGAGE.

In determining the question of whether or not parties are entitled to a trial by jury, courts must look to the ultimate and entire relief sought; and where, in order for the court to render a judgment which would give adequate relief, it would be necessary to decree the cancellation of a mortgage and the surrender of a note, such relief could only be available by the exercise of the equitable jurisdiction of the court, and the parties would not be entitled to a jury trial.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 35, 52, 53.]

3. EQUITY 381 - INTERROGATORIES INGS-EFFECT.

FIND

Where specific interrogatories are submitted to a jury in either a legal or equitable action, the findings of the jury in response thereto are not binding upon the court, which may disregard such findings if they are clearly against the

evidence, and find the facts as shown by the evidence before it.

[Ed. Note.-For other cases, see Equity, Cent. Dig. $$ 813-817.]

Appeal from District Court, Lemhi County; J. M. Stevens, Judge.

a

Action by John E. Rees against O. W. Gorham, to cancel a mortgage and to require defendant to surrender to plaintiff a note and for the recovery of damages. Judgment for plaintiff, motion for new trial denied, and defendant appeals. Affirmed.

O'Brien & Glennon, of Salmon, for appellant. E. W. Whitcomb, of Salmon, for respondent.

BUDGE, C. J. This is an appeal from an order of the trial court denying a motion for a new trial; no appeal was taken from the judgment. The facts are: On and prior to the 21st day of February, 1911, respondent was in the possession of and was the owner of certain lode mining claims in Lemhi county, location notices of which are recorded in the office of the recorder of that county. On said date the respondent gave appellant his promissory note in writing, dated February 21, 1911, for the sum of $2,210, payable two years after its date, with interest at the rate of 8 per cent. per annum, payable annually, and to secure the payment thereof gave appellant a mortgage on the said claims, which mortgage is also recorded in the office of the recorder of said county. On or about the 2d day of April, 1912, respondent gave appellant a power of attorney, authorizing and empowering him to sell and dispose of

the plaintiff of his right, title, and interest in Appellant, "with intent to defraud and deprive said mining claims and the value and the market price thereof, did wrongfully and fraudulently and with intent to deprive the plaintiff of the title and value of the said claims, permit and allow one J. A. Nash to relocate all of the said claims on or about the 1st day of January, 1913, and thereby the plaintiff lost his title in and to the said claims."

On the 24th of March, 1913, respondent commenced his action against appellant, setting forth the facts as above alleged, and the further fact that at the time of the giving of the power of attorney above referred to appellant undertook and agreed to do the assessment work on said claims, and to deduct from the sale price, when the claims should be sold, a sum sufficient to reimburse him for whatever expense he might incur in doing the assessment work. His complaint contained a prayer for damages, and for a decree canceling the mortgage of record and requiring the appellant to deliver to him the said note, and decreeing both the note and mortgage null and void. The answer put in issue the matters set forth in the complaint, and a cross-complaint was filed for the foreclosure of the said mortgage, to which respondent answered by setting up as a defense the fraud and connivance between appellant and the said Nash, as above set forth.

and certain interrogatories were submitted The cause was tried by the court to the jury upon which they returned their verdict. The general issue was not submitted to the jury. The court, in preparing his findings of fact, conclusions of law, and judgment, adopted two of the findings of the jury upon the interrogatories and rejected one. It does not appear from the record that any objection was made by appellant to this method of procedure. So far as the record discloses objection was taken for the first time when appellant filed his notice of intention to move for a new trial. The court having denied and overruled appellant's motion for a new trial, this appeal was prosecuted, and the following errors were assigned: (a) The evidence is insufficient to support the judgment and findings; (b) the findings of fact and conclusions of law and the judgment herein were made and entered by the court contrary to law, and in excess and beyond the authority vested in the court; (c) the court erred in vacating and setting aside the special findings of the

jury and entering a judgment contrary there- | 32 L. Ed. 1005; Brown v. Lake Superior to. Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021.

[1] As to the first assignment of error, without going into detail, we have to say that the record has been carefully examined, and the evidence appears amply sufficient to support the judgment and findings.

[2] The second assignment of error involves the sole question of whether or not appellant was entitled to a jury trial on the general issue. It is true that a portion of respondent's cause of action was a claim for damages, which, if it stood alone, would undoubtedly entitle appellant to a jury trial, but in determining whether or not the parties are entitled to a jury trial courts must look to the ultimate and entire relief sought. Johansen v. Looney and Oakes, 30 Idaho, 163 Pac. 303. Applying this test to the present case, we find that in order for the court to render a judgment which would give complete and adequate relief, it would be necessary to decree the cancellation of the mortgage in question and the surrender of the note. Such relief could only be made available by the exercise of the equitable jurisdiction of the court. That courts of equity have jurisdiction of causes where it is sought to have canceled an instrument which ought not to be enforced or which might be used for a fraudulent or improper purpose, or which might be vexatiously litigated at a distance or time where the proper evidence to repel the same may have been lost or obscured, or when the other party may be disabled from contesting its validity with such ability and force as he can contest it at the present time, has long been held to be one of the fundamental principles of equity jurisprudence. Story, Equity Jurisprudence, § 700; Merritt v. Ehrman, 116 Ala. 278, 22 South. 514; Ferguson v. Fisk, 28 Conn. 501; Buxton v. Broadway, 45 Conn. 540; Fitzmaurice v. Mosier, 116 Ind. 363, 16 N. E. 175, 19 N. E. 180, 9 Am. St. Rep. 854. It appears therefore, that this cause is clearly one cognizable in equity. This court has adhered to the rule that parties are not entitled to a jury trial in equitable actions. Christensen v. Hollingsworth, 6 Idaho, 87, 53 Pac. 211, 96 Am. St. Rep. 256; Brady v. Yost, 6 Idaho, 273, 55 Pac. 542; Shields v. Johnson, 10 Idaho, 476, 79 Pac. 391, 3 Ann. Cas. 245.

In jurisdictions where the distinction between actions at law and suits in equity is still observed the rule seems to be well settled that where it is competent for the court to grant the relief sought and it has jurisdiction of the subject-matter, the objection to the adequacy of the remedy at law must be taken at the earliest opportunity, and before the defendant enters upon a full defense. Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 486, 32 L. Ed. 934; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594,

Upon the issue made up by the cross-complaint and the answer thereto appellant was clearly not entitled to a jury trial, that portion of the proceeding was simply a suit to foreclose a mortgage, and the rule is too well settled to require the citation of authorities that a mortgage foreclosure is an equi| table proceeding, in which neither party is entitled to a jury trial.

[3] The third specification of error, namely, that the court erred in vacating and setting aside the special findings of the jury, is equally untenable. The only purpose in submitting specific interrogatories to a jury is: First in equitable actions to assist the court in finding the facts; and, second, in law actions to enable the court to determine whether or not the general verdict which they have rendered can be supported as a matter of law upon the facts as the jury find them. The court is not bound by the specific findings of a jury, but may disregard such findings when they are clearly against the evidence, and find the facts as shown by the evidence. Brady v. Yost, supra.

For the reasons given, we have reached the conclusion that the action of the trial court in denying appellant's motion for a new trial was proper, and the order is therefore affirmed. Costs awarded to respondent. MORGAN and RICE, JJ., concur.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 110.]

2.. JUDGMENT 252(1)—RELIEF ISSUES.

Judgment must be limited to the relief demanded, or to such as is embraced within the issues.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 441, 442.]

3. COSTS 32(1)—PREVAILING PARTY-STATUTES.

Actions involving title to or possession of irrigating ditches are within the meaning of sections 4901 and 4903, Rev. Codes, and the party in whose favor judgment is rendered is entitled to recover costs of suit.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 108, 110, 115–132.]

Appeal from District Court, Owyhee County; Carl A. Davis, Judge.

Suit by J. M. Brunzell against J. R. Stevenson and J. S. Stevenson, copartners doing business under the firm name and style of Stevenson Bros., and H. W. Stevenson, to quiet title to an irrigation ditch and to en

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

join defendants from interfering with the rights of plaintiff to the same. Judgment for plaintiff, and defendants appeal. Re versed.

Smead, Elliott & Healy, of Boise, for appellants. Perky & Brinck, of Boise, for respondent.

ing him of the use thereof; that it is the duty of the parties to secure a water master. No costs were awarded.

Appellants assign three errors. Assignment numbered 1 is:

"The court erred in concluding as a matter of law that plaintiff is entitled to an injunction against the defendants restraining them from interfering with the possession and use of said ditch by the plaintiff, and that the court erred in enjoining and restraining the defendants."

[1] The court found as a fact that appellants committed none of the acts of trespass complained of, and that they did not threaten to commit them. An injunction is not to be granted unless the party seeking it shows that his rights are being violated, or that the party against whom the injunction is sought threatens to violate them. Boise Dev. Co. v. Idaho Trust & Savings Bank, 24 Idaho, 36, 133 Pac. 916; Bower v. Moorman, 27 Idaho, 162, 147 Pac. 496; 22 Cyc. 758; 14 R. C. L. 354; Healy v. Smith, 14 Wyo. 263, 83

MORGAN, J. It is alleged in the complaint that respondent is the owner and entitled to the exclusive possession of an irrigation ditch running through lands belonging to him situated in Owyhee county; that he built the ditch, and for more than 25 years has used it as a necessary means of irrigating his land; that for more than 5 years preceding the time of the acts of appellants complained of his use of it was open and notorious and in hostility to any right or title claimed by them; that on May 16, 1912, appellants took possession of it for their exclusive use, dammed and blocked it, prevented him from using it, and threaten to continue Pac. 583, 116 Am. St. Rep. 1004; Van Horn to do so; that they claim some interest therein; but that their claim is without right or foundation. He asks that appellants be required to set up the nature of their claim; that he be adjudged to be the sole owner and entitled to the exclusive possession of the ditch; and that they be enjoined from interfering with his use of it.

Appellants filed an answer, consisting of general denials and affirmative matter, and alleged that they are owners of lands adjacent to those of respondent; that in 1883 their predecessor in interest, one McDonald, owned and was in possession of these lands, and, together with respondent, constructed the ditch for their joint use, and that each party paid half of the cost of building and maintaining it; that since that time McDonald and his successors in interest have paid half the cost of maintenance, and have used the ditch jointly and as tenants in common with respondent until 1911, when he denied its use to appellants. Appellants denied the acts of trespass and the threats alleged in the complaint to have been made, and prayed that they be adjudged to be the owners of an undivided one-half interest in the ditch, and that respondent be enjoined from interfering with their use thereof.

v. Decrow et al., 136 Cal. 117, 68 Pac. 473; High on Injunctions (4th Ed.) par. 22. We hold, therefore, that the action of the court complained of was error.

[2] Assignment numbered 2 pertains to the appointment of a water master. In Sess. Laws 1909, p. 104, there is a provision conferring upon the district judge power to appoint a water master upon petition by one or more owners of irrigating ditches, where such owners cannot themselves agree in their choice. In this action, however, neither party petitioned for such appointment. The court cannot grant relief not embraced within the issues (section 4353, Rev. Codes; Yuba Co. v. Kate Hayes Min. Co., 141 Cal. 360, 74 Pac. 1049), and therefore its action in directing the appointment of a water master was erroneous.

[3] Assignment numbered 3 brings up for review the refusal of the court to award costs of suit. Appellants claim they are entitled to costs. Respondent contends that he was in part successful in his suit, that he was adjudged to have certain rights, which were denied by appellants, and that the action of the court in the matter of costs was therefore proper. A careful perusal of the answer shows that appellants acknowledged The court in its findings of fact sustained the ownership in respondent of an undivided appellants' contentions, but in its conclusions one-half interest in the ditch. Every issue of of law held that respondent was entitled to fact raised by the complaint and answer was an order enjoining them from interfering decided in their favor. It is true that rewith his possession and use of the ditch. spondent obtained injunctive relief, but this, Judgment was rendered adjudging that the we have decided, was erroneously given by parties were jointly entitled to possession the court. It is likewise true that appeland use of the ditch, and for that purpose lants did not obtain the injunctive relief appellants were entitled to go upon respondent's land in a peaceful manner; that the parties contribute equally toward the maintenance of the ditch; that appellants be enjoined from forcibly taking possession of that part of it running through respondent's land,

asked, but the court, as a conclusion of law, found they were entitled to it and the findings of fact fully sustain this conclusion.

This action involves title to, the right of possession of, and a right of way for an irrigation ditch. Under section 3056, Rev.

[Ed. Note.-For other cases, see Pleading, tion of the trial court, to be exercised, acCent. Dig. §§ 1442-1450.]

Where a judgment debtor causes real property which he has purchased to be conveyed by his vendor direct to a third person, and the transfer of his interest to such third person is fraudulent and void as to creditors, and the judgment creditor levies upon and sells such permitting the amendment. This is particuproperty as the property of the judgment debt-larly true in view of the offer of the court or, the holder of the sheriff's deed on such sale to continue the case, should the appellant may, under section 4538, Rev. Codes, maintain an action as owner to quiet title.

Appeal from District Court, Ada County; lows: Charles P. McCarthy, Judge.

Action by The Mode, Limited, against Sada Myers, to quiet title to real property. Judgment for plaintiff, and defendant appeals.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

solvent, and while so insolvent made conveyanc- to lots 9 and 10, the basis for this contention es without consideration of his property, the property in question herein, with intent to hinder, delay, and defraud his creditors, and especially the plaintiff creditor in this action. And at the time the defendant Walter A. Myers did cause to be made this pretended conveyance without consideration, and said defendant Walter A. Myers knew he was insolvent, and had sworn less than a month prior to this pretended conveyance without consideration that he had no property out of which the plaintiff creditor could satisfy its judgment. That at the time said conveyance of the property in controversy was pretended to be dated and made by Walter A. Myers to Sada Myers, his wife, said Walter A. Myers had no other property, other than this property in question, whatever, out of which this plaintiff creditor could satisfy his said indebtedness."

[2] The allegation would be entirely insufficient if it were challenged by demurrer, but in the absence of a demurrer such defective statement of a cause of action is cured by a verdict, or findings and judgment. Salmon Falls Bank v. Leyser, 116 Mo. 51, 22 S. W. 504; San Francisco v. Pennie, 93 Cal. 465, 29 Pac. 66; Larkin v. Mullen, 128 Cal. 449, 60 Pac. 1091.

"After judgment, the rule by which pleadings before judgment are construed most strongly against the pleader is reversed, and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment." Plew v. Board, 274 Ill. 232, 113 N. E. 603.

In this case it was shown that the defendant W. A. Myers was a judgment debtor of the respondent; that while so indebted, without consideration, he executed a conveyance of two of the lots in question to appellant, Sada Myers, and caused to be executed a conveyance of the remaining two lots in question to appellant; that at the time of such conveyances W. A. Myers was insolvent. Appellant offered testimony tending to show that the conveyance to her of the two lots was intended to take the place of a former deed of conveyance made by W. A. Myers prior to the time he was indebted to the respondent, which former conveyance had been lost, and that the assignment of the contract for the conveyance of the remaining two lots

was also made by W. A. Myers prior to any indebtedness to the respondent, and that such original conveyance and assignment were made in consideration of her approaching marriage to W. A. Myers. After weighing the conflicting evidence the trial judge found that the said conveyances by W. A. Myers to appellant were made without con

being that these lots were conveyed by the Pierce Suburban Syndicate direct to appellant, Sada Myers, and that respondent's claim of title, being based upon a sheriff's deed, is not, as a matter of law, well founded, and that an action to quiet title is not the proper remedy. Section 4477, Rev. Codes, provides that any interest in real or personal property of the judgment debtor, not exempt by law, is liable to execution. In the case of Clifton v. Herrick, 16 Cal. App. 484, 117 Pac. 622, it was held that under California Civil Code, § 3439, declaring a transfer of property with intent to defraud a creditor void against the creditor, a judgment debtor having bought property with her separatefunds and taken title in the name of her daughter with intent to defraud the judgment creditor, such creditor could levy on and sell the property as that of the judg ment debtor.

This action is brought under the provisions of section 4538. Rev. Codes. In the case of Coleman v. Jaggers, 12 Idaho, 125, 85 Pac. 894, 118 Am. St. Rep. 207, the court held the provisions of said section to be very broad, and that under them any person, whether in possession or out of possession, whether holding the legal or equitable title, might bring an action against another who claims an estate in real property adverse to him, and in such action might have the adverse claim determined and settled. No issue of possession or right of posUnder the session is involved in this case. construction of section 4538, given above, respondent had the right to levy upon and sell any interest its judgment debtor might have in the two lots in question, and, upon becoming the purchaser thereof, could bring an action to quiet title. The judgment of the district court is affirmed. Costs awarded to respondent.

BUDGE, C. J., and MORGAN, J., concur.

On Petition for Rehearing.

for rehearing in this case, and raises therein RICE, J. Appellant has filed a petition questions which require consideration. There can be no doubt but that a party has the right to test the sufficiency of an amendment to of the trial to the same extent as though the a pleading when offered during the progress amendment were made before trial. He may sideration, and with intent to hinder, delay, demur in some instances, or he may raise the and defraud his creditors, of whom respond-question of the sufficiency of the amendment by objections to the allowance thereof, and ent was one. The trial court without doubt such objections have the same force and recognized the rule that where fraud is demurrer. In this case the objection was— effect as if the questions were presented by

charged as a basis of recovery the proof must be clear and convincing. Under that rule there was substantial evidence to support the findings of the court and the judgment based thereon.

"that the amendment as submitted is a statement of evidence or evidential facts, upon which the plaintiff will rely, rather than the ultimatefacts involved.”

[3] Appellant also contends that respond- This objection was not specific in pointing