But we need not decide this point, for under the law as it is written and as it has been construed and applied in this court, the defendant was not excluded from the benefit of his plea of the statute of limitations unless the property which he claims to have held adversely was actually assessed. (Ross v. Evans, 65 Cal. 440; Heilbron v. Last Chance Co., 75 Cal. 117.)

The doctrine of these cases, however, does not entirely dispose of appellant's objection, for he contends that the easement claimed by defendant in his land, although not assessed separately and eo nomine to any one, was virtually and in effect assessed to him. He says: "My land, and the entire property therein, has been assessed to me, and I have paid the taxes. But the easement claimed by defendant is an interest in my land. If his claim is well founded, I own my land minus the easement which he owns. He should pay the taxes on that, and I only upon what remains after that is deducted."

In support of this position he cites the case of McNoble v. Justiniano, 70 Cal. 395.

That was an action to recover 160 acres of land, part of a larger tract belonging to plaintiff, the whole of which had been assessed to her, and upon which she had paid all the taxes. The defendant, although he had been for ten years in adverse possession of the demanded. premises, had never returned them for separate assessment to himself, and had never offered to pay the taxes on them. It was held that his plea of the statute of limitations could not be sustained.

But this case is essentially different. There the land was assessed by the acre and in proportion to its extent. Necessarily the plaintiff had paid the full amount of taxes upon every acre of land in dispute, and the defendant had paid nothing.

In this case the defendant paid taxes on the land in connection with which the ditch was used and which was benefited thereby. The evidence shows that the

land with the ditch was valuable, produced good crops and grew fruit-trees, etc., and that without the water it would be comparatively useless. It is fair to presume, therefore, that the value of the water right was no greater than the enhanced value of the land to which it was appurtenant, and that in paying taxes on his land the defendant paid taxes on the water right. On the other hand, there is no legal presumption or necessary inference that the ditch and water flowing therein either enhanced or diminished the value of plaintiff's land. Land so situated may be damaged, or may be benefited, and it must be presumed that the assessor, seeing plaintiff's land as it was, crossed by a ditch in the sole and exclusive use of defendant, made proper allowance for its advantages and disadvantages in valuing the land. As matter of fact, the evidence shows that plaintiff was greatly benefited by the ditch. Without going above the line of his own land, he could not divert any water from the creek, although an abundance was flowing therein, so as to bring it where he could use it, and up to the day he brought this action he never had acquired any right to divert the water on the lands above him.

The defendant and his predecessor, Powers, however, had for ten years enjoyed the right of diverting the water at their dam on the northeast quarter of the section, and by that means were enabled to conduct it across the higher parts of plaintiff's land, who, by their permission, when they did not require the full capacity of their ditch, made use of it for his own purposes and to his great advantage. His land, therefore, during the time of the running of the statute, was worth more by reason of the ditch than it would have been without it; and if it was assessed merely as so much land, and wholly without regard to the ditch, he paid less taxes rather than more than he ought to have paid. Certain at least it is, the evidence does not show, and there is no ground for presuming, that he paid, and defendant

failed to pay, taxes on the thing to which defendant asserts a prescriptive right, and consequently the decision in McNoble v. Justiniano, supra, does not apply.

re

In this view, the exception to the testimony of the defendant as to the manner in which the assessor garded the ditch when assessing the land becomes immaterial. In the absence of the testimony, the court would have presumed that the advantages and disadvantages of the ditch had been considered in assessing the land.

As to other errors assigned by appellant and based upon exceptions taken to rulings of the superior court in the course of the trial, it is sufficient to say that so far as the defenses founded upon the statute of limitations and equitable estoppel are concerned, it is immaterial whether defendant or his grantor made an appropriation of the waters of Clear Creek in compliance with the code requirements as to posting notices, etc.,

or not.

To sustain these defenses, the actual construction of the ditch could be shown without showing the preliminary posting or recording of notice.

There was no error in admitting evidence as to the convenience and necessity of the ditch to the Powers place. Such evidence was relevant and material to the defense of estoppel, and also to show that the water right was appurtenant to the land, and passed to the defendant by grant of the land.

The evidence admitted over plaintiff's objection as to the actual intention and understanding of the parties at the time of defendant's purchase of the Powers place, to the effect that they all understood that the ditch and water right was included in the sale, and was to pass by the deed as appurtenant to the land, if incompetent, was clearly not prejudicial. In the absence of such testimony, no other construction could have been given to the deed.

LXXIX. CAL.-38

The other assignments of error relate exclusively to the other defenses, and need not be considered.

Judgment and order affirmed.

WORKS, J., MCFARLAND, J., SHARPSTEIN, J., PATERSON, J., and THORNTON, J., concurred.

[No., 12518. In Bank.-July 3, 1889.]

N. J. PEHRSON ET AL., RESPONDENTS, v. J. B. HEWITT ET AL., APPELLANTS.

FRAUD JUDGMENT BY CONFESSION-INSOLVENCY-RELIEF IN EQUITY— PLEADING.-A complaint by attaching creditors of an insolvent debtor seeking to set aside certain pretended judgments by confession and execution levies thereunder, alleged to have been accepted and procured with intent to hinder and defraud the plaintiffs and other creditors, and to defeat their attachments, and also seeking to set aside an adjudication in insolvency of the debtor upon his petition alleged to have been procured in bad faith, in pursuance of a fraudulent scheme to carry out the same intent, does not state a cause of action if not averring that the judgments confessed were not justly due. The allegations that the confessions of judgment were pretended and fraudulent as against other creditors are insufficient in the absence of averment of facts showing to the court how they were such. ID.-ASSAILING CONFESSIONS OF JUDGMENT-RIGHTS OF ASSIGNEE AND CREDITORS.-If confessions of judgment are prohibited by the insolvent laws, the assignee in insolvency can have them adjudged void upon a proper proceeding for that purpose; but attaching creditors cannot assail them in equity, if the judgments confessed were for debts justly due. ID.-AGREEMENT OF JUDGMENT CREDITORS WITH INSOLVENT DEBTOR.If judgments confessed by an insolvent debtor are justly due, it is not fraudulent for the judgment creditors to agree with such debtor that they will buy in the property at a sale had on their executions, and give it to the debtor. A proceeding in insolvency by the debtor to carry out such arrangement cannot be fraudulent as against other creditors.

ID. SETTING ASIDE INSOLVENCY PROCEEDINGS IN EQUITY.-JURISDICTION. A court of equity has no jurisdiction to set aside an adjudication in insolvency or dismiss the proceedings at the suit of attaching creditors of the insolvent upon allegations of fraud, the creditors having an opportunity to oppose the discharge of the debtor in the insolvency proceeding. There can be no fraud in the pursuance of a remedy allowed by law.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Wiley & Dozier, and F. P. Primm, for Appellants.

The complaint does not show any fraud which obstructs the enforcement by legal process of the rights of plaintiff. (Civ. Code, sec. 3441.) The legal enforcement of a lawful agreement can afford no cause of complaint. (Cordier v. Schloss, 12 Cal. 147.) The insolvency proceedings afford an adequate remedy at law, and where there is such adequate remedy, equity will not interfere. (Richards v. Kirkpatrick, 53 Cal. 434; Harper v. Richardson, 22 Cal. 254; Imlay v. Carpentier, 14 Cal. 177; Leach v. Day, 27 Cal. 646; Tomlinson v. Rubio, 16 Cal. 207; Tevis v. Ellis, 25 Cal. 520; Ex parte Hollis, 59 Cal. 416; Van Roun v. Superior Court, 58 Cal. 359; San Francisco v. Beideman, 17 Cal. 451.) There are no allegations showing irreparable injury. (Domec v. Stearns, 30 Cal. 117; Gregory v. Hay, 3 Cal. 334; Robinson v. Russell, 24 Cal. 472; More v. Ord, 15 Cal. 206; Mechanics' Foundry v. Ryall, 62 Cal. 417; De Witt v. Hays, 2 Cal. 470; 56 Am. Dec. 352; Burnett v. Whitesides, 18 Cal. 157.) Equity cannot stay or set aside the pending proceedings in insolvency. (Civ. Code, sec. 3423; Larue v. Friedman, 49 Cal. 284; Julien v. Riley, 61 Cal. 242.) The justice of the indebtedness for which the judgments were confessed not being impugned, there is no foundation for plaintiffs' charge of fraud. (Meeker v. Harris, 19 Cal. 289; 79 Am. Dec. 215.) Fraud without damage gives no cause of action. (Herron v. Hughes, 25 Cal. 556; Reay v. Butler, 69 Cal. 572.)

Clay W. Taylor, and J. Chadbourne, for Respondents.

The judgment may be impeached for fraud by third persons who have an interest in the property concerned. (Bigelow on Fraud, 69, 91-96, and cases cited.) Equity