within the issues, and sufficient to support the judgment of foreclosure. The partial inconsistency of the findings with the theory of the complaint is immaterial.

ID.-EFFECT OF TRANSFER BY DEED FROM MORTGAGEE.-The transfer to the plaintiff by deed from the defendants' mortgagee by deed, at defendants' request, upon the plaintiff advancing the money due to such mortgagee, had the effect to place the plaintiff in the shoes of the original grantee as mortgagee, and to make him the creditor and mortgagee of the defendants, in respect of the same debt, due to the original mortgagee.

ID. STATUTE OF LIMITATIONS-EFFECT OF NEW NOTE TO PLAINTIFF.— Where the original note secured by the mortgage deed was not barred by the statute of limitations, the giving of a new note to the grantee of the mortgagee, payable three years from date of the transfer, had the effect to initiate a new period for the statute of limitations, and while the new note evidencing the original indebted ness was not barred or extinguished, the life of the mortgage continued to exist.

ID.—EQUITY—SUBSTANCE NOT SACRIFICED TO FORM.-Equity never sacrifices substance to form; and the debt and claim in the hands of the plaintiff is to be considered the same debt and claim that was previously held by the original mortgagee.

APPEAL from a judgment of the Superior Court of San Diego County. J. W. Hughes, Judge.

The facts are stated in the opinion.

Luce & Sloane, for Appellants.

C. M. Hansen, and Oscar A. Trippet, for Respondent.

GRAY, C.-In this action the plaintiff sued to recover upon a promissory note and to foreclose a lien upon real estate securing the indebtedness evidenced by said note. The plaintiff had judgment, from which defendants appeal on the judgment-roll, without a bill of exceptions.

The findings show a state of facts substantially as follows: The above-named defendants deeded certain lands to one Kreamer to secure an indebtedness owing by defendants to said Kreamer, amounting to $2,330. That said indebtedness was evidenced by a promissory note from said defendants to said Kreamer, and was to fall due on the twenty-second day of January, 1892. In the last-mentioned month, the defendants entered into negotiations with plaintiff for a loan with which to extinguish this indebtedness,

and plaintiff agreed to advance the money to pay Kreamer's claim; and knowing that Kreamer's title to the land was simply that of mortgagee, plaintiff paid said Kreamer the amount of said claim, and, as security for the money so paid, he received a deed of conveyance of said land directly from Kreamer to himself, together with the note executed by defendants to Kreamer, as aforesaid, and plaintiff executed to defendants an agreement in writing, that he would convey to them at any time within three years of the date of January 23, 1892, all the right conveyed to him by the Kreamer deed, upon the payment by defendants of said sum of $2,330, with interest. Some days after this transaction, and on the twenty-second day of February, 1892, the defendants made, executed, and delivered to plaintiff their promissory note for the said sum of $2,330 and six dollars more, making in all $2,336 as the principal of said note. This note was dated back to January 23, 1892, and was made payable three years after date. It is found that the cause of action is not barred by limitation, and that there is owing and unpaid on the said sum of $2,330, including interest, as agreed in the note, the sum of $4,600. A decree for the last-mentioned sum, and for a sale and foreclosure of the premises, is entered against defendants. The complaint was filed herein and the suit commenced January 21, 1899.

Appellants state three reasons for reversal, as follows: 1. That the findings are inconsistent with the cause of action set out in the complaint; 2. That the conclusions of law and judgment are not justified by the findings; and 3. That the finding that the lien of plaintiff on said premises is not barred by the statute of limitations is in conflict and inconsistent with the other findings of the court. We will dispose of these points in the above order.

1. It is true that the findings are to some extent inconsistent with allegations of the complaint. The complaint seems to be drawn on the theory that the plaintiff received the title to the land from Kreamer and holds it in trust for defendants, to be conveyed to them on payment of the said amount of $2,330 and interest. The findings indicate that defendants own the land, that Kreamer's interest in it was that of a mortgagee only, that he conveyed this interest, together with the debt secured thereby, to plaintiff, and that, consequently, plaintiff's interest is merely that of creditor

and mortgagee. To this extent the findings substantially follow the affirmative allegations of the answer. The theory of the answer is, that the transaction merely made plaintiff the creditor of defendants and the mortgagee of their property, and the statute of limitations was pleaded as a defense to the action. The plaintiff would be entitled to judgment on the allegations of the answer, were it not for the plea of the statute of limitations. This plea is deemed to be controverted by plaintiff. The findings and decree, then, cannot be said to be outside of the case made by the pleadings, but, rather, they may be said to be based upon and to dispose of the case as made by the answer and the denial thereof by the plaintiff, presumed under the provisions of the code. From the record before us, it does not appear that any objection was made to evidence, and we will therefore presume that all parties treated the evidence offered and received as proper under the pleadings, and that such evidence supports the findings. The inconsistency between the findings and certain allegations of the complaint are therefore immaterial.

2. It is also clear that the findings show that the defendants owed the plaintiff the amount decreed to be due, and that the debt was secured by a mortgage. The transfer from Kreamer to plaintiff placed plaintiff in Kreamer's shoes, and made him the creditor and mortgagee of defendants, just as Kreamer had been previous to such transfer. To this extent, then, the findings clearly support the judgment.

3. The only troublesome question in the case is the last one,-Is the mortgage barred by the statute of limitations? We think a negative answer must be given to this question also. Bearing in mind that this is an equitable action, and that equity never sacrifices substance to mere form, we see but one debt referred to in the findings, owed by defendants to different parties at different times. The debt and claim in the hands of the plaintiff was the same debt and claim that had been previously held by Kreamer. In Kreamer's hands it was evidenced by a promissory note, which, by its terms, had been due for a longer time than the statutory period of limitations when this action was begun; but, shortly after the transfer to plaintiff, a new note vas given, evidencing the same old indebtedness, but to the new holder of that indebtedness. This new note was given

before the old note was barred by the statute, and had the effect of initiating a new period for the statute of limitations, which had not expired when this action was commenced. The debt, then, never was barred or extinguished, and the same may be said of the mortgage, for the life of the mortgage is the life of the debt secured by the mortgage. (London etc. Bank v. Bandmann, 120 Cal. 220;1 Southern Pacific Co. v. Prosser, 122 Cal. 413.)

We advise that the judgment be affirmed

Smith, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

Garoutte, J., Harrison, J., Van Dyke, J.

[Sac. No. 900. Department One.-December 27, 1901.]

J. H. STUFFLEBEEM, Respondent, v. MARY ADELSBACH et al., Appellants.

INJUNCTION SUIT-REAL PARTY IN INTEREST-CONVEYANCE BY PLAINTIFF PENDING SUIT-SUBSTITUTION NOT REQUIRED.-In an injunction suit to restrain interference with a ditch constructed over the lands of the defendants, to convey water to plaintiff's land, a conveyance of his land pending suit does not require the substitution of the purchaser as plaintiff, and the action continued in the name of the original plaintiff cannot be defeated on the ground that he had ceased to be the real party in interest.

ID.-EASEMENT RIGHT TO CLEAN WATER DITCH FILLED BY DEFENDANTS -BREACH OF VERBAL CONTRACT-LOCATION OF LINE.-It appearing that the defendants had filled up plaintiff's ditch where it had crossed the north half of their quarter-section, after it had been verbally agreed that they would deed to plaintiff a right of way over the south half thereof, which agreement they did not comply with, and that plaintiff had not abandoned the ditch or lost the right to use it, and that it was necessary to have it cleaned out and opened to irrigate his land, his right to clean out and open it is applicable to the line of the ditch as formerly used, and to a ditch of the same size and capacity, and it is immaterial where it was located relatively to the south half of the quarter-section.

1 65 Am. St. Rep. 179.

ID.-FORCIBLE INTERFERENCE WITH RIGHT INJUNCTION.-The forcible interference of the defendants with the right of the plaintiff to clean out and open the ditch, which was not abandoned or barred by the statute, nor lost by adverse possession, may be prevented by injunction.

ID. FORMER LEASE-IGNORANCE OF RIGHT-NEW SURVEY-EXERCISE OF UNDISPUTED RIGHT.-Where it appeared that a former owner of the ditch, in ignorance of her rights thereto, leased the ditch from the defendants for one year, and that subsequently a new survey of the ditch was made, after which the right to use the ditch by her and her successors in interest was not questioned by the defendants until it was closed by them, nine years later, under the verbal agreement with the plaintiff, which they broke, the plaintiff's right to open and use the ditch does not depend upon any lease or permission from the defendants.

ID.-USE OF WATER FROM OTHER DITCHES.-The fact that during the period between the filling and the reopening of the ditch, the plaintiff had been using other ditches by which he obtained water, in which he is not shown to have acquired any ownership or permanent right of user, cannot affect the right of the plaintiff to reopen the ditch, and to enjoin interference therewith.

APPEAL from a judgment of the Superior Court of Tulare County and from an order denying a new trial. M. L. Short, Judge presiding.

The facts are stated in the opinion of the court.

F. D. McClure, and Maurice E. Power, for Appellants.

Charles G. Lamberson, for Respondent.

HAYNES, C.-This suit was brought to enjoin the defendants from interfering with or preventing the plaintiff from opening, cleaning out, and using a certain ditch over lands of the defendants, for the purpose of conveying water to the lands of the plaintiff. The court made findings and entered judgment for the plaintiff, and the defendants appeal therefrom and from an order denying a new trial.

The findings are, in substance, that plaintiff and his grantors have for more than twenty-five years been the owners of the north half of the northwest quarter of section 14, in township 19 south, range 24 east, Mount Diablo base and meridian; that about the year 1862, one Peter Steinman, then the owner of said land above described, constructed a ditch