the complaint and judgment, was: "Commencing at the southeast corner of the northeast quarter of the southeast quarter of section fifteen (15), township fourteen (14) south, of range forty-three (43) east of Boise meridian;" whereas the true description should have been: "Commencing at the southeast corner of the northwest quarter of the southeast quarter of section fifteen (15)," etc. The mistake or error consisted in putting in the word "northeast" instead of "northwest," a purely clerical mistake. The evidence shows that there was no question as to what land was intended to be described. On the 18th August, 1897, respondent served notice on defendants in the ejectment suit (appellants here) and their attorneys of a motion to be heard before the district court for Bear Lake county on the 23d August, 1897, that being the first day of the then next term of said court, to correct said description in the complaint and in the judgment in said ejectment suit. Upon the hearing said motion was allowed by the court, and an order made correcting said description in the complaint and judgment. From said order this appeal is taken. Section 4229, Rev. St. Idaho, provides, inter alia, "that the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and whenever for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order or proceeding complained of was taken, the court or the judge thereof in vacation may grant the relief upon application made within a reasonable time not exceeding six months after the adjournment of the term." The mistake was purely a clerical one, of a character frequently occurring in cases of lengthy descriptions of land, as was that in this case. There is no question as to what land was intended to be covered by both the complaint and the judgment. The surveyor who made the survey testified, "I could begin at any one of the fourteen points mentioned in the survey, and trace the true lines, and make the survey as it is." The relief sought is clearly given by the statute. The respondent has brought himself strictly within the rule. To have denied the relief would not only have been a denial of justice, but an abrogation of the statute. Counsel for appellants have cited a number of federal decisions, but they have no application to this case. The relief sought is purely statutory, and does not come within, and is not to be construed or governed by, the rules of equity. The only question to determine here is, has the party brought himself within the rule of the statute? The record shows that he has. The judgment of the district court is affirmed, with costs. SULLIVAN, C. J., and QUARLES, J., con cur. (5 Idaho, 741) STEVENS et al. v. HOME SAVINGS & LOAN ASS'N. (Supreme Court of Idaho. Jan. 31, 1898.) BUILDING AND LOAN ASSOCIATIONS-CONSTRUCTION OF CONTRACT-COUNTERCLAIM-RIGHT TO FILE-ABATEMENT-PLEADING. 1. A contract between a borrower and a building and loan association provided that certain payments "shall be credited as dues on ** stock, [to] be continued until the dues so credited, * together with the dividends, shall equal the amount loaned." Held, that the dues were payments on the loan. * * 2. Where a mortgagor sues to recover a statutory penalty for the failure of the mortgagee to discharge the mortgage of record after its satisfaction, the mortgagee should set up any rights under the mortgage by way of counterclaim. 3. A complaint not showing the pendency of another suit can be assailed only by answer. Petition for rehearing. Denied. For former report, see 51 Pac. 779. HUSTON, J. The respondent has filed a petition for rehearing, in which several questions are propounded to us, none of which have any bearing upon the questions before us in this cause, for which reason we shall not attempt to answer them. It will be proper, however, to suggest that each of said questions is fully answered by section 1266, Rev. St., and by the opinion of this court in Trust Co. v. Hoffman, 49 Pac. 314. Respondent insists that in the opinion in this case we hold that stock payments made by a member of a building and loan association are payments on the loan. We have not done so. We have construed (properly, we think) the contract in question to be one purely of loan. The fourth paragraph in that contract: "The balance of said payments shall be credited as dues on said stock. Said payments shall be continued until the dues so credited on sald stock, together with the dividends declared thereon, shall equal the amount loaned,”— shows conclusively that the credits called "dues" are nothing but payments on the principal of the loan, and that the monthly payments should stop when the aggregate of said dues should equal the principal of the loan. The contract, as a whole, can be construed in no other way. The question of making payments on their stock by the defendants, or the amount that they owe on their stock (unpaid subscriptions), does not arise in this case. The contract in question related to a transaction of loan. So far as the complaint shows, the defendants in the foreclosure case owned the stock named in the contract, and it was fully paid. But, whether that be the fact or not, whatever amount they may have owed on the stock has nothing to do with this case, or the contract in question. Paragraph 9 of the complaint shows that the parties placed the same construction upon said contract that we have given to it. The question of the stock payments of a nonborrowing member are not in volved at all in this case. We thought that the original decision in this cause was correct, when made. Since reading respondent's petition for rehearing, we are fully satisfied, beyond doubt, that it is absolutely correct. The petition for rehearing deals, uniquely and ingeniously, with the question of the right and duty of the defendant to set up its right on the mortgage in question by way of counterclaim in the action brought by the mortgagors to recover the statutory penalty for failure of the mortgagee to discharge said mortgage of record after satisfaction of same. We think that a few suggestions in addition to what we said in the original opinion will dispose of this question. A cause of action, arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, existing in favor of the defendant and against the plaintiff, or, if more than one plaintiff, against all the plaintiffs, must be set up in the action by the defendant by way of counterclaim or by cross complaint. If a cause of action exists in favor of the defendant in an action brought upon contract, against the plaintiff, or all of the plaintiffs, upon the contract, such cause of action may be set up by the defendant by way of counterclaim. But a cause of action in favor of the defendant, against one only of a number of plaintiffs, or in favor of one only of several defendants, cannot be set up by way of counterclaim. In the case at bar there was but one defendant, and a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, and connected therewith, is alleged to exist in favor of said defendant, and against all of the plaintiffs. Under this state of facts, It was the duty of the defendant (respondent here) to set forth its cause of action in its answer by way of counterclaim. If there were subsequent purchasers or incumbrancers, or claimants to the mortgaged property, the defendant should, under the provisions of section 4188, Rev. St., have filed with its answer a cross complaint, or subsequently, with permission of the court, and under said sections 4188, 4113, Rev. St., it should have caused such interested parties to be brought into court. These and other provisions of our Code were adopted to prevent a multiplicity of suits, to the end that controversies which relate to one transaction should be settled in one, instead of a number of suits. We were in error as to the proper ruling on the third ground of demurrer. As to that ground, the complaint did not show that both actions were pending. This being true, that question could only be presented by answer, and to this extent the original is modified. The laborious effort of counsel to establish their case by sophistical and technical arguments, while it may have a pecuniary value as a treatise in favor of the plans and methods of building associations, cannot be accepted as a rule of decision, against the plain and SULLIVAN, C. J. The complaint contains four alleged causes of action. The first cause is for services alleged to have been rendered at the special instance and request of the defendant in the procuring a continuance of the said defendant in his position as superintendent of the state insane asylum, and alleges that such services were reasonably worth $250. And for a second cause of action it is alleged that plaintiff rendered services for defendant in and about the assignment of a certain desert land entry, and that such services were worth $100. And for a third cause of action it is alleged that defendant became indebted to plaintiff for services performed "during the months of July and August, 1895," in and about procuring from the United States Indian department a permit for the defendant to obtain and procure from the Fort Hall Indian reservation rock for building purposes, and that such services were reasonably worth the sum of $150. And it is further alleged that during the time said services were rendered the defendant advanced to plaintiff certain sums of money, which, together with interest accrued thereon, aggregated the sum of $345. The fourth cause action alleges: "That on the 20th day of March, 1895, the defendant fraudulently duced and procured the plaintiff and his wife. Grace N. Beane, to make, execute, and deliver of to him a certain chattel mortgage on certain personal property which was the separate property of plaintiff's said wife. That said mortgage was made and given at the special instance and request of defendant; and that, at the time said mortgage was given, neither plaintiff nor his wife was indebted to the defendant in any sum whatever; and that at the time said mortgage was given, and immediately thereafter, the said note and mortgage were given as a memorandum showing the amount of money advanced and paid to the plaintiff for his benefit; and that said note and mortgage were intended for no other purpose; and that the defendant never at any time until very recently claimed or asserted any claim against this plaintiff on account of the execution and delivery of said mortgage. That some time in the year of 1895 the defendant left the state of Idaho for the state of Maryland, and resides at the city of Baltimore. That since he left this state this plaintiff is informed and believes, and upon his information and belief alleges, that the defendant is asserting a claim against the plaintiff at this time on account of the existence of said note and mortgage above complained of in the sum of about $345, with interest thereon from the 20th day of December, 1895, when in truth and in fact the plaintiff owes the defendant nothing on account of said note and mortgage. Plaintiff says that said note and mortgage were procured from him by fraud and deceit, practiced at the time by the said defendant by then and there promising and assuring the plaintiff that he would not make any claim against the plaintiff by reason thereof, and that the said note and mortgage would be only a protection to the plaintiff, and that, when a settlement would occur between plaintiff and defendant, the amount of said note and mortgage would be deducted from the claim held by plaintiff and set out in the three foregoing causes of action; and that the said note and mortgage should be held, used, and claimed by the defendant for such purpose, and none other. That plaintiff is informed and believes, and upon such information and belief avers, that in violation of said agreement and understanding, and for the purpose of cheating and defrauding this plaintiff, the defendant has placed said note and mortgage in the hands of F. S. Dietrich, an attorney of this court, at Blackfoot, Idaho, with instructions to compel the payment of said note and mortgage, and, if not paid promptly, to proceed by affidavit and notice to foreclose said mortgage in the manner provided by law; and that he is now threatening to bring such foreclosure proceedings, and, if not restrained by some order of this court, the said defendant will proceed by affidavit and notice and foreclose said mortgage, and this plaintiff will thereby suffer great and irreparable injury and damage. That defendant is a nonresident of this state, and resides outside of the jurisdiction of this court. Plaintiff now asks that during the pendency of this action defendant be restrained from pro ceeding by affidavit and notice to foreclose said mortgage in the manner and form that he is now threatening to do. Wherefore the plaintiff prays and demands judgment for such sum as may be found due him upon the final hearing of this cause on the first three causes of action herein set out; that the defendant be required to set up his mortgage, together with the rights he claims thereunder, and that the same be canceled, and held for naught; and that the defendant be restrained during the pendency of this action from instituting foreclosure proceedings in any other manner or form than by answer and cross complaint herein; and for costs, and for all proper relief. J. H. Forney and Reeves & Terrell, Attorneys for Plaintiff. Duly verified. Filed January 14, 1896." Plaintiff demands judgment, and that said mortgage be canceled, and held for naught. The defendant demurred to the complaint on six separate grounds, and also answered, not waiving his demurrer. The defendant denies specifically the allegations of the complaint as to the first three causes of action; and as to the fourth cause the defendant denies that he fraudulently induced or procured the plaintiff and his wife to make and deliver said chattel mortgage, and alleges that the defendant and his wife were indebted to the plaintiff in the amount named in said note and chattel mortgage, and that said sum was a bona fide existing indebtedness due the plaintiff from the defendants at the time said mortgage was given to secure the payment thereof. The defendant denies specifically that said mortgage was given as a memorandum, and denies specifically all allegations of the complaint which aver that said note and mortgage were not given for a valid indebtedness; and avers that said mortgage was given as a valid security for the payment of said promissory note, and was intended as such. The cause was tried by the court, with a jury, and a verdict was found by the jury in favor of the plaintiff on the first cause of action for $150, and on the second cause of ac tion for $50, and in favor of the defendant on the third cause of action. And on the fourth cause they found that the said mortgage was not executed for a valuable consideration, and upon fraudulent inducements made by defend. ant to plaintiff; and they further find as follows: "We find in favor of plaintiff and against defendant, and assess plaintiff's damages in the sum of ($200) two hundred dollars upon the first three causes of complaint." The court made the following additional finding, to wit: "In addition to the findings made by the jury, the court finds that the plaintiff executed the mortgage mentioned in the complaint, not in good faith, and for the purpose of hindering and delaying creditors." Thereafter the court made the following judgment, to wit: "Now, therefore, by reason of the premises, it is adjudged that the plaintiff do have and recover of and from the defendant the sum of two hundred dollars; and, it further appearing to the court from the verdict of said jury that the mortgage made by the defendant, dated March 20, 1895, was given without any valuable consideration passing from defendant to plaintiff, and that the same was induced and procured by false and fraudulent representations made by the defendant to the plaintiff, and made by plaintiff to hinder and delay his creditors, it is therefore adjudged that the plaintiff take nothing by the fourth cause of action set out in the complaint. It further appearing to the court from the complaint that the plaintiff is indebted to the defendant for money advanced to him in the sum of $345, for which the note mentioned in the complaint is given, it is ordered that said note be credited by the sum of $200, as herein found, in favor of plaintiff and against defendant, and that plaintiff recover his costs, taxed at $Entered Oct. 3, 1896. D. W. Standrod, Judge." Said judgment, though peculiar in form, and somewhat indefinite, was entered in the judgment book on October 3, 1896. The appeal is from the judgment. Several errors are assigned, and, among them, that the court erred in overruling the demurrer. The demurrer to the complaint stated several grounds, and, among them, the following, to wit: "That it appears on the face of the complaint that there is a defect of parties in this, to wit, that Grace N. Beane, the wife of the plaintiff, is a necessary party, for the reason that it is alleged that she signed the chattel mortgage covering her separate property, which plaintiff prays the court to declare void for fraud on the part of the defendant." The first three alleged causes of action are for personal services of the plaintiff, and the fourth alleged cause is for the cancellation of a chattel mortgage executed by plaintiff and his wife, Grace N. Beane, on her separate property, to secure a promissory note of $345. In the first three alleged causes of action Grace N. Beane was not a proper or necessary party. In the fourth alleged cause of action she was not only a proper, but a necessary, party, as it is alleged that her separate property was included in said mortgage. The question as to the validity of said mortgage could not be determined so as to bind her, as she was not a party to the record. The rule of law here involved is very tersely stated by Mr. Pomeroy in his work on Code Remedies (section 247), as follows: "The grand principle which underlies the doctrine of equity in relation to parties is that every judicial controversy should, if possible, be ended in one litigation; that the decree pronounced in the single suit should determine all rights, interests, and claims, should ascertain and define all conflicting relations, and should forever settle all questions pertaining to the subjectmatter." And again he says (section 249): "The plaintiff who institutes an equitable action must bring before the court all those persons who have such relations to the subjectmatter of the controversy that, in order to prevent further litigation by them, they must be included in and bound by the present decree; in other words, all those persons who are so related to the controversy and its subject-matter that, unless thus concluded by the decree. they might set up some future claim, and commence some future litigation growing out of or connected with the same subject-matter against the defendant who is prosecuted in the present suit, and from whom relief therein is actually obtained." A decree in the case at bar would in no wise affect Mrs. Beane's rights under the mortgage, she not being a party to the action. The property covered by the mortgage is alleged to be her separate property. If that be true, in case the court had found the mortgage was valid, that would not have prevented Mrs. Beane from bringing an action to restrain the foreclosure of said mortgage on the identical grounds alleged in this action. Under our practice, a cause of action cannot be cut up and tried by sections, in separate suits. There was a nonjoinder of parties, and the demurrer should have been sustained. The sixth ground of demurrer is that it appears upon the face of the complaint that several causes of action have been improperly united. The first three causes of action are to recover for services alleged to have been rendered by the plaintiff, and to those Mrs. Beane is neither a proper nor a necessary party, while to the fourth she is a proper and necessary party. That being true, the fourth cause of action could not be united with the first three causes. See last clause, section 4169, Rev. St. It is urged by respondent that, inasmuch as the court refused or declined to act at all upon the fourth cause of action, the overruling of said demurrer on the ground of misjoinder or nonjoinder of parties was harmless error, and that a judgment should not be reversed for that reason. The record shows that the court found as a fact that the plaintiff executed said mortgage "not in good faith, and for the purpose of hindering and delaying his creditors." We are at a loss to know how Beane could "hinder and delay" his creditors by executing a chattel mortgage on the separate property of his wife. And in the judgment it is recited that "said mortgage was given without any valuable consideration passing from defendant to plaintiff, and the the same was induced and procured by false and fraudulent representations, made by the defendant to the plaintiff, and made by the plaintiff to hinder and delay his creditors. It is therefore adjudged that the plaintiff take nothing by the fourth cause of action set out in the complaint." This certainly is a very peculiar judgment. It gives the plaintiff what he demands, to wit, it declares the mortgage fraudulent and void, and then throws in the expression, to wit, "that the plaintiff take nothing by the fourth cause of action." As the demurrer to the complaint should have been sustained, the determination of this appeal does not require this court to go, nor would it be proper for us to go, beyond that, and decide questions not necessary to a determination of the case. The judgment is reversed, and the cause remanded, with instructions to the lower court to sustain the demurrer. Costs of this appeal are awarded to appellant. HUSTON and QUARLES, JJ., concur. (5 Idaho, 793) V. ADA COUNTY FARMERS' IRR. CO. 1. Possessory rights to rights of way for irrigating ditches, and the right to the use of water, may each have an existence independent of the other. 2. A ditch may be conveyed, reserving the water right, or the water right may be conveyed, reserving the ditch. 3. Under the provisions of section 2825, Rev. St., possessory rights to ditch and water rights are real property or real estate. 4. The owner of a ditch on public lands of the United States does not forfeit the same merely by nonuser. Welch v. Garrett (Idaho) 51 Pac. 405, cited and approved. (Syllabus by the Court.) Appeal from district court, Ada county; C. O. Stockslager, Judge. Action by the Ada county Farmers' Irrigation Company against the Farmers' Canal Company, Limited. From a judgment partially in favor of defendant, and from an order denying a new trial, plaintiff appeals. Affirmed. Hawley & Puckett, J. H. Richards, and Hugh E. McElroy, for appellant. W. E. Borah and N. M. Ruick, for respondent. SULLIVAN, C. J. This is an action to recover possession of a certain right of way for an irrigating ditch in Ada county, on which is situated an uncompleted canal. It is alleged in the complaint that on the 18th day of January, 1896, one Eagleson located a water right, the water appropriated thereby to be used in the irrigation of certain lands therein described, and that a notice thereof was duly posted on the south bank of Boisé river, about one mile above what is known as the "New York Dam Site," and nearly opposite the mouth of Sheep gulch, in Ada county (that being the place of intended diversion), whereby he claimed the waters of said river, to the amount of 300 cubic feet per second; that within the time required by law a copy of said notice was filed for record in the recorder's office of Ada county, and a duplicate copy thereof in the office of the state engineer; that said Eagleson, who is designated "promoter" in trust for the plaintiff corporation thereafter to be formed, began, within 60 days after posting said notice, to construct a canal, by surveying, laying out, and staking off a right of way. Then follows a description of said right of way, which substantially covers the right of way claimed by the defendant corporation, and commonly known and designated as the "New York Canal Right of Way." It is also alleged that Eagleson, after said 18th day of January, 1896, became and was in the lawful and undisputed possession of said right of way, and proceeded with diligence in the construction of a ditch thereon; that thereafter, on the 10th day of February, 1896, said Eagleson, together with others, organized the corporation plaintiff and appellant, and that on the 29th of February said Eagleson conveyed to said corporation all of the rights he had acquired in and to said water right and right of way; that thereupon the plaintiff corporation took possession of said right of way, and diligently proceeded with the construction of a canal upon said right of way; that, while the plaintiff was such owner and in possession of said right of way, the defendant corporation, on or about the 20th day of April, 1896, willfully and maliciously, with force and violence, and, without right or title, drove the plaintiff, its agents and employés, therefrom. and took possession of said right of way, except that part situated between the point where the said notice of location of water right was posted and the point commonly known as the "New York Dam Site," and ever since has withheld, and still withholds, possession thereof; that defendant has committed waste on said right of way, to plaintiff's damage in the sum of $1,000. The second cause of ac tion set up in the complaint is equitable in its nature, and under it a temporary injunction was granted. Plaintiff prays judgment for possession of said right of way, and for $2.000 damages, and for an injunction. The defendant makes an answer, and files a cross complaint. In them are set forth a brief his tory of the organization of the Idaho Mining & Irrigation Company; its ownership of certain water rights, and the greater portion of the right of way described in the complaint; the operations of said company, and its expenditure of about $300,000 upon said right of way, in surveying and constructing a very large canal, about six miles in length, which resulted in the insolvency of said company, and a large indebtedness to one W. C. Bradbury for constructing said canal; the purchase of said canal, right of way, and water rights of said company by said Bradbury at sheriff's sale,and alleges the organization of the defendant corporation, and the sale and transfer to it by Bradbury of said canal and right of way, and the work done by said defendant company thereon since its purchase thereof. The trial was by the court, without a jury, and judgment was rendered in favor of the plaintiff for the recovery of that part of the right of way situated above the said New York dam site; and it rendered judgment in favor of the defendant for the remainder of said right of way, or that below said dam site. A motion for a new trial was interposed by the appellant, and denied by the court. The appeal is |