him as a creditor; and if for that purpose the deed cannot stand, under the doctrine that a director cannot use up the property of his corporation to pay his debt to the disadvantage of the other creditors. It is true there is testimony indicating appellant offered to give the creditors a second mortgage on the property described in the deed in question. It is true one or two of the witnesses had heard appellant say the deed was made for the benefit of all the creditors; but when the appellant absents himself from the trial, and does not testify in the case, this evidence, weak as it is in the first place, is entitled to no weight at all. For the purpose of properly determining the question here involved it seems to me that it is immaterial whether the evidence shows that the deed was authorized or ratified by two-thirds of the stockholders, for appellant was a stockholder and president when the determination was reached to convey all the property of the mining company to him. How could he have resigned for the purpose of accepting this attempted conveyance, if not a director at the time the transfer was determined upon? The meetings of the stockholders and board of directors were held in New York on April 2 and April 3, 1901, and it was then the transfer was determined upon.

Assignments of error at the trial:

The petition of involuntary insolvency was filed June 6, 1901. The plaintiff produced and offered in evidence, and they were admitted over defendant's objection, creditors' claims which had been presented and approved in the said insolvency proceedings. The objection to these claims is based upon the affidavits attached thereto which fails to show that the debt represented therein was contracted prior to April 3, 1901. The claim of Mebius, Drescher & Co. for $5,149.81 was the first one offered. The testimony of P. C. Drescher shows that $5,044.81 of this claim was due April 3, 1901. There were 24 of these claims. There is no evidence as to the contents or items of these claims, further than the testimony of Drescher, Curtis, and Shaw, and this shows that at least the larger amount of their claims accrued prior to April 3. 1901. The bill of exceptions admits that all these 24 claims were the same in substance as to when the debt was due and owing, and as to allowance and filing and other matters, except amounts, as that of Mebius, Drescher & Co. This being so, and $5,089.81 of this claim having accrued prior to April 3, 1901, the objection of appellant is not well taken. This disposes of 24 of his exceptions.

The twenty-fifth, twenty-sixth, and twentyseventh specifications of error were to the admission of the judgment roll in the case of John Dias v. Montauk Consolidated Gold Mining Company, a copy of the execution, and the original execution. The action was for personal damages. The judgment not having been recovered until June 5, 1901, the objec

tion should have been sustained; but appellant could not have been injured by the introduction of this judgment roll. There was, therefore, no reversible error.

The witness Coles on redirect examination was asked whether the money gotten from the Placer County Bank was given to appellant for any of his individual accounts, and answered: "No, sir; not a dollar. Well, I can take a different view. It was all Mr. Goodwin's, because when I went to the bank and filed the security the bank gave me a line of credit, allowed us to increase our overdraft to $15.000." Plaintiff moved to strike out this last answer, and the motion was granted. The answer was not responsive and was properly stricken out.

The introduction of the deed, the mortgage, and the deed of reconveyance, in the transaction appellant had with the Placer County Bank is assigned as error. This whole transaction had a tendency to show that the deed in controversy was not made for the benefit of the creditors as claimed by the grantee. The transfer of the property mentioned in this deed by the corporation to appellant must be judged by the terms of the deed and in the light of the contemporaneous and subsequent acts of the parties. These furnish the data for the determination of the intent and motives with which it was made. Bump on Fraudulent Conveyances, § 601. The acts of the appellant in attempting to prefer the Placer County Bank, shown by his transferring the property to a creditor and his subsequent mortgaging it to secure such creditor's debt, all have a tendency to show that he was not acting in good faith when he says this deed was made to enable him to take care of all the creditors of the mining company and pay all their claims, and a tendency to show, further, that the deed was not made for the benefit of all the creditors, but for the purpose to hinder, delay, and defraud such creditors. For this purpose the transaction with the Bank of Placer County was a legitimate inquiry, and therefore the deed, the mortgage, and the deed of reconveyance were properly admitted.

The claim of Baker & Hamilton offered in evidence by plaintiff was objected to on the same grounds as the other claims which had been proven in the insolvency proceedings, and, we think, rightfully admitted. Objec tion was made to the testimony showing the amount of the debt due Mebius, Drescher & Co. Drescher was asked to state the amount of their claim, and answered, "$5,044.89." The objection was upon the ground that this was not the best evidence. He was simply asked the amount of his firm's claim, nothing more, and the question and answer were not subject to the objection made. Objection was made to the introduction of the amount of indebtedness shown by a memorandum made by the witness Kleinsorge at a meeting of creditors in May. This was error, as being

hearsay, but was not reversible error, inasmuch as the amount of the indebtedness was shown by the approved claims in the insolvency proceedings.

Plaintiff offered in evidence a mortgage on the property included in the deed in controversy to L. L. Chamberlain June, 1901, to secure the payment of a promissory note of $3,692 given by defendant. Defendant objected on the ground the said mortgage was immaterial, irrelevant and incompetent. The objection was overruled and the mortgage admitted. The mortgage was material as tending to show that said deed was not made for the benefit of the creditors of the said corporation, but rather to hinder and delay them.

He

The witness Kleinsorge was asked about written instrument Defendant's Exhibit 2 for identification which had been presented to him at one time purporting to be an agreement whereby appellant agreed to sell to D. H. Coles and Dwight Treadway the property of the mining company upon certain conditions; said he did not remember when he received it. "I received it from Mr. Drescher, and I read it" and returned it to him. was then asked by appellant: "Q. Did you advise him in relation to it?" The plaintiff objected on the ground that the question called "for the opinion of the witness and also for a communication between attorney | and client. It is calling for his opinion as an attorney." The question was not objectionable upon the ground stated. Kleinsorge was the attorney for Drescher and other creditors, and this paper purported to relate to an agreement concerning the manner of paying the debts, and was no doubt presented to him for his advice by his client. To have answered whether or not he advised Mr. Drescher in relation would not have been any advantage to the defendant, for he would probably not have given any information as to what advice he gave, if any. Sustaining the objection was not reversible er

ror.

Defendant offered in evidence ten promissory notes, of different dates and amounts, but aggregating $33,850, purporting to be notes given by the said mining company to appellant, and all, with the exception of the one for $5,000 due May 15, 1899, were shown by indorsements thereon to have been paid. Plaintiff objected to their introduction, on the ground that they were irrelevant, incompetent, and immaterial, and no authority having been shown to authorize the execution of the same, and the court properly sustained the objection. These notes could not have been material to show indebtedness due from the said mining company to appellant unless their issue and execution were authorized by the board of directors, and there was no evidence of such authorization. The defendant did offer in evidence a paper purporting to contain extracts from the minutes of meet

ings of the board of directors wherein at least some of the said promissory notes appeared to have been authorized by the board and containing authorizations to borrow money. The minute book was not produced. And to this there was attached the affidavit of George C. Wilde under date of March 24, 1904, setting forth that he was the president of the Montauk Consolidated Gold Mining Company, and to the best of his knowledge and belief the said extracts are true extracts from the original minutes of the several meetings. But this instrument was not admissible as evidence, because not properly certified. Subdivisions 6, 7, § 1918, Code Civ. Proc.

Witness D. H. Coles, secretary of the said mining company, was asked by appellant in relation to the money the mining corporation had borrowed of appellant, testified the books he had in his hands were the original cash book and ledger of the corporation, and that prior to April, 1901, the corporation had borrowed money of appellant, and that he could tell from the books when the first loan was made. He kept the books and had made the original entries. He was asked: "What was the first money that was borrowed from William Dallas Goodwin? Does the book show that?" Plaintiff objected, because "premature, no foundation laid to show that anybody had any authority to borrow any money, and immaterial, and so forth." If it be conceded that the question was a material one, because the appellant had a right to show the corporation's indebtedness to him as tending to support his theory of the transfer to him of the corporation assets, still we think it necessary to first show the authorization of the corporation to borrow this money. This had not been shown, and therefore the objection was properly sustained. Coles was further asked if any other sums were borrowed from Goodwin for which no note was given, and the court sustained plaintiff's objection thereto, on the ground that, if there was money borrowed, it must have been a transaction by the board of directors, and a record made of it, such record constituting the best evidence. There was no such record presented and its absence was not accounted for. Coles further testified that he was the Coles mentioned in the paper offered purporting to be extracts from the minutes of the board of directors, and that he was the only Coles connected with this company, and was a director. He was then asked: "Who else was present besides you at the meeting of the board of directors?” (referring to the meeting of September 9, 1898). The question should have been answered; but, as it now appears that defendant did not offer in a legal way to show what took place at that meeting, the question as to who was present becomes immaterial. Further testifying, Coles said that in April, 1899, the said mining company borrowed of

said Goodwin $10,000, and on October 17, 1899, the further sum of $5,000. He was then asked: "Was or was not that the money of William Dallas Goodwin?" And answered: "It was." The answer was stricken out on plaintiff's motion on the ground that the witness did not know the source of production of the money. The ruling was correct; but at the same time the witness had just testified, without objection or motion to strike out, that he knew the money the company received from Goodwin belonged to him and his wife. Coles testified he was present at the meeting of the directors and stockholders in New York April 3, 1901, when the deed in question was made by the corporation to the appellant. He was then asked by the defendant: "State, if you please, the consideration of that deed." Plaintiff objected to the question on the ground that it was immaterial as to what the consideration was because the records must show a valid transaction, and, further, that the deed was not assented to by the proper quantity of stock. The minutes of the board of directors of that meeting were not produced, and not even an extract of the minutes of that meeting was offered. That wag a very important meeting and lasted two days. The president resigned and a new one was elected. Appellant was present, and the minutes, if properly kept, disclosed the action taken by him. Whatever may have been the reason for omitting the introduction of the minutes of that meeting, its proper recitals could not be proved by an oral statement. If there was any consideration for this deed, defendant could have shown it in the proper way. Coles had testified that on April 3, 1901, the said mining corporation owned 60,000 shares of the capital stock of the Ribbon Gold Mining Company, par value, but did not know its value since about one year before April 3, 1901, when defendant asked him, "What was the value of the stock one year prior to April 3, 1901?" And again, "What was the value of this stock prior to April 3, 1901?" Plaintiff interposed the objection to both of these questions, and the court sustained the same. In the first place, it was not material as to what the stock was worth one year before the deed was made, and in the second question there was but a repetition of the first; for any answer the witness could have given would have been as to the value one year prior to April 3, 1901.

There were 24 assignments of error as to the admission of testimony, and, having carefully considered each one, we do not find any reversible error therein. We think the evidence sufficient to uphold every material finding, and that the judgment is amply supported by the findings.

The judgment is affirmed.

We concur: CHIPMAN, P. J.; McLAUGHLIN, J.

Appeal

from District Court, Summit County; Frank W. Owers, Judge.

Action by Thomas Kirkwood, administrator, against Isaac C. Palmer. From a judgment of the district court dismissing an appeal from the county court, and from a judgment for defendant, plaintiff appeals. Reversed.

James Glynn, for appellant.

BAILEY, J. Appellant, who was plaintiff below, became involved in litigation in the county court, concerning certain property alleged to belong to the estate and said to be wrongfully withheld by defendant. In the county court judgment went against appellant and he appealed to the district court. After the appeal was taken defendant moved "to dismiss this case because it was improperly appealed." This motion was sustained, the action dismissed, and plaintiff prosecutes this appeal.

There is nothing in the motion nor in the court proceedings to show wherein the case was improperly appealed. Section 3, p. 109, of the Session Laws of 1891, in force at the time this appeal was taken, provides for appeals to the district court in such cases, and an inspection of the record as reproduced in the abstract shows that the statutory provisions concerning appeals was complied with. Consequently, we conclude that the appeal was not improperly taken. Therefore the judgment will be reversed, and the cause remanded to the district court for further proceedings.

to be made in writing each year and that "any person entitled to purchase prior water for use on land entitled thereto, who shall for two successive years fail to pay for water for such land shall be deemed to have forfeited his right thereto," no affirmative action was taken by the company in such case, the by-law could not have the effect of vesting title to the water right in the company or vesting title thereto in another, if the company delivered the same amount of water to the other consumer, in the absence of action by which the owner of the right was duly notified.

3. APPEAL - FINDINGS OF COURT-CONCLUSIVENESS.

A finding by the trial court that there had been no abandonment of a water right will not be disturbed on appeal.

Although a water right may be appurtenant to the land, it is property and may be transferred either with or without the land.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 159.] 5. SAME-DEED-CONSTRUCTION.

A water right being a distinct subject of grant and transferable either with or without the land, whether a deed conveys the water right depends on the intention of the grantor, which is to be gathered from the express terms of the deed, or when it is silent as to the water right, from the presumption that arises from the circumstances, and whether such right is or is not incident to and necessary to the beneficial enjoyment of the land.

6. SAME CONVEYANCE - CHARACTER OF INSTRUMENT.

The Legislature of 1893, by direct enactment, requires that all the formalities of the conveyance of real estate shall be observed in the conveyance of water rights.

7. SAME-SHERIFF'S DEED-EFFECT.

The right to have water delivered at a stipulated price is a valuable right and where a sheriff's deed does not purport to convey the water right, there must be some intention to so convey found in the circumstances attending the conveyance, before such result can claimed.

8. SAME.

be

Where a sheriff's deed did not purport to convey the water right, although he had the right to levy on the water right, but did not do so, neither the sheriff's nor the purchaser's intention can control, and where there is no act of the judgment defendant from which an intention to convey could be inferred, the water right is not conveyed.

9. SAME-ACTION TO QUIET TITLE-ISSUES.

In an action by a purchaser at sheriff's sale to quiet title to a water right alleged to have been appurtenant to the land, whether the defendant has more water than is actually needed for the irrigation of his land is entirely immaterial to the issue raised.

10. SAME.

Whether defendant is entitled to hold a water right for the reason that he is a mere tenant at will, is a question which cannot be raised by plaintiff, since even if defendant cannot own a water right such fact does not vest the title in the plaintff.

11. SAME--FORFEITURE OF WATER RIGHT.

The mere failure of the owner of a water right to go to the irrigation company each season and pay the stipulated price for carrying his water does not entitle any other person to enter into a contract with the company for carrying such water and thereby become the owner of the water right.

12. SAME-STATUTES.

Mills' Ann. St. § 570, requiring ditch companies to furnish water whenever they have

water in the ditch unsold, and section 2297, providing that persons having purchased and used water shall have the right to continue to purchase such water, are inapplicable in a proceeding between individuals to which no ditch company is a party, and the question to be determined is whether a sheriff's deed included a water right.

Appeal from District Court, Jefferson County; James E. Garrigues, Judge.

Action by A. A. Cooper against Henry N. Shannon. From a judgment in favor of defendant, plaintiff apeals. Affirmed.

J. W. Barnes, for appellant. John Hipp, for appellee.

STEELE, J. The warranty deed to Shannon, the appellee, for the N. W. 4 of section 34, township 2 S., range 69 W., did not purport to convey water rights; but the ditch company incorporated in 1886, the year after Shannon bought the land, recognized his right to the use of 20 inches of water, as a prior right, because he and his grantors had been using water from another ditch which the company incorporated in 1886 had purchased. The company, when it purchased the old ditch, agreed to recognize certain priorities, and Shannon's priority was one that it agreed to recognize, and the records of the company so show. On June 14, 1894, the sheriff of Jefferson county sold at execution sale all the right, title, and interest of Shannon in and to the said N. W. 14, and on December 10, 1895, the said sheriff issued his deed to Eugene F. Conant therefor. The appellant, Cooper, holds the land through mesne conveyances from the purchaser at sheriff's sale. In 1902, McCain. from whom Shannon purchased the said N. W. 4, executed a quitclaim deed to Shannon for the right to purchase the 20 inches of water from said ditch, reciting that he had sold the same to Shannon when Shannon bought the land. Shannon has been occupying the N. E. 4 of the same section for several years, and has been engaged in cultivating the land, which he holds as lessee. It is contiguous to the land he bought from Mr. McCain, and can be supplied with water for irrigation from the ditch that supplies water to the N. W. 4. The action was brought by Cooper to quiet his title to the right to purchase 20 inches of water from the ditch. The court found that Cooper was not entitled to the 20 inches, and that Shannon had the right to purchase, and was entitled to the use of, the 20 inches on the N. E. 4 of said section. Cooper brings the case here by appeal.

It is claimed by the appellant: (1) The right of appellant to said 20 inches of water intervened as against appellee by reappropriation; and the right of appellee thereto was forfeited. (2) Appellee abandoned said water right, and appellant acquired the same by reappropriation. (3) The said water right is, and at all times has been, appurtenant to said N. W. 4 of section 34, and was conveyed