A provision that a party may at the end of 90 days after an event employ powers, which, except for the provision he could employ immediately on the happening of the event, means nothing, unless it means that he shall not employ them during the 90 days. The present action was commenced less than 90 days after the default of defendant Jones. The plaintiff had obtained a decree restoring him to the possession of the land, and forfeiting to him the payments already made by the said defendant. Both these are consequences which the agreement provides shall only follow a failure to pay for 90 days after a payment shall become due. Judgment reversed. [No. 5932.] [Filed April 15, 1878.] CROGHAN vs. MINOR & SPENCE. Appeal from Eight District Court, Humboldt county. FORECLOSURE OF MORTGAGE-WHO ARE PARTIES.-All parties who are beneficially interested, either in the estate mortgaged, or the demand secured, are proper parties to the suit. But those claiming either legal or equitable estate adversely to that of the mortgagor are not proper parties, as they have no interest in the subject matter of the action. STATEMENT OF FACTS. On May 1st, 1876, D. W. Minor gave a promissory note to the plaintiff Croghan, for $1,280. for six months, secured by a mortgage on 160 acres of land, being the N. W of sec. 18, Tp. 6, N. of R. 2 E. The survey plat of the land, (including this land) had been filed October 22d, 1874, and Minor filed his claim on October 23d, 1874, (the next day,) alleging settlement on March 20th, 1874, and he proved up and entered on June 23d, 1875, receiving his patent January 5th, 1876. But Richard Spence claimed a pre-emption, commenced on the W. of said N. W. of land, (80 acres)-one half of the mortgaged premises, --and actual possession as having been taken April 1st, 1872, and filed December 3d, 1874, less than two months after the filing of the survey, though a little later than that of Minor. On January 14th, 1877, instructions came from the Land Office for the Register and Receiver, to order a hearing between the two parties, and Minor's patent to be retained till decided. This was done, and the claim of Spence fonnd to be a prior one, and the Land Com'r decides Minor's entry to be a fraudulent one, and revokes his patent. Hence, upon trial of the cause, Spence asks to be dismissed from the case, and his land not be held subject to mortgage of plaintiff. But the Court decides that the plaintiff is entitled to relief, and that Spence's claim is subordinate to the mortgage, and gives judgment against Minor for $1,650, and interest, and a decree of foreclosure and sale of the whole land, on October 18th, 1877. From this Spence appeals, November 15th, 1877, and claims that Minor was not in actual possession, but only holding patent by fraud, and hence, it was void, and cites many authorities. Also, that if patent was obtained by inadvertance or mistake, the realty never passed from the United States to Minor, and that as he, Spence, was in actual possession of the land (his share,) the plaintiff, in taking his mortgage, was bound to take notice of his rights as prima facie evidence of seizure in fee simple. Chamberlin & De Haven, attorneys for plaintiff aud respondent. OPINION BY THE COURT. There is in the record no finding of the fact alleged in the complaint, but denied in the answer, that defendant Spence "has, or claims to have, some interest in, or claim upon said premises, or some part thereof, as purchaser, mortgagee, judgment creditor, pre-emption or homestead claimant, otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff's mortgage." On the contrary the Court finds facts showing that the asserted claim of defendant Spence is not subject to the lien of plaintiff's mortgage, and that the alleged interest of said defendant is not derived from, nor connected with the estate mortgaged, but is hostile to the claim of the mortgagor. The object of a suit to foreclose a mortgage is to obtain the sale of the estate which the mortgagor held at the time he executed the mortgage, and the application of the proceeds of the sale to the payment of the demand for the security of which the mortgage was given. All persons who are beneficially interested, either in the estate mortgaged or the demand secured, are proper parties to the suit. (Burton vs. Lies, 21 Cal., 87; San Francisco vs. Lawton, 18 Cal., 465.) This rule will ordinarily embrace a mortgagor and mortgagee, and those who have acquired rights or interests under them, although prior incumbrancers may be made parties for the purpose of liquidating their demands. It is manifest that those claiming either legal or equitable estate adversely to that of the mortgagor are not proper parties to such a proceeding, as they have no interest in the subject matter of the action. On the finding in respect to the claim or interest of defendant Spence, the Court should have dismissed the bill as to him. Judgment reversed and cause remanded, with direction to the District Court to enter a decree against defendant Minor, in accordance with the prayer of the complaint, and to dismiss the action as to the other defendant. [No. 5299.] [Filed April 15, 1878.] GREEN vs. CAMPBELL. This case was reported in RECORD No. 3,-with the facts in issue;-and judgment of the lower court reversed. This opinion is given on a motion for rehearing, OPINION BY THE COURT. The judgment was reversed here, because a demurrer interposed to the special defense had been sustained by the Court below. The respondent, in the petition for a re-hearing, now claims that this action of the Court below was not of any moment, because the matter set up in the special defense might have been proved under the general issue pleaded in the an swer. It is not worth while, however, to consider this proposition now, because, even if the view of the respondent be correct, it appears by the record that the defendant offered at the trial, under the general issue pleaded to prove the several matters set up in the special defense, but the evidence was excluded upon objection of the respondent. Re-hearing denied. [No. 3857.] [Final decision, March 27, 1878.] BUGBEY vs. NATOMA WATER & MINING CO. Action commenced in 11th District Court, El Dorado Co. STATEMENT OF THE CASE. Bugbey, the plaintiff, makes complaint that on October, 17th, 1866, he owned (having bought from the State of California, as to sec. 16,) the S. of sec. 16, and the N. E. of N. W., of sec. 21, both in Township 10, N. of Range 8, E.-M. D., and that on December, 1st, 1866, the defendant, Natoma Ditch and Water Co., entered upon, and took possession of, a strip of ten feet wide across both described pieces of land, as the Natoma Ditch;— - and claims damages, $240. and monthly rent and profits, $10. and asks $500 damages, etc., in which R. & E. I. Robinson were his attorneys. The Company demurred by C. G. W. French, their attorney. Then occurred a substitution of attorneys :Geo. E. Williams & G. J. Carpenter, for plaintiff, and Geo. G. Blanchard, for defendants,-and twenty days for amended complaint, to which complaint defendant again demurred, but was overruled. Claimed in further defense that the canal was located in 1851, and under a grant of Congress, etc. Other proceedings followed, till, in February 1873, the Court, A. C. ADA 44 Judge found that the said canal was completed April 1st, 1873,—was twenty-five miles long, and with several branches,—had cost about $400,000, --had been in possession of defendants for over fifteen years, and a vested right acquired,—and had become a necessity as the only source of supply of water for seventeen sections of land, and 3,000 people. Held, that the title of the said land had passed to the State of California, from the United States, by act of March 3d, 1853 and became confirmed and absolute by the approval of the survey, on May 19th, 1866. That Congress could not afterward impair or limit the title, hence, could confer no title on defendant, in July 1876, by act or otherwise, and could not attack plaintiff's title from the State in any way. Adjudged that plaintiff is entitled to recover possession, and $59 as monthly rents and profits, and his costs, $108.50,-all as to sec. 16, but not as to sec. 21,-given April 4th, 1873. To this, defendants take exception, and make many points, and with numerous affidavits-of H. G. Livermore, President, and others -move for a new trial and are overruled. Appeal is then taken on all points to the Supreme Court of California, May 19th, 1873. On April 30th, 1875, the Supreme Court affirmed the judgment. Defendant then petitions for writ of error to the Supreme Court of the United States, on the ground of a claim under two acts of Congress, one of July 26th, 1866, and one of March 3d, 1853. Writ granted, and on January 7, 1878, the United State Supreme Court affirmed the judgment, and delivered the following elaborate opinion: [No. 132.] [October Term, U. S. Supreme Court.] THE NATOMA WATER AND MINING COMPANY, Plaintiff in Error, vs., B. N. BUGBEY. [In Error to the Supreme Court of California.] Mr. Chief Justice WAITE delivered the opinion of the Court. This was an action of ejectment brought by Bugbey, the defendant in error, against the Natoma Water and Mining Company, plaintiff in error, to recover possession of a part of the south half of section 16, township 10, north of range 8 east, Mount Diablo base and meridian, in the State of California. Bugbey claimed title, by grant from the State, and the company under the Act of Congress of March 3, 1853, "to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes," (10 Stat., 244,) and the Act of July 29, 1866, “granting the right of way to ditch and canal owners over the public lands, and for other purposes." (14 Stat., 251.) The decision of the Supreme Court of California having been against the title set up by the Company, this writ of error was brought. The facts affecting the federal question in the case are as follows: In 1851 the company commenced the construction of a canal upon the unoccupied and unsurveyed public lands of the United States for the purpose of supplying water to miners and others. This canal was completed at large expense in April, 1853, and the premises in controversy are included within its limits. By the Act of March 3, 1853, (10 Stat., 244) Congress provided for the survey of the public lands of California, and granted sections 16 and 36 to the State for school purposes. By section 7 of this Act it was provided, "that where any settlement by the erection of a dwellinghouse, or the cultivation of any portion of the land, shall be made on the sixteenth and thirty-sixth sections, before the same shall be surveyed, * other land shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the Act of Congress, approved May 20, 1826. "-(4 Stat., 179.) The survey of the lands in controversy was completed May 19, 1866, and the plats deposited in the United States Land Office for the district June 16, 1866. At that time Bugbey was an actual settler upon the legal subdivision of the section sixteen in which the premises are situated, and had thereon a dwelling-house and agricultural and other improvements. He made no claim under the pre-emption laws of the United States. Other persons were also in possession of other portions of the section. The Act of 1853 required (sec. 6) that "where unsurveyed lands are claimed by pre-emption, the usual notice of such claim shall be filed within three months after the return of the plats of the surveys to the land offices." On the 28th of September, 1866, the Register of the United States Land Office certified to the State Land Office that no claim had been filed to this section sixteen, except the preemption of one Hancock, which was afterwards abandoned. Sec. 9 of the Act of July 26, 1866 (14 Stat., 253,) is as follows: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, the decisions of the Courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: The company has brought itself within the provisions of this section, if at the time of the passage of the Act the United States held title to the lands. On the. 22d of April, 1867, Bugbey purchased the portion of |