stantially this state of facts. For more than a year prior to the execution and delivery of the bill of sale in controversy, the plaintiff had been loaning and procuring others to loan on his credit to the defendant, Nelson, as he needed it, from time to time, money to carry on his business, taking therefor the notes of the said defendant, and during which time the plaintiff held a chattel mortgage for three thousand dollars, in the form of a bill of sale, but intended and filed as a chattel mortgage, on part of the property now in dispute. In the latter part of November, 1883, the plaintiff, being ill, placed the matter of his business with the defendant Nelson, in the hands of a Mr. White, as his agent, with instructions to take of the defendant Nelson, a new mortgage for the same sum, which should operate for the present as the former one had, as a security for the sum of two thousand two hundred and fifty dollars, then due, and such additional sums not to exceed in the aggregate the said sum of three thousand dollars, as might be necessary to prepare the mortgaged goods for market, and the proceeds of the sale of the goods, when marketed, were to be applied on the plaintiff's claim until it was paid, as he desired to collect his money. In pursuance of these instructions, a new mortgage, in the same form as the former one, and like the former, intended as a chattel mortgage, was, on the thirtieth day of Nov., 1883, duly executed by the defendant Nelson, on the property in question, and on the same day, presented by Mr. White, as the agent of plaintiff, to the county clerk of Multnomah county, in which county the property was located, and the clerk then endorsed thereon the time of receiving the same, and deposited the same in his office, and has ever since kept it there for the inspection of all persons interested. It is clear, as between the parties, the bill of sale was intended to operate as a mortgage. But did the filing of it in the clerk's office have the effect to convey notice to third parties? Upon this point the counsel for the defendant, Betts' Spring Co., contends that the instrument being in the form of a bill of sale, the record can only convey notice of a bill of sale, and as there was no sale in fact, the instrument was evidently false, and as a consequence thereof, legally fraudulent and void; and further, that the record, owing to the form of the instrument, does not convey notice at all. One statute provides that it shall be the duty of the county clerk, upon the presentation for that purpose, of any mortgage or conveyance intended to operate as a mortgage of goods and chattels, or a copy of any such instrument, upon the payment of his fees, to endorse thereon the time of receiving the same, and to deposit such instrument or copy in his office to be kept for the inspection of all persons interested: Code, p. 522, sec. 46.

This is all the provision in our law upon this subject. A bill of sale as such is not entitled to record, and a record so-called of a bill of sale is an absolute nullity. The instrument in question was entitled to record only as, and because it was a mortgage, and if the record is notice at all it is notice as a mortgage. Mr. Jones, in his

work on chattel mortgages, says: "A bill of sale, absolute upon its face, but executed as a security and intended to operate as a mortgage, is within the operation of a statute making void a mortgage not recorded, in case the property be not delivered to, and retained by the mortgagee:" Jones on chattel mortgages, sec. 275. In Khun v. Graves, 9 Iowa, 305, it is held that a bill of sale of personal property, in which there is no stipulation that the vendor shall retain the possession, is, if filed for record, notice to subsequent purchasers and to creditors, even when the property remains in the possession of the vendor. In Howell's Annotated Statutes of Michigan, it is said that sec. 6,193, which is almost identical with sec. 46, Or. Code, p. 522, was designed to provide a system applicable to every instrument or conveyance intended to operate as a mortgage of goods and chattels, and to this extent it supercedes and takes the place of section 6,190, which is of similar purport to subdivision 40, of section 763, Or. Code, p. 262. That under section 6,193, the question of good faith and want of any intent to defraud creditors of the mortgagor and purchasers in good faith cannot arise. And that as to them nothing short of a change of possession or filing of the instrument, as the section requires, can save it: Cooper v. Brock, 41 Mich., 491-2. And in that state it has been held that a bill of sale, or other conveyance of goods and chattels, although absolute in terms, if given as a security is a mortgage: Fuller v. Parish, 3 Mich., 211; Parsell v. Thayer, 39 Mich., 467; Hurd v. Brown, 37 Mich., 484. And unless filed as a mortgage or followed by an immediate change of possession, it will be void, as against creditors and subsequent purchasers: Hurd v. Brown, supra. The instrument was entitled to record according to its real character: Jones v. Morey, 14 Am. Dec., 513, and note of authorities. Being intended to operate as a mortgage, it was filed as such with the proper officer of the county, and filed by him in his office for the purpose of imparting the notice designed by the statute. A chattel mortgage is recorded by filing it in the office, and there is no law for recording any other instrument in that way. When, therefore, the clerk received it, and placed it on file in his office, it became the record of a chattel mortgage. This filing or registration was equivalent to change of possession of the property, or obviated the necessity of it. Although the law requires such instruments to be be indexed among chattel mortgages, it would seem that the omission of the clerk to do it would not invalidate such mortgage as to third parties for want of notice, as the index constitutes no part of the record: Board of Com. v. Babcock, 5 Or., 472.

The only remaining question is as to the validity of a chattel mortgage to secure future advances, which includes the last two grounds upon which error is claimed. Upon this subject Mr. Herman says: "In respect to the validity of mortgages for existing debts and future advances, there can be no doubt, if any principle of the law can be considered settled by the decisions of the courts, that a mortgage made to secure future liabilities and contingent debts, described

with reasonable certainty, in the absence of any fraudulent intention, is valid; and this, whether the matter of future advances appears on the face of the instrument or note, or is proved solely by the testimony of witnesses:" Herman on Chattel Mortgages, sec 53, p. 111, and authorities cited in note. The fact is, this whole subject has been considered by this court, and the principle decided covers the case at bar. In Hendrix v. Gore, 8 Or., 409, the court say: "The true principle to be deduced from all these cases seems to be, that when a mortgage is given in good faith to secure a present indebtedness and future advances, whether the object be expressed in the mortgage or not, it is valid to the extent of the lien therein ex-. pressly created. It is always better, however, that the mortgage should be drawn so as to show the true object and purpose of the transaction, for suspicion is endangered by misrepresentation, but disarmed by a statement of the truth:" Shirras v. Craig, 7 Cranch, 34. The effect of the omission is to render the transaction more liable to suspicion, and to put the holder of the mortgage upon stricter proof of payment of the consideration, but the omission. does not render the security invalid. The existence of the indebtedness as set up by the plaintiff in his complaint is undisputed. There is no evidence of fraud, or that the consideration was greatly in excess of any advances expected to be made. It seems, however, that counsel for the defendant, Betts' Spring Co., supposed that there must be some binding obligation to make future advances, which the defendant, Nelson, could have enforced against Necklin. But this is not so. Expectation to make future advances is sufficient, only with this difference from when the party is legally bound, namely: That the lien will only attach from the date of the advance and not from the date of the mortgage: The Bank Mort. Co's appeal, 36 Pa. St., 172; McClure v. Roman, 52 Pa. St., 460; Brown v. Keifer, 71 N. Y., 610,-101 U. S. R., 626; Commercial Bank v. Cunningham, 35 Am. Dec., 325. It is doubtless true, as suggested by the chief justice, that the defendant, "knowing that fraud and deceit abounded in these days, not much, if any, less than in the time of Twyne's case, cited by their counsel, honestly suspected some taint of fraud pervaded this transaction, whose true nature was not disclosed on its face and could be uncovered by judicial investigation." But it has turned out otherwise, and the decree of the court below must be affirmed.

SUPREME COURT OF CALIFORNIA.

No. 20,025.

EX PARTE HELBING.

Department One. Filed December 11, 1884.

WRONGFUL APPROPRIATION OF WATER-COMPLAINT FOR, WHEN SUFFICIENT.-A complaint which avers that the defendant, "with intent to injure and defraud, etc., without the knowledge of the owners, and with intent to evade payment for the water taken thereby, made connections and maintained the same with certain mains and service pipes of the Spring Valley Water Works, for the purpose of taking water therefrom for the supply of certain tanks and water works kept and maintained" by the defendant, sufficiently charges the offense created by section 499 of the penal code.

APPLICATION for a writ of habeas corpus. The opinion states the

facts.

R. P. Wright, for the petitioner.

Fox & Kellogg, contra.

THE COURT. The complaint in the police court charged the offense created by section 499 of the penal code. That section reads: "Every person who, with intent to injure or defraud, connects or causes to be connected, any pipe, tube, or other instrument with any main, service pipe, or other pipe, or conduit or flume for conducting water, for the purpose of taking water from such main, service pipe, conduit or flume, without the knowledge of the owner thereof, and with intent to evade payment therefor, is guilty of a misdemeanor."

The complaint avers that Louis Helbing, "with intent to injure and defraud, etc., without the knowledge of the owners and with intent to evade payment for the water taken thereby, made connections and maintained the same with certain mains and service pipes of the said Spring Valley Water-Works, for the purpose of taking water therefrom for the supply of certain, tanks and water-works kept and maintained by said Helbing, etc.

The words" without the knowledge of the owners. apply to all that follows, including the averments as to the taking of the water, and the intent. The complaint does not in terms charge that the connection was made by means of a pipe, or a tube, or instrument. If it had averred that the defendant connected an "instrument " for the purpose of taking water, it would be good. It avers a connection for that purpose, and such connection, if made at all, could be made only by means of some instrument. It is said a connection (for the purpose named) might be made without in fact any water being taken; but so might an instrument fail of its purpose. A complaint following the statute is admittedly sufficient. Here the statute was substantially followed.

The petitioner is remanded.

No. 52-4.

No. 8,337.

SALISBURY ET AL. v. SHIRLEY.

Department Two. Filed December 13, 1884.

JOINT LEASE--ACTION TO ENFORCE COVENANT-DEATH OF JOINT LESSOR-PARTIES GUARDIAN AND WARD.-An action for the breach of a covenant in a joint lease, after the death of one of the joint lessors, must be brought in the name of the surviving lessors. Neither the executor nor administrator of the deceased lessor is a proper party. If such deceased lessor made the lease for himself, and also as guardian and trustee for his ward, such ward, after attaining majority, may join with the surviving lessors, in an action to enforce a covenant made for his benefit.

THE ASSIGNMENT OF THE TERM BY THE LESSEE CREATES A PRIVITY OF ESTATE between the assignee and the lessor.

COVENANTS TO PAY RENT AND TAXES-LIABILITY OF ASSIGNEE OF LESSEE.--Covenants in a lease to pay rent and taxes run with the land, and are binding upon and enforceable against the assignee of the lessee by virtue of the privity of estate existing between him and the lessor.

IN AN ASSESSMENT FOR TAXES THE ABBREVIATION "DOLLS." is equivalent to dollars. THE JUDGMENT AWARDED THE PLAINTIFFS affirmed after a construction of the covenants sued on.

CROSS APPEALS from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiffs. The opinion states the facts.

Clement, Osment & Clement, for the plaintiffs.
Daniel Rogers, for the defendants.

THORNTON, J. The complaint did state facts sufficient to constitute a cause of action against defendant.

The liability of defendant arose out of the breach of the covenants of a lease executed by Mary Ann Frances Salisbury for herself, and as trustee and guardian of plaintiff, Joseph Hicks, and by Jotham Salisbury, to one William Shields, and by Shields assigned to the defendant. The term of the lease was for ten years and six months, commencing on the first day of March, 1859, and ending on the first day of September, 1869. The breach assigned was for non-payment of taxes by the defendant, assessed during the last six months of the term, in consequence of which the plaintiffs were compelled to pay them.

The foregoing matters are averred in the complaint, and it is also averred that the plaintiff, Joseph Hicks, ward of Mary Ann Frances Salisbury, became of the age of twenty-one years on the twentysecond of November, 1870, and that his guardian above mentioned died on the twenty-sixth of November, 1869.

It is further alleged that Shields entered into possession of the demised premises, and afterwards assigned the lease to the defendant, who immediately entered into possession of the premises and remained in possession thereof during the remainder of the term, and that during all the times mentioned in the complaint the plaintiffs were owners of the premises aforesaid, and tenants in common thereof. This action was commenced in December, 1870.

It is urged on demurrer that plaintiffs are improperly joined. We are of opinion that this position cannot be upheld. The lease was executed by Mary Ann Frances Salisbury for herself and as guardian

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