Appeal from the Rinth Judicial District.

On the twenty-eighth of July, 1856, the Scott River Company mortgaged certain ditch property of which it was owner to the plaintiffs. In December, 1856, one Lamphier recovered a judgment against the company for $1,319, and on the seventeenth of January, 1857, the property was sold under an execution upon this judgment, and Lamphier became the purchaser for five hundred dollars.

On the eleventh of February, 1857, the company executed to E. Steele a trust deed, by the terms of which he was to possess, manage, and take the profits of the property for the period of two years, and apply the net proceeds: first, to the payment of a debt due him, which was secured by a mortgage upon the property executed in 1855 ; and second, to the reimbursement of himself for advances which he agreed to make to the company for the purpose of enabling it to pay off certain other incumbrances, among which was the balance of- the Lamphier judgment and his lien by his certificate of sale, which latter Steele was to purchase. Upon receiving his debt and the sums advanced by him, with interest, the property was to be surrendered by Steele to the company. According to this agreement, Steele purchased the Lamphier certificate of sale. This certificate he, on the third day of September, 1857, assigned to A. H. Steele, who, on the twenty-second day of April, 1859, assigned it to S. S. Richardson. In August, 1859, E. Steele also assigned to Richardson his bond and mortgage, and other claims against the company, with his rights under the trust deed.

In January, 1859, while Steele was in possession under the trust deed, plaintiffs commenced an action to foreclose their mortgage, making him a party defendant with the company, and on the twenty-third of March obtained a decree of foreclosure in the usual form, under which the property was sold on the eleventh of August, 1859, the plaintiffs becoming the purchasers, for the sum of $6,200, and receiving from the Sheriff a certificate of sale.

Between the commencement of the action and the sale under the decree Richardson took possession under his assignment from Steele. Before his assignment, Steele had borrowed money of one Smyth, to be used in repairing the ditch, and had agreed with him that Peter McQueen should manage the ditch and collect the proceeds of sales of water, and pay one-fourth of them to Smyth and three-fourths to Steele; and after the assignment to Richardson, McQueen was continued by him and Smyth in the same position and under a like arrangement.

The present action was commenced October 14th, 1859, against the Scott River Company, E. Steele, S. S. Richardson, and Peter McQueen. The complaint charged that Steele, Richardson, and McQueen had been in possession of the ditch since the eleventh day of August, 1859—the date of plaintiffs’ purchase under the decree of foreclosure—and had received the rents and profits, amounting to five hundred dollars per month; and that these parties were insolvent, and prayed a judgment against them for the back rents already received, and that a receiver be appointed to take charge of the property and receive its proceeds for the benefit of plaintiffs until the expiration of the time of redemption. A receiver pendente lite was appointed; defendants answered, and a trial was had before the Court without a jury, which resulted in a finding in favor of plaintiffs. A decree was entered that Richardson and McQueen pay to plaintiffs five hundred and twelve dollars for back rents received by them; that the temporary receiver should pay to plaintiffs the money already received by him and should continue to collect the rents during the remainder of the time for redemption, and pay them to plaintiffs under the order of the Court, and restraining all the defendants from receiving the rents during that period.

Defendants moved for a new trial, which was denied, and from this order and the judgment McQueen and Richardson appeal.