Appeal from the Sixteenth Judicial District.

The “ Union Water Company,” plaintiff, was a corporation formed under the general law for the purpose of conducting water through certain ditches to mining districts, and the Murphy’s Flat Fluming Company, defendant, was also a corporation formed in the same manner for the purpose of constructing a flume to be used in mining operations. March 5th, 1858, the latter company executed to the former a mortgage, by which in consideration of the sum of $10,000 expressed to have been paid by the mortgagee, it conveyed “ all and singular the right, title, interest, and possession, as well in equity as in law, which the said party of the first part has or may have in and to that certain sluice and flume known as the sluice and flume of the said party of the first part, situate in said County of Calaveras, at and near Murphy’s Camp, and extending from Murphy’s Flat to a point below on Angel’s Creek, together with all right, privilege, or benefit, in and to the water passing, or to pass through said flume or sluice; and in and to the waters of Murphy’s Flat; and in and to all and every the waters of Angel’s Creek, and which may be or come to be in the possession of the said party of the first part, and as well the said sluice and flume when completed, and all and every part thereof, and so much thereof as is now complete, and all rights, benefits, and privileges which may accrue to the said party of the first part under a certain agreement,” etc.

The consideration of the conveyance recited that, “ whereas the said party of the first part is justly indebted to the said party of the second part in the sum of $10,000, money loaned, payable in eighteen months from the date hereof, with interest,” etc. If therefore the said indebtedness should be duly paid, the conveyance should be waived; but otherwise, of force.

No note accompanied the mortgage, nor was there, in it any direct promise to pay the debt.

At the time of the execution of this mortgage the flume mentioned therein was in process of construction and was completed for a distance of only 1,200 feet. May 15th, 1858, and after the flume was finished for a distance of 3,600 feet, the Murphy’s Flat Company executed a second mortgage thereon to one Traver for some $4,000, to secure a note for that amount executed to him at the same time.

The action was commenced by plaintiff June 4th, 1862, to foreclose its mortgage, and Traver, as subsequent mortgagee, was made a party defendant. The mortgagor made no defense, Traver plead the Statute of Limitations, denied the power of plaintiff to make the mortgagee contract—and claimed that no property was covered by plaintiff’s mortgage, except the portion of the flume in existence at the date of its execution.

The plaintiff had judgment for a foreclosure and sale of the whole property and application of the proceeds to its debt. The decree barfed the rights of Traver in the property, and contained no direction as to the disposition of any overplus which might remain after application of the proceeds to plaintiff’s debt.

From this judgment the defendant Traver, appeals.