Appeal from the Circuit Court of the United States for the District of Idaho.

Suit in equity by the Continental & Commercial Trust & Savings Bank against Charles W. McCarty. Decree for defendant, and complainant appeals.

The appellant, as trustee under a deed of trust, brought a suit for the foreclosure of a lien created by a contract assigned to it as security for an issue of bonds. The lien was executed by the appellee, and it covers certain lands situate in the state of Idaho, together with a certificate of stock representing water rights for the irrigation of land. The court below sustained a demurrer to the bill, and dismissed the same. The facts set forth in the bill are in substance the following: That on May 1, 1908, the Kings Hill Irrigation & Rower Company, a corporation, entered into a contract with the state of Idaho Cor the construction of an irrigation system for the reclamation and irrigation of several thousand acres of land which had been .segregated from the public domain under the act of Congress known as the “Carey Act” (Act Aug. 18. 1894, c. 301, 28 Stat. 372). The contract provided that, before the land should be thrown open for entry, a corporation to be known as the Glenn’s Ferry Canal Company should be organized for the purpose of maintaining and operating the irrigation system; that it should have a. capital stock of 25,000 shares, each share to represent an undivided interest in the system based upon the number of shares finally sold: that each share should represent sufficient water for the irrigation of one acre of land; that 1he entire capital stock should be issued to the Kings Hill Irrigation & Rower Company in full payment for the irrigation system: and that said stock should be sold to persons who desired to enter the land, and to owners of other lands susceptible of irrigation from the system. Payments for said stock were to be made as follows: $6.50 per share at the time of purchase, and the remainder in nine equal annual deferred payments with interest at 6 per cent, per annum. The Irrigation & Power Company having constructed the irrigation works, the appellee desired to enter certain parts of said land, and, with that end in view, purchased 42.97 shares of the capital stock of the Glenn’s Ferry Canal Company, sufficient to irrigate 42.97 acres of land which the appellee filed upon under the Carey act. In purchasing his stock the appellee entered into a contract with the Irrigation & Power Company whereby the latter was given a first lien on the land on which the appellee filed for the amount due it in nine deferred annual payments of $279.81 each. The appellee under his contract agreed to pay the irrigation company his first deferred payment on November 1, 1909, and agreed to pay interest on all deferred payments on said date, the interest to be computed from April 1, 1909, at 6 per cent, per annum. The contract contained, however, the following qualifying clause: “Interest from April 1, 1909, at six per cent, per annum may be charged if water is available from said, irrigation system for use during the irrigation season of 1909, and, if not available for said season, interest shall commence when such water is available. But it is further understood and agreed that no payment other than the initial payment, and no interest shall be required to be paid under this contract until the water is available for distribution from said irrigation system at a point within one-half mile of each legal subdivision of one hundred sixty acres, and such water must be available at the beginning of the irrigation season in order to make such payments become due, and all payments and interest provided in this contract shall be advanced in time according to the delay in' the delivery of the said water as aforesaid.” The following provision was also contained in the contract: “This contract is made pursuant to and subject to the contract between the company and the state of Idaho, and the existing laws of said state, and is to be construed in conjunction with said contract and said laws.” The contract between the state and the irrigation company contained the following provision: “It is further agreed that no payment other than the initial payment, and no interest .shall be required under any contract, either for Carey act lands or state or private lands, until the water for the said land is available from said cañal for distribution ata point within'a half mile of each legal subdivision of one hundred sixty (160) acres of the said land, and such water must be available at the beginning of the irrigation season in order to make such payments become due, and all payments and interest provided in said contract shall be advanced in time according to the delay in the delivery of said water as aforesaid.” In the Revised Codes of Idaho, section 3806 provides that owners or persons in control of any ditch, canal, or conduit used for irrigation purposes shall maintain the same in good order and repair ready to deliver water by the 1st of April in each year. In the bill it was alleged upon information and belief that the irrigation system described in the contract between the appellee and the appellant was so far completed on May 14, 1909, that water on said date became available, and ever since has been available, for the irrigation of the lands described in the contract.