Respondent relies upon the case of Savings & Loan Society v. Deering, 66 Cal. 281 [5 Pac. 353]. That case states that recitals in a deed executed by the trustees to a creditor who purchased at the sale under a deed of trust, to the effect that the trustee did, as a condition of the sale, permit the creditor to bid and purchase, are prima facie evidence of the facts recited, although the deed of trust is silent as to their effect. That case, however, decides that trustees, having the legal title may convey such legal title either in execution of the trust or in violation of the same, and that in an action in ejectment, where only the legal title is involved, it is only necessary to prove that the legal title was conveyed to plaintiff. The foregoing statement suggests the difficulty in the present case. It is only necessary for the plaintiff to prove that it is the holder of the legal title. In order to do that, it must prove that its grantors, Carlston and Sagehorn, were vested with the legal title. No proof is offered of this important matter except the statement of Sagehorn regarding his appointment as trustee, from which it would follow that he would hold the legal title. That statement of his capacity is insufficient to establish it and therefore there was no proof that he was vested with the legal title at the time he executed the conveyance to plaintiff. The legal title must be traced to Sagehorn before it can flow through him to plaintiff and the proof is lacking to establish this connecting link. [2] This is the type of case where a reversal of the judgment is much to be deplored, as it seems apparent from the record that the equities are entirely lacking in the defendants' case. We do not think, however, that even the wholesome provisions of section 42 of article VI of the constitution of this state justify this court in affirming a judgment for the plaintiff in ejectment where there is a complete absence of proof of a connecting link in plaintiff's title.

The judgment is reversed.

Sturtevant, J., and Nourse, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 16, 1923.

[Civ. No. 3810. Second Appellate District, Division Two.-June 19, 1923.]

IMPERIAL WATER COMPANY No. 4 (a Corporation), Respondent, v. EDWIN A. MESERVE et al., Appellants.

[1] PLEADING-SUFFICIENCY OF CROSS-COMPLAINT.-A cross-complaint must allege not only all the facts necessary to constitute a cause of action, but also all facts essential to show that the demand is a proper subject for cross-complaint. [2] ID. ACTION FOR WATER SOLD

- CROSS-ACTION AGAINST MUTUAL WATER COMPANY.-Where plaintiff's cause of action as alleged in the complaint is one arising out of a contract to pay for water sold and delivered, a cross-complaint based upon an alleged right to receive water, not by reason of any contract made with plaintiff but in virtue of shares of stock in plaintiff (a mutual water company), fails to state a cause of cross-action.

[3] ID.-IMPROPER SUBJECT OF COUNTERCLAIM-CONCLUSION OF LAW.There being no facts averred in such cross-complaint showing that the alleged cause of cross-action arose out of the transaction set forth in the complaint as the foundation of plaintiff's claim, or that it was connected with the subject of the action, or that it arose upon contract, it could not be regarded as a proper subject of counterclaim under section 438 of the Code of Civil Procedure; and the assertion in such cross-complaint that it "is of and concerning the subject matter of plaintiff's complaint, and this cause of [cross] action arises out of the same transaction" was the allegation of a mere conclusion of law.

[4] ID.-WATER RIGHT AS REAL PROPERTY-ENFORCEMENT.-A water right in virtue of the ownership of stock in a mutual water company is real property; and an action based upon such a water right is not an action based upon contract but upon the ownership of real property, although such water right may have had its genesis in contract.

[5] ID.-SALE OF WATER-LIABILITY OF DEFENDANTS-ULTRA VIRES ACT ESTOPPEL.-The evidence having been such as to warrant the trial court in finding that, as between plaintiff (a mutual water company) and the defendants, the water for which plaintiff was attempting to recover payment was furnished or "sold" to all the defendants jointly, and that they were jointly, or jointly and severally, liable therefor, the defendants were estopped from setting up as a defense that the act of plaintiff in "selling" the water to them was ultra vires.

62 Cal. App.-38

[6] ID. VARIANCE COMPLIANCE WITH ARTICLES OF INCORPORATION.— The evidence having shown that plaintiff, a mutual water company organized to distribute water to its members at cost, had delivered the water to the defendants in virtue of the ownership by one of them of capital stock in plaintiff, and that the water was furnished to defendants at cost, the defendants were not prejudiced by the fact that the complaint alleged a "sale" of the water to defendants.

[7] APPEAL-IMPROPER PRESENTATION OF POINTS.-Points presented upon appeal in a desultory manner and not argued or supported by citation of authority will not be considered.

APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge. Affirmed.

The facts are stated in the opinion of the court.

Edwin A. Meserve, in pro. per., and Shirley E. Mcserve for Appellants.

A. L. Sebille and Bruce Sebille for Respondent.

FINLAYSON, P. J.-Plaintiff, a mutual water company incorporated under the laws of this state, brings this action against Lizzie H. Meserve and her two sons, Edwin A. Meserve and Harry W. Meserve, to recover the sum of $681.28 alleged to be due for "water sold and delivered" to defendants. Judgment for that sum was rendered against the three defendants, two of whom, Edwin A. and Harry W. Meserve, have taken this appeal.

In a complaint consisting of three counts plaintiff alleges: In the first count, that defendants "purchased from plaintiff" and the latter "sold and delivered to defendants," for agricultural purposes, water to the amount and value of $681.28, which defendants promised to pay; in the second count, that the water was reasonably worth $681.28; and in the third, that the defendants are "indebted" to plaintiff in the sum of $681.28 for water so sold and delivered. Edwin A. Meserve and his mother joined in an answer wherein they deny practically all of the allegations of the complaint. Harry W. Meserve answered separately. Like his codefendants, he also denied substantially every allegation of the complaint. As a fur

ther answer Harry W. Meserve alleged that the plaintiff is a mutual water company organized for the purpose of furnishing water at cost to its stockholders, and that it had no power under its articles of incorporation to "sell" water as personal property. For a further defense he alleges that, having the right so to do, he ordered water of plaintiff, but that the latter did not deliver all of the water so ordered because it negligently allowed its ditches to become so filled with weeds and grasses, silt and deposits that it was unable to deliver water in time to properly irrigate his crops; wherefore he alleges that his crops were lost and that he was damaged in the sum of $1,000. Harry W. Meserve also filed a cross-complaint wherein, for a first cause of cross-action, he alleged that plaintiff is a mutual water company organized to furnish water at cost to its stockholders and those claiming under them; that he rented of one C. R. Rockwood a tract of land containing 134 acres; that Rockwood owned 134 shares of plaintiff's capital stock; that as a lessee of Rockwood crosscomplainant was entitled to receive water from plaintiff; that he planted barley on the leased land; that he ordered water of plaintiff, but that the latter permitted its canals. to become so filled with weeds and grasses, silt and deposits that it could not and did not deliver water on the tract so leased by him of Rockwood; that as a result he lost the crop of barley and was damaged thereby in the sum of $2,000. The cross-complaint sets forth a second alleged cause of cross-action similar to the first, except that it is based upon plaintiff's alleged failure to deliver water to a different piece of land, namely, a tract containing 320 acres, of which cross-complainant alleged himself to be the lessee. There is nothing in the cross-complaint to show that either of the tracts of land alleged to have been leased by crosscomplainant is the same as that for the irrigation of which plaintiff sold and delivered the water mentioned in its complaint; nor is there anything in the cross-complaint to show that the water right which was owned by either of crosscomplainant's lessors was the same water right in virtue of which defendants ordered the water for which plaintiff is seeking a recovery here. To the cross-complaint so interposed by the defendant Harry W. Meserve plaintiff filed

a general and a special demurrer. The demurrer was sustained.

Upon the trial of the case the following facts were shown: The articles of incorporation filed by plaintiff, a mutual water company, declare that "the purposes for which it is formed are to secure a supply of water from [here follow the names of certain companies from which plaintiff procured its water] . . . to distribute the same at cost among its stockholders only for use upon lands owned by them." The water mentioned in plaintiff's complaint was furnished by plaintiff for the irrigation of part of a tract of 320 acres in Imperial County upon which A. R. Meserve, the father of appellants, had made a location under the United States land laws. A. R. Meserve died before the issuance of a patent but after he had made his final proof. Prior to the death of A. R. Meserve plaintiff had issued to him 320 shares of its capital stock. These shares represented a water right appurtenant to the particular tract of land upon which plaintiff furnished the water mentioned in its complaint. This tract of land, officially described as tract 156, will hereafter be referred to simply as the "ranch." Plaintiff having levied an assessment upon its subscribed stock and the amount assessed against the 320 shares standing in the name of A. R. Meserve not having been paid, the shares were sold for the assessment to A. R. Meserve's widow, the defendant Lizzie H. Meserve. She purchased the shares and became the owner thereof about January 4, 1913.

To make it possible for Edwin A. Meserve to supply his widowed mother with funds for her support under such circumstances that she would be led to believe the money came from the profits of the ranch instead of from her son's bounty, as well as to enable the mother to receive a patent to the ranch and have it issued to her in her name, the two sons, Edwin and Harry, with their mother's knowledge and consent, entered into an arrangement pursuant to which it was agreed to farm the ranch on shares, the mother and her two sons each to receive one-third of the profits. Referring to this arrangement, or, as he very appropriately designated it, this "family affair," Edwin A. Meserve, called as a witness for plaintiff, testified: "It was sort of a family affair and we we were trying to get