as follows: "I gave nothing for the stock, only subscribed for it. Neither did my brother pay anything for his 1,000 shares, and my father parted with nothing of value for his subscription, nor did the other subscribers." All of said stock was thus issued without Frank Burke any consideration whatever. further testified as follows: "I was not only nominally, but, as I understood it, in reality, the owner of two-fifths of the capital stock of the Illinois corporation at the time I came to Utah to open negotiations on behalf of that company looking to the transfer of the property of the Utah company to the Illinois company;" and that he regarded the property of the Utah corporation valuable, and worth from $100,000 to $130,000, and that he understood, if Wells, Fargo & Co. agreed to it, the Illinois corporation would get the property without any consideration except the payment of the debts of the Utah corporation; that witness was authorized by the Illinois corporation to negotiate a transfer of all of the property of the Utah company to the Illinois corporation. Negotiations began for the purchase of said property some days before the 15th day of January, 1896. At a meeting of the board of directors of the Illinois corporation held at Chicago, Ill., on the 4th day of January, 1896, the following resolution was passed, appointing said Frank Burke agent of the Illinois corporation, to negotiate for the purchase from the Utah corporation of all of the real and personal property, of every kind and nature, owned by and belonging to the Utah company, to wit: Resolved, by the board of directors of the Burke Land & Live-Stock Company, a corporation duly organized and existing under the laws of the state of Illinois, that Frank W. Burke be, and he is hereby, appointed the agent of this company to negotiate for the purchase from the Burke Land & Cattle Company, a corporation organized and existing under the laws of the territory of Utah, all of the real and personal property, of every kind and nature, owned by or belonging to said last-named company, and wheresoever situated, upon such terms and conditions as said attorney may see fit to agree upon, and subject to the debts or liabilities of said last-named company; hereby ratifying and confirming all things which said attorney may lawfully do by or under these presents. And, upon motion duly made and seconded, it was further resolved that Frank W. Burke be, and the same is hereby, appointed agent of this company to take charge of, look after, manage, and control the business of this company. And, upon motion duly made and seconded and carried, the meeting adjourned without day."

At a meeting of the board of directors of the Utah corporation held in Salt Lake City, state of Utah, on the 15th day of January, 1896, the following resolutions were adopted, to wit: "Resolved, that the vice president and secretary of this corporation be, and they are hereby, authorized, directed, and empowered,

in the name of, and as the act and deed of, this corporation, to make, execute, sign, acknowledge, and deliver to the Burke Land & Live-Stock Company, a corporation, under the laws of the state of Illinois, a good and sufficient deed of conveyance, conveying to said corporation all the right, title, claim, and interest, both in law and in equity, of the corporation of, in, and to all of those several and sundry tracts of land now owned, held, enjoyed, and possessed by this corporation, situated in the state of Idaho, together with all improvements thereon, water rights incident thereto, and all privileges of every name or nature appurtenant or belonging to said lands; said conveyance being subject, however, to that certain mortgage, bearing date March 21, 1895, and duly recorded in the recorder's office of Bingham county records, in the said state of Idaho, in Book H of mortgages, page 493, executed by the Burke Land & Cattle Company, as mortgagor, in favor of Wells, Fargo & Co., as mortgagee thereunder, and being for the sum of seventy-five thousand dollars, as evidenced by the note set forth fully in said mortgage, and payable on September 1, 1896, with interest at the rate of 8 per cent. per annum from date, payable quarterly, and bearing even date with said mortgage; and further subject to the possession of said lands now held by the said Wells, Fargo & Co., as additional security for the said promissory note, and the payment thereof, heretofore in this resolution mentioned. And further resolved, that the vice president and secretary of this corporation be, and they are hereby, authorized, directed, and empowered, in the name of, and as the act and deed of, this corporation, to make, execute, transfer, sign, seal, and deliver a good and sufficient bill of sale to the Burke Land & Live-Stock Company, a corporation organized and doing business under the laws of the state of Illinois, conveying and assuring to said lastnamed company all of the personal property, consisting of horses, cattle, harness, farming wagons, and all other personal property, tools, implements, etc., now used at, or possessed by, this corporation on its ranch lands in the counties of Bingham and Logan, in the state of Idaho. Said bill of sale and transfer to be subject, however, to a certain chattel mortgage bearing date as of the 21st of March, 1895, and duly filed or recorded in the recorder's office of the county records of Bingham and Logan counties, state of Idaho, and being for the sum of seventy-five thousand dollars, as more fully set forth in said mortgage, and further subject to the possession of said personal property now held by the said Wells, Fargo & Co. as security for the said indebtedness of seventy-five thousand dollars. Adjourned. [Signed] J. E. Dooly. Vice President. Harry T. Duke, Secy." The negotiations which terminated in the purchase of all of the property of the Utah corporation by the Illinois corporation were conducted by said Frank W. Burke as agent for the Illinois cor

poration, and John E. Dooly as vice president of the Utah corporation and as managing agent of Wells, Fargo & Co.

The trial court found, by its sixth finding of fact, that the Illinois corporation agreed to and with the Utah corporation and Wells, Fargo & Co. that it (the Illinois corporation) would pay, as the purchase price of said property, the amount of the three items referred to in the record as the "Overdraft Account," amounting, on the 15th day of January, 1896, to $35,214.22, the note indebtedness of William Burke, amounting to $26,788.55, and the Buford-Croker judgment, amounting to $12,045.91. Said sixth finding is as follows: "That upon said 15th day of January, 1896, the plaintiff, by and through its said agent, was, by the officers and representatives of Wells, Fargo & Co., which company at said time had possession of and controlled all the stock of the Burke Land & Cattle Company, and who, through its officers, was in control of the business and affairs of the Burke Land & Cattle Company, advised that it (Wells, Fargo & Co.) would consent and agree to the sale of the property of said Burke Land & Cattle Company to the plaintiff only upon the assumption and payment by plaintiff of certain claims, which were then and there stated to said plaintiff, to wit: Money loaned and advanced to said cattle company by Wells, Fargo & Co. under and pursuant to said mortgages, and secured thereby, called the 'overdraft account,' amounting upon said date to the sum of $35,214.22. A note indebtedness due from Wm. Burke to Wells, Fargo & Co., amounting on said date to $26,788.55, which was one of the items of indebtedness secured by the pledge to said Wells, Fargo & Co. by William Burke of 996 shares of the capital stock of the Burke Land & Cattle Company. Also what was called the Buford-Croker judgment against Wm. Burke and others, amounting on said date to $12,045.91, also secured by said pledge of stock. That thereupon before said sales and transfers were made or agreed upon, and as a part of the negotiation and transaction of sale and transfer, and in consideration thereof, the plaintiff acknowledged and agreed, to and with the defendants Burke Land & Cattle Company and Wells, Fargo & Co., that it (the plaintiff) would pay said items, and each of them, as the purchase price of said property." In the eleventh finding of fact the court finds, among other things, as follows: "And by the agreement of January 15, 1896, there was to be paid Wells, Fargo & Co., by the Burke Land & Live-Stock Company, the sum of $45,024, no part of which has been paid, which comprises, with interest, the two items referred to in the testimony as the personal indebtedness of Wm. Burke and the Buford-Croker judgment, which said items the plaintiff did, on the 15th day of January, 1896, in consideration of the transfer and sale, acknowledge and agree to pay, and which was a part of the consideration for said sale and transfer, and was a part of the pur

chase price of said property; both of said items, and the whole thereof, having been secured by a pledge of said 996 shares of stock in the Burke Land & Cattle Company by Wm. Burke, from whom said indebtedness was due to Wells, Fargo & Co., to whom said indebtedness was due." The purchase price of said property was thus found to have been made up of said three items.

The deed executed by the Utah corporation, on January 15, 1896, conveying to the Illinois corporation the real estate of the former corporation, contains, among others, the following clause, to wit: "It is expressly understood and agreed that this conveyance is made and accepted subject to the payment and discharge by the said party of the second part of that certain mortgage made and executed by said party of the first part in favor of Wells, Fargo & Co., and bearing date March 21, 1895, and now duly recorded in the recorder's office of Bingham county, state of Idaho, in Book H of mortgages, at page 439, made to secure a certain promissory note in said mortgage described for the sum of seventy-five thousand ($75,000.00) dollars." And the bill of sale made on the last-mentioned date by the Utah corporation, conveying to the Illinois corporation the identical personal property described in the chattel mortgage heretofore referred to, contains the following clause, to wit: "It is distinctly understood and agreed, by and between the parties hereto, that the above sale is made subject and subordinate to that certain chattel mortgage made and entered into on the 21st day of March, 1895, by and between the Burke Land & Cattle Company, a corporation, mortgagor, and Wells, Fargo & Co., a corporation doing a banking business in the city of Salt Lake and territory of Utah, mortgagee, which said chattel mortgage is filed for record in the county records of said Bingham and Logan counties, state of Idaho." Said deed and bill of sale were executed in pursuance of the contract entered into on January 15, 1896, and referred to in the sixth finding of fact above quoted, which finding sets forth the consideration for the execution of said deed and bill of sale, by which the legal title to the property therein described was transferred and conveyed to the Illinois corporation.

This action arose out of that transaction. The respondent and appellant corporations rely upon that contract as the basis of this action and defense, and that transaction is the subject of this suit. The plaintiff's complaint is based upon that contract. The defendant's answer and cross complaint of the defendant Wells, Fargo & Co. are also based upon that transaction. The plaintiff corporation in its complaint alleges performance on its behalf, and also tenders performance, and makes the mortgagee and vendor parties defendant, and it alleges its right under said contract to the immediate possession of all of said property after the 15th day of

January, 1896. The defendants denied said allegations, and defendant Wells, Fargo & Co., by cross complaint, demanded a foreclosure of said mortgages, and for such relief as might be equitable. Counsel for respondents contend that all of the relief consistent with the case made by the complaint, and embraced within the issues, was the usual decree of foreclosure and sale for the amount due upon the notes and mortgages, and counsel fees, with the usual direction for judgment for the deficiency, if appellant was personally liable for the deficiency. We are unable to agree with counsel in that contention.

The court below found upon all of the material issues made by the pleadings, and the pleadings are comprehensive enough to authorize findings of fact and a judgment settling the rights of the parties in and to the subject-matter of the action. This court held in Stevens v. Association (Idaho) 51 Pac. 779, that "sections 4183-4185, Rev. St., inclusive, are intended to prevent a multiplicity of suits, and to settle all controversies and causes of action between the parties which arise out of, or are connected with, the transaction upon which plaintiff's action is founded."

a

This action is based on the transaction of January 15, 1896, and the pleadings are sufficiently comprehensive to authorize judgment settling the controversy over that transaction between the parties.

Section 4353, Rev. St., is as follows: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." Under the provisions of that section, when an answer is filed, as was done in the case at bar, the court may grant any relief consistent with the case made by the complaint, and embraced within the issues made, whether such relief be prayed for or not. Jaeckel v. Pease (Idaho) 53 Pac. 399; Johnson v. Polhemus (Cal.) 33 Pac. 908. The law of civil procedure in this state prohibits the splitting up of causes of action and a multiplicity of suits. A court of equity, having obtained jurisdiction of a cause for any purpose, may retain it for all purposes, and proIceed to a determination of all of the matters in issue. 1 Jones, Eq. Jur. §§ 181, 242. The plain intention of our law is that, when the parties are once in court, all conflicting claims shall be settled between them arising out of the subject-matter involved in the issues.

The main contention arises over whether the entire purchase price of said property was secured by said mortgages. Counsel for respondent contend that only that part of the purchase price referred to as the "Overdraft Account" is secured by said mortgages, while counsel for appellants contend that the entire purchase price is secured thereby. Coun

sel for respondent, in support of their contention, cite the clauses in said deed and bill of sale above quoted, and contend that the language there used was only for the purpose of description or identification of the mortgages, and not to fix the exact amount due thereon; while counsel for appellants contend that, as the consideration for said sale and transfer, the Illinois corporation agreed to pay the amount of said overdraft account, the amount of the Buford-Croker judgment, and the amount of the individual indebtedness to Wells, Fargo & Co., and also agreed that said mortgages should stand as security for the payment of said items, amounting, at the date of the sale, to $74,048.68. Counsel for respondent, in support of its contentions, have filed a very voluminous brief, in which are cited many authorities upon the point that the words used in said deed and bill of sale are only for the purpose of description and identification and for no other purpose. We cannot agree with counsel in that contention. If there were room for doubt as to the meaning of said clause (which we think there is not), it would then be our duty to look to the circumstances which surrounded the parties at the time of entering into the contract, and would read and construe the language of said clauses in the light of those circumstances. Nash v. Towne, 5 Wall. 689, 18 L. Ed. 527; Canal Co. v. Hill, 15 Wall. 94, 21 L. Ed. 64; Merriam v. U. S., 107 U. S. 437, 2 Sup. Ct. 536, 27 L. Ed. 530; Thompson v. McKay, 41 Cal. 221. In Saunders v. Clark, 29 Cal. 299, it is held that, where any doubt exists as to the true meaning of a written contract, the condition and motives of the contracting parties, as shown by its recitals or by outside evidence, must be looked into to ascertain what is the real intention of the parties, which, when ascertained, must prevail over the literal sense. And in Walsh v. Hill, 38 Cal. 481, the rule is laid down that, in construing a written instrument, the only rule of much value is to place ourselves as nearly as possible in the places which were occupied by the parties at the time the instrument was executed, and then, taking the contract by its four corners, read it. Applying the rule set forth in those cases to the interpretation of said clauses, and there is no doubt as to their true meaning.

At the time said deed and bill of sale were executed, Wells, Fargo & Co. were complete masters of the situation. They owned all of the capital stock of the Utah corporation, had actual possession of all its property of every description and kind, and controlled its board of directors. At the date of the contract, that property had cost Wells, Fargo & Co. $74,048.68, at which date the court found that said property was worth $100,000. Wells, Fargo & Co. were willing that William Burke should have whatever remained of said property after it had been paid said sum, with interest. The Illinois corporation was organ.

ized by William Burke, his sons and relatives, for the purpose of saving something out of said property. And the Illinois corporation, through its agent, negotiated with Wells, Fargo & Co., and, if you please, the Utah (dummy) corporation, for the purchase of said property.

And in those negotiations John E. Dooly, general agent for Wells, Fargo & Co. and vice president of the Utah corporation, offered to take the sum of $74.048.68 for said property, and that offer was accepted by the Illinois corporation through its duly-authorized agent, Frank W. Burke. Before that contract was executed, Wells, Fargo & Co. had abundant and ample security or property out of which to make said $74,048.68. Under those circumstances, it would be most unreasonable to construe said clauses in accordance with the contention of counsel for respondent. No sane man, placed as Wells, Fargo & Co. were in said transaction, would have released the larger part of his security, and transferred said property, as it is contended they did by the sale of January 15, 1896, thus losing the greater part of their security. It clearly appears, when read in the light of the facts and circumstances of this case, that said clauses were not intended to release any security or weaken the position or security of Wells, Fargo & Co. in its relation to said property. Said clauses must not be given a construction entirely different from the clear intention of the parties. The intention was that the entire purchase price of said property should be secured by said mortgages, and the Illinois corporation is estopped from disputing their validity in that regard.

Counsel contend that, if it was agreed that said mortgages should stand as security for the payment of said purchase price, such agreement, being oral, would not extend said mortgages so as to include the items referred to as the individual indebtedness of William Burke and the Buford-Croker judgment. In support of this contention, section 3351, Rev. St., is cited, which is as follows: "A mortgage can be created, renewed or extended only by writing, executed with the formalities required in the case of a grant or conveyance of real property." Counsel in their brief cite many cases, and quote extensively from them in support of this contention. That section of our Revised Statutes was enacted to prevent fraud, and not for the purpose of enabling one to procure the property of another through fraud. Its provisions are not applicable to this case. The Illinois corporation is not mortgagor or mortgagee. It is a stranger to said mortgages, and, as it agreed that they should stand and remain as security for the payment of the purchase price of said property, it is estopped from denying that they are security therefor, and at the same time claiming the property under the contract It will not be permitted to repudiate its agreement in regard to the mortgages, and enforce the remaining part of said contract.

It has been suggested that there was noth

ing due on the overdraft account, as it is shown that it was fully paid, or, at least, nothing due thereunder, in October, 1895, and for that reason said mortgages died, and were dead at the date of said sale; and, as they were dead, they could not be extended to secure the purchase price. If this contention should prevail, the Illinois corporation would be entitled to the ownership and possession of over $100,000 worth of property, without paying one cent of the purchase price or giving any security therefor.

We do not think that the minds of the contracting parties met on a proposition of that kind, and, if they did not, no such contract was made. The Illinois corporation will not be permitted to obtain possession of said property, and evade the payment therefor, on the technical ground that its oral agreement to the effect that said mortgages should stand as security for the payment of the purchase price was without any binding force whatever. The respondent has sought equity, it must do equity. It seeks to compel the appellants to keep their contract of sale, but desires to evade a very material provision of said contract stipulated to be performed by it. That it will not be permitted to do.

It is suggested that the Utah corporation could not execute a mortgage upon its property to secure the individual indebtedness of William Burke, or that it was not competent for it, on the 15th day of January, 1896, to deal with and treat said mortgages as security for the individual indebtedness of William Burke. Neither the Utah corporation, the stockholders, nor any creditor, except, perhaps, one whose rights can be amply protected, are here complaining of that transaction, and, under the facts of this case, the Illinois corporation cannot successfully interpose any objection for them. If the Utah corporation assumed to pay the private indebtedness of William Burke, a stockholder or creditor might, under some circumstances, complain, but a stranger will not be permitted to do so. In this class of cases, the decisions turn largely on the question of who is complaining. Cook, Stock & S. (3d Ed.) § 681. In one sense. the Utah corporation was what is termed a "dummy" corporation. It was organized by William Burke. All of its capital stock, except four shares, was issued to him. He transferred, without consideration, all of his property to said corporation, and to hold, under those facts, that said Utah corporation could not assume the private indebtedness of said Burke, would be to hold that a debtor could thus put his assets beyond the reach of his creditors by organizing a "dummy" corporation, have its capital stock all issued to himself, convey his property to it without consideration, and presto! his assets are beyond the reach of his creditors.

Many authorities have been cited, and much law quoted, by counsel for respondent in their brief, upon corporation law, the powers and limitations of the president, boards of direct