Imperial Valley press., 1908-07-11
WATER CASES
(Continued from page 2)

thereby or under any obligations hereunder to defendant or to any of it's stockholders"
 Furthermore, am of opinion, that the case, if it could be treated as strict foreclosure suit, must fail, for the reason below indicated Judge Ross has clearly and succintly stated the nature of such a suit as follows:
 "The purpose of the suit is the en- forcement of the contract into which complainant and the defendant Town send entered, to compel him to make the payments he stipulated to make, and to obtain a decree fixing the time within which he or his assignee shall make such payments, and receive the conveyance the complainant contract ed to make, and in the event that the defendants fail to make such pay ments, that all rights acquired by them under the contract be barred and foreclosed and. the complainant be, restored to the possession of the
 
 contract" Southern Pac. R. R. Go. vs. Townsend 62 Fed. 161-163.)
 It is also said by an eminent text writer:
 "The equity action to enforce the so-called lien is simply an action to compel the vendee to make payment of the purchase price within a speci- fled time or else be barred of all rights under the contract" (Pom. Ed. Jur., 3rd. Ed, Sec. 1262.)
 A suit to foreclose a contract, there fore, since it includes specific per formance, as an alternative, cannot be maintained if any of the provisions of the contract sought to be enforced are unlawful and inseparable from it's oth- CT material provisions.
 The two covenants here sought to be enforced are the one for the pay ment of annual rates and the other the covenant which, In substance, transfers to complainants the owner ship of defendants capital stock. Both of these two covenants are so inti- mately connected with the complain ants obligation to deliver water, that if either of them be illegal, both con- tracts are wholly void.
 In my conclusions this day filed in California Development Company vs' Imperial Water Company No. 5, case hn on the defendants showing consist ing of affidavits and other documents, made against issuance of preliminary injunction, the contracts here i'll ques- tion, and which were also there in volved, are unlawful. The essential facts on which said opinion was based although not appearing upon the face of the bill in that case, are, think, substantially shown by the bill here in, and i again hold, for the reasons assigned in said conclusions, that said contracts are invalid, and am, there fore of opinion, that this suit cannot be maintained as foreclosure suit.
 Nomenclature, however, is matter of little consequence here, for, wheth- CT the complainants call their bill a bill to rescind or a bill to foreclose, the important fact remains, that they seek to be relieved of their promise, made in said contracts, to furnish water, and still retain the money paid them by defendants sharehold- CTS as the consideration for such promise. To sanction this would do violence to one of the most favored rules of courts of equity.
 Compliments further suggest, in this connection, that the defendant is amply reimbursed for it's issued stock by the canal and water ditches which compliments have constructed for de- fendant This, however, is not shown by the bill, and besides, if it did ap- pear from the bill that complainants' expenditures on said canal and ditches were in excess of or equal to the moneys paid to complainants by de- fendants stockholders, still such eX- penditures are not restitution of said moneys. Besides, without water, these canals and ditches are utterly va1ualacc tO defendant Or anVOna aISe