as purchaser, as stated, the parties entered into an agreement, by which plaintiff agreed to purchase defendant's right to the premises and pay him four thousand seven hundred and fifty dollars therefor. One hundred dollars was paid in cash and thirty days' credit given for the balance. Nothing was said in the agreement in regard to the possession of the premises, nor does it appear whether defendant was at that time in possession or not.

The agreement simply fixes the amount to be paid for defendant's rights and the time of payment. The time allowed for redemption under the sale had about expired, and plaintiff soon received his deed from the sheriff. He then commenced this suit against defendant to recover the premises. Defendant in a cross-complaint set up his claim for four thousand six hundred and fifty dollars, which was still due him on the agreement mentioned, and asked that the agreement be specifically enforced, and for general relief.

The plaintiff demurred to the counterclaim or crosscomplaint on the ground that the facts stated did not constitute a counterclaim or the proper subject of a cross-action. He also moved to strike it out as redundant and immaterial matter. The court overruled the demurrer and denied the motion.

After trial judgment was rendered that defendant recover from plaintiff the sum of four thousand six hundred and fifty dollars, and that if the same be paid defendant execute to plaintiff a deed for the demanded premises, and that thereupon plaintiff be let into possession. In other words, the judgment is that he shall not recover possession except upon condition that he pay the sum agreed upon to the defendant. The court found, however, that plaintiff is the owner of the land.

Plaintiff's title does not come through defendant, although even if it did, and defendant had a vendor's lien upon the land, plaintiff would still be entitled to possession according to his title. According to defendant's claim, both parties knew the true condition of the title. That defendant had no right save the right to

redeem, which had nearly expired. That when plaintiff received his deed his title would be absolute, and his right to immediate possession undoubted. Their contract left this state of things as it was, plaintiff promising to pay defendant four thousand seven hundred and fifty dollars not to redeem.

Certainly his rights under the deed, which he received from the sheriff, do not depend upon his paying his debt to defendant. Although he may never be able to pay his debts, he is entitled to possession of the land. This being so, the facts stated in the cross-complaint do not constitute a counterclaim. The relief sought will not to any extent defeat, overcome, or affect plaintiff's cause of action, nor lessen, modify, or interfere with the relief to which plaintiff is entitled. (Pomeroy's Code Remedies, sec. 745.)

Nor does defendant's demand arise out of the transaction set out in the complaint. The only transaction there set out-if it could be so denominated-is that defendant withholds from plaintiff the demanded premises, claiming some title to it. The cross-complaint does not show any right or title to the demanded premises in defendant. By it defendant asserts no rights with reference to the land, nor any claim save his alleged right to demand from plaintiff four thousand six hundred and fifty dollars. This demand is not connected with the "subject of the action," however that phrase be defined.

Nor is defendant's demand one which can be set up in a cross action under section 442 of the Code of Civil Procedure. The relief sought by defendant does not affect the property to which the action relates. An action enforcing specific performance of a contract to pay four thousand six hundred and fifty dollars is merely an action for so much money. Plaintiff cannot compel defendant to convey to him his claim to the land unless he pays the money, but plaintiff is not estopped from setting up a right derived from an independent source. He did not purchase the land from defendant, as already stated. Defendant's theory is that plaintiff bought

knowing that his right was prior to defendant's, and that defendant was only a redemptioner. In other words, that upon receiving his deed his title would be complete without any conveyance from defendant.

Except that there is no vendor's lien, the situation is exactly as it would have been if defendant, being the owner of the land, had conveyed to plaintiff, and had taken his promissory note as payment. In such case the purchaser's right to possession would not depend upon the payment of the note.

I think the judgment and order should be reversed.

BELCHER, C., and SEARLS, C., concurred.

[Sac. No. 21. Department One.-September 11, 1895.] CENTERVILLE AND KINGSBURG IRRIGATION DITCH COMPANY, APPELLANT, v. C. BACHTOLD, RESPONDENT.

APPEAL UNDERTAKING ON SEPARATE APPEALS.-When an appeal is taken from two or more orders, or from a judgment and an order, whether the notice of such appeal is given by separate notices, or in one instrument, the appellant must file the undertaking for three hundred dollars for each appeal, except in the single instance of an appeal from a judgment and an order denying a new trial.

ID. SEVERAL APPEALS-REFERENCE IN UNDERTAKING TO SINGLE APPEAL -DISMISSAL.-If a single undertaking for three hundred dollars is given for several appeals, and refers to only one of the orders appealed from, or to the judgment alone, the appellate court will have jurisdiction only of the matter referred to in the undertaking, and the other appeals will be dismissed. ID.-GENERAL REFERENCE IN UNDERTAKING-DISMISSAL OF ALL APPEALS.—If an undertaking on several appeals has no special reference to either of the appeals, but is conditioned generally upon "such appeal" or "said appeals," all of the appeals will be dismissed. ID.-AMBIGUOUS UNDERTAKING-SINGLE APPEALABLE ORDER.-The fact that there is but a single appealable order named in the notice of appeal from several orders cannot sustain an undertaking on appeal in which the reference to the appeal is ambiguous and general, and not specially to the appealable order. ID. JURISDICTION OF APPEAL-Void UndertaKING—ALLOWANCE OF NEW UNDERTAKING. An ambiguous undertaking filed in the superior court, which does not refer to either of several appeals specified

in the notice, must be regarded as if it had never been filed, and in such case the appellate court has no jurisdiction, and cannot confer any jurisdiction to hear the appeals, by allowing the subsequent filing of an undertaking in the supreme court. ID.-PRACTICE-DISMISSAL OF APPEALS-NON APPEALABLE ORDER-IMPERFECT APPEAL-QUESTIONS OF LAW AND FACT.-The dismissal of an appeal from a nonappealable order proceeds upon different principles from the dismissal of an appeal upon the ground that it has not been perfected; in the former case, the question is one of law arising from a properly authenticated record of a perfected appeal, to be determined by a comparison of the record with the statute prescribing what appeals may be taken; while, in the latter case, the question is one of fact depending upon proceedings subsequent to the entry of the order in the court below, and the action of the appellate court is limited to determining whether the steps taken for the appeal are in compliance with the statute prescribing the mode of appeal. ID.-WAIVER OF DEFECTIVE APPEAL-ESTOPPEL OF APPELLANT.-Though the respondent may waive objection to a defective appeal, yet, when a motion to dismiss an appeal is made upon the ground that the appeal has not been perfected, the appellant cannot ask the court to look into the record for the purpose of determining whether the order appealed from is appealable, nor can he protect himself against the defective appeal by saying that he had no right to appeal.

APPEAL from a decision of the Superior Court of Fresno County and from orders denying a new trial and denying a motion to dismiss the action. M. K. HARRIS, Judge.

The facts are stated in the opinion of the court.

Frank H. Short, for Appellant.

Horace Hawes, for Respondent.

HARRISON, J.-The plaintiff gave notice to the defendant February 7, 1895, that he appealed to this court "from the decision entered in said action in said superior court, on the eighth day of July, 1893, in favor of the defendant in said action, and against the plaintiff, and from the whole thereof, and also from the order denying plaintiff's motion for a new trial, made and entered in the minutes of said court on the tenth day of December, 1894, and also from the order of the court made and entered in the minutes of the court on the seventh day of February, 1895, denying plaintiff's mo

tion to dismiss said action"; and on the same day filed with the clerk of the superior court an undertaking on the said appeals from the three orders, in which the sureties, "in consideration of such appeal" entered into one three hundred dollar undertaking for costs on the appeal. The respondent has moved to dismiss the appeals upon the ground that the undertaking is defective in that there should have been a separate undertaking for each of the three appeals from the orders named in the notice of appeal.

It is the settled rule of practice in this court that when an appeal is taken from two or more orders, or from a judgment and an order, whether the notice of such appeal is given by separate notices or in one instrument, the appellant must file the jurisdictional undertaking for three hundred dollars for the appeal from the judgment and from each of the orders appealed from, except in the single instance of an appeal from a judgment and an order denying a new trial. If a single undertaking for three hundred dollars is given, and refers to only one of the orders appealed from, or to the judgment alone, this court will have jurisdiction of only the matter so referred to in the undertaking, and the other appeals will be dismissed. (Horn v. Volcano Water Co., 18 Cal. 141; Bornheimer v. Baldwin, 38 Cal. 671; Berniaud v. Beecher, 74 Cal. 617; Wood v. Pendola, 77 Cal 82; Schurtz v. Romer, 81 Cal. 244; Crew v. Diller, 86 Cal. 554; Pacific Paving Co. v. Bolton, 89 Cal. 154.)

If the undertaking has no special reference to either matter appealed from, but is conditioned generally upon "such appeal" (People v. Center, 61 Cal. 191; Corcoran v. Desmond, 71 Cal. 100), or "said appeals" (McCormick v. Belvin, 96 Cal. 182), all the appeals will be dismissed upon the ground that by reason of its ambiguity it cannot be determined for which appeal it was given.

It is urged by the respondent that only one of the orders named in the notice of appeal is an appealable order, and that, as the appeal from that order is the only legal consideration for the undertaking, it must be

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