this land was derived under a certificate of purchase from the state of California bearing date the day first above mentioned. On the 28th of July, 1886, Abbott assigned his certificate of purchase, and all his title in the land mentioned therein, to one M. H. Crissmon, who purchased with actual notice of the existence of plaintiff's mortgage. On April 15, 1887, Crissmon assigned the certificate of purchase and all his title in and to said lands to C. C. Fitzgerald. Fitzgerald purchased with actual notice of the existence of plaintiff's mortgage, and agreed, as part of consideration for the assignment, to pay at maturity the debt secured by the mortgage, and for this purpose retained in his hands from the purchase price the full amount of the principal and interest due on the debt. On July 1, 1887, Fitzgerald assigned the certificate of purchase, and all his title to said lands, to one R. W. Rideout, who at the time of his purchase had no knowledge of the existence of plaintiff's mortgage. Thereafter, Rideout, while the owner of the land, received from the state of California, as assignee of the certificate of purchase, a patent for said lands. The plaintiff placed the mortgage on record in the proper office in the county of Humboldt on the nineteenth day of September, 1887. On the 20th of October, 1887, and while the mortgage of plaintiff was of record, Rideout conveyed the lands described in the certificate of purchase above mentioned to the above-named C. C. Fitzgerald. On the second day of January, 1888, Fitzgerald conveyed to the defendant Bull (appellant here) the lands above referred to. At the date of the conveyance last named, Bull had full notice of the record of plaintiff's mortgage, and of the execution and existence of such mortgage.

On the facts above stated, the court rendered judg ment in favor of plaintiff. We think the judgment should stand. When Fitzgerald, who was the grantor of Rideout, and who had actual notice of plaintiff's mort

gage when he purchased and at the time he conveyed to Rideout, received a conveyance from the latter, he occupied the same position he formerly did; viz., that of a purchaser with notice of plaintiff's rights and equities. He was not protected by the fact that Rideout, his grantor, was an innocent purchaser. (Talbert v. Singleton, 42 Cal. 391; 2 Devlin on Deeds, sec. 748; 2 Pomeroy's Eq. Jur., sec. 754.) When Fitzgerald secured the conveyance from Rideout, he occupied the same position he did when he purchased from Crissmon, that of a purchaser with notice of and bound by all the equities of Huling. The court finds that Bull took his conveyance. from Fitzgerald with full notice of plaintiff's equities. We cannot see in what way the conclusion can be avoided that plaintiff had a right to enforce his rights against Bull. It may be further observed that it does not appear that Bull paid any money on his purchase. He must, then, be held to occupy the same position that Fitzgerald did, and alike subject to the enforcement of plaintiff's rights.

Judgment affirmed.

MCFARLAND, J., and SHARPSTEIN, J., concurred.

[No. 20768. In Chambers.-November 22, 1890.]

EX PARTE J. CHARLES GREEN, ON HABEAS CORPUS.

CRIMINAL LAW SEPARATE CONVICTIONS

CONCURRENT IMPRISONMENT-RELEASE PENDING APPEAL-UNEXPIRED TERM-HABEAS CORPUS.-Where a defendant convicted in the superior court of libel, and sentenced to six months' imprisonment, after being confined four days is released on bail pending an appeal, and while such appeal is pending is convicted in the police court of conspiracy, and sentenced to one year's imprisonment, but after one day's confinement is released on bail, pending an appeal from such judgment of conviction, and the sentence is affirmed in each case, the unexpired portion of the second term of imprisonment does not commence to run until the date of the affirmance of the second sentence, although the prisoner is in custody serving the first sentence

when the second judgment is affirmed. The two terms are concurrent until the term of the first judgment has expired, and the prisoner will be entitled to his discharge 364 days after the date of affirmance or the second sentence, and not before.

APPLICATION to the Supreme Court for a discharge on habeas corpus. The facts are stated in the opinion of the

court.

Carroll Cook, and J. E. Foulds, for Petitioner.

Attorney-General Johnson, for Respondent.

Fox, J.-June 3, 1889, the prisoner was convicted, in the superior court of the city and county of San Francisco, of libel, and sentenced to imprisonment for the term of six months. Under this judgment he was confined in the county jail for four days, when he was admitted to bail, pending an appeal to the supreme court. Pending this appeal, and on August 22, 1889, he was convicted in the police court of conspiracy, and sentenced to be imprisoned in the county jail for one year, and to pay a fine of five hundred dollars, with the further order that in default of payment of the fine he be further imprisoned in said jail at the rate of one day for each one dollar of such fine. On this judgment he was impris oned for one day, when he was admitted to bail, pending an appeal therefrom to the superior court. Afterwards the judgment in the first-mentioned case was affirmed in the supreme court, and on the twenty-second day of November, 1889, a bench-warrant was issued, upon which he was placed in jail on the judgment so affirmed, the term for which was six months, less four days already served. On the eighth day of March, 1890, the judg ment of the police court was affirmed in the superior court, and a bench-warrant or commitment issued thereon, and placed in the hands of the sheriff, the prisoner being already in his custody on the former judg

ment.

It being settled that he cannot be held in custody for the collection of the fine,-imprisonment and fine having both been imposed, it is now claimed that the moment he was arrested and imprisoned under the bench-warrant of November 22, 1889, his sureties on the undertaking, given on the appeal from the policecourt judgment, were relieved from liability, and that, as a consequence, the 364 days of the unexpired term of that judgment then commenced to run, notwithstanding the fact that the judgment itself was not affirmed until March 8, 1890, and that from that date, November 22, 1889, the unexpired term of imprisonment under both. judgments commenced and ran together, and that the longest of these terms having now expired, the prisoner is now entitled to his discharge. Sections 669 and 670 of the Penal Code are relied upon, and numerous authorities are cited in support of the proposition that the sureties upon the second appeal were discharged the moment the prisoner was rearrested on the first judg

ment.

Even if that be true, it does not follow that his term of imprisonment for the unexpired portion of the judg ment in the case wherein they were sureties then commenced to run. Nor is there anything in the sections of the Penal Code cited which makes such term commence before the appeal in the case was decided. In my judgment, the term of imprisonment under the unexpired term of the police-court judgment did not commence until the eighth day of March, 1890. I think it did commence on that day, and that, for so much of the term of the first judgment of six months as had not then expired, the two terms ran together, and that the prisoner will be entitled to his discharge at the end of one year, less one day, from the eighth day of March, 1890, and not before.

Let the writ be discharged, and the prisoner remanded.

[No. 13987. In Bank.-November 25, 1890.]

C. B. WILLIAMS, RESPONDENT, v. E. F. DENNISON, APPELLANT.

APPEAL NOTICE SURPLUSAGE.-Where a notice of appeal recites that the appeal is taken from the judgment and order denying a new trial, "and from each and every order and judgment made and entered in said cause," the appeal will be treated as only an appeal from the judgment and order denying a new trial, and the last recital will be treated as surplusage.

ID.-UNDERTAKING-DOUBLE API EAL.-One undertaking on appeal is sufficient where there is in the same notice and transcript an appeal from a judgment, with an appeal from an order denying a new trial, and the undertaking is in terms applicable to both appeals.

MOTION to dismiss an appeal from the Superior Court of the city and county of San Francisco.

The notice of appeal stated that the appeal was taken from the judgment, — describing it and giving its date, and "also from the order overruling the motion for a new trial, and from each and every order and judgment made and entered in said cause," and the undertaking on appeal recited the appeal as stated in the notice.

B. McKinne, for Appellant.

J. C. Bates, for Respondent.

Fox, J.-The appeal in this case must be treated as an appeal from the judgment and order denying the motion for new trial. Under the notice, nothing will come under review on the hearing which would not be subject to review if the notice had omitted the words "and from each and every order and judgment made and entered in said cause."

Treating the appeal as being from the judgment and the order denying the motion for new trial only, as we think it must be treated, and the same not being separately taken, the undertaking is sufficient in form and in substance. (Chester v. Bakersfield T. H. Ass'n, 64 Cal.