Appeal from a judgment for the plaintiff in a suit to quiet his title to land described in the complaint and from an order denying the defendant’s motion for a new trial. There is also an appeal from an order of the court refusing to set aside the judgment and to enter a different judgment on the findings; but upon well-settled principles the latter appeal must be disregarded. (Eureka R. R. Co. v. McGrath, 74 Cal. 51 , and cases cited 4 Notes on Cal. Rep. 381.)

The case, as shown by the pleadings and findings, is as follows: The plaintiff—then the owner of the land in question-executed to the defendant and one H. C. Malone an agreement in writing, of date March 7, 1899, to sell the land for the sum of eighteen thousand dollars, payable, nine thousand dollars on or before March 7, 1900, and the balance on or before March 7, 1901, with interest from date at the rate of six per cent per annum, payable semi-annually. By the terms of the contract, the vendees were given the right to enter upon the lands during the continuance of the contract, for the purpose of collecting and developing water thereon, and to construct ditches, canals, and pipe-lines upon said lands for the conducting of the water therefrom; and it was further agreed that the vendees should have the right to take water from the said lands upon the payment of one thousand dollars for every two inches thereof, measured under a four-inch pressure, and that upon such payment the right to the water paid for should be conveyed to them. It was further agreed that, “if the vendees fail to make payment of such purchase price in accordance with said contract, except in the case of failure of title on the part of said vendors, the said vendees shall forfeit all rights under said contract except as to such rights to water as should have been conveyed to them,” etc. The contract was shortly afterwards abandoned by Malone, leaving the defendant alone interested.

Subsequently, on the seventeenth day of May, 1899,—before the first installment of interest became due,—the plaintiff and his wife executed a written agreement to one Gregory for the sale of the same land for the sum of fifteen thousand dollars, payable five thousand dollars in cash and the balance in equal installments, within one and two years from date; and by the terms of the contract the privilege was given to the vendee, pending the contract, to enter upon the land for the purpose of collecting and developing water, etc., and of diverting the same from the land. This contract was assigned by Gregory, May 25, 1899, to the South Mountain Water Company, which thereupon entered upon the lands, collected and developed water and constructed ditches thereon, and conducted water away from said land,' etc., with the knowledge and consent of the plaintiff. Both Gregory and his assignee had notice of the contract with the defendant.

In addition to the above facts, it is alleged in the answer that the South Mountain Water Company has ever since the assignment to it disputed the defendant’s claims under the contract, and claimed adversely to him. It is also pleaded that the South Mountain Water Company is a necessary party to the suit,—the court finding the contrary.

It is found by the court that neither of the vendees has paid or offered to pay any part of the purchase price or interest; and also that neither of them has ever been ready or willing or able to pay the purchase price or any part thereof. But the latter finding does not respond to any of the issues in the case; nor does the evidence seem to support it.

The judgment of the court is, simply, that the plaintiff is the owner of the land, and that the defendant has no right, title, or interest therein, and that his claim thereto is without right.

The judgment, we think, must be reversed, for two reasons:

We advise that the judgment appealed from be reversed and the cause remanded, with directions to the lower court to permit the plaintiff by proper amendment to join the necessary parties, if he be so advised, and, in case this be done, for a new trial. Otherwise, the court is directed to enter judgment on the findings for the defendant..

Chipman, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is reversed and the cause remanded, with directions to the lower court to permit the plaintiff to join the necessary parties, if he be so advised, and, in case this be done, for a new trial. Otherwise, the court is directed to> enter judgment on the findings for the defendant.

Garoutte, J., Van Dyke, J, Harrison, J.

Hearing in Bank denied.