The cause of action in this case arose out of an undertaking on appeal, which was given by the defendants in the action, to stay execution of a judgment for possession of a tract of land, damages, and costs, recovered on the 19th of April, 1869, by John W. Littlefield, against John Nichol and Thomas Weise. By the terms of the undertaking, the obligors “ acknowledged themselves jointly and severally bound in the sum of $3,000 (being the amount for that purpose fixed by the judge of the court), that if the said judgment appealed from be affirmed, the said appellants would pay the value of the use and occupation of the property from the time of the appeal until delivery of possession thereof, not exceeding said sum of $3,000,” etc. The judgment appealed from was affirmed on the 30th of January, 1872, and on that day the remittitur from the appellate *646court was filed in the lower court; but the appellants made default in payment of the value of the use and occupation of the land, and the plaintiff, as assignee of the judgment and undertaking on appeal, commenced the action in hand on the 7th of September, 1876, upon the undertaking, to recover damages for the breach of their undertaking.
The allegations in the plaintiff’s complaint as to the statement of his cause of action are as follows:
“ That he has been entitled to the use and occupation of said land, and the rents, issues, and profits thereof, which have been during the pendency of said appeal, and long before and after, withheld from him; * * * that * * * the value of the use and occupation of the property, from the time of the appeal until the filing of the remittitur, was more than $5,000; and that he had sustained more than $5,000 damages by reason of said appeal, and stay of execution.”
Therefore he asked judgment for the sum of $3,000—the amount specified in the undertaking. To this complaint the defendants demurred, upon the ground that more than four years had run, upon the cause of action stated herein, before the commencement of the action, and the right of action was barred. The demurrer was overruled, and this is the principal assignment of error. The question, therefore, is whether the face of the complaint shows that more than four years had run between the time the cause of action stated in the complaint accrued and the commencement of the action thereon.
As we have said, the cause of action arises out of the undertaking on appeal. Liability upon such an undertaking accrues upon the affirmance of the judgment to which the undertaking ' relates. It was so held in Crane v. Weymouth, 54 Cal. 480, and Castro v. Clarke, 29 Cal. 11, “ though,” says the court, in the last case, “ the liability may continue until appellant delivers possession of the premises recovered.” Objection, however, is made that the last case is not authority for the proposition, that a cause of action on an undertaking to pay the value of the use and occupation of property, from the time of an appeal from a judgment until delivery of the possession of the property, accrues on the affirmance of the judgment, because it was not demanded by the exigencies of the case. On the contrary, *647that was the very question at issue; and in that particular, as in almost all others, the case itself corresponds with the case at bar, for the undertaking upon which the action was founded was precisely similar in its terms to the undertaking in .this case. It was also given to perfect an appeal from a judgment in ejectment recovered against twenty or more defendants ; and, pending the appeal, the plaintiff conveyed to five or six of the defendants portions of the demanded premises. After the transfers, the judgment appealed from was affirmed, execution was issued, and the plaintiff sued on the undertaking, to recover for the use and occupation of the land before he was put in possession. At the trial it was found as a fact that fourteen of the defendants had had the use and occupation of the premises from the time of the appeal until the first of July, 1864—five months before the issuance of the execution; and it was contended that there was no breach of the undertaking, and no cause of action to recover the value of such use and occupation, because the plaintiff, by his transfer of portions of the land, did not and could not take possession pursuant to the judgment. That the court answered thus:
“ The defendants’ promise and undertaking was that the appellants named in the undertaking on appeal would pay for the use and occupation of the property for the term specified in the undertaking. The delivery of the possession of the premises to the plaintiff, pursuant to the judgment recovered and affirmed, was not a condition precedent to her right to maintain her action. The affirmance of the judgment by the Supreme Court was the condition on which the defendants’ liability became absolute, though its extent in such a case might not be limited by that event.”
So, in this case, the action on the undertaking was brought after the affirmance of the judgment by the Supreme Court, and before delivery of possession of the recovered premises pursuant to the judgment, for the value of the use and occupation of the premises for the time stated in the complaint. Upon the affirmance of the judgment, the value of the use and occupation from the time of the appeal became due and payable. Non-payment operated as a breach of the condition of the undertaking; for the condition was to pay, if the judgment appealed from was *648affirmed, not only from the time of the appeal, but until delivery of possession of the land pursuant to the judgment. The only breach assigned, however, involves the non-payment of the value of the use and occupation of the land from the time of the appeal, i. e., from the twenty-seventh day of July, 1870, until the thirtieth of January, 1872. That is the only cause of action stated in the complaint, and it is the only question with which we have to deal; for whether any other breach qf the undertaking may be assigned as a cause of action, for the value of the use and occupation of the land not included in this action, is a question with which we have nothing to do in this case. The demurrer should have been sustained, for as the complaint was filed on the seventh of September, 187 6, more than four years after the cause of action accrued, the action was barred by the statute of limitations. (§ 337, Code Civil Proc.)
Judgment and order reversed, and cause remanded.
Sharpstein, J., Myrick, J., and Ross, J., concurred.
McKinstry, J., concurred in the judgment.