shall be made within the time allowed to file transcript, and shall not extend it beyond the term of the appellate court next following the appeal." For the sake of clarity we will again recount the chronology of this case. The term of this court which immediately followed the perfection of the appeal was the October term, 1922, which ended March 4, 1923. This was the time limit prescribed by section 554, beyond which the lower court could not for any reason extend the time for filing the transcript, and its orders attempting to do so were absolutely void. The transcript was actually filed July 27, 1923, 144 days after the expiration of the October term. The case comes clearly within the rule adopted by this court in Simon v. Trummer, 61 Or. 496, 123 Pac. 60, which is again followed in Emery v. Brown, 63 Or. 264, 127 Pac. 682, in which we called attention to the case of Kelley v. Pike, 17 Or. 330, 20 Pac. 685, which also supports respondent's contention. In all these cases we clearly held that filing the transcript after the expiration of the next term of the Supreme Court was of no avail, and that this court had no power to entertain an appeal which had not been filed during the term of the Supreme Court next following the appeal. [2] Under the circumstances here, we would be very glad to allow this appeal to stand, if it were possible to do so without violating the plain terms of the statute; but the filing of the transcript within the term of this court next following the appeal is jurisdictional, and we have no more right to entertain the appeal because of actual or supposed hardship than we would have to entertain an appeal which had been attempted after the time for filing and serving notice had expired. Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge. Suit by William Weber, on behalf of himself and all others similarly situated, against the Jordan Valley Irrigation District and W. S. Bruce, Layton Stocking, and Charles E. Lanning as directors of the district. From an order sustaining demurrer to complaint, plaintiff appeals. Affirmed. Hiler, of Boise, Idaho, for appellant. Portland, and J. B. Eldridge, of Boise, Idaho, RAND, J. The plaintiff, a landowner within the district, on October 13, 1923, commenced this suit against the Jordan Valley irrigation district and its board of directors, seeking to enjoin the directors of the district from selling or offering for sale the bonds of said district. By his complaint he alleges, in substance, that the district is not a legally organized district nor authorized to issue bonds, for the reason that the notice stating the time of the meeting of the county court, at which the petition proposing the organization of the district would be presented to the county court for its determination, was not given by the petitioners themselves as required.by section 7305, Or. L., but was given by the county clerk. From the complaint it appears that the notice in question was published over the name of the county clerk and that a copy of the petition, together with the signatures of the signers thereto, was a part of said publication. In the case of In re Harper Irr. Dist. (Or.) 216 Pac. 1020, citing Greig v. Owyhee Irr. Dist., 102 Or. 265, 202 Pac. 222, and In re The motion will be allowed, and the appeal Central Irr. Dist., 117 Cal. 382, 49 Pac. 354, it dismissed. was held that this notice must be given by the petitioners themselves, and that, when BURNETT, J., took no part in the con- given by the clerk and not by the petitioners, sideration of this motion. the notice is insufficient. But it appears from the allegations of the complaint that on September 7, 1922, in conformity with the provisions of section 7358, Or. L., the board of directors of said district WEBER V. JORDAN VALLEY IRR. DIST. filed a sufficient petition in the circuit court et al. Nov. 27, 1923.) (Supreme Court of Oregon. A decree adjudging that an irrigation district had been established according to law and was entitled to issue and sell bonds, in a proceeding under Or. L. §§ 7358-7360, is conclusive against an attack on the organization of the district because notice of the petition was not given by petitioners themselves as required by Or. L. § 7305, but by the county clerk. of Malheur county, praying that an examination be made of the proceedings under which the district had been organized and of the orders of the county court in establishing the district, and of the proceedings of the district in authorizing the issuance and sale of its bonds, and that in said suit, and on the 23d day of October, 1922, a decree was entered after notice of that proceeding had been duly and regularly published and given in the manner provided by law, adjudicating and determining that all of said proceedings were valid and legal in all respects, and that said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) district had been established according to law and that said district was entitled to issue and sell said bonds. The complaint also alleges that neither the plaintiff nor any one else appeared in said suit or objected to the confirmation of said proceedings or to the issuance and sale by the district of its said bonds, and that the regularity and legality of the very matters and things referred to by the plaintiff in his complaint herein were, by said decree, confirmed. ed, had a full and complete opportunity to appear, object, and be heard upon all of the matters and things alleged in his complaint herein, but failed to avail himself of that opportunity, and under the express provisions of section 7360, quoted above, the decree of the court confirming the same is final and conclusive upon him. If the proceedings complained of had never been confirmed by a decree of the court, and the plaintiff was now objecting to confirmation of these pro A general demurrer to plaintiff's com-ceedings, because of the insufficiency of the plaint was interposed, and, from an order sustaining the same and dismissing his complaint, plaintiff appeals. notice in question, in a suit brought either by the directors of the district, under the provisions of section 7358, or by plaintiff himself, under, and within the time limited by, the provisions of section 7360, the rule announced and followed in the case of In re Harper Irr. Dist., supra, would control, but as these preceedings have already been confirmed by a decree of the court which, by force of the express provisions of the statute itself, is binding upon the plaintiff, that rule is rendered inapplicable, and the case falls within the rule announced and followed upon this question in Northern Pacific Ry. Co. v. John Day Irr. Dist., 106 Or. 140, 211 Pac. 781, that, after confirmation, a suit of this char Sections 7358-7360, Or. L., provide for a special proceeding to be brought in the circuit court of the county where the office of an irrigation district is located, by the directors of an irrigation district organized, as this one was, under the provisions of sections 7305-7344, Or. L., for the purpose, among others, of having an examination made and a judicial determination had of the regularity and legality of the proceedings under which the district was organized, and of the proceedings of the district authorizing the issuance and sale of its bonds, and in such suit it is made the duty of the court to deter-acter cannot be maintained by a landowner. mine whether the organization of the district and the acts done by it or on its behalf were legal or otherwise, and, until a confirmation has been had under said act, the district is not authorized to sell or dispose of its bonds. This statute directs the manner in which notice of the suit shall be given, and confers upon all persons interested the right to appear (Supreme Court of Oregon. Nov. 20, 1923.) in the suit and contest the validity of any or all of the proceedings under which the dis-I. Vendor and purchaser trict was formed or authority conferred upon the district to issue and sell bonds. Section 7360 provides that any freeholder, legal voter, or assessment payer within the district may, within 30 days after the entry of any order or the performance of any of the acts mentioned in section 7358, bring a like proceeding in the circuit court concerning any of said matters, and provides that the court shall try and determine all questions for which a hearing is provided by section 7358 in the same manner as if the proceedings had been brought by the district itself. It also declares: "No contest of any proceeding, matter or thing by this act provided to be had or done by the board of directors or supervisors or by said district, or by the county court, or by any freeholder, legal voter, or assessment payer within the district, shall be had or maintained at any time or in any manner except as herein provided." The demurrer to plaintiff's complaint was therefore properly sustained, and the decree appealed from is affirmed. WALKER v. HEWITT. 58-Giving of note for purchase price, at execution of contract, is independent covenant. Giving of a negotiable note for the purchase price of land, even at the time of execution of the contract, is an independent covenant. 2. Pleading 8(7)-Allegation that contract to execute deed and promissory note were independent covenants held conclusion of law. Allegation that a contract to execute a deed and a promissory note executed by the defendant purchaser were independent covenants held a mere conclusion of law. 3. Pleading ~~~~8(2) — Allegation that plaintiff could not convey to purchaser held legal con. clusion. Allegation by defendant purchaser that plaintiff, vendor's assignee, at the time of the commencement of the action upon a note given for the purchase price of the lot to be conveyed, could not convey the property to defendant, held a legal conclusion. 4. Pleading 106(1)—Plea of abatement must be certain. The plaintiff, in the special proceeding brought by the board of directors of said district for the purpose of having these questions determined and conclusively adjudicatFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Or. L. 74, recognizing pleas in abatement, has made no change in the requisites of such pleas at common law, one of which is that the plea must be absolutely certain. 5. Pleading 106(1)-Plea In abatement must have effect of giving plaintiff a better writ. A plea in abatement must not only point out plaintiff's error but must show him how it may be corrected, and furnish him with the materials for avoiding the same mistake in another suit in regard to the same cause of action. 6. Pleading 106(1)—Answer held not good plea in abatement. In an action on a note executed by defendant purchaser for purchase price of land, defendant's plea alleging that plaintiff, vendor's assignee, did not, before the commencement of the action, tender deed to defendant, and that plaintiff was unable to make a conveyance of the character required by the contract, and concluding with a general prayer, as is usual in a plea in bar, that plaintiff's action be dismissthat plaintiff's action abate, held not a good plea in abatement. ed, and that defendant recover costs, and not Or. L. § 74, while permitting pleas in abatement and pleas in bar to be joined in the same answer, does not dispense with the necessary rule that a plea in abatement should be complete in itself, and that it should demand a judgment of abatement. 8. Vendor and purchaser 76-Contract held not to make conveyance and payment of note concurrent acts; "first." Under a contract that, if purchaser should "first" make payment, vendor would convey, payment and the execution of the deed were not concurrent acts, but payment was to precede the execution of the conveyance, especially where purchaser gave a note for the deferred payments, thus indicating an intent to make an independent contract in respect to payment, and the purchaser was entitled under the contract to immediate possession of the property; "first" not meaning "coincident with" or "at the same moment" either in law or in logic. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, First.] 9. Vendor and purchaser 191-Buyer entitled to immediate possession, where contract provided for re-entry. Where a contract to convey provided for re-entry by the vendor in case of purchaser's default in payment of purchase-money note, the purchaser was entitled to immediate possession. 10. Vendor and purchaser 58-Covenant to pay purchase price, if originally independent, remains so. It is not the law that a covenant to pay, if originally independent, becomes dependent if the vendor allows installments to run without collection until the last one is due, and, in any event, such a rule cannot apply where the purchaser has given a negotiable note for the whole price. Department 2. Appeal from Circuit Court, Multnomah County; George R. Bagley, Judge. Action by M. W. Walker against L. L. Hewitt. Judgment for plaintiff, and defendant appeals. Affirmed. This was an action brought to recover on a promissory note made and executed by the defendant on July 19, 1913, whereby, for value received, he agreed and promised to pay to the order of Clarissa M. Sandifur $600 in gold coin, with interest at the rate of 8 per cent., payable monthly, together with a reasonable attorney's fee in case suit or action should be instituted for the collection of the note, if the same should not be paid in accordance with its terms. The complaint alleged nonpayment of the note, excepting as follows: October 24, 1913, $20; December 2, 1913, $40; January 12, 1914, $10; January 19, 1914, $10; May 11, 1914, $20; December 23, 1914, $50; July 1, 1917, $4; leaving a balance due of $753. It was alleged that Clarissa M. Sandifur had assigned the note to plaintiff before the commencement of the action. After various demurrers, motions to strike out, and amended answers, the defendant finally pleaded the following answer: For a first defense he denied every allegation of the complaint. For a second defense he alleged that about July 19, 1913, Clarissa M. Sandifur and F. N. Sandifur were husband and wife, and that on about said date Mrs. Sandifur was the owner in fee of lot 2 in block 16, Bar View, Tillamook county, Or. That on said July 19, 1913, defendant entered into a contract with Mrs. Sandifur and her husband, which contract is set forth in hæc verba, and is as follows: "Articles of agreement, made this the 19th day of July in the year of our Lord one thou+ sand nine hundred and thirteen, between Mrs. Clarissa M. Sandifur and F. N. Sandifur, her husband, the parties of the first part, and L. L. Hewitt, of Independence, Oregon, the party of the second part, witnesseth, that, if the party of the second part shall first make the payment and perform the covenants herein mentioned on his part to be made and performed, the said parties of the first part hereby covenant and agree to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances whatever by a good and sufficient warranty deed, the lot, piece, or parcel of ground, situated in the county of Tillamook and state of Oregon, known and described as follows: The southeast one-half of lot 2 in block 16 in Bar View, a townsite recorded in the records of Tillamook county, Oregon. And the said party of the second part hereby covenant and agree to pay to the said parties of the first part of the sum six hundred fifty and no/100 dollars in the manner following: $50.00 thereof on the signing of this agreement and the balance thereof by paying $20.00, or more, thereof on the 1st day of September, 1913, and the sum of $20.00, or more, on the first day of each and every month thereafter, until the said sum of $650.00, shall have been fully paid as aforesaid, and for which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) said second party has given her note this day, | and at all times when tender of conveyance with interest at the rate of 8 per centum per of said real property was due defendant by annum, payable on the first day of each month, plaintiff, as provided for by said agreement, when said installments are paid as aforesaid, or otherwise, plaintiff could not convey to deon the whole sum remaining from time unpaid, fendant the southeast one-half of said lot 2 and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said in fee simple, clear of all incumbrances whatland subsequent to the year 1912. And in case ever, by good and sufficient warranty deed, of the failure of the party of the second part or otherwise. That at all times herein mento make either of the payments or any part tioned plaintiff has failed to convey said thereof or perform any of the covenants on lot 2 in block 16, in Bar View, a townsite his part hereby made and entered into, this recorded in the records of Tillamook county, contract shall, at the option of the parties of to the defendant in fee simple, clear of all the first part, be forfeited and determined, and the party of the second part shall forfeit all incumbrances whatever, by good and suffipayments made by him on this contract, and cient warranty deed, as required by said such payment shall be retained by the said par- agreement, or otherwise. That plaintiff has ties of the first part in full satisfaction and in failed at all times to perform, fulfill, or comliquidation of all damages by them sustained, ply with the covenants by him, the plaintiff, and they shall have the right to re-enter and to be performed under said agreement. take possession of the premises aforesaid, without any recourse to law. It is mutually agreed by and between the parties hereto that the time of payment shall be the essence of this contract, and that all covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administra-ance of said southeast one-half of lot 2, block tors, and assigns of the respective parties. "In witness whereof, the parties to those presents have hereunto set their hands and seals the day and year first above written. "Mrs. Clarissa M. Sandifur. "F. N. Sandifur "L. L. Hewitt. Then follows a further and second defense which practically repeats the first defense, with the addition of this allegation: "That prior to institution of this action this plaintiff did not tender to defendant a convey 16, a townsite recorded in the records of Tillamook county, Or., in fee simple, clear of all incumbrances whatever, by a good and sufficient warranty deed as in said agreement provided or otherwise. That, subsequent to filing of this action, the plaintiff tendered a purported conveyance of said real property into court. That "Signed, sealed, and delivered in the pres- defendant seasonably objected to said tender ence of "B. F. Swope. "Lena E. Hewitt." It was further alleged that the instrument sued on by plaintiff in his amended complaint is referred to in the foregoing instrument, and that said instruments were executed concurrently by and between the same parties, concerning the same subject-matter, and were mutually dependent, each instrument referred to being a part of one entire agreement between the parties. That the note sued upon by plaintiff in his amended complaint arose out of the transaction on which the defendant relies for his defense. That subsequently the Sandifurs, for a valuable consideration, conveyed by warranty deed, subject to said agreement, the southeast one-half of said lot 2 to M. W. Walker, the plaintiff herein, by a deed which was duly recorded in the records of Tillamook county; and, at the same time and for the same consideration, delivered to plaintiff the agreement herein recited and the instrument sued upon by plaintiff in this action, and that plaintiff accepted the assignment with notice and knowledge of and subject to the agreement. The answer then sets up the defendant's idea of what the substance of the agreement was, which it is unnecessary to repeat here, the agreement being already set forth. It was further alleged that at the time this action was begun and at all times thereafter, and for a long time prior thereto, and specified his objections to the said instrument so tendered and to the property described therein. That this defendant objects to said tender, purported conveyance and property for the reason that said tender was not made before this action was brought or at the time required by said agreement to be made or otherwise; and for the further reason that at the time said tender was made into court and at the time conveyance of said real property by plaintiff to defendant was required by said agreement or otherwise, and at all times since said action was instituted, this plaintiff was not able to tender a conveyance of the southeast one-half of lot 2, block 16, in Bar View, a townsite recorded in the records of Tillamook county, Or., to defendant in fee simple, clear of all incumbrances whatever, by good and suffi cient warranty deed." Plaintiff replied, admitting the execution of the contract set out in paragraph 1 of defendant's amended answer, except that L. L. Hewitt is a party therein, and not Mrs. L. L. Hewitt. Plaintiff admits that said contract was executed between the Sandifurs and L. L. Hewitt about July 19, 1921, (sic) and that Mrs. Sandifur was at that time the owner of lot 2 aforesaid, and that by virtue of said agreement the Sandifurs agreed to sell and Hewitt agreed to buy the southeast one-half of said lot. Admits that the promissory note was executed at the same time as the aforesaid agreement, as a part of the agreement for the purchase and sale of said real property, and as a separate and inde pendent covenant on the part of the defendant to pay the purchase price thereof. Admits the transfer from the Sandifurs to the plaintiff, and admits that plaintiff received the agreement and promissory note with full knowledge of their contents. Admits that each installment of both principal and interest, as provided in said promissory note, became due and payable long prior to the institution of this action, and that plaintiff seeks to recover from the defendant the entire balance of said purchase price, as evidenced by said promissory note. Denies each and every other allegation of the first further and separate amended answer. MCBRIDE, C. J. (after stating the facts as above). [1] The main question under discussion here is whether or not the plaintiff can maintain this action without first tendering a deed to the property described in the contract. The answer to this contention is that, by giving a negotiable promissory note, defendant in the first instance elected to rely upon the responsibility of the seller as a means of compelling him to execute his part of the contract. It is not the frequent case of an action upon a contract of sale of real estate where the mutual covenants of the parties are contained in the same instrument. Such a contract, while assignable, is not ne sory note for the purchase price, even at the time of execution of the contract, is an independent covenant; whether failure to pay it at maturity so alters its effect that it becomes a dependent covenant will be considered hereafter. As a further and separate reply to the de-gotiable. The giving of a negotiable promisfendant's first further and separate amended answer and defense plaintiff alleges: (1) That at the time of the execution of the contract the defendant entered into the possession of the said premises, and has ever since had possession and the right to possession thereof; and (2) that plaintiff has been at all times, since said assignment of said contract and promissory note, ready, able, and willing to execute a good and sufficient deed of conveyance, conveying the said premises to the defendant in accordance with the terms of said contract, thereby conveying a fee-simple title to the said premises, clear of all incumbrances whatsoever, except taxes, assessments, and impositions that may have been legally levied or imposed upon said land subsequent to the year 1912; but defendant has never at any time tendered payment of the balance due upon said promissory note, nor has he ever at any time demanded such deed. It is further alleged that shortly after the commencement of this action plaintiff duly executed a warranty deed, conveying the said premises to defendant, and tendered the same to the defendant, and deposited the said deed with the clerk of the court for the use and benefit of the defendant, and that plaintiff has at all times since maintained, and does now maintain, the said tender by keeping said deed on deposit with said clerk. The reply to defendant's second further and separate amended answer practically covers the same ground as the preceding reply, and need not be further set forth. Defendant moved to strike out certain paragraphs of the reply, on the ground that they could not be properly pleaded in the reply, and, this motion being overruled, the case came on for trial. Both parties moved for a directed verdict, and the court directed a verdict in favor of the plaintiff for the amount claimed. From this judgment the defendant appeals. Eugene Brookings, of Portland (Frank H. Hilton and W. W. Dugan, Jr., both of Portland, on the brief), for appellant. Ben H. Conn, of Portland (Wm. P. Richardson and F. M. Saxton, both of Portland, on the brief), for respondent. [2, 3] It is clear to the mind of the writer that in either view the plaintiff was not required, as a matter of pleading, to declare on the contract, but on the note, and that, if the matters set up in the defendant's separate answer have any efficacy whatever, they must, as a matter of pleading, be set forth defensively or in abatement. The first defense pleaded in the answer is a denial of the execution of the note sued upon. The second attempted defense substantially admits the execution of the note, but claims that it was executed as a part of the contract heretofore quoted, and that the contract to execute the deed and the promissory note were dependent covenants, which is stating a mere conclusion of law, as both instruments speak for themselves. The allegation in paragraph 5 of the "first further and separate amended answer," that plaintiff at the time of the commencement of this action could not convey to defendant the real property described in the contract of sale, is a mere legal conclusion, not the statement of a fact. The further allegation that plaintiff has failed so to convey has some of the elements of a plea in abatement, but whether pleaded in abatement or in bar does not appear. The same may be said of the second further defense. It is alleged, in substance, that plaintiff did not, before the commencement of this action, tender to defendant the deed called for in the contract of sale, and that he was unable to do so; that subsequent to the filing of this action he tendered a purported conveyance into court, to which defendant objected, for the reason that such tender was made after the action was brought, and for the further reason that at the time of the commencement of this action or at the time said conveyance was required by the contract, or otherwise, plaintiff was not able to make such conveyance of the property by warranty deed, in fee simple, clear of all incumbrances. Here, again, it |