this action. We think the three years limitition of clause 1, section 338, applicable at least, as to the tax-the principal thing sued for and the incident, doubtless, follows the principal thing claimed. It is a liability created by statute, within the meaning of the code. If not, then it is an "obligation or liability not founded upon an instrument in writing" and the two years limitation applies. If neither of these provisions is applicable, then, certainly, the action is "for relief not herein before provided for," and under this general residuary clause, is barred in four years. In either event the time has run twice over. We think the three years limitation applies in which case the statute has run nearly three times the prescribed limitation. No decision of the courts of the state of California determining this point has been cited, and we are aware of none upon the question. The supreme court of Nevada has decided the precise point, upon the statute of that state, which is entirely similar in its provisions, and the statute was held to apply and to bar the action: State v. Y. J. S. M. Co. 14 Nevada, 226.

Sections 3716 and 3717 of the political code are as follows:

SECTION 3716. "Every tax has the effect of a judgment against the person, and every lien, created by this title has the force and effect of an execution duly levied against all property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof."

SECTION 3717. "Every tax due upon personal property is a lien upon the real property of the owner thereof, from and after 12 o'clock M. of the first Monday in March in each year. Under these and other provisions of the political code no action is necessary to collect a valid tax.

But it is claimed, that, these provisions take the case of an action under the statute to recover a tax out of the statute of limitations. In the case already cited the supreme court of Nevada, on a similar statute, decided otherwise, and, we think, correctly: Ib. 230.

The statute of Nevada is as follows: "Section 3127. Every tax levied under the provisions or authority of this act is hereby made a lien against the property assessed, and a lien shall attach upon the real property for the tax levied upon the personal property of the owner of such real estate, on all the property then in this state, and on all other property whenever it reaches the state, and shall not be satisfied, or removed, until all the taxes are paid, or the property has, absolutely vested in a purchaser under a sale for taxes: II Compiled Laws, Nev. 178.

The lien is but an incident to the tax-the money due-and like the case of a mortgage, when an action to recover the debt is barred, the suit to enforce the lien is also barred. This has long been the settled doctrine in this state in relation to a mortgage. Neither the debt nor the lien is extinguished in the case of a mortgage, in any other sense than in the case of a tax, and the statutory lien incident to it. The remedy by action is barred, whatever the case may be as to other remedies. Besides, this is not a suit to enforce a lien,

at all. It is a statutory action, and just what the statute makes it. It says nothing about a lien, and authorizes no suit to enforce a lien. It simply authorizes the recovery of a personal judgment against the party charged with the tax, and that is all that is sought in the complaint, and all that the statute provides for. The suit is an additional statutory remedy, and the remedy is measured by the statute. All suits whether by the state, by corporations, or natural persons, without other exceptions than those expressly made by the statute are barred within the prescribed period. We are not only satisfied that this action is barred by the statute, but we think the policy of the statute limiting the time within which the state can sue, a good policy. We see no good reason, at this day, and under our laws for the levy and collection of taxes, for allowing the state to vex parties with suits for taxes after a lapse of many years, that is not equally applicable to private parties. The state has officers specially appointed to attend to these particular duties, and no others, and if they neglect their duties the state which appoints them, if any one, should be the party to suffer. To permit the state after a lapse of many years to recover by suit taxes allowed to run uncollected with five per cent. penalty, and, in the language of Mr. Justice Swayne, the most devouring rate" of two per cent. per month interest, would be to inflict unindurable oppression.

The demurrer must be sustained upon this ground, and it is unnecessary to consider the other grounds relied on. It is so

ordered.

SUPREME COURT OF COLORADO.

BRANDEXBURG v. REITHMAN.

Filed April 18, 1884.

FORCIBLE ENTRY AND DETAINER-APPEAL FROM COUNTY COURT.-An action under the forcible entry and detainer act, originally brought in the justice's court, and thence appealed to the county court, can not be taken to the supreme court on appeal. It must be taken, if st all, on writ of error. Such action does not involve any question as to the title to land.

THE SAME-EJECTMENT.-The statutory action of forcible entry and detainer has not been enlarged by section 267 of the civil code. Such section does not abolish all distinctions between that action and the action of ejectment.

WRIT OF ERROR AND APPEAL.-Whether an error of the county court in denying an appeal can be reviewed on a writ of error to the original judgment, quare.

TENANCY FROM YEAR TO YEAR.-A tenant from year to year ceases to be such when he enters into a lease with his landlord for a definite time.

ERROR to the county court of Arapohoe county. The opinion states the facts.

Waldheimer & Jenkins and L. C. Rockwell, for the plaintiff in error. J. H. Brown, for the defendant in error.

BECK, C. J. This was an action under the forcible entry and detainer statute to recover possession of leased premises. It was originally instituted before a justice of the peace; the complaint alleging the letting of the premises for one year to the plaintiff in

error from May 1, 1880, and the holding over by the latter after the expiration of the term and demand made for possession.

The plaintiff obtained judgment before the justice, and likewise in the county court upon an appeal from the judgment of the justice. An appeal from the latter judgment to this court was prayed by the plaintiff in error, and denied by the court below, which ruling is assigned as the first ground of error. We are of opinion that the ruling was correct, for the reason that no appeal lay to this court from the judgment of the county court.

Section 17 of the forcible entry and detainer statute provides that "appeals and writs of error to the supreme court from the judgments of the district court, and writs of error to the judgment of any county court, in proceedings under this chapter, shall be allowed as in other cases": Gen'l Stats. 505.

The same practice existed in this class of actions under the territorial organization. An appeal from the judgment of a district court lay to the supreme court, and a writ of error only lay to the judgment of a probate (now county) court: R. S. 1868, p. 336,

sec. 17.

It is true that an appeal did not then lie from the judgment of a probate court, in any case; but this fact does not affect the question whether an appeal from the judgment of a county court now lies under the same statute. By the express language of the statute, only a writ of error lies in such case. Unless, then, the right of appeal is given by the civil code it does not exist. The code provision is: "Appeals to the supreme court from the district and county courts shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold." Civil Code, p. 124, sec. 415.

This is the same provision (excluding the words "and county courts") originally enacted in 1861: Laws 1861, p. 285, sec. 41. It was copied from the statute of Illinois, and the meaning of the phrase, or relate to a freehold," had been judiciously defined previous to the enactment of 1861. The supreme court of Illinois had said in Rose et al. v. Choteau, 15 Ill. 167: "To justify an appeal on the ground that the judgment relates to a freehold, the right of a freehold must have been directly the subject of the action-not incidentally or collaterally; and the judgment must be conclusive of the right until it is reversed." This is equivalent to saying that the title of the freehold must be involved in the litigation.

66

Under the amended practice act of 1877 of the state of Illinois, instead of the words, or relate to a franchise or freehold," the phraseology is, "where a franchise or freehold * *is involved."

In the several decisions upon the effect of the amended provision no distinction has been made, that we are aware, between the force of the words, "relate to a freehold," or the words, "where a freehold is involved." In the absence of an adjudication upon the point, we are of opinion that the amendment does not exclude an appeal in

any case embraced in the original provision. Since the amendment it has been held that a proceeding in forcible entry and detainer does not involve or call in question the title to land; and that an appeal does not lie therefrom; also that a proceeding to foreclose a mortgage, or a proceeding to establish and enforce a mechanic's lien, does not involve a freehold: McGuirk v. Burry, 93 Ill. 118; Pinneo v. Knox, 100 Ib. 471; Clement v. Reitz, 103 Ib. 315.

We deem the cases cited upon this point conclusive as to the force and meaning of the phrase referred to: Sedgwick and Wait on trial of title to land, Sec. 94.

Another point made in favor of the right of appeal is, that section 267 of the civil code abolishes the distinction between the actions of ejectment, and forcible entry and detainer; makes the latter a concurrent remedy with the code substitute for ejectment, and makes all rules of practice, including appeals, equally applicable to the proceeding, whether it be under the code remedy, or the forcible entry and detainer statute.

This proposition is not maintainable. The code provision cited itself defeats the proposition. Forcible entry and detainer is therein recognized as an existing and concurrent remedy with the code substitute for ejectment, "in all actions relating to the possession of real estate." It is not stated that it may be prosecuted as a code remedy, or that the rules of practice provided by the code shall apply to this proceeding, but that it may be presented in accordance with the law of this state relating to forcible entry and detainer."

"

When an action is instituted to try a question of title in a court having jurisdiction to try the question, the mere form of the complaint, is immaterial. Its substance is the test of its sufficiency. But if the action be instituted in a court not having such jurisdiction, an appeal from its judgment to one having jurisdiction does not invest the latter court with original jurisdiction to try that question: Downing v. Floner et al., 4 Colo. 209.

Forcible entry and detainer is a statutory remedy which still exists, notwithstanding the code. Justices of the peace still have jurisdiction of this remedy, although they may not now any more than heretofore, try the question of title to a freehold. It follows that this statutory remedy has not been enlarged by the code provision referred to, but remains in force for the purposes heretofore employed.

We have considered this assignment of error for the reason that it involves an important question of practice. It is doubtful, however, whether the correctness of the ruling of the court below, in denying an appeal to this court, can be properly presented on a writ of error to the original judgment. It is said in Eager v. Eager, 8 Bradwell, 356-362, that where a court improperly refuses to grant an appeal, the proper remedy is mandamus to the court below, requiring the allowance of the appeal.

The only other assignment of error necessary to notice is, that the court erred in rendering judgment for the plaintiff below.

The ground of this assignment is, that plaintiff in error was a tenant from year to year, and was entitled to three months' notice to quit under the statute.

The evidence shows that plaintiff in error occupied the premises, as tenant of defendant in error, for several years prior to the execution of the lease produced upon the trial. This lease bears date May 1, 1880, is signed by both parties, and is for the term of one year, with the following agreement as to another year: "And it is expressly understood and agreed, that in case the said party of the first part does not conclude to build a new building on the said premises at the expiration of this lease, then the said party of the second part is to have the first privilege of leasing said premises for another year, after the expiration of this lease." We cannot subscribe to the proposition that, because the plaintiff in error held over one year after the expiration of the term mentioned in the lease, that his former occupancy of the premises inured to his benefit, and that the facts of the case constitute him a tenant from year to year.

If his former relation was that of tenant from year to year, that relation ended when he entered into this lease as tenant for a single year. At the expiration of the year, the contingency mentioned having happened, the testimony, we think, shows an implied contract on his part, to hold the premises for the second year, on the same terms. The fact that he occupied the premises during the second year, and that he claimed to do so under the lease, as is shown by his testimony upon the trial, taken in connection with the stipulation for a second year in the lease itself, fairly implies a contract to this effect.

Prior to the expiration of the second year, he was notified to quit at the end of the year, and refusing to do so, possession of the premises was duly demanded after the termination of the tenancy, which he refused to surrender.

We think the judgment was correct, and it will be affirmed.
Judgment affirmed.

SALE OF

SUPREME COURT OF WASHINGTON TERRITORY.

MACKINTOSH v. RENTON, HOLMES & Co.

Filed July, 1882.

"SOLDIERS ADDITIONAL HOMESTEAD SCRIP."-In the absence of a further equitable showing, money paid for the purchase of "Soldiers Additional Homestead Scrip," cannot be recovered back on the ground of a total failure of consideration. Under sections 2306 et seq., of the United States revised statutes, the right to locate and make entries under such scrip belongs to the soldiers alone, and a contract for the sale thereof is against the policy of the law.

ERROR to the third district court. The opinion states the facts. Struve, Haines & Leary for the plaintiff in error.

McNaught, Ferry, McNaught & Mitchell for the defendants in error.