found that for some years previous to the opening of Oklahoma to settlement he had been in the employment of the agent in charge of the Cheyenne and Arapahoe Indian agency, which adjoins the Oklahoma lands on the west. On the morning of April 22, 1889, he was directed by the agent to take charge of a squad of Indian policemen and proceed to the east line of the reservation, for the purpose of preserving order and preventing any settlement thereupon. In pursuance of this order he went to the vicinity of the land in question on the forenoon of April 22, 1889, and during the morning went across the line, and upon the tract of land in question, and ordered off some persons who were camping thereupon. At 12 o'clock, the hour at which the lands were opened for settlement, he again left the land and line of the Indian reservation, and immediately thereafter, within a minute or a minute and a half, made settlement upon the land in question. The act of congress which provided for the opening of these lands, enacted March 1, 1889, and found in section 2, c. 317, 25 Stat. 759, provides that "any person who may enter up any part of said lands in said agreement mentioned, prior to the time that the same are opened to settlement by act of congress, shall not be permitted to occupy or make entry of such lands or any part thereof." And the act of congress of the next day, March 2, 1889 (25 Stat. 1006, c. 412, § 14), provides, with reference to the same lands, that "until such lands are opened to settlement by proclamation of the president no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto."

It is upon these undisputed statements of fact, and upon this condition of the law, that the acting secretary of the interior came to the conclusion that since he (Potter) "had been employed at the Cheyenne and Arapahoe agency, near by, for six years before the opening of the country to settlement, and had lived in close proximity to the land in dispute, he had nothing to gain or to learn, therefore, by the short excursion with which he is charged, and which it cannot be denied was made in the performance of duty devolved upon him by the orders of the agent, who appointed him to the command of the police at that point. He neither gained nor sought advantage, and it was error to hold that, under the circumstances of entry into the territory, he was disqualified thereby." The explicit terms of the federal statute, with its clear and peremptory prohibition, do not leave this question open to be determined by inferences. Potter was appointed on the Indian force on the morning of the opening of the land for settlement, April 22, 1889, and was directed by the Indian agent to "proceed to the east line of the Cheyenne and Arapahoe reservation, to preserve order and pre

vent any settlement on the same." When he crossed the east line of the Indian reservation, and entered upon the lands which were about to be opened for settlement upon the same day, and entered upon the tract of land which he afterwards, and on the same day, undertook to occupy as a homestead, it was not in pursuance of the duty thus deputed to him by the Indian agent. He was acting in excess of it. The Indian agent had no authority to authorize him to cross the line of the Indian reservation, and did not authorize him to do so. When he crossed that line, and entered upon the land in dispute here, he placed himself expressly under the prohibition of the statute against "entering upon any part of said lands," and under the penalty which provides that such person "shall not be permitted to occupy or make entry of such lands or any part thereof," "or acquire any right thereto." And this violation of the federal statute cannot be reasoned away by the suggestion made by the acting secretary of the interior, that "he had been employed at the Cheyenne and Arapahoe agency for six years before the opening of the country to settlement, had lived in close proximity to the land in dispute, and had nothing to gain or to learn," and that when he made "the short excursion with which he is charged, and which it cannot be denied was made in performance of duty devolved upon him by the orders of the agent who appointed him to the command of the police at that point, he neither gained nor sought advantage," and that it was "error to hold that, under the circumstances of the entry into the territory, he was disqualified thereby." It was held in Smith v. Townsend, 148 U. S. 490, 13 Sup. Ct. 634, 37 L. Ed. 533, upon the statutes governing this matter, that: "The general language used in these sections indicates that it was the intent to make the disqualifications universally absolute. It does not say 'any person who may wrongfully enter,' etc.; but 'any person who may enter,' 'rightfully or wrongfully,' is implied. There are special reasons why it must be believed that congress intended no relaxation of these disqualifications on the part of those on the company's right of way, for it is obvious that when a railroad runs through unoccupied territory, like Oklahoma, which on a given day is opened for settlement, numbers of settlers will immediately get into it, and large cities will shortly grow up along the line of the road; and it cannot be believed that congress intended that they who were on this right of way in the employ of the railroad company should have a special advantage of selecting tracts just outside that right of way, and which would doubtless soon become the sites of towns and cities." This determination of the supreme court upon the statutes in question has been affirmed in Payne v. Robertson, 169 U. S. 323, 18 Sup. Ct. 337, 42 L. Ed. 764, and Calhoun v. Violet, 173 U. S. 60, 19 Sup. Ct. 324,

43 L. Ed. 614. We therefore conclude that the acting secretary of the interior misapplied the law, and that it was properly and correctly interpreted in the opinion of the register and receiver of the United States land office at Oklahoma City, to the effect that: "His orders were to prevent settlement upon the Oklahoma lands. When he crossed the land upon this tract before the legal hour, he became a trespasser, the same as any other person not clothed with authority." We feel the less hesitation in reversing the conclusion of the last tribunal of the land department "on review," not only because the conclusion we now arrive at is that which must necessarily be arrived at upon the facts, but also because it was the one accepted by the secretary of the interior, as well as the commissioner of the general land office.

It is, however, argued that the answer and cross petition of the defendant in error, Mary Hall, fail to show that she is entitled to relief, since they did not allege that she is either a native-born or a naturalized citizen of the United States, and that therefore the averments of her pleading fail to show that she is qualified to make final proof. This objection fails to take into view the express provision of section 2 of the act of congress of February 10, 1855, which declares that "any woman who might lawfully be naturalized under the existing laws, married or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen." Rev. St. U. S. § 1994. And it is held in Kelly v. Owen, 7 Wall. 496, 19 L. Ed. 283, that this act of congress confers the privilege of citizenship upon women married to citizens of the United States, and that under it the citizenship of the husband, whenever it exists, confers citizenship upon the wife.

It is also contended that the answer and cross petition, in failing to show that Gilman C. Hall and his wife lived upon said land for five years or more, are insufficient. It was not necessary for Gilman C. Hall to have lived on the land for five years. It is shown, however, that he resided upon the land from October, 1889, and that he resided thereon up to the time of his death, and that his wife, the defendant herein, has resided thereon continuously up to the present time, and has made valuable improvements thereupon. This is a sufficient averment of residence, upon the circumstances of this case. If it should be held otherwise, then, if a husband should die before the lapse of the period necessary to perfect and complete his residence, the statute authorizing his widow to acquire title by virtue of his citizenship and her own would be rendered void, which was certainly not the purpose of congress.

It is also contended that when the trial court overruled the demurrer of the plaintiff, and the plaintiff elected to stand upon his demurrer, and the trial court thereupon ren

dered final judgment in the case, this rendition of final judgment was reversible error. We cannot sustain this view. It was held in McNasser v. Sherry, 1 Colo. 12, and in Bates v. Williams, 43 Ill. 494, that, if the defendant does not plead on overruling the demurrer to a declaration, default judgment should be entered. And it is generally held that when a demurrer is overruled, and the demurrant does not plead over or answer, but stands upon and abides by his demurrer, the submission of the case upon the demurrer is a final submission, and the judgment thereupon is final. 6 Enc. Pl. & Prac. p. 366, and cases there cited.

The plaintiff attached to his amended petition a copy of the final receipt or certificate issued to him for the land. It showed that after the litigation in the land department was over, namely, on the 8th day of December, 1897, he had paid out the sum of $3.56, the balance of payment required by law for the entry of the land as a homestead under section 2200 of the Revised Statutes of the United States; and he now contends that he should have judgment here, because the answer and cross petition wholly fail to allege that the defendant in error offered to pay or tender into court this amount of land-office fees for the final proof paid by Potter. The subject of the contention was 140 acres of valuable land. The controversy in the land department was carried on through a period of seven or eight years. It is now renewed in the courts, and is recognized by both parties as of much importance. Even if the case was one which required the tender of these fees by the defendant in her cross petition. she would not be denied her equity because of the omission to tender so trivial a sum. The court, by its final decree, can require the repayment of the sum mentioned; but it would be unworthy the dignity of this court, in so serious a litigation, while sitting in equity and endeavoring to administer justice in matters of grave interest to the parties, to hold that this homestead should now be turned over to the plaintiff, who is not entitled to it under the statutes of the United States, because the defendant failed to make an express tender of a sum so trivial. To make such a ruling would be, not to administer equity, but to use the power and jurisdiction of the court to do injustice, and to promote contentious and vexatious litigation upon points of trivial interest and consequence. The judgment of the trial court will be affirmed. All the justices concur, except IRWIN, J., who presided below.

(11 Okl. 151)

CARROLL v. GERLACH, Treasurer, et al. (Supreme Court of Oklahoma. July 6, 1901.) TAXATION-ERRONEOUS ASSESSMENT-RELIEF

IN EQUITY.

Our statute having vested the authority in the boards of county commissioners of the various counties of the territory to hear complaints,

and to correct, either upon the assessment rolls or upon the tax rolls of the county, any double or erroneous assessment of property for taxation for any particular year, the remedy must be sought in the first instance before that tribunal; and the party aggrieved cannot invoke the powers and jurisdiction of a court of equity, when he has failed or neglected to present his cause of complaint to such tribunal created by the statute, and authorized to hear the same and grant appropriate relief. (Syllabus by the Court.)

Error from district court, Woodward county; before Justice John H. Burford.

Action by J. E. Carroll against John J. Gerlach and others. Judgment for defendants, and plaintiff brings error. Affirmed.

B. B. Smith, R. J. Ray, and Roy A. Smith, for plaintiff in error. Charles R. Alexander and Fred Elkin, for defendant in error.

HAINER, J. This was an action brought August 5, 1899, in the district court of Woodward county, by the plaintiff in error against the defendants in error, to enjoin them from collecting certain taxes assessed and levied against 430 head of cattle belonging to the plaintiff in error, for the year 1898, and which the plaintiff in error claims were not subject to taxation in said county for that year. The material averments in the petition are that the plaintiff's cattle were situated and kept in Greer county on and prior to the 1st day of March, 1898, and were not removed to Woodward county until the latter part of April of said year; that on the 15th of March of said year said cattle were duly listed and assessed by the township assessor of Mangum township, Greer county; that all of said taxes were duly paid to the treasurer of Greer county; that the plaintiff had no notice or knowledge that said cattle were assessed in Woodward county until August 3, 1899, and for that reason he had no opportunity to appear before the board of county commissioners to petition them to relieve him of the payment of the taxes for the year 1898, prior to the commencement of this action. To this petition the defendants interposed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff having elected to stand upon the petition, the court dissolved the temporary injunction which had been granted by the probate court in the absence of the district judge, and dismissed said cause at the costs of the plaintiff. From this judgment the plaintiff appeals.

There is no averment in the petition that the plaintiff had made application to the board of county commissioners for an abatement of the taxes on the ground that the said property was not subject to taxation in Woodward county for said year. The only allegation in relation thereto is that the plaintiff had no opportunity to make application before the board of county commis

sioners to abate said taxes prior to the commencement of this action. This allegation is insufficient. It appears from the plaintiff's petition that he had notice that said property had been assessed on the 3d day of August, 1899, and this action was not commenced until the 5th day of August, 1899. Manifestly, the plaintiff had sufficient time to file his application for an abatement of said taxes with the board of county commissioners, even after he received notice, and prior to the commencement of this action, if he so desired. Section 1, art. 7, c. 32, Sess. Laws 1897, vests in the board of county commissioners of the various counties of this territory the power to correct, either on the assessment rolls or upon the tax rolls of the county, any double or erroneous assessment of property for taxation for any particular year. Section 2 of said act provides the manner in which the board of county commissioners at any regular session may hear and correct such erroneous assessments. The rule is well settled that a person aggrieved by the wrongful assessment of his property cannot invoke the powers and jurisdiction of a court of equity to enjoin the collection of a tax resulting therefrom, unless he first seeks redress in the mode prescribed by the statute. Since the legislature has confided the power to abate taxes in the board of county commissioners in the first instance, the courts will refuse to enjoin the collection of an alleged illegal tax on the ground of double or erroneous assessment of the property for taxation until the taxpayer makes an application to abate the taxes before the county commissioners, a hearing is had thereon, and the relief denied. Desty, in his work on Taxation (volume 2, pp. 661, 662), lays down the following rule: "Equity will not restrain the collection of a tax when there is a full and adequate remedy at law, even though fraud be alleged in the bill. 乖 Where the mode is prescribed, and

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a tribunal established by law to provide against an illegal tax, complainant has a full and adequate remedy at law." In Investment Co. v. Charlton (C. C.) 32 Fed. 192, it was held that a person who is aggrieved by the wrongful action of an assessor in the valuation of his own or other's property for taxation cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting from such action, unless he first seeks redress at the hands of the county board of equalization, as provided by statute. In Campbell v. Bashford (Ariz.) 16 Pac. 269, in a suit to enjoin the collection of an alleged illegal tax, the complaint having failed to show that the plaintiff had applied to the board of supervisors for correction of the assessment under the provisions of the Compiled Laws of Arizona, it was held that the court had no jurisdiction to enjoin the collection of the tax until all legal remedies had been exhausted by the plaintiff. In Wilson v.

Wiggins, 7 Okl. 524, 54 Pac. 718, this court said: "Where the statute vests in officers or boards authority to hear complaints and correct errors or grant relief to persons aggrieved in tax proceedings, the remedy must be sought there; and a party aggrieved cannot invoke the powers of a court of equity when he has not presented his cause of complaint to the tribunal or officer created by the statute, and authorized to hear the same and grant the proper relief." We do not wish to be understood that if the plaintiff had alleged in his petition that he had no notice or knowledge that his property had been assessed in Woodward county until after the tax warrant had been issued and the property seized by the sheriff under said warrant, and was about to be sold, and that the board of county commissioners were not in session at that time, and had no opportunity to pass upon the plaintiff's application to abate said taxes prior to the sale of said cattle by the sheriff, a restraining order would not lie until said application for the abatement of the taxes was disposed of by the board of county commissioners. But no such relief is sought by the plaintiff in this action. The plaintiff's petition fails to state facts sufficient to constitute a cause of action for equitable relief, and the demurrer to the petition was therefore properly sustained. The judgment of the district court is affirmed, at the costs of appellant. All the justices concurring except BURFORD, C. J., who presided in the court below, not sitting.

JUDGMENTS-REVIVAL-JUDGMENT LIENSMORTGAGES-TAX LIENS.

1. Sess. Laws 1897, § 82, p. 175. provides that any person having a lien on real property on which the taxes are unpaid may pay such taxes, and the receipt of the county treasurer shall constitute an additional lien, collectible with and in the same manner as the amount secured by the original lien. Held to apply to the holder of a valid judgment lien.

2. Under 2 Hill's Code, $$ 462, 463, providing that the lien of a judgment continues for five years from its rendition, and for revival of the lien within six years from the date of judgment, where five years have elapsed since a judgment, and no revival has been entered, the holder of the judgment has no valid lien, so as to entitle him to a lien for taxes paid on land during the sixth year from the date of his judg ment, under Sess. Laws 1897, § 82, p. 175.

3. Where a payment of taxes on land is made In good faith by one believing he has a valid lien thereon, but whose lien is subject to a prior incumbrance, such person is entitled to have the amount of the taxes paid, with interest thereon, decreed to be a lien on the land superior to the prior incumbrance.

Appeal from superior court, Kittitas county; John B. Davidson, Judge.

Suit to foreclose a mortgage by S. T. Packwood against B. F. Briggs and others.

From a decree in favor of plaintiff, B. F. Briggs appeals. Modified and affirmed.

E. F. Blaine, for appellant. Graves & Englehart, for respondent.

HADLEY, J. S. T. Packwood, respondent here, brought this action below to foreclose a mortgage upon certain real estate situated in Kittitas county. The mortgage was executed by John A. Shoudy and wife on the 28th day of March, 1894, to secure a note of said John A. Shoudy, payable to said Packwood, for the sum of $4,000. Said note was of even date with the mortgage, and payable one year after date. Before the commencement of this action, $3,000 had been paid upon the note, and the balance of the principal and interest was unpaid. On the same day the mortgage was executed it was filed for record in the auditor's office of Kittitas county. At the time of the execution of the mortgage the said Shoudy was indebted to various persons, and, among others, he was indebted to Dexter Horton and A. A. Denny. Being desirous of securing said Horton and Denny, it was agreed that Shoudy should confess judgment in their favor for the amounts he was owing them, respectively. In pursuance of such understanding, the indebtedness against Shoudy held by Horton and Denny, respectively, was by each of them transferred to B. F. Briggs, who is appellant here, as trustee for both Horton and Denny. Action was instituted by said Briggs against Shoudy upon such indebtedness in the superior court of King county, and such proceedings were had that on the 27th day of March, 1894, judgment was entered against Shoudy for the sum of $26,752.70 and costs. On the 28th day of March, 1894, a transcript of said judgment was duly filed in the office of the clerk of the superior court of Kittitas county. On the 25th day of March, 1899, an execution under said judgment was issued by the clerk of the superior court of Kittitas county, directed to the sheriff of said county, which purported to authorize said sheriff to sell the real estate of Shoudy, the judgment debtor, to satisfy said judgment. Thereafter, on the 6th day of May, 1899, the sheriff made such sale of Shoudy's real estate, including in such sale the lands covered by respondent's mortgage; and said Briggs, the judgment creditor, became the purchaser at said sale. Afterwards, on the 26th day of June, 1899, said Briggs paid taxes upon the property included in the mortgage, and which had been sold to him as aforesaid, and also redeemed said property from a tax sale; the amount paid by him on account of such taxes being $460. It will be observed that the mortgage and transcript of judgment were each filed in the proper office of Kittitas county on the same day. It appears that a short time prior to the entry of the judgment and the

execution of the mortgage some conferences were had between Horton, Denny, Packwood, and Shoudy, and their representatives, at which the plan of procuring the judgment and mortgage as security for the respective parties was discussed. It is contended by respondent, Packwood, here, that it was then expressly agreed that the mortgage lien should be superior to the lien of the judgment upon the real estate included in the mortgage. This is denied by appellant, Briggs; he contending that it was understood that the judgment lien should be prior. Since the liens were created the same day, it became necessary in the court below, in view of the dispute as to priority, to determine which was the prior lien. The evidence conflicts upon this point, but the court found that it was agreed that the mortgage should be the prior lien. An exception was taken by appellant to this finding, but it is not assigned as error. But if we should assume that the question, upon the finding, is properly before us, we think it was justified by the evidence, and we should not be disposed to disturb it. It must therefore be deemed settled that the mortgage lien of respondent is superior to any lien that may exist under the judgment, and the finding and decree of the lower court in that particular are sustained.

The appellant, Briggs, after setting up in his answer the facts concerning payment of taxes as heretofore stated, prays judgment that a lien against the property upon which taxes were paid be decreed in his favor for the amount paid, together with interest thereon from the date of payment. Appellant bases his right to have the taxes so paid by him declared a lien upon the legislative provision found in section 82, p. 175, c. 71, Sess. Laws 1897: "Any person who has a lien by mortgage or otherwise upon any real property upon which the taxes have not been paid, may pay such taxes and the interest, penalty and costs thereon, and the receipt of the county treasurer shall constitute an additional lien on such land to the amount therein stated, and the amount so paid and the interest thereon at the rate specified in the mortgage or other instrument shall be collectible with, or as a part of, and in the same manner as the amount secured by the original lien." It is contended by respondent that the above provision is intended to apply only to the holder of a lien upon specified real estate, such as a mortgage lien, and that it does not apply to the holder of a general lien, such as a judgment lien. We believe, however, that the language of the statute is broad enough to include the holder of any lien. The words are, "Any person who has a lien by mortgage or otherwise upon any real property. A judgment of the superior court is a lien upon the real estate of the judgment debtor in the county where the judgment is entered, or in which a properly certified transcript of a judgment ren

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dered in another county has been filed. The statute plainly says that a lien created by mortgage "or otherwise" entitles its holder to pay the unpaid taxes and the interest, penalty, and costs, and that the receipt of the county treasurer shall constitute an additional lien for the amount. If, therefore, appellant was the holder of a valid judgment lien against the mortgaged property at the time he paid the delinquent taxes and redeemed from the tax sale, he is entitled, by virtue of the statute, to have the amount paid declared a lien upon the land prier to respondent's mortgage lien. Did appellant hold a valid judgment lien at the time? The judgment was entered on the 27th day of March, 1894, and the taxes were paid on the 26th day of June, 1899. Sections 462, 463, 2 Hill's Code, provide that the lien of a judgment continues for five years from the date of its rendition, and that proceedings to revive the lien may be instituted within six years from the date of judgment. Appellant's counsel contends that these two sections must be construed to mean that the lien of the judgment continues for six years from date of judgment, and he therefore concludes that the lien of appellant's judgment continued until the 27th day of March, 1900. This court recently decided against appellant's contention in Brier v. Bank, 64 Pac. 831. This subject is exhaustively discussed in the opinion in that case, and it is there held that the lien of the judgment expires at the expiration of five years from the date of the judgment, and, while it may be revived. at any time within the sixth year, yet after the expiration of the five years the lien is entirely dead until the judgment of revival has been entered. In other words, the revival proceedings have the effect to vivify that which was dead, but pending the time between the expiration of the five years and the judgment of revival there is no lien, and its revival does not relate back to the end of the five-year period. It must therefore be held in this case that after the 27th day of March, 1899, appellant had no judgment lien.

It is urged by respondent that the attempted execution sale was void for several reasons, but a discussion of them all is not necessary for the decision of this case. The execution was void at the time of the attempted sale, for reasons heretofore stated. There being no lien in existence, there could have been no authority for the sale in any execution that might have been issued. It is true, this execution was issued a few days before the expiration of the five-year period; but the lien itself, the authority for any execution and sale, was dead long before the attempted sale. It follows that, if appellant is entitled to relief on account of the taxes paid, it must be based upon equitable grounds, considered with reference to the relations of the parties to the subject-matter. It must be conceded that appellant paid the taxes in good faith, relying upon what he believed