until the expiration of the time allowed for redemption. In the court below the plaintiff recovered judgment, and from that judgment the defendant has appealed.

1. In this state the purchaser of real property at a sheriff's sale from the time of the sale until a redemption, and a redemptioner from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof. (Code Civ. Proc., sec. 707.) This right on the part of the purchaser to receive the rents and profits, or value of the use and occupation of the property sold, is not limited to cases where there has been a redemption. It begins at the time of the purchase, and continues until a redemption is made, or, if there be no redemption, then until the time allowed for redemption has expired. Several cases of this character have been maintained in this court where there had been no redemption of the property. (Reynolds v. Lathrop, 7 Cal. 43; McDevitt v. Sullivan, 8 Cal. 592; Harris v. Reynolds, 13 Cal. 514; S. C. 73 Am. Dec. 600; Hill v. Taylor, 22 Cal. 191; Webster v. Cook, 38 Cal. 423.)

2. In Page v. Rogers, 31 Cal, 293, it was held that, during the period which elapses between the sale of land on execution and the expiration of the time for redemption, the statute regards the purchaser as the owner in equity of the land, subject only to the right of redemption, and gives him the rents and profits, or the value of the use and occupation,-in short, the entire beneficial interest, except the actual possession.

In Harris v. Reynolds, supra, it is said: "The phrase 'the tenant in possession' is a generic term, intended to designate the class of persons from whom the purchaser was to receive the rents. The language is not that, when a tenant of the debtor is in possession, the tenant shall pay the purchaser, or that the debtor, when in possession, shall not, but the phraseology designed evidently

to fix a general right, applying to all cases of tenancy, for none are excluded." And in that case it was held that a judgment debtor was a tenant in possession, and required to pay the rents and profits to the purchaser; the court further saying: "The owner in fee in possession is no less, in legal contemplation, a tenant, than the man who occupies under him. The definition of tenant is: One that holds or possesses lands or tenements by any kind of title, either in fee, for life, years, or at will.'"

It has also been held that the mortgagee of the judgment debtor, the trustee and his successor in interest under a trust deed from the judgment debtor, and the administrator of the estate of the judgment debtor, when they were in possession after a sheriff's sale, were tenants in possession, and liable to the purchaser for the rents and profits, or value of the use and occupation of the property. (Knight v. Truett, 18 Cal. 113; Shores v. Scott River Co., 21 Cal. 135; Walls v. Walker, 37 Cal. 425.)

In this case it does not appear when or from whom the defendant obtained the title to the mortgaged property; but as she was a party to the action of foreclosure, it was conclusively determined by the judgment that she held the title subject to the payment of the mortgage debt. After his purchase, the plaintiff was the owner in equity; and thereafter, subject to her right of redemption, she held the title for him. Holding, then, the legal title for plaintiff, and having the exclusive possession, she was, within the meaning of those words as used in the statute, the "tenant in possession" of the property, and liable to account for the value of its use and occupation.

But it is said there was no contract relation between the parties, and the defendant, if liable at all, was liable as a trespasser, and should have been sued as such, and not in assumpsit. The answer is, that the defendant was

not a trespasser in any sense. She was rightfully in possession, and could not be treated as a tort-feasor. Her liability is statutory, and the law implies a promise on her part to comply with its requirements. It is true, the action for use and occupation is founded on privity of contract, but it will lie as well upon an implied as upon an express contract. (Osgood v. Dewey, 13 Johns. 240; Stockett v. Watkins, 2 Gill & J. 326; S. C., 20 Am. Dec. 438.)

3. It is further argued for the appellant that plaintiff is not the real party in interest, and no facts are stated in the complaint showing him to be the trustee of an express trust, and therefore his action cannot be maintained. We think the complaint sufficient, and the action properly brought. A trustee of an express trust is a person with whom, or in whose name, a contract is made for the benefit of another, and he is authorized to sue without joining with him the persons for whose benefit the action is prosecuted. (Code Civ. Proc., sec. 369.)

The plaintiff bid in the property, and received the certificate of sale and sheriff's deed in his own name, and thereby became the purchaser. As between him and the bank, he was a trustee of an express trust, but that fact did not concern the defendant. As to her, he was the real party in interest, and might sue without alleging or proving his trusteeship. It has been so held in several analogous cases. (Corcoran v. Doll, 32 Cal. 90; Walsh v. Soule, 66 Cal. 443; Lewis v. Adams, 70 Cal. 403; Hoagland v. Trask, 48 N. Y. 686; and see Pomeroy on Remedies, secs. 175-178.)

It follows that the judgment should be affirmed.

SEARLS, C., and FooтE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

E. COMSTOCK, APPELLANT, v. COUNTY OF YOLO,

RESPONDENT.

ROAD TAX MODE OF PROCEDURE FOR LEVYING BOARD OF SUPERVISORS MAY ADOPT SUITABLE MODE. Under section 25 of the County Government Act, the board of supervisors of a county has power to adopt any suitable mode of procedure for submitting to the qualified electors of a road district a proposition to levy a special tax for road purposes, and may adopt the assessment made for state and county purposes as the basis upon which to levy the tax.

APPEAL from a judgment of the Superior Court of Yolo County.

The facts are stated in the opinion.

A. L. Hart, for Appellant.

Frank S. Sprague, for Respondent.

BELCHER, C. C.- This is an action to recover a sum of money which was paid by plaintiff, under protest, to prevent the sale of his property in satisfaction of an alleged illegal tax.

The appeal is by the plaintiff from a judgment in favor of defendant, and rests upon the judgment roll.

The tax in question was levied in pursuance of the supposed authority given by the County Government Act, which provides: "The boards of supervisors in their respective counties have jurisdiction and power, under such limitations and restrictions as are prescribed by law, to lay out, maintain, control, and manage public roads within the county; to levy taxes upon the taxable property of their respective counties for all county purposes, and also upon the taxable property of any district for the construction and repair of roads and highways and other district purposes; provided, that no tax shall be levied upon any district until the proposition to levy the same has been submitted to the qualified elec

tors of such district and received a majority of all the legal votes cast upon such proposition; and to do and perform all other acts and things required by law not in this act enumerated, or which may be necessary to the full discharge of the duties of the legislative authority of the county government." (County Government Act, sec. 25, cl. 1, subd. 4, 13, 35; Statutes and Amendments to Codes, 1883, p. 304.)

On the twenty-eighth day of August, 1884, the board of supervisors of Yolo County, by a resolution duly passed and entered upon its minutes, ordered that a proposition to levy a tax upon the taxable property of road district No. 1 in that county, for the construction and repair of roads and highways therein, sufficient in amount to raise the sum of nine thousand dollars, and to be levied according to the value of the property as shown by the assessment roll of the county for that year, be submitted to the qualified electors of the district at an election to be held for that purpose on the thirteenth day of September, 1884. By the resolution, polling-places were duly fixed, inspectors and judges of the election were appointed, and the clerk of the board was ordered to issue a proclamation, under his hand and the seal of the board, calling an election in accordance therewith, and to cause a copy • of such proclamation to be published in the Woodland Daily Democrat, a newspaper published in the county, and to be posted at each place fixed for holding the election, for at least ten days before the day of said election.

In pursuance of the resolution, the clerk of the board issued a proclamation, setting forth all the matters required in due and proper form, and caused the same to be published and posted as directed.

At the time named an election was held and a majority of all the legal votes cast upon the proposition were in favor of levying the said tax.

The returns of the election were duly made to and canvassed by the board of supervisors on the sixth day