Another fact shown by the record that seems to us to controvert the defendant's claim is that the tract remained open to the public and was extensively used by the public as a highway during the entire time the defendant now claims to have had adverse possession of it. Had the space been needed as a highway for the use of the defendant's tenants, the case might have been different, but such was not the fact. The lot was accessible from both sides, and certainly this space covered with buildings would have been made more serviceable and profitable to its owners than it was while in use as a mere alleyway. Still another fact is that lot 6 was not given in to the assessor for taxation as an entire lot during any part of that period. For the purposes of taxation it was divided into tracts called the south 54 feet, and the north 6 feet, and different parties paid the taxes upon it in these proportions. When it is remembered that in the earlier of the years mentioned ownership of real property for the purposes of taxation was ascertained from persons claiming it rather than from any systematic study of the records, it is at least significant that none of the defendant's grantors thought to have the entire lot assessed under his own name. What gave rise to the arbitrary division made the record does not make very clear, but it can be surmised that the defendant's grantors intended to pay only on that part of the lot to which they had title, and were in error as to the size of the strip in dispute.

The contention that the construction of the sidewalk was a taking of possession of the entire tract obviously has no merit. Its construction and open and continuous use for the period of the statute of limitations might give rise to an easement in the nature of a right of way over that portion of the lot so used, but to use a portion of a tract as a right of way is clearly not an adverse user of the entire tract.

The claim that the defendant has title by virtue of the seven-year statute has no better foundation. On the north six feet no continuous payment of taxes for that period of time was in fact made, and the claim to that part of the tract can be dismissed at once. While taxes on the south four feet have been paid for the period required, we think the payments were not made under the conditions the statute imposes. The statute requires the taxes to be paid under "claim and color of title," when the land is in possession of the person paying the taxes, and under "color of title made in good faith" when the land is vacant and unoccupied. Here, as we have said, the evidence convinces us that the defendant made no claim to this 10-foot strip, or any part of it, and that his payment of taxes on a portion of it was made through error rather than with any intent to pay taxes on it. Such a payment can neither be under claim and color

of title, or under color of title made in good faith. The payment might, under rules elsewhere announced by this court, give rise to the right to recover of the true owner the taxes so paid, but we think it cannot give title to the land itself.

On the plaintiff's appeal we do not think the equities of the case justify a recovery of rents or damages, and we decline to disturb the judgment in this respect.

The judgment appealed from will therefore stand affirmed, neither party to recover costs.

Laws 1897, p. 52, c. 39, provides that after the expiration of six years from the rendition of a judgment it shall cease to be a charge against the judgment debtor, and no suit shall be maintained by which the lien of the judgment shall be extended. The act took effect in June, 1897. A judgment was rendered in February, 1897. The Supreme Court handed down an opinion in December, 1897, affirming the judgment, on which judgment was entered January, 1898. Held, that the act was not unconstitutional when applied to the judgment; the taking away of the right to revive a judgment having only to do with the remedy, and the judgment creditor having a reasonable time within which to enforce the judgment.

On motion for rehearing. Denied.
For former opinion, see 81 Pac. 1058.

ROOT, J. After an opinion was handed down in this case (August 15, 1905; 39 Wash. 587, 81 Pac. 1058), respondent interposed an elaborate and able petition and argument for rehearing, based principally upon the contention that the statute of 1897 (Laws 1897, p. 52, c. 39), as applied to a case of this character, constituted the taking of property without due process of law. This point was suggested in the original briefs. but not urged or argued. A rehearing was ordered and the parties invited to file briefs presenting such arguments as they deemed proper, and were especially requested to give their views on the following questions: (1) Is this a proceeding to revive the judgment of the superior court or of the Supreme Court? (2) If this is an action to revive a judgment of the Supreme Court, how does the question of the constitutionality of the statute of 1897 become material, said statute having come into effect prior to the entry of the judgment? (3) If it is the superior court judgment that is sought to be revived, was the original proceeding (to revive) commenced in time? (4) Does the statute forbidding a revivor of a judgment on tort amount to the taking or damaging of property within the constitutional meaning? (5) Is a right of action upon a tort before merged in a judgment a property right which the Legislature could not legally

affect by means of a statute forbidding the revivor of judgments, as was done or attempted to be done by the statute of 1897? The pertinency of the foregoing questions will be perceived from the following statement of facts: The judgment of the superior court in this case was entered on the 26th day of February, 1897. The statute involved in this case went into effect in June, 1897. An appeal was taken from the judgment of the superior court to the Supreme Court of the state, which handed down an opinion on December 17, 1897, affirming the judgment of the lower court. Judgment in the Supreme Court was entered on the 21st day of January, 1898. The statute under which respondent sought to revive the former judg ment requires the proceeding to revive to be commenced within six years from the date of entry of said judgment. It will be thus seen that, if the six-year period commenced to run on the date of the entry of the judgment in the superior court, February 26, 1897, more than six years had expired when this proceeding to revive was commenced on January 19, 1904. On the other hand, if it were the judgment of the Supreme Court that was sought to be revived, this judgment was entered January 21, 1898-some seven months after the act of 1897 had gone into effect, and consequently the latter could not be held to have had any retroactive effect. Respondent contends that it was the judgment of the superior court that was sought to be revived, and that the appeal to the Supreme Court tolled the running of the statute until the judgment of the latter court was entered, and that the six-year period, within which a revivor proceeding could be commenced, did not begin to run until the entry of the judgment of the Supreme Court on January 21, 1898. The act of 1897, which respondent claims to be anconstitutional as applied to a judgment of the character involved here, is set forth in our former opinion (39 Wash. 587, 81 Pac. 1058).

Appellant urges that said statute is valid; that the taking away of the right to a revivor has to do only with the remedy, and that inasmuch as in this particular case the respondent had over six years within which to issue execution and enforce her judg- | ment, the statute is, as applied to this case, in no sense obnoxious to the Constitution. We think this conclusion must be sustained. The question as to how much time shall be given to a litigant to enforce a judgment which he has obtained in a court seems to us to be a matter of public policy to which the Legislature may give expression by means of a statute, providing the right which the judgment evidences at the time of its entry is not arbitrarily and summarily cut off. Where, as in this case, a judgment creditor is given over six years within which to enforce her judgment, it would seem im possible to say that her rights under said

judgment were summarily or arbitrarily terminated. We think the authorities bear out the view here expressed.

An interesting case is that of Louisiana v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936. Certain persons, under the provisions of the state statute providing therefor, obtained judgments against the city of New Orleans for damages to property caused by mob violence. While these judgments remained in full force and unpaid and unsatisfied, the people of the state adopted a Constitution which had the effect of preventing the city from levying a sufficient tax to pay said judgments or any portion thereof. It was contended before the Supreme Court of the United States that said state Constitution impaired the obligation of contracts and amounted to a deprivation of property without due process of law. The court held otherwise, and while it expressly disclaimed any intention to pass upon the question of the effect of legislation upon the means of enforcing an ordinary judgment for tort, yet the principles involved would seem necessarily to apply to some extent, at least, to such cases. Mr. Justice Bradley, however, entertained and expressed a different view in an opinion concurring specially with the decision of the majority. As bearing upon the case at bar we may quote from his opinion the following: "To abrogate the remedy for enforcing it [ordinary judgment for tort] and to give no other adequate remedy in its stead, is to deprive the owner of his property within the meaning of the fourteenth amendment." It would seem to be implied and properly inferable from this language that such a statute or constitutional provision would be valid if some "other adequate" remedy were provided. We do not think this court can say, as a matter of law, that 61⁄2 years was an inadequate period to be allowed for the enforcement of respondent's judgment. In the case just cited there was an able dissenting opinion by Mr. Justice Harlan, in which, among other things, he says that "the withdrawal of all remedies for its enforcement, and compelling the owner to rely exclusively upon the generosity of the judgment debtor, is to deprive the owner of his property." He makes no contention that such a statute would be unconstitutional if a reasonable time were allowed within which to enforce the judgment.

*

* *

The case of Freeland v. Williams, 131 U. S. 405, 9 Sup. Ct. 763, 33 L. Ed. 193, involved the validity of a constitutional provision adopted by the people of West Virginia, providing that participants in the Civil War should not be liable for, nor their property sold on account of, certain acts committed during the war. Prior to the adoption of said constitutional provision, Freeland had obtained a judgment against Williams for cattle driven off during the war. After the

adoption of said provision, Williams began a proceeding in equity to enjoin the enforcement of said judgment, and obtained such a decree in the state courts. Freeland then sued out a writ of error, and the case was brought before the United States Supreme Court for review, the plaintiff in error urg. ing that the state constitutional provision was in conflict with section 10, art. 1, of the federal Constitution, in that it impaired the obligation of a contract, and with section 1 of the fourteenth amendment, in that it deprived him of property without due process of law. The court denied both contentions. Touching the latter, it said: "The proposition of the plaintiff in error is that by the judgment of the circuit court of Preston county he had acquired a vested right in that judgment; that the judgment was his property; and that any act of the state which prevents his enforcing that judgment, in the modes which the law permitted at the time it was recovered, is depriving him of property without due process of law, and, therefore, forbidden by the 14th amendment of the federal Constitution. This right of the plaintiff to enforce that judgment is insisted upon as a vested right with which no authority can lawfully interfere. It is to be observed, in the first place, that the language of the prohibition against state interference with life, liberty or property is that the deprivation of these precious rights shall not be had without due process of law. This phrase, 'due process of law,' has always been one requiring construction; and, as this court observed long ago, never has been defined, and probably never can be defined, so as to draw a clear and distinct line, applicable to all cases, between proceedings which are by due process of law and those which are not. Judgments, however solemn, however high the court which rendered them, and however conclusive in a general way between the parties, have been subject to review, to reconsideration, to reversal, and to modification by various modes. Among these are motions for new trials, appeals, writs of error and bills of review; and these have always been held to be due process of law. So, also, judgments of courts of law have been subject to be set aside, to be corrected and the execution of them enjoined, by bills in chancery, under circumstances appropriate to such relief. This also must be held to be due process of law. * * * Many other cases might be cited in which it was held that retrospective statutes, when not of a criminal character, though affecting the rights of parties in existence, are not forbidden by the Constitution of the United States. We do not think that the Supreme Court of Appeals of West Virginia, which seems to have carefully considered the question of due process of law in the case of Peerce v. Kitzmiller, and held that the statute of the state in carrying out the provisions of the Constitution did not pro

vide due process of law, was in error when it also held that the remedy provided by the Constitution of the state as carried out by the ancient proceeding of a bill in a court of equity was not void for want of due process of law, nor in conflict with the Constitution of the United States."

In Koshkonong v. Burton, 104 U. S. 668, 26 L. Ed. 886, the United States Supreme Court, among other things, said: "It was undoubtedly within the constitutional power of the Legislature to require, as to existing causes of action, that suits for their enforcement should be barred unless brought within a period less than that prescribed at the time the contract was made or the liability incurred from which the cause of action arose. And if a proper construction of that act would give the full period of six years, after its passage, within which to sue upon coupons maturing before its passage, the judgment below cannot be sustained. For this action was not instituted until more than eight years after the passage of the act of 1872. There is no escape from this conclusion, unless we should hold that the Legislature could not, constitutionally, reduce limitation from 20 to 6 years as to existing causes of action. But neither upon principle nor authority could that position be sustained."

The Supreme Court of Minnesota, in Burwell v. Tullis, 12 Minn. 572 (Gil. 486), spoke as follows: "It would unquestionably be competent for the Legislature to declare that a judgment creditor must attempt to enforce his judgment within a given time, or be afterwards denied any remedy for that purpose, and it must follow that if all remedy may be taken away, under similar circumstances, any particular remedy or a part of the remedy may also be taken away."

In the case of Bartol v. Eckert, 50 Ohio St. 31, 33 N. E. 294, the Supreme Court of Ohio, in discussing a statute as to revivor, said: "It is well settled that a party to a suit has no vested right to an appeal or writ of error from one court to another. In Lafferty v. Shinn, 38 Ohio St. 46, it is stated that in the right to appeal to the courts there is not involved a further right to appeal from the judgment of the court to which such application for redress is made; on the contrary, that a right to appeal from such judgment exists only when given by statute; that such right to appeal, when so given, may be taken away by statute, even as to cases pending on appeal; and that the same thing is true with us as to proceedings in error. See Com. v. Messenger, 4 Mass. 469; Ex parte McCardle, 7 Wall. (U. S.) 506, 19 L. Ed. 264; The Marinda v. Dowlin, 4 Ohio St. 500; Railroad Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231. We see no satisfactory reason why a different rule should be applied to the revivor of a dormant judgment, the recovery of which implies that there has been a previous recourse to the

courts, and that due process of law has been invoked. In fact, after the act of 1876 took effect, the plaintiff had over seven years within which to institute proceedings to revive the dormant judgment.

But the limitation in the statute did not go to the merits of the action-to the establishment of a contested right-but to a remedy for the enforcement of a right already established. When an alleged conflict between a statute and the Constitution is not clear, the implication must always exist that no violation was intended by the Legislature." Baer v. Choir, 7 Wash. 638, 32 Pac. 776, 36 Pac. 286; Terry v. Anderson, 95 U. S. 634, 24 L. Ed. 365; Cohen v. Wright, 22 Cal. 293; Judkins v. Taffe, 21 Or. 89, 27 Pac. 221; Swampland Dist. v. Glide, 44 Pac. 451, 112 Cal. S5; McCormick v. Alexander, 2 Ohio, 65, 78; Borrman v. Schober, 18 Wis. 437; Sohn v. Waterson, 17 Wall. (U. S.) 596, 21 L. Ed. 737; Stine v. Bennett, 13 Minn. 153 (Gil. 138); Bagby v. Champ, 83 Ky. 13; Whitehead v. Latham, 83 N. C. 232; Cooley, Constitutional Limitations (7th Ed.) pp. 255, 515-524; 6 Am. & Eng. Enc. of Law (2d Ed.) p. 952. See, also, cases cited In former opinion.

The order appealed from is reversed, with Instructions to the honorable superior court to dismiss the petition.

MOUNT, C. J., and HADLEY and CROW, JJ., concur. FULLERTON, J., concurs in the result.

(41 Wash. 185)

FROST et al. v. PERFIELD. (Supreme Court of Washington. Oct. 23, 1906.) TRUSTS-CONSTRUCTIVE TRUSTS - BReach of DUTY BY AGENT.

A lessor, after removing from the state, wrote the lessee. who was a friend and neighbor, asking him to pay the taxes and to deduct the amount thereof from any sum due the lessor, whereupon the lessee made an investigation as to the taxes and wrote the lessor that at the tax sale he would bid in the land for her in case it did not sell too high, and on the tax sale he bid in the land. Held, that the lessee could not retain the property, and the lessor was entitled to a decree requiring a conveyance on payment of the amount paid at the tax sale, with interest.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 121-124, 147, 153.]

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Mary Jane Frost and others against James Perfield. From a judgment in favor of defendant, plaintiffs appeal. Reversed and remanded, with instructions.

Boyle & Warburton, for appellants. Geo. T. Reid, for respondent.

ROCT, J. In the year 1899 the appellant Mrs. Frost let a tract of land owned by her and the other appellants to the respondent at a rental of $20 per year. The respondent leased the property principally on account of

a spring of water located near his adjoining hop field; the water to be used in spraying his hops. He paid the rent for the year 1899, and up to and including the year 1902. He paid no rent for the years 1903, 1904, and 1905. In 1900 appellant Mary Jane Frost and her son Roy and daughter Edith moved to Alaska, where they remained until July, 1905. In the latter part of the year 1903, Mrs. Frost wrote to respondent, requesting him to pay the taxes on said property, deducting the same from what he owed her if sufficient, and stating that, if the taxes exceeded the amount thus owing, to send her a bill for the balance, which she would repay. Shortly after receiving this letter, respondent went to the city of Tacoma and inquired about said taxes, and was informed that the property had been sold to the county for delinquent taxes. He did not immediately answer appellant's letter. She again wrote him in the early part of 1904, making the same request, whereupon he again visited the county treasurer's office, and learned that the property would be sold by the county soon thereafter. He then wrote to Mrs. Frost, telling her that the property would be advertised for sale, and sold in the near future, and that he would attend the sale, and bid in the property if it did not sell too high. Mrs. Frost claims that in his letter to her he stated that he would bid in the property for her. The respondent denies this. The letter which he wrote was not produced in evidence; the appellant Mrs. Frost stating that the same had been lost. The letters of Mrs. Frost to respondent were not introduced in evidence, the respondent claiming that said letters had been lost. The respondent attended the sale, and bid in the land for $460. Mrs. Frost returned from Alaska about July, 1905, and immediately called upon respondent to find out about her land. Respondent told her he had bought in the land for $460, and that he would convey it to her if she would pay him $650. She and her son testify that respondent stated that he ought to have the difference between $460 and $650 for his trouble, time, and money. Mrs. Frost claims that, at the first interview, respondent did not intimate that he had bought the land for himself. She saw him again soon thereafter, and tendered the money he first demanded, and asked for a deed. On his refusal to execute and deliver such deed, this action was brought. Trial was had by the court without a Jury, and findings and conclusions made and entered in favor of respondent. From a judgment entered thereupon this appeal is taken.

We think the judgment must be reversed. It is urged by respondent that he did not promise to buy in this property for appellants, and that he was under no obligation to do so. It is very evident, however, from the evidence, that the appellants understood the letter which they received from respond