seeks to enjoin the auditor of the county from extending upon the tax rolls, and the tax collector thereof from collecting, a tax levy made by the county commissioners of one-fourth of one mill on each dollar of taxable property in the county, for the purpose of creating a fund to be used in collecting, preparing, and maintaining exhibitions of the products and industries of the county at any domestic or foreign exposition for the purpose of encouraging immigration and increasing trade in the products of the state of Idaho. The trial court denied the injunc tion. The commissioners acted under the authority contained in Sess. Laws 1911, c. 95, p. 340, which reads as follows: "The boards of county commissioners of the several counties within the state of Idaho, or any of them, are hereby authorized and empowered to levy a special tax on all the taxable property within their respective counties, for the purpose of creating a fund to be used for collecting, preparing and maintaining an exhibition of the products and industries of the county at any domestic or foreign exposition, for the purpose of encouraging immigration and increasing trade in the products of the state of Idaho: Provided, the total tax levies for such purposes in any year shall not exceed one (1) mill on each one dollar ($1.00) of taxable property in the county, according to the assessment roll." Appellant contends that the statute relied upon is repugnant to article 12, § 4, of the state Constitution, which, so far as the same is applicable, reads as follows: "No county, * * by vote of its citizens or otherwise, shall ever become a stockholder in any joint stock company, corporation or association whatever, or raise money for, or make donation or loan its credit to, or in aid of, any such company or association." Article 8, 4, of the Constitution, is as Appellant cites the case of Fluharty v. Board of County Commissioners, 29 Idaho, 203, 158 Pac. 320, as controlling in this case. In that case it was held that the act of the board of county commissioners, in making donation to and in aid of the Northwest Live Stock Association, a private corporation, was in violation of article 12, § 4, of the Constitution. In this case, however, the board of county commissioners levied the tax for the purposes named in the statute above quoted. There is nothing in this action to indicate that Nez Perce county has become, or intends to become, a stockholder in any jointstock company, corporation, or association or that the county intends by its action to raise money for, or make donation or lend its credit to, or in aid of, any individual, as "First-The Legislature may authorize taxation for a public purpose, but a tax imposed for an object in its nature essentially private is void. 1 Dillon, Municipal Corporations, § 508; Cooley, Taxation (2d Ed.) 55, 103; 25 Åm. & Eng. Ency. Law, 87, and the numerous cases cited in note 2 on said page. "Second-It is for the Legislature in the first instance to decide whether the object for which the tax is to be used or raised is a public purpose, but its determination of the question is not conclusive. Supra. "Third-To justify a court in declaring a tax invalid on the ground that it was not imposed for the benefit of the public, the absence of a public interest in the purpose for which the money is raised by taxation must be so clear and palpable as to be immediately perceptible to every mind"-citing a number of cases. We quote from Cooley on Taxation (3d Ed.) p. 182, as follows: "It is also agreed that the determination of what is and what is not a public purpose belongs in the first instance to the legislative department. It belongs there because the taxing power is a branch of the legislative [department], and the Legislature cannot lie under the necessity of requiring an opinion or the consent of another department of the government before it will be at liberty to exercise one of its acknowledged powers." It cannot be said that the purposes for which the statute authorizes the levy to be made are private rather than public. On the contrary, it would appear that the purposes for which such a levy is authorized by the statute conduce to the promotion of the general welfare, and to some extent are educational in their nature. State v. Cornell, supra; State v. Robinson, 35 Neb. 401, 53 N. W. 213, 17 L. R. A. 383; Daggett v. Colgan, 92 Cal. 53, 28 Pac. 51, 14 L. R. A. 474, 27 Am. St. Rep. 95; Shelby County v. Tennessee, etc., Exposition Co., 96 Tenn. 653, 36 S. W. 694, 33 L. R. A. 717; Norman v. Kentucky Board of Managers, World's Columbian Exposition, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556. See, also, Harrington v. Atteberry, 21 N. M. 50, 153 Pac. 1041. It cannot be successfully maintained that the tax is authorized for the benefit of the state, rather than the county, and that therefore a tax for such purpose should be uniform throughout the state. While the state at large might receive some benefit, the principal object sought to be obtained inures to the benefit of the county itself. Cooley on Taxation (3d Ed.) p. 229 et seq. The order is affirmed. Costs awarded to respondents. (Syllabus by the Court.) 1. LANDLORD_AND TENANT 114(2), 118(3)DEFECTIVE LFASE-TENANCY-TERM, A tenant in possession under a void or defective lease for a term of years creates a tenancy at will, and, if periodical rent be paid, the tenancy becomes one from year to year-following Peters v. Holder, 40 Okl. 93, 136 Pac. 400. 2. INDIANS 16(6, 10)-CONDITIONAL LEASE -ASSIGNMENT OF RENTS RIGHTS. Neither the attempted assignment of rents nor the conditional lease contract, referred to in the opinion and relied upon by the plaintiff in error, as a basis of recovery in the instant case, conferred upon him any enforceable legal rights for the reason that the restricted Indian executing such instruments was without legal capacity to make the same. Commissioners' Opinion, Division No. 2. Error from District Court, Delaware County; John H. Pitchford, Judge. Action by John B. Guffey against J. B. Pollan. Judgment for the defendant, and plaintiff brings error. Affirmed. J. G. Austin, of Miami, and Ad. V. Coppedge, of Grove, for plaintiff in error. W. C. Hall, of Oklahoma City, and E. B. Hunt, of Grove, for defendant in error. GALBRAITH, C. The plaintiff in error, as plaintiff in the trial court, commenced an action in the nature of ejectment seeking to recover possession of a certain described premises and rents and profits for the year 1916, as damages. The land involved was the allotment of a deceased Seneca Indian and had been inherited by Mary Turkey, a restricted Indian under the control of the Quapaw Indian Agency in Delaware county, Okl. Two written instruments executed by Mary Turkey and her husband, to the plaintiff, were set out in the petition as a basis for the recovery. One of these was an assignment of rents of the land for the year 1916, and the other a lease of the land for one year; the latter being conditional upon the failure of the tenant in possession to attorn to the plaintiff. It was alleged in the petition that the defendant, Pollan, was in possession of the land as the tenant of Mary Turkey, and that he had been a tenant during the years 1914, 1915, and 1916, and that he had failed and refused to attorn to the plaintiff for the rents for the year 1916, and that he had converted the same to his own use, and that the rents amount to $300. The prayer was for possession of the lands and for judgment in the sum of $300. The suit was filed on the 3d day of October, 1916, and the court held at the beginning of the trial that the action in ejectment was prematurely brought, inasmuch as it appeared from the recitals of the petition that the tenant Pollan, was in possession of the prem ises as a tenant at will, at least, and since his rentals were payable by the year, and a claim for the rentals for the year 1916 was made in the petition, that Pollan's tenancy had not been terminated, and that no right to dispossess him had accrued at the time suit was brought in October, 1916. The court held, however, that the action might be maintained for the rentals if the plaintiff had a regular assignment of them; that he might recover for the rent, notwithstanding he had no right to the possession of the land at the time suit was instituted. After hearing the testimony the court found for the defendant and entered judgment accordingly. judgment is brought here for review. This the judgment is contrary to the law and the evidence; that the court erred in dismissing the plaintiff's first cause of action, that for the possession of the land. A consideration of the record convinces us that the judgment of the trial court was right, for two reasons at least: First, because it appeared from the petition that the plaintiff did not have a right to the possession of the land at the time of the commencement of the action, and could never be entitled to the possession under the lease set out for want of power in the lessor to make the same; and, second, because the attempted assignment of the rent was void, for the reason that the Indian making the assignment was under restrictions, and had no power to make the same. It was held by the Supreme Court of the United States in Bowling v. United States, 233 U. S. 528, 34 Sup. Ct. 659, 58 L. Ed. 1080, that, this restriction "bound the land for the time stated, whether in the hands of the allottee or his heirs." In the case of United States v. Noble, 237 U. S. 74, 35 Sup. Ct. 532, 59 L. Ed. 844, the court had under consideration certain leases and assignments of rents and royalties from Indian allotments under the Quapaw Agency, and reached the conclusion that all leases for a longer period than that written in the statute, and the assignment of rents and royalties by the allottee or his heirs, were absolutely void, and in the course of the opinion the court says: [1, 2] The assignments of error are that "It necessarily follows that the allottee in the present case, having no power to convey his estate in the land, could not pass title to that part of it which consisted of the rents and royalties. It is said that the leases contemplated the payment of sums of money, equal to the agreed percentage of the market value of the minerals, and thus that the assignment was of paid in money does not make it any the less a these moneys; but the fact that rent is to be profit issuing out of the land. The further argument is made that the power to lease should be construed as implying the power to dispose of the rents to accrue. This is wholly untenable. The one is in no way involved in the other; the complete exercise of the authorthe rents and royalties to accrue, as part of the ity which the statute confers would still leave estate remaining in the lessor. It was the intent of Congress that the allottees, during the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes period of restriction should be secure in their actual enjoyment of their interest in the land. Heckman v. United States, supra [224 U. S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820]. The restriction was removed only to the extent specified; otherwise, the prohibition against alienation remained absolute." Although it appears from the evidence that the tenant, Pollan, was in possession of the premises in dispute under a void lease, it appears that he had been in possession and had paid yearly rental for the years 1914 and 1915 and had occupied the premises for the year 1916. Although the lease under which he held may have been void, yet he was a tenant from year to year, and was not subject to have the tenancy terminated at the time the suit was instituted, October 3, 1916. It was said by this court in Peters v. Holder, 40 Okl. at page 96, 136 Pac. at page 401: "An entry under a void or defective lease for a term of years creates a tenancy at will, and if periodical rent be paid the tenancy becomes one from year to year.' Tate v. Gaines, 25 Okl. 141, 105 Pac. 193, 26 L. R. A. (N. S.) 106; 24 Cyc. 1031-citing a long list of authorities in support of that proposition. Therefore Holder held as a tenant from year to year, and until his tenancy was terminated by three months' notice in writing. Section 3784, Rev. Laws 1910." It therefore appears that the assignments of error are not well taken, inasmuch as neither the attempted transfer of rentals nor the lease of the land relied upon by the plaintiff as a basis of recovery in the action were of any legal force or effect. Neither of those papers considered separately, nor both of them taken together, conferred upon the plaintiff any enforceable legal right. The judgment appealed from was correct, and should be affirmed. PER CURIAM. Adopted in whole. any part of the principal or interest secured by a prior mortgage, then the mortgagee shall have the privilege of paying such taxes, discharging such liens, and performing the terms and conditions of said prior mortgage, and all sums so paid out and expended by the mortgagee shall be repaid by the mortgagor and shall be secured by the lien of the mortgage, imposes no obligation upon the mortgagee to make payment of taxes or perform the conditions of the prior mortgage, and such provision is not inconsistent with the right of the mortgagee to pay such taxes and perform the conditions of the prior mortgage to protect the lien of his mortgage; nor does such provision forbid such mortgagee being subrogated to the superior lien of taxes and of the first mortgage for sums paid by such mortgagee in satisfaction thereof to protect the security of his mortgage. 4. SUBROGATION 17-RIGHTS OF LIENORSSTATUTE. sistent with section 3840. Rev. Laws 1910, and the rights given a lienholder by said section 3825 do not defeat and render ineffectual the rights given such lienholder by said section 3840. 5. ELECTION OF REMEDIES 7(1)-ACTS CONSTITUTING-PARTIES DEFENDANT. Section 3825, Rev. Laws 1910, is not incon Plaintiffs, having filed a petition against one defendant seeking such relief as they were entitled to against said defendant, thereafter filed an amended petition, in which other parties were made defendants against whom further and additional relief was asked not prayed for in the first petition, and to which he was not entitled as against the original defendant. The filing of such original petition does not constitute such an election by the plaintiffs of their remedy as to estop them from seeking the relief to which they may be entitled against the other defendants, no elements of estoppel having been pleaded or shown. 6. SUBROGATION 17-TAXATION 531(2) -PAYMENTS BY JUNIOR MORTGAGEE. Plaintiffs, holders of a third mortgage executed upon a leasehold interest and a buildthe defendants, whose lien for rents under the ing erected upon demised premises owned by terms of the lease was superior to the mortgage of the plaintiffs, but who had joined with the lessee in the execution of notes and of a first mortgage upon the building and the fee of the demised premises, paid installments of principal and interest due upon the first mortgage covering both the leasehold and the fee of the demised MARKS et al. v. BAUM BLDG. CO. et al. premises, and paid delinquent taxes assessed (No. 8534.) (Supreme Court of Oklahoma. May 21, Rehearing Denied Oct. 29, 1918.) (Syllabus by the Court.) 1918. against the leasehold estate and the fee of the demised premises as a whole. Held, that as between the plaintiffs and defendants, lessors, the plaintiffs were entitled to subrogation for the sums so paid by them in discharging the installments of principal and interest due upon 1. TAXATION 531(2) — PAYMENT - JUNIOR the first mortgage, and were entitled to be subMORTGAGEE-LIEN. rogated to a prior lien for the taxes so paid by The right of a junior mortgagee to be sub-plaintiffs, the equity of plaintiffs being superior rogated to the lien of taxes upon the mortgaged to that of defendants. property paid by him is not defeated because, at the time the loan secured by such junior mortgage was made, the taxes so paid were delinquent. 2. SUBROGATION 17-JUNIOR MORTGAGEEPROTECTION OF INTEREST. One who has an interest in property by virtue of a mortgage lien, in making payment of prior liens to protect his interest, is not a mere volunteer, and is entitled to be subrogated to the rights of the superior lienholder. 3. SUBROGATION 17-TAXATION 531 (2) -PAYMENT BY JUNIOR MORTGAGEE-LIENCONSTRUCTION OF MORTGAGE PROVISIONS. A provision in a mortgage upon real estate that, if the mortgagor shall fail to pay taxes or special assessments, or fail to pay when due 7. SUBROGATION 28-PARTIAL PAYMENT OF LIEN. While, as a general rule, one will not be entitled to subrogation to a lien which he has only partly satisfied, yet this rule is subject to the qualification that, when the indebtedness secured by the prior lien is payable in installments, a junior lienholder who pays an installment for the protection of his own security will, as against the mortgagor, be subrogated to the rights of the holder of the superior lien, subject to any balance due upon such superior lien. Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; John W. Hayson, Judge. Suit by I. E. Marks and others against On February 12, 1913, plaintiffs commenced Baum Building Company and Anna L. Overholser, guardian of Henry Overholser, an incompetent, and the Union Trust Company with answer and cross-petition by defendant Overholser. From a judgment denying a right of subrogation, plaintiffs bring error. Reversed and remanded, with directions to enter judgment for plaintiffs. Asp, Snyder, Owen & Lybrand, of Oklahoma City, for plaintiffs in error. Everest & Campbell, of Oklahoma City, for defendants in error. this action against the Baum Building Company, a corporation, alleging the execution and delivery of the third mortgage to plaintiffs, praying the appointment of a receiver, and praying a money judgment against the Baum Building Company for the amount due under the third mortgage and a foreclosure thereof. The petition further alleges the payment of the sums hereinbefore set out to secure the lien of the plaintiff, and prays "judgment of the court that the lien of the third mortgage be extended over and declared to be one to secure the payment of the principal and interest upon said sum in this paragraph mentioned as having been advanced and paid upon the indebtedness secured by said first and second mortgages." A receiver was appointed to take charge of the Baum building, as prayed in plaintiffs' petition. On July 5, 1913, plaintiffs filed their first amended petition, again making the Baum Building Company the only defendant. This amended petition alleges the facts set forth in the original petition, and in addition additional taxes paid, and prays for a foreclosure of plaintiffs' mortgage, and that the receiver be continued in charge of the assets of the corporation. On January 7, 1915, plaintiffs filed their second amended petition, to which Anna L. Overholser, guardian of the person and estate of Henry Overholser, an incompetent, and the Union Trust Company are made defendants with the Baum Building Company. This petition sets forth facts alleged in the first two petitions, and prays subrogation to the first mortgage, subject to any balance due on said first mortgage for the amount paid by plaintiffs on such first mortgage, and prays to be subrogated to the lien of the taxes paid by plaintiff. RUMMONS, C. On January 1, 1909, the defendants in error, Henry Overholser and Anna Overholser, hereinafter styled defendants, leased to M. J. Baum two lots in Oklahoma City for a period of 99 years, at a yearly rental of $7,200, payable in monthly installments of $600 each, the lessee agreeing to pay all taxes on both the leasehold estate and the fee during the term of the lease. It was further agreed that the lessee would erect a building upon the premises, which, at the termination of the lease, was to become the property of the defendants at an appraised value. The lease provided that, on default in the payment of rent or taxes after 60 days' notice, the lessors might declare the term at an end and foreclose the interest of the lessee. The lease was by its terms assignable, and was assigned by Baum to the Baum Building Company, a corporation, which erected a building upon the premises. The defendants and the lessee further agreed that the defendants were to join the lessee in the execution of a mortgage upon both the leasehold and the fee for the sum of $70,000. On August 1, 1909, the lessors and the lessee executed seventy $1,000 promissory notes to the Union Trust Company, securing the payment thereof by a mortgage covering both the leasehold and the fee. On July 29, 1911, the lessee executed to the Union Trust Company a mortgage for $30,000 upon the leasehold estate alone. On February 8, 1912, the lessee executed a third mortgage upon the leasehold alone for the sum of $50,000 to the plaintiffs in error; hereinafter designated as plaintiffs. The first mortgage of $70,000 to the Union Trust Company was payable in installments. On February 1, 1913, there were due installments of principal and interest on the first mortgage by the defendants and the lessee in the sum of $6,950, and M. J. Baum and the Baum Building Company were insolvent. Plaintiffs [1] The only question involved in this apon said date paid this sum to the first mort-peal is whether or not the plaintiffs were gagee. On September 5, 1912, the taxes for the year 1911 being delinquent, and the leasehold and fee being about to be sold for such taxes, plaintiffs paid the same in the sum of $3,483.04, and on June 28, 1913, under like circumstances, plaintiffs paid the taxes for the first half of the year 1912 on said leasehold estate and fee in the sum of The defendants Overholser filed answer and cross-petition, alleging default in the payment of rent and taxes under the terms of the lease, and praying a foreclosure of the lien provided by said lease. The first mortgage was not attempted to be foreclosed in this action. On the trial the court foreclosed the interest of the Baum Building Company in the leasehold to satisfy the lien of the defentiants Overholser and to satisfy the lien of the third mortgage of the plaintiffs, which was inferior to the lien of the defendants. The court denied subrogation to the plaintifs, and plaintiffs appeal. entitled to be subrogated to the lien of the first mortgage for the sums of principal and interest paid thereon by plaintiffs and to the lien of the taxes paid by plaintiffs. In the consideration of this question we deem it advisable to consider the reasons advanced ty defendants for denying the right of subrogation to the plaintiffs. It is first urged by $3,483.04, taxes for the year 1911, the plaintiffs are mere volunteers, for the reason that these taxes were delinquent at the time the plaintiff's made the loan of $50,000 upon the execution of the third mortgage on the leasehold estate. It is contended that, these taxes being delinquent at the time the third mortgage was taken, the plaintiffs must have contracted with reference to them, and it was their duty to have protected themselves out of the sum of $50,000 lent on the security of the third mortgage. We have carefully examined the authorities cited by counsel for defendants in support of this proposition, but they do not convince us. The case of Gadsden v. Brown, Speer's Eq. (S. C.) 37-41, cited by counsel for defendants, reads: "The doctrine of subrogation is a pure unmixed equity, having its foundation in the principles of natural justice, and from its very nature never could have been intended for the relief of those who were in a condition in which they were at liberty to elect whether they would or would not be bound, and, as far as I have been enabled to learn its history, it never has been so applied. If one, with the perfect knowledge of the facts, will part with his money, or bind himself by his contract, on a sufficient consideration, any rule of law which would restore him his money or absolve him from his contract would subvert the rules of social order. It has been directed in its application exclusively to the relief of those that were already bound, who could not but choose to abide the penalty. Sureties, for example, who have before become bound, are amongst the especial objects of its care. * "Another example of the application of the principle will be found in the case where two creditors have mortgages or other liens on the same property from the same debtor. There, if the subsequent creditor pay the prior debt, he is entitled to be substituted to the rights of the prior creditor, as a means, without injury to the prior creditor, of enabling him to secure the payment of his own debt. But I have seen no case, and none has been referred to in the argument, in which a stranger, who was in a condition to make terms for himself, and demand any security he might require, has been protected by the principle." The language of this case and the facts involved therein do not support the contention of counsel for defendants. In that case Gadsden, at the request of Carroll, advanced $5,000 to be appropriated to the satisfaction of Carroll's bond and mortgage to one Pinckney. He took from Carroll a bond for the $5,000 and a mortgage on 11 slaves to secure the payment. The chancellor held that Gads den was not entitled to be subrogated to the rights of Pinckney in the mortgage extinguished and satisfied by the money advanced by him, holding that in paying off the Pinckney mortgage he acted as a volunteer, and that, having secured for the money advanced the security for which he contracted, he would be bound by the contract and not entitled to subrogation. In the case of Mercantile Trust Co. v. Hart, 76 Fed. 673, 22 C. C. A. 473, 35 L. R. A. 352, subrogation was asked by a county treasurer who received checks for taxes required to be paid in cash, and paid over the amount of such taxes to the state, city, or board of education. It was held that, as against the bondholders under a mortgage by the taxpayer, he was a mere volunteer and not entitled to subrogation. The doctrine of Gadsden v. Brown has been followed by this court in Kahn v. McConnell, 37 Okl. 219, 131 Pac. 682, 47 L. R. A. (N. S.) 1189, and Employés' Building and Loan Ass'n v. Crafton, 164 Pac. 473. In the case last cited plaintiff lent money to pay two mortgages, which were satisfied, and took a mortgage to secure the sum lent. Before the execution of this mortgage Martin established a lis pendens, which subsequently ripened into a judgment under which the land mortgaged was sold. Plaintiff was held a mere volunteer, and not entitled to subrogation to the lien of the mortgages satisfied by the money lent by him. In the instant case the plaintiff advanced $50,000, taking a third mortgage as security, subject to two prior mortgages, and, of course, to taxes; the money was not advanced to satisfy prior liens. To carry the argument of counsel for defendants to its logical conclusion would wipe out the right of subrogation on the part of a subsequent mortgagee in every case, since a subsequent mortgagee must in all cases contract with knowledge, actual or constructive, of the prior liens upon the property mortgaged. We can observe no logical distinc tion between a prior lien which has not yet matured and one that has become delinquent. In each case the primary duty of discharging the prior lien rests upon the mortgagor, and the subsequent lienholder has the right to presume that such lien will be satisfied by the mortgagor until he is required to act to protect his security from a foreclosure of such prior lien. [2] It has been universally held by the authorities that one who has an interest in property by lien or otherwise, in making payment of prior liens, is not a mere volunteer, and that he will be entitled, upon paying off a superior lien, to protect his own lien to be subrogated to the rights of the superior lienholder. Crumlish's Administrator v. Central Improvement Co., 23 L. R. A. note, p. 127; Union Mortgage Banking & Trust Co. et al. v. Peters & Trezevant et al., 72 Miss. 1058, 18 South. 497, 30 L. R. A. 829; Employés' Building & Loan Ass'n v. Crafton, supra; Horr v. Herrington, 22 Okl. 590, 98 Pac. 443, 20 L. R. A. (N. S.) 47, 132 Am. St. Rep. 648; New v. Smith, 94 Kan. 6, 145 Pac. 880, L. R. A. 1915F, 771, Ann. Cas. 1917B, 362; Boley v. Daniel, 72 Fla. 121, 72 South. 644, L. R. A. 1917A, 734. [3] It is next urged that the payment made by the plaintiffs was under and by virtue of the provisions of the mortgage itself, and that plaintiffs, having provided a remedy by contract, are not at liberty to disregard it, but are bound by it. The mortgage contained the following provision: "If the first party fails to pay any taxes or special assessments, or procure and maintain insurance as herein provided, or shall permit |