majority">MITCHELL, J.

The material facts may be stated thus:

In January, 1886, the plaintiff, as lessor, and others, as lessees, executed a lease for the term of seven years, by the terms of which the lessees covenanted to pay an annual rental, and all taxes and assessments on the demised premises. It was covenanted in the lease that the lessees, their heirs or assigns, might, at any time within 60 days next preceding the expiration of the term, remove any buildings placed by them upon the premises, provided they should have then paid all rents and taxes due or to accrue up to. the expiration of the term. One of the conditions expressed in the lease *377was that, if the lessees or their assigns should default for 90 days in the payment of rents or taxes, the lease should become ended and determined, and all rights of the lessees under it forfeited and lapsed, as fully as if it had expired by lapse of time, and all buildings on the premises become the property of the lessor, who should have at once the right of re-entry to the same°as if the term of the lease had expired. The lessees assigned to the Liljengren Furniture & Lumber Company, which went into possession, and erected buildings of the value of $11,000, and subsequently executed two mortgages on their leasehold interest. In May, 1890, the plaintiff, as receiver in insolvency of the furniture and lumber company, took possession of the premises, and so remained until March, 1891, when he was required to surrender possession, and account for what rents he had received to a special receiver, appointed in a foreclosure suit instituted by Barrett and Veazie, the mortgagees of the furniture and lumber company. This special receiver remained in possession until these mortgagees acquired title under the foreclosure sale, when they went into possession as assignees of the lessees. In July, 1893, the plaintiff commenced an action against Barrett and Veazie, setting up the terms of the lease, alleging a default in the payment of rent due September 1, 1892, and of taxes for several years, including those for 1890, and asking that the court find the amount due from them on account of unpaid rent and taxes, and fixing the time within which the amount so found due should be paid to plaintiff, and that, in case such amount was not paid within the time fixed, all rights of Barrett and Veazie to the premises and buildings thereon should be terminated. Judgment was rendered in accordance with the prayer of the complaint, adjudging the amount due the plaintiff for rent and taxes, including taxes for 1890, to be $o,248, and fixing the time within which it should be paid at two months. Barrett and Veazie having failed to pay the amount, the plaintiff, after the expiration of the two months, obtained a final decree adjudging that all their rights under the lease in the premises and the buildings thereon were terminated and annulled. Thereupon plaintiff, under and pursuant to this judgment, took, and still retains, possession of the premises and the buildings thereon erected by the lessees, which were worth $11,000.

Plaintiff subsequently brought this action against the defendant to recover the amount of taxes on the leased premises for the year during which plaintiff was in possession as receiver, upon the theory that he had accepted and adopted the lease as assets of the estate of his insolvent, and thereby rendered himself liable on his covenants.

Conceding the law to be with the plaintiff on all other points, there is, in our opinion, one conclusive reason why he cannot maintain this action. We may assume, without deciding, that, if plaintiff *378had stood on his right of re-entry under the lease, such re-entry would not have extinguished a right of action which had previously accrued for rent or for taxes. But this was not what he did. He waived the forfeiture and right of entry under the lease by bringing a suit for equitable relief in the nature of a strict foreclosure of an equitable lien or mortgage on the defendant’s leasehold interest for the unpaid rent and taxes. Having elected to resort to such a remedy, we think he occupies the same position as a mortgagee who seeks and obtains a strict foreclosure, which operates to satisfy the debt pro tanto.

In this case the claim for rent and taxes was wholly satisfied, because the court finds that the buildings erected by the lessees were worth more than double the amount of plaintiff’s claim. Plaintiff’s contention, that this judgment was merely a judicial determination that there was a forfeiture and right of entry under the lease, cannot be maintained. The action was not brought on any such theory, nor was the relief asked for and granted consistent with it. Had plaintiff merely asserted his right of re-entry, the tenants would have had, under the statute, six months within which to reinstate the lease and regain possession by paying the amount of rent and taxes in arrear. G-. S. 1894, § 5805. The time fixed by the judgment within which the tenants might pay up was fixed at only two months. We need not inquire whether such a judgment was a proper one. It was, at most, merely erroneous, and not void. No new trial is necessary. The findings of fact, which are not assailed, entitle the defendant to judgment.

The cause is remanded, with directions to the court below to amend its conclusions of law, and order judgment for the defendant.

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