Gose, J.
This is a suit to recover rent for the use and occupation of real estate, situate in the state of Idaho. At the close of plaintiff’s case, a judgment of nonsuit was entered, and she has appealed.
It is alleged that, for some time prior to October, 1903, the respondent corporation, limited, occupied the premises [13]*13under a lease which expired on that day; that it continued to occupy the premises until the 19th day of February, 1904, and that the other respondent has since occupied and been in possession of the premises; and that the two respondents, while differing in name, “are identical in interest,” and that the stock of the two corporations, “is owned and the business, affairs and the management thereof are under the direction and control of the same persons.”
The respondent Coeur d’Alene Lumber Company pleads affirmatively that, for more than ten years last past, it and its predecessors in interest have owned the premises in fee simple, and have been and continue “in open, notorious possession” thereof, and have paid the taxes levied thereon by the county in which it is situated. This was put in issue by the reply. At the trial it was shown by documentary evidence that the respondents have been adjudged to be trespassers upon the land, by a judgment entered in the district court of the first judicial district of Idaho, and that the judgment has been affirmed by the supreme court of that state. The appellant bases her right to recover upon Rem. & Bal. Code, § 8805, which provides:'
“Whenever any person obtains possession of premises without the consent of the owner or other person having the right, to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the-actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his. right to possession of said premises shall terminate immediately upon said demand.”
In the absence of pleading and proof that the laws of the-state of Idaho are different from the laws of this state, they will be presumed to be the same. Gunderson v. Gunderson, 25 Wash. 459, 65 Pac. 791.
The judgment of nonsuit was entered on the ground that the action is one “affecting the title” to real property, and' that the court was without jurisdiction. This is the only [14]*14question presented for our determination. Rem. & Bal. Code, § 204, provides that actions “for the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the title or for any injuries to real property,” shall be commenced in the county in which the subject of the action, or some part thereof, is situated. We do not think the action affects the title to the property within the meaning of the statute. The purpose of the action is to recover a money judgment for the reasonable rental value of the property. In other words, the action is for the breach of an implied contract. Under the averments of the complaint, the respondents are tenants by sufferance and liable for the reasonable rental value. The fact that the answer sets up title in the respondent, and brings the title incidentally into issue, does not make the action a local one. It is not sought to obtain a judgment which will in any manner affect title. That question must be left to the courts of the forum rei sitae. If a suit was brought in the courts of this state upon a promissory note, and the answer alleged that the consideration for the note was the sale and conveyance of real property in another county or state, and that there was no title to the property conveyed, a like question would be presented. _ Obviously such an action would be transitory. This view, we think, is supported by the authorities. Henwood v. Cheeseman, 3 Serg. & R. (Pa.) 500; Menominee River Limber Co. v. Philbrook, 78 Wis. 142, 47 N. W. 188; Hogg v. Mack, 53 Hun 463; Nichols v. Voorhis, 74 N. Y. 28; Schroeder v. Wittram, 66 Cal. 636; Smith v. Schlink, 6 Colo. App. 228; 12 Ency. Plead. & Prac. 852; 2 Taylor, Landlord & Tenant (8th ed.), 625; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614; State ex rel. Scougale v. Superior Court, 55 Wash. 328, 104 Pac. 607.
In the Henwood case, it was held that the courts of Pennsylvania had jurisdiction of an action of assumpsit for the use and occupation of land lying in the state of New Jersey; that [15]*15the action was founded on privity of contract, not privity of estate, and that, “when the title is incidental the court possessing jurisdiction of the contract which is in its nature transitory, may even inquire into the very title let the lands lie where they may.” The Menominee case was an action for the unlawful detention of premises after the expiration of the lease. The action was commenced before a justice of the peace. The defendant pleaded facts showing that it was the owner of the equitable title to the property. It was held that, if the facts stated in the answer were true, the defendant was the equitable owner of the premises, and that the relation of landlord and tenant did not exist between the parties, but that the title to the land was not involved within the meaning of the statute. The Hogg case was an action to recover money paid on a written agreement for the purchase of real estate. The complaint alleged that the defendant agreed to convey the premises in fee simple free from all incumbrances, but that owing to certain defects and incumbrances, the defendant could not convey a good and clear title as he had agreed to do. The defense was that the defendant had a good title and was ready to convey it to the plaintiff. The action was not brought in the county where the land was situated, and it was contended that, under the New York statute, which is similar to ours, the action was local. It was held that the real purpose of the suit was to recover a judgment for money, and that the fact that the question of title to real estate may have to be passed upon in a suit does not make it imperative that the case should be tried in the county where the property is situated. The Schroeder case arose out of a similar state of facts. It was there held that the jurisdiction of the justice court was not ousted by the fact that the title to the land was-incidentally called in question. The Nichols case was an action to have it adjudged that an assessment which was am apparent lien upon real property was not such in fact. It; was held that it did not affect the title or an interest in real estate; that the mere fact that the action relates to real prop[16]*16erty, or in some way affects it, does not raise a jurisdictional question. It was said that, whether the assessment was held valid or invalid, would in no way affect the title. In the Morgan case, it was held that an action for the specific performance of a contract to convey real estate is a transitory action, and that “it would not determine any question affecting the title in the sense in which the word title is evidently employed in the statute.” In State ex rel. Scougale v. Superior Court, supra, it was held that an action to impress a trust on real estate is not a local action within the meaning of the statutory provision we have quoted.
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Gose, J.
This is a suit to recover rent for the use and occupation of real estate, situate in the state of Idaho. At the close of plaintiff’s case, a judgment of nonsuit was entered, and she has appealed.
It is alleged that, for some time prior to October, 1903, the respondent corporation, limited, occupied the premises [13]*13under a lease which expired on that day; that it continued to occupy the premises until the 19th day of February, 1904, and that the other respondent has since occupied and been in possession of the premises; and that the two respondents, while differing in name, “are identical in interest,” and that the stock of the two corporations, “is owned and the business, affairs and the management thereof are under the direction and control of the same persons.”
The respondent Coeur d’Alene Lumber Company pleads affirmatively that, for more than ten years last past, it and its predecessors in interest have owned the premises in fee simple, and have been and continue “in open, notorious possession” thereof, and have paid the taxes levied thereon by the county in which it is situated. This was put in issue by the reply. At the trial it was shown by documentary evidence that the respondents have been adjudged to be trespassers upon the land, by a judgment entered in the district court of the first judicial district of Idaho, and that the judgment has been affirmed by the supreme court of that state. The appellant bases her right to recover upon Rem. & Bal. Code, § 8805, which provides:'
“Whenever any person obtains possession of premises without the consent of the owner or other person having the right, to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the-actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his. right to possession of said premises shall terminate immediately upon said demand.”
In the absence of pleading and proof that the laws of the-state of Idaho are different from the laws of this state, they will be presumed to be the same. Gunderson v. Gunderson, 25 Wash. 459, 65 Pac. 791.
The judgment of nonsuit was entered on the ground that the action is one “affecting the title” to real property, and' that the court was without jurisdiction. This is the only [14]*14question presented for our determination. Rem. & Bal. Code, § 204, provides that actions “for the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the title or for any injuries to real property,” shall be commenced in the county in which the subject of the action, or some part thereof, is situated. We do not think the action affects the title to the property within the meaning of the statute. The purpose of the action is to recover a money judgment for the reasonable rental value of the property. In other words, the action is for the breach of an implied contract. Under the averments of the complaint, the respondents are tenants by sufferance and liable for the reasonable rental value. The fact that the answer sets up title in the respondent, and brings the title incidentally into issue, does not make the action a local one. It is not sought to obtain a judgment which will in any manner affect title. That question must be left to the courts of the forum rei sitae. If a suit was brought in the courts of this state upon a promissory note, and the answer alleged that the consideration for the note was the sale and conveyance of real property in another county or state, and that there was no title to the property conveyed, a like question would be presented. _ Obviously such an action would be transitory. This view, we think, is supported by the authorities. Henwood v. Cheeseman, 3 Serg. & R. (Pa.) 500; Menominee River Limber Co. v. Philbrook, 78 Wis. 142, 47 N. W. 188; Hogg v. Mack, 53 Hun 463; Nichols v. Voorhis, 74 N. Y. 28; Schroeder v. Wittram, 66 Cal. 636; Smith v. Schlink, 6 Colo. App. 228; 12 Ency. Plead. & Prac. 852; 2 Taylor, Landlord & Tenant (8th ed.), 625; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614; State ex rel. Scougale v. Superior Court, 55 Wash. 328, 104 Pac. 607.
In the Henwood case, it was held that the courts of Pennsylvania had jurisdiction of an action of assumpsit for the use and occupation of land lying in the state of New Jersey; that [15]*15the action was founded on privity of contract, not privity of estate, and that, “when the title is incidental the court possessing jurisdiction of the contract which is in its nature transitory, may even inquire into the very title let the lands lie where they may.” The Menominee case was an action for the unlawful detention of premises after the expiration of the lease. The action was commenced before a justice of the peace. The defendant pleaded facts showing that it was the owner of the equitable title to the property. It was held that, if the facts stated in the answer were true, the defendant was the equitable owner of the premises, and that the relation of landlord and tenant did not exist between the parties, but that the title to the land was not involved within the meaning of the statute. The Hogg case was an action to recover money paid on a written agreement for the purchase of real estate. The complaint alleged that the defendant agreed to convey the premises in fee simple free from all incumbrances, but that owing to certain defects and incumbrances, the defendant could not convey a good and clear title as he had agreed to do. The defense was that the defendant had a good title and was ready to convey it to the plaintiff. The action was not brought in the county where the land was situated, and it was contended that, under the New York statute, which is similar to ours, the action was local. It was held that the real purpose of the suit was to recover a judgment for money, and that the fact that the question of title to real estate may have to be passed upon in a suit does not make it imperative that the case should be tried in the county where the property is situated. The Schroeder case arose out of a similar state of facts. It was there held that the jurisdiction of the justice court was not ousted by the fact that the title to the land was-incidentally called in question. The Nichols case was an action to have it adjudged that an assessment which was am apparent lien upon real property was not such in fact. It; was held that it did not affect the title or an interest in real estate; that the mere fact that the action relates to real prop[16]*16erty, or in some way affects it, does not raise a jurisdictional question. It was said that, whether the assessment was held valid or invalid, would in no way affect the title. In the Morgan case, it was held that an action for the specific performance of a contract to convey real estate is a transitory action, and that “it would not determine any question affecting the title in the sense in which the word title is evidently employed in the statute.” In State ex rel. Scougale v. Superior Court, supra, it was held that an action to impress a trust on real estate is not a local action within the meaning of the statutory provision we have quoted.
The respondents have cited a line of authorities which hold that actions for injuries to real property must be brought in the forum rei sitae. Our statute expressly so provides. They further contend that an action to recover rent will not lie against one who is claiming an adverse title, and cite Pico v. Phelan, 77 Cal. 86, 19 Pac. 186, and Fender v. Rogers, 97 Ill. App. 280. These cases announce the rule that an action for use and occupation does not lie where possession from the beginning was adverse and hostile to the owner. They proceed from the common law principle that rent is not recoverable of a tenant by sufferance. Wood, Landlord & Tenant, § 11; Taylor, Landlord & Tenant (8th ed.), § 21. In the case at bar, the possession was not hostile in the beginning, but as the complaint avers was obtained by an express written contract. Moreover, it was competent for the legislature to change the common-law rule and z'equire the party in possession to attoz’n to the actual owner of the pi'operty. We think the section we have quoted has accomplished that purpose. It is true that the statute permits a recovery of rent for use and occupation where possession has been obtained without the consent of the ownez-, while another statute is z-unning in favor of the occupant which, if continued for a sufficient length of time, would ripen into title. While there is an inconsistency in the two statutes, neither trenches upon the power vested in another branch of the govezmment. The authorities [17]*17are not in entire harmony, but we think the better rule is that the action is transitory.
It follows that the learned trial court erred in granting the nonsuit. The judgment is reversed.
Parker and Fullerton, JJ., concur.