I do not agree with the conclusion reached by the court in this case. The action is for the recovery of a municipal tax. It is sought to recover a personal judgment and to subject the property of the defendant to a lien for the recovery of the tax. It seems to be admitted that the action is well brought, unless the right of action is barred by section 338 of the Code of Civil Procedure. The court holds that such right is barred because the action was not commenced within three years.
Section 3716 of the Political Code reads as follows: “Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all property of the delinquent; and the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.”
It is decided that not only has the statute run against the right to maintain a personal action, but against the right to foreclose the lien as well. At the same time the code provision is construed to mean that the lien continues until the taxes are paid or the property has been sold for the payment thereof. It is held that the statutory lien continues and will never become barred, but that there is now no mode in which the tax can be collected or the lien foreclosed. The lien is said to constitute a right without a remedy. It is not that the law has not provided a mode for the foreclosure of the lien, but that by reason of the bar of the statute the tax cannot be collected at all, through a sale of the property upon which it constitutes a lien or otherwise.
What is meant, under such circumstances, by saying that the lien continues after the right to collect the tax from the property in any mode has ceased, I am unable to comprehend. A lien is necessarily an incident to an obligation, and the purpose is to secure performance. ' *178When it ceases to be security for such performance it has ceased to exist. If it could continue it would not be a right without a remedy, but a remedy without a right—redress when there was nothing to redress. Of course, as it is always an incident, it must fall with the principal, although the converse does not follow.
As an example of a right without a remedy, reference has been made to cases in which the right to a personal action is barred while there is still a right to foreclose a lien given to secure it. An unfortunate reference, for the point in all such cases is that the obligation may be enforced by foreclosing the lien. It is also said that the bar of the statute does not extinguish the debt but only bars the remedy. This too is error. As a legal obligation a debt is extinguished by the bar of the statute. It continues to exist only as a moral obligation which is sufficient consideration for a new contract. In the cases above alluded to, in which it was held that a suit would lie to foreclose a mortgage, although the note was barred, the note and mortgage were regarded as distinct obligations or agreements to pay the same debt. The doctrine was sometimes based upon the fact that the mortgage was under seal and the note was not, and different periods of limitation were prescribed, and sometimes on the claim that the limitation did not apply to courts of equity. Sometimes, too, it may be, because title passed by the mortgage to the mortgagee, and courts would not enforce a right to redeem until the debt was paid, on the principle that he who seeks equity must do equity. On the same principle this court has refused to compel the satisfaction of a mortgage by a mortgagee after the mortgage had become barred—not that there is a subsisting lien, but because the court will not grant affirmative relief in violation of the maxim above alluded to.
At common law a lien was simply a right to retain possession until an obligation was performed. In equity a lien might be a right to sell certain property for the payment of a debt, or an amount falling due *179upon the nonperformance of an obligation. The lien could exist without possession, and be enforced by foreclosure and sale. A lien may arise in various ways. It is always a charge upon property, and when there ceases to be a charge there can be no lien. (See Code Civ. Proe., sec. 1180.) It is security for the performance of an obligation, and, when the obligation ceases to be, it is a contradiction in terms to say that the lien exists. Therefore, if it be conceded, as it is in the leading opinion, that the effect of the section of the code above recited is that the lien is never barred, it must follow that the obligation to pay the tax is not barred.
What is the lien of a tax? It is the right to collect the amount of the tax from the property. This right does not merely result from the lien—it is the lien. To say that the lien continues, but cannot be enforced in any mode, is to say that the right to collect the tax from the property continues and is not barred, yet the right to collect the tax from the property is wholly barred. It is a contradiction in terms.
What I have said is upon the theory that section 3716 is correctly construed as providing that the lien shall never be barred by the statute. That section makes the lien a judgment lien, and, I think, plainly the judgment and lien go together. If the section is to be understood as providing that the lien continues without regard to limitation until the tax is paid, it must also be understood as providing that the judgment continues. It as emphatically declares that the judgment is not satisfied as it does that the lien is not removed. Perhaps it was merely intended to say that no change in the property or its ownership should affect the lien, and no officer or board could satisfy the judgment or remove the lien. It might mean all this and have ho reference to any limitation.
If it be material to hold that the action is based upon the judgment, I think it should be held this action is *180an action upon the judgment. When facts are averred . which show the existence of a tax it also shows a judgment, for that is the judgment.