(concurring):
In 1853 Cogswell conveyed the land to Husted, who died about 1859, leaving four children, one of whom, a son, thereafter died, whereby his interest vested in his three daughters, now Post and Adams, who in 1907, conveyed to Sheridan by deed, recorded January 25, 1907. He claims under such deed two-thirds of the land, and brings this action for possession thereof in the name of his grantors, alleging that the defendant is in possession, claiming under tax leases. The defendant, after certain admissions and denials, answers that under the' statutes the deed from Adams and Post is void, ■ “ having been made by ” them to Sheridan while “ defendant was in actual possession of said premises claiming under a title adverse to that of” such grantors, and that, as is the fact, since the action was begun Adams and Post conveyed to the defendant. For a separate defense defendant states that in 1884-John Canning duly obtained a tax lease from the county treasurer for 10,000 years of a portion of the premises, and entered into pos- . session, and that after “ divers conveyance, and in or about the year 1898, title to said premises became vested in said defendant, who entered into possession thereof and has continued in possession ever since and that about the month of October, 1887, Mrs. John Canning obtained a similar lease of a ¡portion of the premises, and that she entered into possession, and that after divers conveyance the title vested in, the defendant and that he entered into possession and continues it. The defendant further alleges that the plaintiff or any of her predecessors have not been possessed of the premises within twenty years last passed before the commencement of the action, and that the defendant and his grantors have been in undisturbed possession thereof, claiming .absolute title to and right to possession of said lands, and such possession has been open, visible, continuous, unbroken and adverse for more than twenty years prior to the commencement of the action. As I understand his position, defendant contends (1) that plaintiff cannot sué in her grantors’ names as their deeds were delivered in violation of the statute and are void, as he was in possession under an adverse title; (2) that the plaintiff has not shown title in Cogswell or possession by him or his successors at any time,, much less within twenty years; (3) that defendant has the right to possession under tax leases *860and the title and right to possession by adverse possession. As indicated, the answer states the very fact that would enable the plaintiff to bring the a'ction in the name of -her grantors, and his attitude is consistent through the trial. When .the plaintiff rested, the objection to the-party plaintiff was not made, while his motion for a verdict is upon the ground, among others, that “ the plaintiff’s deeds from her grantors are void under the Statutes.” The very fact that lie assumes in his motion enables the action to be' brought pursuant, to section 1501'of the Code of Civil Procedure. It is quite late at this time to present the objection.
It is necessary to scrutinize the defendant’s holding. The.answer states that he had two leases received by Canning or Mrs. Canning from the county treasurer in 1884 or 1887. Canning’s evidence shows that lie-bought the lots a number of. times before he received a tax lease. He thinks he was in possession before lie received the leases. He did what he did do in the way of cultivating, fencing, building and as he says, the leases “ ought to show how long I have had them.” He. was asked what right he had to move on the place and he answered : “ The right was I had a tax claim on it. I' had a lease, tax lease. - I don’t mean these two1 leases here that I sold to •Mr. Cardwell. I had others; I had other tax leases.” A study of his further examination shows that he had no knowledge of actual leases except the two of 1884 or 1887, and he sold to the defendant by assigning these -leases. They were then the basis of his holding. The defendant took possession in 1900. Canning says: “ I knew I had a tax title to it, and I sold it; that was enough for me.” How,, then, can it be urged that Canning had title by&d'verse possession ; that he was holding adversely to the plaintiff and predecessors and also to the source of his tax title. Is it not plain that there is no title by adverse possession even claimed by Canning ? The defendant hashad possession only since 1900. So he makes no title by adverse possession. But Canning held under the tax leases executed by the county treasurer, who carved from the estate of some persons taxed, this leasehold, as the statute enabled. him to do. Both tax deeds show that such persons were the “ heirs of Lawrence- V. Husted,” as do the assignments. So defendant and Sheridan (virtual plaintiff) have title from the same person, and defendant’s leasehold is carved out of the heirs’ fee, and defendant asserts a *861right to hold by the attempted exercise "of a power given to the county treasurer to create a leasehold out of their fee. . Defendant holds then in subjection to the plaintiff’s title. In other words, defendant’s lease flows from the heirs’ title, and in view of failure to claim adversely to it, the defendant, so far as the evidence shows, can claim under no other title. So then defendant’s possession has been the possession.of the owner of the fee, and if the action were dependent on a breach on the part of the lessee, it would not be necessary for the plaintiff to show possession within twenty years or at any time. Otherwise after twenty years the lessee could always invoke section 365 of the Code. But the question is whether the owner of the fee can invoke this doctrine in the present action. I think that he cannot assert that the lease flowed from the heirs to avoid the twenty years’ statute and proof of possession, and then reverse his position and assert that there was no valid lease. I conclude that Sheridan has not traced her title to the original patentee, or to any predecessor in possession, nor was she or any'under whom she claims seized as required by section 365 of the Code.
The order setting- aside the verdict should be reversed and the judgment reinstated, and the order denying plaintiff’s. motion for judgment should be affirmed.
Order setting aside verdict and directing a new trial reversed, with costs, and order denying plaintiff’s motion for judgment affirmed, with costs.