I dissent. It was held in Olney v. Sawyer, 54 Cal. 379, that in an action at law by one tenant in common against another, to be let into the possession of demanded premises, the defendant cannot justify an ouster of the plaintiff by setting up an outstanding title,—even if it be the true title,—purchased by him while in possession under the common title.
As this case is presented by the pleadings, the appeal must be determined by reference to the strictly legal rights of the respective parties. So regarding it, it was *342the duty of the defendant to let the plaintiff into the common possession. He might then have asserted his paramount legal title in a separate action.
It was decided by the former Supreme Court of New York in 1841, that when a parent having a possessory title to lands dies in possession, leaving several children his heirs at law, who succeed to such possession, it is not competent for one of such heirs, who has obtained exclusive possession of the whole of the premises, to defeat a recovery by his co-heirs of their proportional parts or shares by setting up a title acquired from the owners of the land. He must surrender possession to his co-heirs and then bring ejectment. Nelson, C. J., said: “One of the co-heirs, having derived his possession from the common ancestor, as well as through his co-heirs, is disabled while standing on this possession from disputing their title. I do not deny that the title thus set up may be valid, nor but that the party may avail himself of it after surrendering this possession. In a court of law he clearly could. There might be considerations existing between the co-heirs that would lead a court of equity to declare the purchase to have been made for the benefit of all upon proper terms.” (Phelan v. Kelley, 25 Wend. 389.) In the case at bar the plaintiff and defendant entered into the possession as tenants in common under a title derived from the same source, the defendant holding for the plaintiff to the extent of the latter’s interest.
Under our system, the equitable cousiderations referred to by Chief Justice Nelson could be alleged in a. cross-complaint. And if it appeared, for example, that the co-tenant who had been let into the possession by the purchaser of the outstanding title had paid or tendered, within a reasonable time, his proportionate share of the cost of acquiring the true title (or elected with reasonable diligence to participate in the purchase), equity might hold the purchase to have been made in part for his benefit. (Mandeville v. Solomon, 39 Cal. 125.)
*343But even if it should me made to appear that the party had indicated his intention with reasonable promptitude to participate in the purchase of the true title, there might be controlling equities which would prevent him from obtaining a decree for a conveyance of such title to an aliquot portion. Thus, in the case at bar, it would seem that the present plaintiff had but the naked legal conveyance to an undivided moiety of the original possessory title,—the defendant having paid the whole of the purchase price. If, in an action brought by the defendant here to recover the whole possession, after letting plaintiff into the common possession, the defendant in such action should rely upon his equitable right to the benefit of the true title on payment of his share of the purchase-money, and it should be made to appear that he had neglected and refused to pay to the plaintiff therein his part of the original purchase,—the purchase of the possessory title,—it may be a court of equity would refuse a decree for a conveyance of any portion of the true title. It is apparent, too, that the issues might be complicated by questions as to the validity of a purchase made in part in the name of Tully (plaintiff herein), with a view to securing for the present defendant the government title to more land than he was authorized to acquire directly under the statutes of the United States. It is enough to say that these matters cannot be gone into under the pleadings in the present action.
If facts exist (independent of the conveyance of the true title to him) which give the defendant a perfect equity, on which he could defend his exclusive possession in the present action of “ ejectment,” those facts have not been pleaded herein. It is settled that to establish such a defense in ejectment the facts constituting the perfect equity must be alleged in the answer as fully as they are required to be in a cross-complaint. (Arguello v. Bours, 67 Cal. 477; Kentfield v. Hayes, 57 Cal. 409.) *344As I understand it, the defendant here has been given all the benefit of a decree declaring a resulting trust in his favor in land to which he cannot deny the plaintiff has the legal title, without any pleading on which such decree could be based.
It may be said that, to prevent circuity of actions, the defendant here should be permitted to retain the exclusive possession. Why compel him to let the plaintiff into the possession only that the plaintiff may be excluded again under a judgment in an action brought by the present defendant?
But, 1. It may be that in such new action the present plaintiff would be held entitled to participate in the true title; 2. On authority of Olney v. Sawyer, supra, the defendant cannot in this action rely on his acquisition of the paramount title; 3. The same objection might be made in every case where the rule applies that a tenant cannot dispute his landlord’s title.
As was said in Phelan v. Kelley, supra, “ the rule of law that a person coming into possession of lands under the agreement or license of another cannot be permitted to deny the title of the latter when "called upon to surrender, is of almost universal application. Even if he had a valid title at the time, he is deemed to have waived it, and as between the parties, to have admitted title in the person under whom he entered.” (Citing cases.)
Of course., one of two co-tenants may oust the other, and acquire the exclusive title by adverse possession.
But the statute of limitations was not pleaded herein, and the plaintiff objected to evidence tending to prove the defendant’s adverse possession on the ground that the same was irrelevant, incompetent, immaterial, and not pertinent to any issue in the case. Moreover, if the limitation had been pleaded, the transcript contains no finding of the fact that the defendant has had adverse possession for the statutory period, nor any finding which includes a finding of adverse possession. As a *345conclusion, of law from preceding findings of fact, the court below held that the plaintiff was barred by sections 318 and 319 of the Code of Civil Procedure, and the bill of exceptions expressly recites that no other facts were proved than those set forth in the five findings.
The facts stated in the five findings do not establish adverse possession, for the reason, among others, that there is no statement that the defendant has paid any taxes on the demanded premises, or that no taxes were assessed thereon.