I dissent. The action is one at law, in which the plaintiff asks to be let into possession of a tract of land containing about 236 acres, in which he claims to be a tenant in common with the defendant.
The title asserted by the plaintiff to an undivided one half of the land is derived from a deed made to himself and the defendant on the 11th of November, 1856. Under that deed, defendant entered into the exclusive possession of the land, and occupied it exclusively until the fall of the year 1859, when he delivered possession to the plaintiff, who entered upon the land and cultivated it during the farming season of 1860, upon an arrangement with the defendant to cultivate the same on shares. In November, 1860, the plaintiff withdrew from the possession, and the defendant re-entered, and continued to exclusively occupy and enjoy the use of the land.
Meantime, the land was claimed to be within the boundary lines of a Mexican grant, which had been finally confirmed to the claimant, to whom the United States issued a patent for the land. And on the 27th of February, 1861, the defendant, being in possession, acquired by purchase the outstanding patent title, by a deed which he took in his own name, and caused to be recorded on the 13th of March, 1861; and from the date of the deed until the commencement of this action,—a *346period of twenty-four years,—he has been in the actual exclusive possession of the land.
Upon these facts, the court below held that the defendant, having been continuously in the actual and exclusive possession of the land, claiming to be the owner thereof in hostility to the plaintiff, was the legal and equitable owner, and “ that any and all right of the plaintiff, if any he ever had, was barred by the provisions of sections 318 and 319 of the Code of Civil Procedure before the commencement of this action, and that defendant is entitled to judgment for his costs.” I think the decision is erroneous.
The defendant did not claim by his answer to have derived any title to the land from an adverse possession of the same sufficient to give him title under the statute of limitations.
The answer contained: 1. A general denial; 2. Affirmative allegations of seisin in fee for over twenty years; 3. Allegations that the cause of action was barred by the provisions of section 319 of the Code of Civil Procedure; and 4. That the cause of action did not accrue to the • plaintiff within five years before the commencement of the action.
These were the only issues made by the pleadings.
Now, as plaintiff and defendant originally acquired title to the land in common, the actual and exclusive possession thereof by defendant did not affect the plaintiff’s right; for defendant’s possession as a tenant in common with the plaintiff, in whatever title they had to the land, was the possession of the plaintiff. (Waring v. Crow, 11 Cal. 366; Knox v. Marshall, 19 Cal. 617; Colman v. Clements, 23 Cal. 245; Owen v. Morton, 24 Cal. 373; Miller v. Myers, 46 Cal. 535.)
That possession continued while the relation of tenants in common existed; and the legal presumption is, that the relation continued to exist until the defendant ousted and disseised the plaintiff, by notice, express or *347implied, that he claimed the land adversely to the plaintiff, or by acts and declarations equivalent to notice of such a claim. There was no evidence, and there is no finding, that defendant in or by his actual possession ever ousted and disseised the plaintiff. The basis of the decision and finding is the fact of twenty-four years of exclusive actual possession by the defendant. But that possession, held by the defendant as a tenant in common with the plaintiff, did not divest the plaintiff of his rights in the land, or vest absolute title to the land in the defendant, either by the purchase of an outstanding title, or under the statute of limitations.
There is no doubt that a tenant in common in exclusive actual possessson of land held in common may buy in an outstanding title, and take a conveyance thereof to himself alone; but the purchase does not per se dissolve the tenancy in common between himself and his co-tenant; the title acquired inures to the benefit of both. The general rule is, that a tenant in common who buys in an outstanding title holds it in trust for his co-tenants. (Mandeville v. Solomon, 39 Cal. 135.) The mere fact of the purchase does not affect their legal relation; nor is it affected by mere seisin and possession of one after the purchase, however long continued; nor does such a possession constitute an adverse possession, which sets in motion the running of the statute of limitation. There can be no adverse possession against a co-tenant out of actual possession until ouster and disseisin. The tenant in common out of actual possession has the right to assume that the actual possession of his co-tenant is his possession, and is held under and in subordination to their common title, whatever it be, and that the exclusive possession is not adverse to him.
It is true, there arises out of the purchase of an outstanding title an additional relation between a tenant in possession and his co-tenant out of actual possession, namely, that of trustee and cestui que trust. But the *348rights and remedies incident to this new relation, being distinct from the legal ownership of the land, are exclusively cognizable in equity.
This is not an equitable action; it is an action at law,— ejectment for the recovery of real property,— in which the court below could only try and determine the issues raised by the pleadings in the case. There was no issue before the court that the defendant held and possessed the land upon the claim of title, written or unwritten, adversely to the title of the plaintiff, as tenant in common with the defendant, for five years before the commencement of the action. (Code Civ. Proc., secs. 321- . 323, 325.)
Sections 318 and 319, upon which the court below based its decisions, are inapplicable. The first provides that no action can be maintained for the recovery of real property unless the plaintiff, his ancestor or grantor, was seised or possessed of the property vithin five years before the commencement of the action. But being a tenant in common with the defendant, the plaintiff was so seised until the defendant’s possession became hostile or adverse. Besides, section 318 is not pleaded at all; section 319 is the only one pleaded; but, as has been held, that section was never intended to apply to an action of ejectment. It has reference only to personal actions founded upon title to real property. (Richardson v. Williamson, 24 Cal. 301.)
I think the judgment and order should be reversed, and the cause remanded for further proceedings.