Green was the owner of certain land. It was sold under foreclosure proceedings by his mortgagee. Pending the issuance of the sheriff’s *686deed, and during Green’s possession, it was attached as Green’s property. Subsequent to the attachment Green deeded it to the defendant, Thornton, who entered into the possession thereof. The attachment proceedings ripened into a judgment, sale under execution and deed by the sheriff. Plaintiff as the holder of such deed brings an action of ejectment against Thornton, who entered under his deed from Green. Thornton pleads the statute of limitations, claiming to have held possession adversely to the world for the statutory period.
I premise a short statement of my views by suggest- -ing that the rule so often declared in the decisions of courts, that the plaintiff must recover in ejectment upon the strength of his own title, is not without exception. The principle of estoppel is often invoked, in such cases, and the defendant debarred from attacking plaintiff’s title by showing a better title in a stranger. This is always true where the claims of both parties arise from a common source.
If the leading opinion in this case holds that the grantee of the attachment debtor may enter under his grant and then successfully plead the statute of limitations as against the holder of the sheriff’s deed, which is in due course procured by virtue of the attachment suit, and such appears to be the reasoning, I dissent. This identical principle was before the supreme court of the United States in Pratt v. Pratt, 96 U. S. 710, and was there carefully considered and declared unsound. In that opinion the court used the following illustration, which is both simple and conclusive: “ If this be established to be the law, the owner of real estate may borrow money on ten years’ time to the value of that estate, and give a mortgage on it to secure payment; and, by a sale and conveyance of the land to a third person with delivery of possession in a week afterwards, the lien is utterly defeated. For, according to this doctrine, the statute of limitation begins to run against the mortgagee the moment the title and possession are vested in the purchaser, and the bar of the statute becomes per-*687feet against all the world by seven years’ possession; ■whereas the mortgagee can take no steps to foreclose his mortgage until his money comes due three years later.”
In the present case the defendant can hardly be said to plead the statute of limitations; his plea is little more than a denial of plaintiff’s title. The plea of the statute of limitations presupposes a right of action in the plaintiff at sometime in the past, but that owing to his laches it has lapsed. In the present case it is not contended that plaintiff’s right of action has lapsed, but it is insisted that he never at any time had a right of action. We have held in Jefferson v. Wendt, 51 Cal. 573, and Leonard v. Flynn, 89 Cal. 536, 23 Am. St. Rep. 500, that a plaintiff’s right of action accrues upon the delivery of the sheriff’s deed. Eliminating for the moment the foreclosure proceedings from the case, it seems to me very plain that defendant Thornton could not create in himself a title by adverse possession, for no one had a right of entry as against him; Green had no right of entry, for he was his grantor; plaintiff none, for he had not as yet obtained his sheriff’s deed. As is said in Pratt v. Pratt, 96 U. S. 710: “ In the just sense of the term his possession is not adverse to this lien. There can be no adversary rights in regard to the possession under the lien and under the defendant’s purchase from the judgment debtor until the lien is converted into a title conferring the right of possession. The defendant’s possession after this is adverse to the title of plaintiff; and then, with the right of entry in plaintiff, the bar of the statute begins to run.”
Let us assume that plaintiff Robinson secured his sheriff’s deed within five years from the date of Thornton’s entry under his deed from Green, and that he then brought this action. I know of no way that Thornton could have defeated plaintiff’s claim. The statute of limitations could not have availed him, as his possession had not extended for sufficient length of time, and, as we have seen, this is his only defense. Now, it seems *688strange that plaintiff should be defeated because, without fault of his, he was unable to secure his deed within five years from Thornton's entry. If he had secured his deed at the end of four years from the entry of Thornton, his cause of action would then have accrued, and, as we have seen, he could have recovered possession of the land. If he had a cause of action at that time, and not till that time, the statute did not begin to run against him until then, and he could not have lost his right to bring suit until five years thereafter. If such were not the fact, plaintiff had a cause of action for the recovery of real estate which became barred within one year after it accrued. That result would be novel in the extreme.
As already suggested, defendant's plea of the statute of limitations in this case is almost a misnomer, as it is practically a plea of no title in plaintiff. Let us see if such is not the fact. We will assume that the foreclosure proceedings were fatally defective, and the deed thereunder void, what is plaintiff’s status in the case then? Why, the title was in Green at the date of the levy, and the sheriff's deed vested it in plaintiff Robinson, under which he would have a cause of action that defendant could not contest for a moment. It follows that if the foreclosure proceedings are void, then plaintiff’s cause of action accrued when he received his deed from the sheriff, and defendant’s plea of the statute would be in vain. Upon the contrary, if those proceedings are valid, plaintiff has no cause of action, and the plea of the statute can be successfully invoked. In other words, if the legal title is in the plaintiff the statute cannot be pleaded, but if the legal title is in a stranger it can be pleaded. I fail to see the distinction, and do not think the successful plea of the statute is dependent upon any such test.
For the foregoing reasons it is apparent to me that the so-called plea of the statute of limitations, as far as practical results are concerned, is nothing more than a plea of outstanding title in a stranger under the deed *689in foreclosure, and it must be conceded if such be the fact the plaintiff is entitled to recover.
Defendant offered the foreclosure proceedings in evidence. The prevailing opinion says, for the purpose of showing that at the date of the levy of the attachment Green had no interest in the land, and that consequently plaintiff got nothing by his deed. I would suggest those proceedings fail to show it, for Green had the lawful “ possession” at the date of the levy, and if he had still been in possession when plaintiff received his deed there could be no question as to plaintiff’s right of recovery. But, aside from that, these proceedings simply show an equitable title in a stranger at the date of the levy; and the result was simply an outstanding title when this litigation began. It cannot be possible that plaintiff’s cause of action would be stronger if the sheriff’s deed under foreclosure had issued prior to the levy of the attachment, yet such would seem to follow from the reasoning of the prevailing opinion. The foreclosure proceedings as an element in this case, in no way aids the defendant as to his plea of the statute of limitations, and, omitting that element of the case, we then have an exact photograph of Pratt v. Pratt, 96 U. S. 710, and the reasoning there found leaves the defendant with no prop to support him.
The title under the foreclosure being an outstanding title, it availed defendant nothing; perhaps he was estopped from setting it up, having entered under a deed from a common grantor with the plaintiff. But, aside from that, at the trial plaintiff showed that such title was then vested in him, and for that reason its efficacy as a defense was entirely gone. (See Sedgwick and Wait’s Trial of Title to Land, sec. 831; Sharp v. Johnson, 22 Ark. 79; Perryman v. Callison, 1 Over. 516.
Rehearing denied.