concurring. I concur. By adverse possession during the statutory period the title of the true owner is not taken from him and vested in the person having the adverse possession. The owner is simply required to sue within a limited period. If he does not, he cannot maintain an action to recover the property. In such event the disseisor, being in possession, can maintain his right against the whole world. He could always prevail over all save the true owner, and when the owner cannot sue his title has become unassailable. But if the owner sues in time and recovers in that action, he cannot be barred by adverse possession pending his action, for the condition necessary to raise the bar has not existed. The owner has not lost his right by failing to sue. The defendant, during the pendency of the action, is in under the same claim of right he had when the suit was commenced, and the judgment determines that such claim is invalid. He has not acquired a new title by remaining in possession. His title by possession, good against all the world save the true owner, he already had. He has only the same title after the statute has run, but the true owner has then lost his right of action, and, therefore, the title of the disseisor acquired by possession has become impregnable. Here the owner has not lost his title by failing to sue.
I think the judgment in the so-called ejectment conclusive against Reid, and all persons claiming under him.
*474On the 3d of December, 1897, the following opinion was rendered by Department Two:
THE COURT. In this cause the appeal was from the judgment alone; there was no appeal from an order. The opinions heretofore delivered in the cause (anle, p. 469 correctly treated the appeal as an appeal from the judgment and were intended to close with an affirmance of the judgment; but by a clerical mistake it was unintentionally adjudged that “the order appealed from is affirmed.” The judgment of this court was accordingly entered affirming the “order” appealed from; and the mistake was not discovered until after the remittitur had gone to the court below. Thus the appeal from the judgment was left, technically, at least, undisposed of.
Now, therefore, for the reasons given in the opinions heretofore referred to, the judgment appealed from in this action is hereby affirmed.