dissenting.
I cannot agree with that part of the majority opinion of my brothers which holds that the five years statute of limitations (Laws ’85, p. 820), is no defense in this action to quiet title. As I understand the case, Scott, the plaintiff in possession, claiming to own title in fee simple absolute, brought this, a code action to quiet his title against Watkins, whom, he alleges, claims an adverse estate therein. ^The latter in his answer claims that it is he who owns the title in fee simple, the claim being based upon a tax deed, fair upon its face, and he pleads the five years statute of limitations which provides:
“No action for the recovery of land sold for taxes shall lie, unless the same be brought within five years after the execution and delivery of the deed therefor by the treasurer, any law to the contrary, notwithstanding.” § 5733 R. S., 1908.
I think the expression, “Recovery of land sold for taxes,” should be given its common and ordinary meaning. When land has been sold for taxes, without redemption, and a tax deed fair upon its face has been given by the treasurer, people ordinarily would say that the owner had lost his land. If plaintiff prevails in this action, he will recover the land from the defendant which otherwise he will lose, and the recovery referred to in the statute simply means winning the law suit, in this case brought to quiet the title. If plaintiff wins, he recovers something which he has lost if defendant wins. If the statute of limitations is applicable and the deed is fair on its face, plaintiff will lose the land and defendant will recover it and the right of possession will follow the title. If the statute is inapplicable and plaintiff defeats the tax deed, he, instead of the defendant will recover the property. It is in this sense that the one who is adjudged to own *249the fee simple title recovers the land from the other, which he otherwise would lose. It was this kind of a recovery the legislature had in mind when it said that no action for the recovery of land sold for taxes should lie, unless brought within five years after the execution and delivery of the tax deed, any law to the contrary notwithstanding.
As I understand, the majority opinion holds the five years statute does not apply because this is not a code action to recover the possession of land sold for taxes, but is only an action to quiet title. A decree in favor of plaintiff under our code in this action quieting title, will settle that he owns the title in fee simple and that defendant has no claim, estate or interest therein. This of necessity includes a determination that the plaintiff and not the defendant is entitled to the possession — or right to possession, following the ownership of the title. It defeats defendant’s claim of title and settles plaintiff’s title, which in this case amounts to a recovery of the land otherwise lost by the tax deed and in my opinion tries the title. Brady v. Carteret Co., 82 N. J. Eq., 620, 96 Atl. 257, Ann. Cas. 1915B, 1093.
The right of the respective parties to the possession of this land sold for taxes, is based upon the ownership of the title. If the decree determines that plaintiff owns the fee simple title absolute, and that defendant has no claim, estate or interest in the land, such decree will operate directly upon the title upon which the right to possession depends. A decree for plaintiff will estop defendant from again litigating the title or asserting any claim, estate or interest in the land. Morris & Thombs v. St. Louis Nat. Bank, 17 Colo. 231, and Munson v. Marks, 52 Colo., 553, were not actions of this kind, but were suits to remove a specific cloud and hence are not in point. It may be that no statute of limitations ever runs against an action brought by one in possession to remove a particular cloud. An action to quiet title is not to remove a specific cloud, but is for the purpose of *250determining all adverse claims, whatever they may be, that defendant has to any estate or interest in the land. A decree for the plaintiff will determine that defendant has no title, and a decree for the defendant will determine that the plaintiff has no title, hence this is an action to try title and for the recovery of the land. As tending to support the views herein expressed, I cite the following cases: Green v. Glynn, 71 Ind. 336; Farrar v. Clark, 97 Ind. 447; Pittsburg Co. v. O’Brien, 142 Ind. 218, 41 N. E. 528; Chicago Co. v. Grantham, 165 Ind. 279, 75 N.E. 265; Burton v. Huma, (C. C.) 37 Fed. 738.
Decided January 3rd, 1916. Rehearing denied May 1, A. D. 1916.