On the Merits.
From Klamath: Henry L. Benson, Judge.
Department 2. Statement by Mr. Justice Eakin.
This is an action of ejectment to which there are three defenses set up: (1) An allegation of ownership in fee by the defendant; (2) that plaintiff’s cause of *8action did not accrue within 10 years; (3) an attempt to plead a title by the statute of limitations.
Aeeirmed. Rehearing Denied.
For appellant there was a brief over the names of Mr. H. M. Manning and Mr. G. M. Oneill, with an oral argument by Mr. Manning,
For respondent there was a brief and an oral argument by Mr. William G. Hale.
Mr. Justice Eakindelivered the opinion of the court.
4. The only attempt to prove the title in the defendant was by a tax title, to which defendant claims to have succeeded. Plaintiff contended at the trial that the tax title could not be proved unless it was specifically pleaded, but a tax title after it has culminated in a deed may be proved under an allegation of title in fee. It is not necessary to plead the muniments of title either in the complaint or answer: Pease v. Hannah, 3 Or. 301. Any perfect title may be proved under an allegation of ownership.
5. The offer of this proof was excluded by the court. An examination of the deed offered in evidence as the result of the tax sale discloses that the sale was made on December 28, 1903, and the deed issued two days later; but by Section 3127, B. & C. Comp., we find that the deed cannot be issued until the expiration of three years from the date of the sale, and was therefore void, not evidence of title, and properly denied.
6. As to the second defense, that the plaintiff’s cause of action did not accrue within 10 years before the commencement of the action, plaintiff’s cause of action against defendant did not accrue until the 14th of November, 1911, when defendant obtained a deed to the *9property. The law deems everyone to be in legal seisin and possession of the land to which he has a perfect and complete title: Sommer v. Compton, 52 Or. 173 (96 Pac. 124, 1065). There has been no possession in defendant shown here.
7. As to the third defense plaintiff seems to rely upon the necessity of pleading the facts of adverse possession by the defendant, and that without a proper plea, no proof thereof could be offered; but under the plea of title adverse possession for 10 years may be shown as sufficient to sustain that title. This is expressly held in Neal v. Davis, 53 Or. 423 (99 Pac. 69, 101 Pac. 212).
8. The proof of possession of the property by defendant from 1911 is not proof of exclusive possession of all the property, nor that it was adverse, and was insufficient to constitute title. The claim of title by adverse possession alone must distinguish between actual and constructive possession, as by cultivation or occupation by buildings or by an inclosure. It must be of an exclusive character: Hamilton v. Flournoy, 44 Or. 97 (74 Pac. 483); Swift v. Mulkey, 14 Or. 64 (12 Pac. 76); Gump v. Halberstadt, 15 Or. 357 (15 Pac. 467).
9. Title by adverse possession must begin with a disseisin of the owner, followed by an actual, open, notorious, continuous and adverse possession under a claim of right for a period of 10 years: Sommer v. Compton, 52 Or. 173 (96 Pac. 124, 1065).
The judgment is affirmed.
Affirmed. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.