1, 2. This appeal presents bnt one serious question for our consideration, and that is this: Does the decree in the suit constitute a bar to plaintiff’s claim of ownership based upon adverse possession? We think not. The decree does not undertake to determine where the title lies, and gives no indication as to whether plaintiff failed to. establish his ownership under the contract of purchase, or whether he failed to establish Ms adverse holding of the premises for a period of ten years. The opinion of this court, in Bessler v. Derby, 80 Or. 518 (157 Pac. 791), holds that plaintiff had failed to establish a valid contract for the purpose of the land, and in reference to his claim of adverse possession, says:
“It is true that the plaintiff alleges that his claim of title has been ripened by adverse possession; but, even though it be assumed that the possession has at any time been adverse, the testimony fails to show that such adverse possession has continued for the requisite period of time.”
It seems clear, therefore, that upon a de novo trial in this court it was held that the plaintiff’s suit should be dismissed1 because he had neither established a valid contract of sale, nor that he had held adverse possession of the land for a period of ten years. We are called upon, then, to say whether or not such a decree will bar a subsequent action for possession, based upon a subsequently acquired title by adverse possession. That the decree in the former suit is conclusive upon every issue that was then litigated or could have been determined at that time, is beyond controversy. But, accepting as true, as we must, for the purposes of this discussion, the allegations of plaintiff’s reply which were stricken out, it is clear that they do not *668call for the same evidence in their support as that which was submitted in the prior suit; indeed the evidence could not be the same, since it is now conceded ■that the former proceeding was prematurely commenced, and it is urged that what was then no title at all, has now matured into a right which plaintiff is justified in maintaining. It amounts, in effect, to the assertion of a title acquired after the rendition of the decree in the equitable proceeding relied upon by defendant. In Barrows v. Kindred, 4 Wall. 399 (18 L. Ed. 383), plaintiff brought an aption of ejectment wherein he exhibited a chain of title consisting of a ¡patent from the United States to Whitney, a deed from Whitney to Yose, the will of Yose, and a deed from his executors to plaintiff, dated March 18, 1861. The defendant gave in evidence the record of a judgment relating to the same premises, wherein Barrows was plaintiff and one Gordon was defendant, the judgment being in favor of Gordon. This prior suit was ended June 5, 1859. It appears from the record that the former action of ejectment had gone against plaintiff because Yose’s executors, having the power to sell, had without authority of law, delegated that power to ■an attorney. Thereafter the executors themselves executed a sufficient conveyance to plaintiff, upon which he now relies. In the opinion, Mr. Justice Swathe says:
“Upon the trial of the case of Barrows v. Gordon the power of attorney from the executors and the deed executed by Kingsley were properly ruled out as void. They were not in the case. Barrows had no title to the premises in controversy, and judgment was given against him. This may be admitted to be conclusive as to his want of title at that time, and whether the decision of the court as to the power of attorney and the deed under it was erroneous or not, it would have *669been a bar to another action attempted to be maintained upon the same state of facts. Bnt this did not deprive Barrows of the right to acquire a new and distinct title; and, having done so, he has the same right to assert it, without prejudice from the former suit, which would have accompanied the title into the hands of a stranger.”
The doctrine thus announced, finds support in many cases among which are, Taylor v. M’Crackin, 2 Blackf. (Ind.) 260; Richey v. Bues, 31 Utah, 262 (87 Pac. 903); University v. Maultsby, 55 N. C. 241; Kenealy v. Glos, 241 Ill. 15 (89 N. E. 289); Woodbridge v. Banning, 14 Ohio St. 328; Quackenbush v. Ehle, 5 Barb. (N. T.) 469.
3. We conclude, therefore, that it was error to strike out plaintiff’s reply, unless we determine that the suit in equity had the effect of interrupting the continuity of plaintiff’s alleged adverse possession. Under the modern practice, the action of ejectment is not only employed to recover the possession of lands, but also, almost exclusively, for the trial of title to real property, and as a result, practically all of the adjudicated cases which bear upon the question now under consideration are of that class. In Barrell v. Title Guarantee Co., 27 Or. 77 (39 Pac. 992), in a discussion of this subject, Mr. Justice Wolverton, speaking for the court, cites with approval Mabary v. Dollarhide, 98 Mo. 204 (11 S. W. 611, 14 Am. St. Rep. 639), quoting as follows:
“We cannot see how the mere recovery of a judgment in an action of ejectment can suspend the running of the statute of limitations. To have that effect there must be possession under it, or something done to make the defendant’s possession subordinate to the plaintiff’s title.”
*670This quotation is then followed by this statement:
“We have been cited to but one authority which holds that a mere judgment in ejectment will stop the running of the statute of limitations: Brolaskey v. McClain, 61 Pa. St. 166; so that upon authority we cannot say that the Tilton judgment alone is sufficient to break the continuity of the adverse possession of •plaintiff. ’ ’
The great weight of authority is to the effect that to produce such a result the judgment must be made-effectual by the execution of a writ of possession: 1 R. C. L. 725; 2 C. J. 109. It is true that the prior proceeding in the present instance was a suit in equity, but since the modern action of ejectment is just as dignified a proceeding in determining the rights of property as a suit to quiet title, there is no good reason for differentiating the effects of the two. In fact, we find nothing in the authorities justifying such a conclusion. The most that is said in any of the text-hooks is, that if a decree requires the occupant to convey the land, it operates as a voluntary conveyance, and thereby destroys the continuity of the possession; or if the decree finds that he has no interest in the land, directs him to surrender possession and enjoins him from asserting any title, that it will stop the running of the statute: 2 C. J. 110; 1 R. C. L. 725. In the case at bar, it happens that the prior decree goes no further than to dismiss the suit. It awards no affirmative relief of any sort, and we cannot say that such a decree interrupted plaintiff’s possession.
It follows that the judgment must he reversed, and the cause will be remanded fur further proceedings not inconsistent herewith. Reversed and Remanded.
Harris, J., not sitting.