*671Former opinion sustained February 4, 1919.
Petition for Rehearing.
(178 Pac. 237.)
Messrs. Clifford & Correll, for the motion.
Mr. John L.Band and Mr. A. A. Smith, contra.
In Banc.
BURNETT, J.It will he recalled that the plaintiff began an action for the recovery of the possession of real property, stating that he is the owner in fee and entitled to the immediate possession of the ti'act, described by metes and bounds, and claimed damages for its detention. The defendant, without asserting any title in itself, denied the complaint as thus outlined. It further sets up the pleadings in which the plaintiff here sought to quiet his title as against the defendant and its grantee, wherein the defendants there defended and one of them in that suit asserted that he was then the owner in fee and in possession of the property, all of which affirmative matter alleged in the answer in that suit was denied by the reply there. The answer here shows the conclusion of that suit to have been that the plaintiff there take nothing by his complaint and that his suit be dismissed. After some denials, the plaintiff replied, as stated in the former opinion, to the effect that in the suit to quiet title it appeared that at that time the plaintiff had not been in adverse possession of the premises for a full 10-year period and that after the conclusion of that suit and the judgment therein plaintiff continued in adverse *672possession, until taken altogether he and his predecessors in interest had been in possession for a full period of ten years, and hence that he was the owner in fee simple of the land. This new matter was ■stricken out. Assigning this as error, the plaintiff appealed and the judgment was reversed by an opinion of Mr. Justice Benson.
4. The petition for rehearing urges upon us that •the suit to quiet title constituted an interruption of the continuity of the adverse possession upon which the plaintiff counts as giving him the title in fee simple, under such cases as Caufield v. Clark, 17 Or. 473 (21 Pac. 443, 11 Am. St. Rep. 845), and others following it as a precedent. It is true that if, at any •time prior to the expiration of the period of ten years of adverse possession, the one in possession shall recognize the title which he seeks to defeat by his hostile holding, it operates to break the continuity which is one of the essentials of adverse possession. The question presented is whether the suit to quiet title is such a recognition of, or, in other words, a quasi attornment to, the title which the one in adverse possession seeks to defeat. The present contention of the defendant is based almost entirely upon the following-language of the late Mr. Justice Moore in Crow v. Abraham, 86 Or. 99 (167 Pac. 590):
“In a note to the case of Weiner v. Stearns (Utah), Ann. Cas. 1914C, 1175, 1182, it is said: ‘If a claimant in the adverse possession of land brings an action involving the title thereto which is based on the existence of a right in another, it is such a recognition of that right as will arrest the running of the statute of limitations in favor of the occupant and against such right.’ The alleged adverse right of Henry Gr. Crow having been thus arrested by the institution of his former suit, such claim could not be continued, but a *673new right by adverse possession might have been inaugurated after the final determination of that suit. But however this may be, ten additional years not having elapsed from such decision until the commencement of this action no error was committed in this respect.”
The former suit alluded to was that of Crow v. Crow, 70 Or. 534 (139 Pac. 854), in which Henry Crow sued his brother, E. J. Crow, alleging in substance that at a previous date the plaintiff Henry had conveyed his land to the defendant E. J. but had remained in possession of it all the time and that E. J. Crow only held it in trust for Henry, and the effort of his suit was to have the trust declared and to compel a reconveyance, the purposes of the trust having been accomplished. In Crow v. Abraham the widow and administratrix of E. J. Crow, who had died since the former suit, instituted an action against Abraham both as the executor of the will of Henry Crow and as an individual, to recover the rents, issues and profits of the lands there involved. Abraham defended as executor on the ground that his decedent had been in exclusive possession of the property for some twenty years and had conveyed an undivided interest to him as an individual, with a right to retain the rents, issues and profits in their entirety after a certain date. Mr. Justice Moore held that a suit to declare a trust interrupted the adverse possession so that it could not be urged again in the action to recover from Abraham as executor, but that Abraham as an individual should be allowed to give evidence of the adverse possession respecting bis individual share notwithstanding the effect of Crow v. Crow on the case of his decedent, because the individual was not included or bound by the former judgment. The earlier litigation, to which Mr. *674■Justice Moore alluded, is different from this case. ■There, Henry Crow said to the court in substance:
“I conveyed a title to the defendant, E. J. Crow, which he still holds. Recognizing that title, however, I now contend that it was conveyed to him in trust for me and I pray that the trust be declared, and, it having been worked out to completion, that the defendant be compelled to return to me the property the title to which he obtained from me.”
That was in effect a clear confession of a title resting in another party and coming within the language quoted by Mr. Justice Moore from the note to Weiner v. Stearns, in that it is “based on the existence of a right in another.” Here the cases diverge in their circumstances. The plaintiff in this instance initiated an adverse possession. He claimed title to the land to be in himself as successor of former possessors, which he might under the doctrine of Vance v. Wood, 22 Or. 77 (29 Pac. 73), and later cases. As the phrase goes, he kept his flag flying until 1915, about nine years after the beginning of his adverse holding. Instead of recognizing title in the defendant or any of its grantees, he then brought the suit to quiet title in defense of his own estate. He did not acknowledge their title. He said in effect:
“These parties claim some interest in my land, but it is without validity and is utterly void. I demand that their baseless assertions of ownership be silenced.”
■ In Weiner v. Stearns, 40 Utah, 185 (120 Pac. 490, Ann. Cas. 1914C, 1175), the question was whether a suit to quiet title was the recognition of an adverse title. It seems that the plaintiff had come into possession of some realty which the county authorities had bid in at a tax sale, and had ultimately received *675a deed for the same. The original owner was one ■Almanda Stearns and the defendants in the suit claimed under her. The court there, speaking by Mr. Justice Frick, said:
“What was the legal effect of the pendency of the action that appellant commenced in November, 1903, to quiet the title to the lots in question in himself? Counsel for Borg (a defendant), strenuously insists that in commencing the action appellant arrested the running of the statute in his favor. There can be no doubt that if Almanda Stearns or her grantee had commenced an action against appellant in 1903, or at any other time before seven full years had elapsed from the time he took possession of the lots in question, under the circumstances stated, the running of the statute would.have been arrested. By the bringing of an action to recover the property, the adverse claimant of the title, no doubt, would have effectively disputed the title or ownership of the one in possession, and thus the running of the statute would be arrested in favor of the one in possession. Is it not pertinent to ask, however: In what way was appellant’s claim of ownership disputed or questioned when he commenced the action in November, 1903? Borg’s counsel, at the hearing of this case, argued that, because appellant in his complaint to quiet the title to the lots had alleged that Almanda Stearns claimed some estate or right in or to the same, therefore he admitted her title. Counsel overlooks the important fact that by what appellant pleaded he did not admit that Almanda Stearns had any claim or interest in fact, but he merely alleged that she claimed to have an estate or right or interest in the lots. Appellant, however, immediately after making the foregoing statements, also alleged that her claim was baseless and without right. How can it successfully be claimed that in view of these allegations appellant conceded or admitted any outstanding title, estate, right or interest in anyone? If counsel’s contentions are sound, then no claimant who commences an action to determine ad*676.verse claims can state a canse of action under Section 3511, supra (being substantially like the Oregon statute for quieting title). It is certainly indisputable that in order to invoke tbe aid of the court appellant had to allege that someone claimed title or some interest or estate in the lots adverse to him. If there was no one asserting any title or interest adverse to appellant, why bring an action? It is clear that by what appellant alleged he did not admit or concede any estate or right in the former owner of the title, or in anyone else.”
The situation before ns, then, is that notwithstanding the decree of the Circuit Court, affirmed by this court, dismissing this plaintiff’s suit to quiet title, he still remains in the actual possession of the estate, according to his narration, which clearly would be an adverse holding. He is saying in effect:
“Notwithstanding all your claims and all your decrees I am still here in possession and have been now for more than ten years, claiming openly, notoriously and exclusively a title adverse to you and to all others, whereby I have become the owner in fee simple of this land, based upon which I have brought ejectment, against you.”
It is difficult to conceive how the present defendants, defendants also in the suit to quiet title, could have ousted the plaintiff from the possession of the land by virtue of the decree dismissing his suit to quiet title. The effect of the decision there was simply to leave him where it found him.
The rule is thus stated in 2 C. J., page 109:
“According to the weight of authority, the mere recovery of a judgment in ejectment will not in itself stop the running of the statute of limitations. There must be an actual change of possession by virtue of such judgment, and where plaintiff in ejectment neglects to enforce his judgment within the period laid in *677his demise, his right of entry under that judgment can only give a right to enter during the continuance of the demise laid in the declaration for which the judgment was rendered, and after the demise has expired the right to enter upon the land in virtue of the judgment no longer exists.”
5. The former decree did not undertake to do anything about the possession. It did not in terms give the possession to one or the other. The case, therefore, is not so strong as where the judgment has been rendered directly adjudicating the possession of the land and awarding it to one or the other. Yet in that case, as the text cited shows, there must be an actual delivery of possession and not a mere judgment for the same, to interrupt the running of the statute.
We adhere to the former opinion.
Rehearing Denied.