dissenting. — I concurred in the opinion originally filed in this case, but I may be allowed to say I did so with great hesitation, and with many doubts as to its correctness. I am now fully satisfied that the conclusion then reached, and to which my associates still adhere, is wrong.
The question arises upon the construction of Section 902 of the Code. The section is in these words: “No action for the recovery of real property, sold for the non-payment of taxes, ah all lie unless the same be brought within five years after the treasurer’s deed is executed and recorded. ”
This action is brought for the recovery of real property sold for the non-payment of taxes, and is not brought within five years after the treasurer’s deed was executed and recorded. My associates think that the action is barred. In my opinion it is not. I do not think that the statute is applicable to this ease. .
When the holder of the patent title is in possession at the time of the execution and recording of the tax deed, and does not voluntarily yield the possession, then it is to be recovered by the holder of the tax title. If the holder of the patent title remains m possession five years, the law conclusively presumes that possession ought not to be recovered of him, and he is not bound to preserve any longer the evidence of his right to retain possession.
*120But if tlie holder of the tax title takes possession, and after-wards the holder of the patent title disseizes him, rendering an action necessary to recover possession, it is not for the disseizor to reap the advantage of his disseizin if the action to recover possession thus made necessary is not brought within five years from the recording of the tax deed.
In the case at bar the plaintiff was in the possession of the land from the time his deed was executed until the defendant’s wrongful entry, which was over four years. I say he was in possession, because it is not disputed that he had the legal title, and the land was unoccupied. The law construes the possession of unoccupied land as in the holder of the legal title. And this is so even where the legal title is a tax title.
In Dean v. Early, 15 Wis., 100, the court said: “The formal execution and record of a tax deed draws after it the possession.” Again, in Jones v. Collins, 16 Wis., 594, the court, speaking also of a tax deed, said: “The doctrine undoubtedly is, that the recording of the deed draws after it the constructive possession in a case where the premises are unoccupied, or there is no actual possession in either party. ” Again, in Lawrence v. Kinney, 32 Wis., 293, the court, speaking also of a tax deed, said: “It certainly requires explanation to enable one to see how a deed, declared by law to vest an absolute estate in fee simple in the grantee, and presumed in law to be in all respects regular and yalid, shall be held not to draw after it the constructive possession of unoccupied and wild lauds. ”
The doctrine, as above enunciated, cannot, I think, be successfully controverted. No court, so far as I have discovered, has ever held otherwise. Indeed, no question is made by the majority of this court upon this point. It may be assumed then that the plaintiff had constructive possession for over four years, and until he was disseized. His rights then were precisely the same as they would have been if he had held actual possession during the same time, and had been dis-*121seized. In either case the disseizin constitutes the cause oí action. Prior to it no cause of action existed.
Where the holder of the patent title is in actual possession ■when the tax title accrues, a cause of action exists at once in favor of the holder of the tax title, and to such case the statute in question was designed to apply. To hold it to be ■applicable where the holder of the tax title has been in possession and has been disseised, reduces it to an absurdity. The time of the accruing of the tax title has no proper relation to such a case.
The majority opinion seems to carry an assumption that the holder of the patent title, if out of possession, should have his election of two ways in which to test the validity of the tax title, either to bring an action himself within five years from the time of the accruing of the tax title, or to disseize the holder of the tax title, and compel him, if he desires to protect himself, to bring an action within five years from the accruing of the tax title. I think it is sufficient to say that ■one remedy is enough. But it may also be said that the law will furnish no temptation to any person to commit a wrong.
If the doctrine of the majority opinion is correct, why should the holder of the patent title ever bring an action to recover possession of unoccupied lands ? His true policy would be to take possession without action. If the five years had then expired, or should expire before the action to recover possession could be brought .by the owner, the disseizor could not be disturbed.
I regret the decision made in this case, not simply because I deem it erroneous, but because through it, as it seems to me, the court has become launched upon a pathless sea of trouble, without chart or compass. What shall the holder of a tax title to unoccupied lands do? Shall he take actual possession? That would not avail him unless he held.it, and whether he could hold it would be a mere question of force. In Lawrence v. Kinney, above cited, where upon a statute .similar to ours, the same construction was sought to be put *122as has been adopted by a majority of this court, that court said: “In such a case it would be reduced to a question of' mere physical effort and strength between the parties as to> which shall get in first, and maintain possession after he i» in, for if once he is dispossessed, and the other comes in, the same consequences ensue.” Nor, so far as I can see, would the time ever come after the five years had expired when it could properly be said that the holder of the tax title, if the construction adopted in the majority opinion is correct, could cease to rely upon physical strength. The statute says r “No action * * * shall lie * * * unless brought within five years, ” etc. The court, in construing the statute, says: “Nothing is said as to possession, but the statutory-bar seems to be complete at the expiration of the five years. If, after the expiration of that period, either the purchaser or the owner is compelled to resort to an action for the purpose of vindicating his title or possession, the bar of the statute operates on, and is decisive that the action cannot be maintained. ” If this is correct, there is no escaping the conclusion that, after five years, physical strength must constitute the sole reliance. In the majority opinion it is denied that the doctrine will lead to such a result. But such a result must follow, or the court must hold contrary to the express language of the statute, or overrule this decision, and say (what I hold to be the correct doctrine) that the statute does not apply to a case of disseizin. •
It is held in the original opinion that the statute begins to run against the holder of the tax title from the recording of his deed, because an action by him for the recovery of possession may from that time be maintained. To this it may be said, that if the land is occupied at the time the tax title accrues, the holder may of course have his action to recover possession, and, under such circumstances, his action to recover possession must be brought within five years. So far there is no room for controversy. But th& doctrine of the opinion is, that the plaintiff, although constructively in pos*123session, might have maintained an action to recover possession at any time after his title accrued, and that he should not have relied' upon his constructive possession, but should have brought an action to recover possession. Whether he should or not, is a question which cannot be properly evaded in this decision. The holder of a tax title should certainly have some way of protecting himself better than by a resort to physical force. Should, then, the holder of a tax title, who has constructive possession, bring an action to recover possession, and would his title be improved if judgment for possession should be obtained? I think not. A person cannot recover what he already has. It is true that- a judgment for possession would entitle him to a writ of possession, but such instrument would have precisely the efficacy of so much blank paper so far as any substantial right is concerned. He who has constructive possession may have actual possession upon taking it. But the holder of a title to land, if in constructive possession, cannot obtain even a writ of possession, because he cannot obtain judgment. In a petition in an action for the recovery of real property, the plaintiff must aver that the defendant unlawfully keeps him out of possession. Code, § 3250. To entitle him to judgment against the defendant, that averment must not only be made, but proven. Now as the petition need not be sworn to, the plaintiff could, to be sure, easily perform the farce of averring that the defendant unlaw - fuEy keeps him out of possession, but he could not prove it, and the action would necessarily be dismissed at his costs.
It is said that an action -may be brought under sec. 3273 of the Code, but this position is, in my opinion, equally untenable. That section provides for an action to quiet title. The petition must state that the petitioner is credibly informed, and believes, that the defendant makes some claim adverse to the estate of the petitioner. Where the petitioner is so informed and believes, there would of course be no difficulty. But how shall the holder of a tax title protect himself when he is not so informed, and does not so believe ? He cannot *124bring an action to quiet title. He cannot go through the farce of making the requisite averment as in an action to recover possession where the possession is not withheld, because in an action to quiet title the petition must be sworn to.
But suppose that we could surmount this difficulty. Suppose the plaintiff in this case had immediately, upon obtaining his tax deed, brought an action to quiet title, and had obtained a judgment. I fail to see how such an action could be of any benefit to him. Would it stop the statute from running, or launch it from a different date ? It is conceded that the plaintiff’s title is perfect. It could not then have been made more so if it had been quieted within the five years. Besides, he is held to be barred now because-the statute provides that no action to recover possession shall lie unless brought within five years, etc. A judgment merely quieting title before the disseizin should not have the effect to remove the bar. There is certainly not the slightest intimation in the statute that an action to recover possession may be brought after five years, if a judgment quieting title has been obtained in an action brought during the five years, and I am unable to discover upon principle any connection between the two things.
But suppose that a judgment quieting title would prevent an action like the present from falling within the five years’ limitation, as I understand the doctrine of the majority of the court to be, against whom should such action be brought ? The answer is, of course, against the holder of the patent title. But this cannot always be done, because he cannot always be discovered. Deeds are sometimes left unrecorded; sometimes the owners of lands die intestate, and sometimes, when they die testate, no record of the will, or of the proceedings probating the same, is made in the county -where the land is situated. It follows if the doctrine of the majority opinion is correct, that a tax title, however regular it may be, is subject to a grave infirmity. ■ It cannot be relied upon after five ySars to enable the holder to recover possession if he is ousted, *125unless it has at some time or other been quieted, and although any number of judgments may have been rendered purporting to quiet it, no one can discover from the record ivhether it has really been quieted or not.
The theory, then, that the holder of a tax title to unoccupied land may protect himself by bringing an action to quiet title, before his title is disputed, or by an action to recover possession while he is constructively in possession, seems to me to be subject to insuperable objections, and I reach again the result pointed out in Lawrence v. Kinney, above cited, as the consequence of the construction contended for in that case, and adopted in this, that the holder of a tax title, after five years, must rely upon physical force for the protection of his rights.
The construction which I contend for obviates that difficulty, and is supported not only by the decisions above cited, but by Waln v. Shearman, 8 Serg. & Rawle, 357.