dissenting. — I reach the conclusion that the land in controversy was unoccupied until plaintiff built the house upon it.
If defendant had no actual possession at the time the five years’ limitation expired, plaintiff was authorized to take pos*450session, and when defendant set up his tax title, to plead the bar of the statute. This I believe accords with the doctrine of Barrett v. Love.
But if defendant had actual possession when the five years expired, and continued that possession to the time the house was built, plaintiffs did not oust defendant by entering upon the land and building the house. The statute in that case would run against plaintiff. But there was no actual open and notorious possession — such use of the land as it was capable of — by either party prior to the erection of the house. In that case the party first taking possession of the land would be armed by the law with the weapon of defense supplied by the statute of limitations.
The statute of .limitations will bar either party, the holder of the tax title or the holder of the patent title, after expiration of five years, if he bases his right to recover upon the title under which he claims, without bringing to its support actual possession. But if he has acquired rights by actual possession which will uphold his paper title, the statute will not be a bar. To illustrate the view, I will state a supposed case. A. holds a tax title; the deed was recorded more than five years before action to recover the land. In the action which he brings he shows no possession at any time. He cannot recover. But suppose he shows that he entered upon the land at any time before or after the expiration of five years, and was in the actual possession under the tax deed, and he was, before or after the expiration of the five years, ousted by the holder of the patent title, in that case he is not barred of his action by the statute. In the first case his title has no support from possession, in the second it has. Now the holder of the patent title has the same right under like facts as to possession. The formula just stated applies to him as well as to the tax title holder. So it appears that possession will determine the rights of the parties, and the one in possession, not having ousted the other, may set up the bar of the statute.
*451If I am in possession of land under a valid title, and another enters and ousts me, in an action to recover possession I must show my title. If that title is based upon a tax deed, I will recover though the deed was recorded more than five years prior to the commencement of the action.
The purpose of the statute of limitations in question is to bar actions for the recovery of lands when the titles have never been enforced by possession.
I think the judgment of the court below should be'reversed.
Bothrook, J., concurs in the views and conclusions I have expressed in this case.