(dissenting).
For reasons set out below, I am unable to agree with the majority opinion herein. The facts are summarized in the majority opinion and need not be repeated here.
After hearing, the trial court found for plaintiff Herron on the ground that the statute of limitations barred any claim, of Brewster and the Wades, and the court’s conclusions of law included a finding to the effect that limitations began to run at the date of the Sheriff’s sale in 1927, instead of the date of issuance of Sheriff’s deed.
Only Brewster and the Wades have appealed. They argue in their brief, among other things, that the court erred in holding that the statute began to run at the time of the sale.
I believe this contention should be sustained. It is well settled, as general law, that a statute of limitations does not begin to run until a cause of action accrues; see Turk v. French, 202 Okl. 60, 210 P.2d 154, 156, wherein the court said:
“ * * * the mie ¡s ⅜-hat the statute of limitations does not begin to run until a cause of action accrues, and 'the test for determining when a cause of action arose is to ascertain when plaintiff first could have maintained an action successfully. Skelly Oil Co. v. Harrell, 192 Okl. 101, 134 P.2d 136; Big Four Foundry Co. v. Hagens, 197 Okl. 409, 172 P.2d 322.”
The question in this case, then, is when the defendants (Brewster and the Wades) could first.have brought suit on the cause of action set out in their cross-petition. This involves.an examination of the.question of what rights .are acquired by a purchaser, at a foreclosure sale, and when such rights accrue.
*149By strict doctrine of the common law, a mortgage was regarded as passing the whole legal title to the mortgagee, who also acquired the immediate right to possession of the land. See 59 C.J.S. Mortgages, § 1, at page 28. This harsh rule has, of course, been softened by the intervention of equity and the provisions of statute, and today in this state a mortgage is a lien merely, and conveys no title to the land involved. See Abraham v. Mike, 178 Okl. 597, 63 P.2d 743. Such being the case, the mortgagee does not own the legal title of the land, and has no right to take possession of it, till foreclosure proceedings are had as provided by statute.
Although I have not been able to find any case in which this court passed directly upon the exact question herein involved, the Kansas case of Zimmerman (Chambers, Intervenor) v. Rose, 111 Kan. 22, 206 P. 336, 337, is helpful. In considering the question of when title passes to a purchaser at a sheriff’s sale and pursuant to a decree of foreclosure, the court said:
“In some states it is held that before the confirmation of a judicial sale the bidder is not a purchaser, hut that after the confirmation the contract is complete. Virginia Fire, etc., Ins. Co. v. Cottrell, 85 Va. 857, 9 S.E. 132, 17 Am.St.Rep. 108. Undoubtedly this is true for certain purposes, because the bidder may be compelled by proceedings of the court to comply with his contract. But obviously he is not the owner of the legal title until he has complied and the deed has been executed. * * * (Emphasis supplied.)
“But while these rights and liabilities accrue on confirmation we think it is because the equitable title passes to the purchaser . after confirmation and before the deed is executed.
“ ‘The property is held in trust for the purchaser between the time of salei and the time when the conveyance is •made to him. Still, he does not obtain the legal title by such confirmation unless the decree divests arid vests title, or a deed is made by the master or officer selling pursuant to a decree ordering him, to do so, or unless on being so ordered, the master fails to make the deed within a reasonable time.’ 16 R.C.L. 117.”
In disposing of the case, the court said in syllabus 2:
“ * * * title had not passed until the execution of the sheriff’s deed.”
In the California case of Leonard v. Flynn, 89 Cal. 535, 26 P. 1097, 1098, the question was whether a statute of limitations began to run at the time of sale or at the time of issuance of sheriff’s deed. The court said in the body of the opinion:
“Plaintiff’s grantor, as we have already seen, was not possessed of the legal title to this tract of land until ■he received the deed from the sheriff, May 28, 1888. He had no right to entry until that time, and it was only at that time that his cause of action accrued. * * * ”
On this question, the Supreme Court of Utah said in Local Realty Co. v. Lindquist, 96 Utah 297, 85 P.2d 770, 773:
“To call it a lien, even under their practice is a somewhat loose designation and was made in connection with establishing the principle that title does •not pass to the purchaser until execution and delivery of the deed. And such is the recognized rule now in practically all states. If the legal title had already passed there would be no necessity for a conveyance.”
In 59 C.J.S., Mortgages, § 517, we find the following:
“Ordinarily a mortgage is regarded as completely foreclosed only when the equity of redemption has been cut off or the last step provided for in the - process has been taken.”
In the instant case, it can hardly be denied that a sheriff’s deed is the “last step provided for in the process”, insofar as title to the land involved is concerned.
I therefore believe that the purchasers at the sheriff’s sale had no title of any kind till the confirmation of the sale in 1940, when the equitable title passed, and I further believe that the legal title, did not pass till 1947, when the sheriff’s deed was executed. It follows that their cause *150•of action was not barred by the 15-year statute of limitations pleaded.
Since defendants’ cause of action as set out in their cross-petition was not barred by the statute of limitations, we must now determine whether plaintiff was entitled to the affirmative relief which the court granted him by way of quieting his title.
A reading of the. findings of fact, con-clttsions of law, and journal entry of judgment herein reveal that the court’s judgment in this regard was based upon the premise that plaintiff was entitled to judgment by reason of adverse possession by himself and his privies and grantors.
In this connection,, it is noted that adverse possession does not begin to rim against a person- until he has a cause of action for the land involved. See 2 C.J.S., Adverse Possession, § 162, which reads in part as follows:
“The limitations period will not commence, until claimant takes possession and a cause of action therefor accrues.’’ (Emphasis supplied.)
The same principle was more succinctly stated in Superior Oil Corporation v. Alcorn, 242 Ky. 814, 47 S.W.2d 973, 985, as follows:
“Adverse possession never runs against a man unless he can stop it.”
See also Ferguson v. Standley, 89 Mont. 489, 300 P. 245, to the following effect:
“Claim of adverse possession must invade owner’s title and be so brought home to him that he is in position to institute action for possession * * (Emphasis supplied.)
In Pacific Power & Light Co. v. Bailey, 160 Wash. 663, 295 P. 943, 944, the Supreme Court of Washington said:
“As said in McAuliff v. Parker, 10 Wash. 141, 38 P. 744, quoted with approval in Bowers v. Ledgerwood, 25 Wash. 14, 64 P. 936, 937: ‘All the authorities hold that the question of adverse possession is a question of fact, and it must be a possession that is known to the owner of the legal title’ ” (Emphasis supplied.)
As was demonstrated above, defendants herein certainly did not acquire equitable title to the land involved before the' confirmation of the sheriff’s sale in 1940, and they did not acquire the legal title till execution of the sheriff’s deed in 1947. Srtch-being the case, it can hardly be said that, the 15 years required by our statute for a-title by adverse possession has run, since-it has been less than 15 years since defendants acquired title to the lands involved’ and the right to bring a cause of action for it.
Even granting for purposes of argument only that defendants did acquire some sort of title at the time of the sheriff’s sale in 1927, there is another reason why plaintiff did not acquire title by adverse possession.
The doctrine of title by adverse possession is to be strictly construed; see Russell v. Davidson, 200 Okl. 408, 194 P.2d 887„ 888, wherein the court said in part in syllabus 4:
“The party relying on a title by adverse possession has the burden of proving all the facts necessary to establish such a title. Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful own- * ⅜ * »
When a mortgagor remains in possession after a foreclosure sale, such possession is presumptively consistent with the title of the purchaser. See 2 C.J.S., Adverse Possession, § 105, which reads in part as follows :
“The owner’s continued possession after sale of the property at execution, judicial, or like sale is that of a tenant at sufferance of the purchaser, and is not hostile to the purchaser without a clear repudiation of his title and assertion of hostile claim, and in the absence of all testimony manifesting the actual character of his holding, his possession is regarded as consistent with the title of the purchaser.”
See also Chalfin v. Malone, 48 Ky. (9 B. Mon.) 496, 50 Am.Dec. 525, wherein the-court said:
“The possession of the defendant in the execution is regarded, in the absence of all testimony manifesting the *151.actual character of his holding, as consistent with the title of purchaser.”
In Jones v. Lickliter, 154 Ky. 848, 159 S.W. 652, it was said in syllabus one :
“Where a grantee remained in possession after the land was sold by the .administrator of his grantor to satisfy .a purchase-money note, his possession was not hostile to the purchaser at the judicial sale.”
To the same general effect is 1 Am.Jur., Adverse Possession, section 37.
A careful examination of the record herein discloses only three things that could possibly be termed a “clear repudiation of his title and assertion of hostile claim”. They are: Possession by Octa Jones and her grantees; payment of taxes by Octa Jones; and the building of a fence by Octa Jones in 1943. As shown above, the possession by Octa Jones is presumptively consistent with the title of the purchasers at the foreclosure sale; it alone was therefore insufficient to give notice of adverse possession. As noted above, the fence was not built till 1943, and even if such act constituted a “clear repudiation” of defendants’ title (which is debatable) we need consider it no further for the reason that 15 years has not elapsed since the fence was built. With regard to the payment of taxes on land which is claimed by adverse possession, such payment is not alone controlling. See Anderson v. Francis, 177 Okl. 47, 57 P.2d 619. It is axiomatic that, under given circumstances, taxes against the land must be paid regardless of who the owner is; for that reason, payment of taxes is not necessarily an act constituting a hostile claim of title.
Under all the facts and circumstances in this case, I do not believe that any of the acts upon which the claim of adverse possession is based are necessarily incompatible with the possession and use of land by a tenant at sufferance. For that reason, no “clear repudiation” or “hostile claim” of title was shown, and plaintiff theretofore was not holding adversely to defendants.
In his brief, plaintiff argues that defendants are estopped to assert title to the lands involved for the reason that valuable improvements were placed thereon, with the knowledge and acquiescence of .defendants. A- careful reading of the pleadings herein reveals that the defense of estoppel was not pleaded. It is well settled that the defense of estoppel, to be available, must be affirmatively pleaded. See State ex rel. Oklahoma Employment Security Commission v. Dean, 199 Okl. 593, 188 P.2d 355.
There 'is also some argument in the briefs as to whether or not a revivor of judgment should have been had after the death of Ida Jones. By the terms of 58 O.S.1951 § 346, no such revivor was required. See Ray v. Elson, 190 Okl. 245, 123 P.2d 245, wherein this court said:
“In an action to foreclose a real estate mortgage where one of the judgment debtors died after the entry of final judgment .and decree of foreclosure, a valid order of sale may be issued without making the heirs and representatives of said deceased defendant parties to said judgment as provided by Section 589, O.S.1931, 12 Okl.St. Ann. § 1077.”
Cited by the majority is the case of City National Bank of Duncan v. Soderberg, 171 Okl. 369, 43 P.2d 495, 498, for the proposition that “When an occupant of land is in possession thereof under a deed which purports to place the title in him, he is holding adversqly. under color of title”. The essential facts in that case are indicated by a reading of the court’s first syllabus, to-wit:
“Where grantee in a warranty , deed taken ■ in 1902 conveying an 18-inch strip of land off an adjoining lot fails to record same until 1906, and in the meantime a second grantee takes a warranty deed to such adjoining lot without excluding such 18-inch strip and records the same in 1905, and where the first. grantee entered into possession of said 18-inch strip and held the same openly, notoriously, and adversely for 19 years, and there was privity between successive occupants since 1902 holding adversely to the title holders continuously, held, that *152successive periods of occupation may be united to each other to make up the IS years of adverse holding- prescribed by section 99, O.S.1931, as against such title holders.”
It is to be noted that that case, for the purpose referred to by the majority, has not the slightest application to the case at bar, there being no question of mortgagor-mortgagee relationship involved therein. It does, however, remind us of the privity existing between Ida Jones and her children which, after her death, moved them into her shoes as owners of the title of the land, subject to the lien of the mortgage, now fortified by foreclosure judgment, the Wades being as of then owners and holders only of that lien.
A statute cited in the majority opinion, 42 O.S.1951 section 23, reads: “A lien is extinguished by the mere lapse of the time within which, under the provisions of civil procedure, an action can be brought upon the principal obligation.” The majority says, “And we have held that under and by virtue of” that statute “the grantee of a mortgagor may successfully institute and maintain an action to quiet title against a mortgagee not in possession of the mortgaged property, when the mortgage lien has been extinguished by the lapse of time sufficient to bar an action upon the mortgage debt”, and cites Moore v. Kennedy, 196 Okl. 455, 165 P.2d 282. In the latter case no action had been brought nor payments made and the statute had run, a situation squarely within the above statute. Neither the statute, the case nor the principle are remotely involved here, for the simple reason that the Wades had not only sued but had obtained a foreclosure judgment prior to' the death of Ida Jones and the deeding of the land by her other children to her daughter, Octa Jones.
The majority opinion cites and appears to lean heavily upon a quite correctly quoted but equally inapplicable portion of a statement from 2 C.J.S., Adverse Possession, § 105, P. 659, which reads: “The possession of the heirs of a purchaser’s grantees, after sale on foreclosure of a vendor’s lien, to which they or the grantee are not parties, has been held sufficient to start the running of limitations in their favor against the purchaser at such sale.”' In the foreclosure referred to in this case, Ida Jones was joined as a party defendant, and under the law of lis pendens her heirs could neither take nor convey more than they received. That statement is of no' comfort to plaintiff Herron as I view it.
The majority speaks of the Wades’ delay of 13 years in moving for confirmation and seven years in causing issuance of sheriff’s deed. In 54 C.J.S., § 52, p. 625, under the title “Lis Pendens”, subhead, “V. Rights and Liabilities of Persons Acquiring Interest”, it is said, “It has been held that a purchaser pendente lite from a party to a suit takes all of such party’s interest. It has further been held that a purchaser or encumbrancer pendente lite does not acquire any greater rights than his transferor had * * * ”, and 54 C.J.S., Lis Pendens, § 52 at page 626, “it has also' been held that the lis pendens purchaser has no special standing in equity to complain of laches on the part of plaintiffs”, citing Hudson v. Herman, 81 Kan. 627, 107 P. 35.
The majority opinion refers more or less, indirectly to plaintiff’s defenses to the Wades’ cross-petition of champerty and estoppel. Neither were pleaded.
The sheriff’s deed recites that the sale was had without appraisement. If so, the sale could not have been legally conducted within 6 months of the date of the judgment, which had, however, directed sale with appraisement. (The appearance docket reflects the filing of appraisement but same does not appear in the record.) I submit that the trial court’s judgment should be reversed, sale vacated and plaintiff Herron permitted to pay the judgment or a new sale be had.
I respectfully dissent.