The facts of this case, the questions of law involved, and the proceedings had in the lower court are stated generally in the opinion of the district court of appeal and we adopt the same, supplemented by such additional facts as may seem to us to give some additional basic support for the conclusion reached. The statement of the case by the district court of appeal follows:

The conditional sale contract provided that said personal property was to be delivered to Mrs. Sarah S. Eodgers, whose address for delivery was given as East 58th Street, New York City. There being no other evidence as to the place of delivery, it must be inferred that said personal property was delivered to her at the place named in the contract. As to what period of time the property remained in New York City after the execution of the contract, or when, or under what circumstances it was brought into this state, the record is silent. From the day on which the last installment was paid to the Aeolian Company under said contract, to wit, January 3, 1913, to the day that said property was delivered by one Mrs. S. J. Moran to the auctioneer for sale and was purchased at auction sale by Mr. Wells, to wit, November 29, 1915, it was clandestinely possessed. As a matter of fact, said company had no knowledge of the sale of said personal property or by whom the actual possession was held, or where it had been detained, after the day of said last payment, until it was discovered in the possession of Mr. Wells, in May, 1918, a period of approximately five years and four months. No charge of intentional wrong is imputable to Mr. Wells. No privity is shown to have existed between him and Mrs. Moran or between him and Mrs. Rodgers.

The question which seems to us to be decisive of the case is whether plaintiff’s cause of action was barred by the provisions of section 338, subdivision 3, of the Code of Civil Procedure, as found by the trial court. The second question, as to whether the possession of defendant, or any one of the parties under whom he claims title, or the possession of all of them considered together, none of whom was in possession for a period of three years after a cause of action for its detention had accrued in favor of plaintiff’s assignor, was legally sufficient to support respondent’s claim of title by adverse possession, is discussed by respondent, but we think the latter question is rendered unimportant by the fact that the possession of the defendant, or of any or all of the persons under whom he claims, is wholly lacking in those essentials which are necessary to the creation of a title by adverse possession. Said property was not held by the defendant or by those under whom he claims, openly, or notoriously, continuously and uninterruptedly for the statutory period, exclusively and under a claim of right, nor were the taxes shown to have been paid by the adverse claimants. Neither the defendant nor his predecessors possessed said property continuously; for the full statutory period. Its possession was not open and notorious but clandestine and the owner was without the means of knowing in whose possession it actually was or that the possessor asserted an adverse claim to it. In fact, the place of its location was concealed from the owner. The burden of proving all the essential elements of ai\ adverse possession or prescriptive title is upon the party relying upon it. (1 Cal. Jur. 636; Allen v. Allen, 159 Cal. 197 [ 113 Pac. 160 ].) There is no evidence of any kind to be found in the record which tends to support a claim of title by adverse possession.

The trial court specifically found, in addition to the bar of the statute, that plaintiff and its assignor were also guilty of laches. This being an action at law, the statute of limitations, rather than the doctrine of laches, furnishes the rule of decision. (Brownrigg v. de Frees et al., ante, p. 534 [ 238 Pac. 714 ] ; Anzar v. Miller, 90 Cal. 342 [ 27 Pac. 299 ] ; 10 Cal. Jur. 522.)

Section 338, subdivision 3, prescribes that “an action for taking, detaining, or injuring any goods, or chattels, including actions for the specific recovery of personal property,” must be commenced within three years. Mrs. Rodgers, upon disposing of the personalty to which she had no title, thereby became a converter of the same. The title remained in the seller by the terms of said, contract. The last installment was paid by her on January 3, 1913. She then defaulted in all subsequent payments. Within a period of three years thereafter, to wit, November 29, 1915, the defendant became the purchaser at an auction sale. Within three years after this purchase plaintiff, after demand, brought this action to recover the possession of said property. We think the rule of law declared in Harpending v. Meyer, 55 Cal. 555 , is determinative of the rights of the parties to this action. In that ease Baux, a bailee, wrongfully pledged the plaintiff’s jewelry to the defendant Meyer, a pawnbroker. Plaintiff subsequently commenced an action in conversion against the pledgee. The defense was made there, as here, that the action was barred by subdivision 3, section 338, of the Code of Civil Procedure. The court, in discussing the question as to when the right of action accrues in this class of cases, in part, said:

The evidence in the instant case, being obviously insufficient to support a title of adverse possession or prescription, renders it unnecessary to consider the question whether or not it was the intention of the legislature, by the enactment of section 1007 of the Civil Code, that it should be applied to personal property. Said section reads: “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.” Whether by the adoption of said section it was intended to include personal property or not, it is very clear that the section in nowise modifies or limits the effect of subdivision 3, section 338, of the Code of Civil Procedure. That subdivision authorizes the commencement of an action by the owner of personal property against a wrongful converter at any time within three years from the day that the wrongdoer receives the property into his possession. The acts of “taking, ” “ detaining, ’ ’ etc., the property relate to the person who wrongfully has the property in his possession at the time the action is commenced against him, and the fact that others may have wrongfully possessed it for fragmentary portions of the statutory period, which, taken together, would exceed the period that bars the remedy, is not a defense of which the wrongdoer, who has not possessed the property for the full period of three years, may avail himself. This construction seems to be in harmony with Harpending v. Meyer, 55 Cal. 555 , and would afford some protection to persons as to their ownership of personal property which is of an ambulatory and movable character, and easy of concealment. Less baneful consequences would probably flow from a rule that would require a fixedness or stability of possession before an owner of property, without fault on his part, could be deprived of its use and enjoyment than that which would follow the confusion of “tacking” the possessions of many holders of various durations, residing in various neighborhoods and with the situation further embarrassed by the difficulties of identification.

A careful examination of the decisions of this state has failed to disclose to our investigation a single case in which section 1007 of the Civil Code has been applied to the acquisition of title to personal property. Said section has been cited and interpreted many times in cases involving the title to property real. In Thomas v. England, 71 Cal. 456 [ 12 Pac. 491 ], this court, in interpreting said section, said: “This section merely fixes the time in which a right by prescription shall be acquired, but does not alter the requisites which before the code were essential to the growth of a prescriptive right. (Woodruff v. N. B. G. M. Co., 18 Fed. 753 [ 9 Sawy. 441 ].)

“The user must be adverse to the true owner. (Anaheim W. Co. v. Semi-Tropic W. Co., 64 Cal. 185 [ 30 Pac. 623 ].)

“If the user must be adverse, then it must be accompanied by the elements required to make out an adverse possession. ’ ’ (See, also, Sullivan v. Zeiner, 98 Cal. 346 [20 L. R. A. 730, 33 Pac. 209 ] ; Alhambra etc. Water Co. v. Richardson, 72 Cal. 598 [ 14 Pac. 379 ]; People’s Water Co. v. Anderson, 170 Cal. 683 [ 151 Pac. 127 ].)

Said property was not taken from the possession of the original conditional purchaser for a tax, assessment, or fine or pursuant to any statute and the title thereto could not have been transferred by her without the consent of the seller. Mrs. Rodgers never having acquired title by her possession and her successors in interest not having possessed or occupied said property for the period required by subdivision 3, section 338, supra, the privilege of the statute of limitations is not, therefore, available to the defendant as a defense to the action.

The judgment is reversed.

Richards, J., Lawlor, J., Lennon, J., and Waste, J., concurred.