Breon

This is an action to quiet title to certain lands. Judgment went for defendant—the court finding “that defendant is the owner and seised in fee of all the lands” in contest, and that “plaintiff was not at the time of the commencement of this action, and never was at any time, the owner in fee or otherwise, or at all,” of said lands or any part thereof. The plaintiff appeals from the judgment upon a bill of exceptions which brings up only the judgment-roll and certain admitted facts.

Appellant has no ground for reversal unless this proposition be maintainable, namely: That although an action of ejectment be commenced within the statutory period of limitation, and although such action be prosecuted to a final judgment for plaintiff, and the defendant be evicted under a writ of possession issued under such judgment, still, if the defendant has remained in possession during the pendency of the action, and five years have elapsed from the time at which he first took possession until his eviction under the judgment, then he has acquired a new and independent title by prescription, which he can afterward enforce notwithstanding his eviction under the judgment in ejectment. If that be…

concurring. I concur. By adverse possession during the statutory period the title of the true owner is not taken from him and vested in the person having the adverse possession. The owner is simply required to sue within a limited period. If he does not, he cannot maintain an action to recover the property. In such event the disseisor, being in possession, can maintain his right against the whole world. He could always prevail over all save the true owner, and when the owner cannot sue his title has become unassailable. But if the owner sues in time and recovers in that action, he cannot be barred by adverse possession pending his action, for the condition necessary to raise the bar has not existed. The owner has not lost his right by failing to sue. The defendant, during the pendency of the action, is in under the same claim of right he had when the suit was commenced, and the judgment determines that such claim is invalid. He has not acquired a new title by remaining in possession. His title by possession, good against all the world save the true owner, he already had. He has only the same title after the statute has run, but the true owner has then lost his right of action,…