By the Court, Sawyer, C. J., on petition for rehearing: After giving to the petition for rehearing, and to the original briefs in the case, the consideration which the views of counsel so eminent as appellant’s deserve, and always receive from us, we are still satisfied that our former judgment is correct. The drift of the ingenious argument in the petition for rehearing, and in appellant’s brief, is, to establish the proposition that the facts stated in the complaint show the object of the suit to be a foreclosure of a mortgage—that no other cause of action is shown. Unless this position can be successfully maintained, it is clear—and it seems to be so admitted—that the answer sets up no new matter calling for affirmative relief or constituting a defense. The decision in Cunningham v. Hawkins, 24 Cal. 408, and GRattan v. Wiggins, 23 Cal. 35, that the right of the mortgagee to foreclose, and of the mortgagor to redeem, are reciprocal, and that the right of action of both is barred at the same time, is not only admitted, but defendant ■ relies upon the principle. It is, also, admitted, that the right of foreclosure as against Liscom, and his right of redemption, were both, in fact, barred. But it is insisted, that both parties could waive the statute, and, if the plaintiff chose to treat the mortgage as still subsisting, and brought his action to foreclose, the defendant, Liscom, could accept the situation so assumed, and insist upon a redemption, upon the principles of the case of Calkins v. Calkins, 3 Barb. 305, and the same case under the name of Calkins v. Isbell, 20 N. Y. 147. The strain of the argument is to bring the case within [373]the principle of Calkins v. Calkins, by showing that plaintiff has brought an action of foreclosure, thereby admitting a subsisting mortgage, and placing defendant, Liscom, in the position to waive the Statute of Limitations, and avail himself of a right of redemption. The real and leading question, therefore, is, has the plaintiff treated the mortgage as still subsisting, and valid, and has he brought an action to foreclose within the rule declared in the case of Calkins v. Isbell, invoked by counsel. In our judgment he, clearly, has not. In determining this matter, we must be guided solely by the action of the plaintiff, for under the rule invoked, the right of the defendant, Liscom, to redeem, depends upon the action of the plaintiff in recognizing the existence of a still subsisting valid mortgage, and his entire action appears in the complaint. If the plaintiff has not made a case of foreclosure in his complaint—if, indeed, the term foreclosure, is strictly applicable under our system—the averments of the answer, which do not show some other act of recognition on the part of plaintiff, cannot aid in making one.
How the facts stated in the complaint are, briefly and substantially, that on the 5th of December, 1849, one James Light, being then the owner and in possession of the premises in question, mortgaged them to one Harris, to secure a loan' of money, by mortgage duly executed, acknowledged and recorded; that Light failed to pay, and said Harris, on the 11th of Hovember, 1850, brought a suit against said Light to foreclose said mortgage, and in January, 1851, obtained a judgment for some six thousand five hundred dollars, foreclosing said mortgage and ordering a sale of said premises for the satisfaction and payment of said sum; that, under said judgment and order of sale, the Sheriff, on the 8th of March, 1851, sold said premises to said Harris, and execúted a deed as required by law, which deed was duly acknowledged and recorded; that through sundry mesne conveyances from said Harris said plaintiff, on the 9th of Hovember, 1854, acquired all the right, title and interest, which said Harris had acquired, under said mortgage and [374]proceedings thereunder; that he paid therefor the sum of eight thousand three hundred dollars; that upon his said purchase, said plaintiff entered into the possession of said premises, and erected improvements of the value of fifteen thousand dollars; that he has ever since heen in the peaceable, quiet and undisturbed continuous adverse possession of said premises; that on the 26th of July, 1850, said Light sold and conveyed all his right, title and interest in said ¡ premises, subject to said mortgage, to defendant Liscom, by deed acknowledged and recorded on the 27th of July, 1850; that plaintiff had no knowledge of the existence of said deed j to Liscom ; that said deed from Light to Liscom is a cloud upon plaintiff’s title, greatly depreciating the value of plaintiff’s estate therein, and that said defendant, Liscom, has no real or valid claim or title to said premises. He then prays that defendant be required to quitclaim, and that the cloud now resting upon said plaintiff’s title be forever removed and adjudged null and void, and for such other relief as may be just and equitable, The answer admits and restates tlpe material facts, and draws different legal conclusions from them.
Upon the facts thus averred, the plaintiff claims that he is now vested with a valid title, unincumbered by any subsisting or valid lien, or mortgage of any kind, on two grounds. Firstly—The foreclosure proceedings having been had under the Civil Practice Act of 1850, which provides as follows (Section 309): “ In proceedings to enforce a mortgage it shall not be necessary to make other incumbrancers parties, but the creditor may maintain his action against the mortgagor alone, alleging in his complaint the existence of the debt and of the mortgage, and praying a sale of the property mortgaged(Stat. 1850, p. 456.,) it is claimed that under this provision it was not necessary to make Liscom, who ■'was a subsequent grantee, a party, and that the judgment rand sale is valid and effectual to pass the title, and that the ■ vendee of the Sheriff acquired a perfect title without his beiug-.a party. Secondly—If wrong in this view, the plain[375]tiff claims that he acquired a good and valid title under the Statute of Limitations, through and by virtue of a twelve years continuous adverse possession under his conveyance, and that in either case the defendant, Liscom, has, in fact, no present, existing or subsisting title or interest whatever, and that his deed from the same source of title, although apparently showing title upon the record, is but the representation of a title that has become extinct; that it has ceased to represent anything substantial, any reality, and becomes a shadow only—a cloud which he is entitled to have removed. These two aspects are fairly presented by the facts alleged, and this is clearly the theory upon which the complaint is framed and the action prosecuted. There is not a line in the complaint, either in the allegations or the prayer, that indicates a purpose to recognize any present subsisting mortgage or title, equity of redemption, or other interest, legal or equitable, now existing in the defendant, Liscom. On the contrary, that idea is repudiated, and the appropriate relief prayed on the theory of the case, as they claim it to be. If the title of Liscom is extinguished, either by the foreclosure already had, or by a twelve years adverse possession, then his deed, representing an extinct title, gives him no present subsisting right, either in law or equity, and it can only be a shadow, casting its baleful influence upon the title of plaintiff, diminishing the value of his estate, and the plaintiff is entitled to have it removed. Conceding plaintiff’s legal propositions arising upon the facts averred to be sound, the prayer for relief is appropriate to the case alleged. And he has asked no relief inconsistent with this theory of his case. While the prayer cannot aid in making out a case otherwise defectively stated in the complaint, it may well serve to show what kind of a case the plaintiff supposes he has made, and the kind of relief to which he conceives himself entitled. It may indicate the object wlyesUPS**». the plaintiff seeks to accomplish. f&ARtr
For the purposes of this argument, we may safely accept the definition of a foreclosure so confidently put forth [376]conclusive of the whole question hy appellant’s- counsel in his petition for a rehearing. “ A foreclosure,” says he, “ in the original acceptation of the term, was nothing but a legal proceeding to extinguish the equity of redemption. It has no other or further object.” And again: “What,” he asks, “ is a foreclosure of a mortgage ? Is it anything other than a proceeding in a Court of justice conducted according to legal forms, in and by which a mortgagee, or his assignee or successor, or any one who has, hy operation of law, succeeded to the rights and liabilities of a mortgagee, undertakes to dispose of, or bar, or cut off the legal or equitable claims of lienholders, or of the mortgagor, or those who have succeeded to the rights and liabilities of the mortgagor ? If such be not in substance a foreclosure of a mortgage, things have, from time immemorial, been called in our law books by wrong names. And,” counsel further asks, “wherein the facts averred in the complaint do not bring the proceeding precisely within the definition above given.”
Notwithstanding the confidence with which the concluding interrogatory seems to be propounded, we will endeavor to make clear—what seems obvious enough to us—“ wherein the facts averred in the complaint do not bring the proceeding precisely within the definition above given.”
A suit to foreclose a mortgage necessarily pre-supposes a subsisting, living mortgage, with a correlative right of redemption, not already in any manner cut off, barred, or extinguished.
The plaintiff insists that -the equity of redemption—the estate of the mortgagor, and of Liscom, who has succeeded to his rights—has been disposed of, barred, cut off and extinguished already by a valid foreclosure, or, if not, then by a twelve years adverse possession, under a judicial sale, and thereunder purporting to convey the title. He claims that Liscom’s deed has ceased to represent anything substantial, and is a cloud on his title, and that Liscom has remaining no subsisting equity of redemption—no real or valid claim or title [377]to said premises. He insists that Liscom has no rights whatever, legal or equitable, to bar or cut off; that they have long since been barred, cut off and extinguished by lapse of time, and by judicial proceedings. He acknowledges no present existing right. He, therefore, does not ask that defendant’s legal or equitable rights be barred, or cut off, but, on the contrary, as his rights have long since been in fact extinguished, he does pray, that the fact of their extinguishment and non-existence may be judicially declared; and since the substance has already been annihilated, that the shadow cast by the deed may be removed. It must be borne in mind, that we are not now discussing the question, whether the plaintiff’s legal propositions upon the facts alleged, are sound, or not, but are only ascertaining the grounds of the action, as disclosed by the pleadings, for the purpose of determining whether the plaintiff’s action is an action to foreclose a mortgage; whether he recognizes a subsisting mortgage and a correlative subsisting equity of redemption. For, unless this is the case, the defendant’s right of redemption is confessedly gone. In the case of Calkins v. Calkins the recognition of the then present existence of a valid mortgage was necessarily involved in the very proceeding itself. The parties, after the bar of the statute had attached, were proceeding to foreclose by advertising, and selling under and by virtue of the terms of the mortgage itself, as such, in pursuance of the statute of Hew York, authorizing foreclosures in this mode. Such a proceeding under the mortgage, ostensibly to foreclose it, must necessarily be an acknowledgment of the existence of the debt, and of the mortgage as a mortgage. Suppose a sale had taken place, and a surplus had resulted, would it not have gone to the mortgagor ? Suppose a complaint had been filed under the laws of Hew York asking a strict foreclosure, the judgment or decree would have given a day of payment, even under the old system, and, upon paying the amount due, the mortgage would have been discharged. - [378]
As the plaintiff does not recognize any equity of redemption, or other right of any sort, legal or equitable, in defendant, Liscom, but denies any right, and does not seek to cut off or bar any right whatever, the case is not within the definition of appellant’s counsel. It is, therefore, not an action to foreclose a mortgage and cut off an equity of redemption, but an action to remove a cloud from a title claimed to be at present perfect, and there is no recognition of a subsisting mortgage or right of redemption in the complaint which can take the affirmative cause of action, set up in Liscom’s answer, out of the Statute of Limitations. Uor is any act of recognition of a subsisting mortgage by the plaintiff set up in the answer.
We hold that this is not an action to foreclose the mortgage ; and assuming that the mortgage has never been foreclosed as to defendant Liscom, that, upon the facts appearing in the case, the right of foreclosure, and the correlative right of redemption, are both barred by the Statute of Limitations.
If there is any other aspect in which the answer presents a good defense to the action, it is not apparent to us.
In our former opinion we did not think it necessary, under [380]the view we took, to determine the question whether the judgment and sale thereunder, in the foreclosure suit prosecuted to its conclusion under the Act of 1850, was effectual to cut off the interest of Liscom, the subsequent grantee, without making him a party to the action. We assumed, under the view we took—and we do not see how it could be otherwise understood—that it made no difference whether the title which he took by his conveyance, subject only to the mortgage lien, was cut off by the judgment and sale or not.
We find no reason now to change the grounds upon which the decision was before rested. We shall, therefore, for the purposes of the decision, again assume that the legal rights of the defendant, Liscom, were in nowise cut off by the proceedings in the foreclosure suit alone, and rest our decision upon the other aspect of title presented by the complaint. But, as we have done in respect to the point already discussed, we shall develop the grounds of the decision somewhat more fully than in our former opinion. The plaintiff, in this aspect of the case, alleges that he entered into possession in 1854, under a conveyance made in pursuance of a Sheriff’s sale in a suit foreclosing a mortgage, and that he has ever since been in the peaceable, continuous adverse possession of the premises—that is to say, he entered under what purported to be a paper title, and he has been in the adverse possession under such' title for a period of some twelve years. Did he acquire any positive affirmative rights under such a state of facts, or are they merely negative? Has he merely intrenched himself behind a wall which will serve as a bulwark of defeiise when attacked, or has he acquired an implement of offense, as well as of defense, when affirmative action is necessary to recover, or quiet a ¡lossession ? In short, does adverse possession under our Statute of Limitations, during the time prescribed, invest a man ¡ with a substantial right, and give him, in fact, such an interest as entitles him to avail himself of all the remedies necessary to secure one in the lawful possession of the soil ?
[381]In Grattan v. Wiggins, 23 Cal. 36, the Court say, in reference to that subject: “Lapse of time not only applies as a defense to an action, but it forms the basis of a new title acquired by prescription, which is founded upon the statute.” Angelí, in his work on Limitations of Actions, defines the word “ limitation ” as follows: “ By the term ‘ limitation,’ as here used, is meant the time which is prescribed by the authority of law (ab auctoritaie legis) during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or equity can be maintained.” (Angell on Limit., 1, Sec. 1.)
Some recent statutes provide in express terms that adverse possession for the time prescribed shall extinguish adverse titles and vest the possessor with the fee. (Act 3 and 4, Wm. IV; Angell on Limit., App. XIV, Sec. XXXIV, and Stat. Rhode Island, ib. App. LVII, Sec. 2.) Ours contains no such express provision, but is not that the effect of our statute, when properly construed ? Angelí says, in the language of Mr. Chancellor Harper, in Drayton v. Marshall, 1 Rice's Eq. 385: “ The belief is, that no case can he put, in which a private individual knows that another person claims, and is in the actual enjoyment of land which belongs to him, and neglects to prosecute his rights at law, when there is nothing to prevent his doing so, that he will not be barred by the Statute of Limitations.” (Angell on Limit., 397, Sec. 2.) And Angelí further says : “ It is also unquestionable that where the land has been held under a claim to the fee for the time prescribed by the statute, and an entry is made by the party who has the written title, such party may be dispossessed by an ejectment brought by him, who has so held and claimed.” (Ib., 398, Sec. 2.) This was so held in Jackson v. Oltz, 8 Wend. 440. The lessors of the plaintiff had been in possession for the period prescribed by the Statute of Limitations, claiming title under a patent. Defendants afterwards entered, and held under a title which had been judicially determined to be valid. The action was brought by the [382]plaintiffs, relying upon the title acquired hy adverse possession, against the defendants holding such paper title, and a recovery had. The Court say: “If the possession was adverse, and had heen so for more than twenty years, as it had in this case, then that possession ripened into a title, and the plaintiff must recover against the defendant, though the paper title to the fifty acres is, in reality, not in him.” (8 Wend. 442.) The same principle is recognized in Jackson v. Dieffendorf, 3 John. 269. And in Jackson v. Rightmyer, 16 John. 327, Mr. Chancellor Kent says, that showing a possession of thirty-eight years under a claim of right “ was showing an absolute right of possession sufficient to toll an entry.” Our Statute of Limitations relating to real estate is copied from the statute of ¡New York, with but slight verbal changes; and we are not aware of any provision in the statutes of New York which would affect the construction on this point. In Bradstreet v. Huntington, Mr. Justice Johnson says: “ That an adverse possession, where it actually exists, may be set up against any title whatsoever, either to make out a title under the Act of Limitations, or to show the nullity of a conveyance executed by one out of possession. On the first two of the propositions there can be no doubt, and none has been expressed.” (5 Pet. 438.) And in Drayton v. Marshall, Mr. Chancellor Harper says : “ The time, then, required to mature a title by the Statute of Limitations had run out more than five times before the filing of this bill.” (1 Rice’s Eq. 384.) And again : •“ But if by the statute defendants have acquired a title to the fee, they can, of course, have no right of redemption as against themselves. This must be merged or extinguished in the fee.” (Ib. 386.) These remarks all go upon the idea that adverse possession for the time prescribed confers upon the possessor some interest, some positive right; that it affords him something more than a shield; in short, invests him with a title.
In LeRoy v. Rogers, 30 Cal. 234, we said: “ ¡Rogers’ title, thus acquired by adverse possession—the claimants under the patent having a right of action and being under no disa[383]Mlity—could not be impaired by an entry by those claiming under the patent, unless made in pursuance of a judgment to which Rogers was a party or privy.”
So in Taylor v. Horde, 1 Burr. 119, Lord Mansfield said:
“ Twenty years adverse possession is a positive title to the defendant. It is not a bar to the action or remedy only, but it takes away the right of possession.” To the same effect are Stokes v. Berry, 2 Salk. 421, and Pederick v. Searle, 5 S. & R. 239. In Leffingwell v. Warren, 2 Black, 605, the Supreme Court of the U. S. say: “ The lapse of time limited by such statutes not only bars the remedy, but it extinguishes the right and vests a perfect title in the adverse holder.” So in School District Number Four in Winthrop v. Benson, 31 Me. 384, the Court say: “ A legal title is equally valid when once acquired, whether it be by disseizin, or by deed, it vests the fee simple, although the modes of proof, when adduced to establish it, may differ. * * * "When the title is in controversy, it is to be shown by legal proof, and a continuous disseizin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence. An open, notorious, exclusive and adverse possession for twenty years, would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed.” (See, also, Barnish v. Thompson, 7 Term R. 492; Beckford v. Wade, 17 Ves. Jr., 87; Moore v. Luce, 29 Pa. 260; Thompson v. Green, 4 O. St. 223; Newcombe v. Leavitt, 22 Ala. 631; Thorn v. Lee, 5 Geo. 217; Chiles v. Jones, 4 Dana, 483.)
True, at common law, after the right of possession was lost, the “ mere right of property ” remained, but “ the estate of the owner is in such cases said to be totally divested and put to a right.” (2 Bl. Com. 197.) The mere right of property remains, but “ even this right of property will fail, or at least be without a remedy,” unless pursued within [384]sixty years. (Ib. 199.) Can there be any doubt upon the principles stated in the authorities cited, that the right of property became at least practically extinguished by an adverse possession of sixty years ? If an adverse possession of twenty years extinguished the right of possession of the true owner, and vested a right of possession—a title with reference to possessory actions—in the party holding adversely, why, upon the same principle, should not an adverse possession of sixty years, when the writ of right, which is based upon the mere right, is barred, be regarded as extinguishing the mere right of property in the owner arid vestirig it in the other party ? Is not the principle the same in both cases ? If not, why not? We are unable to distinguish them. If the right continues, why not the writ of right? Can there be said to be a right_which is utterly incapable of being enforced—which is wholly without a remedy, either practical or theoretical ? Can there be a right which is entirely unavailable for assault or defense, or for any purpose of enjoyment, which is utterly without the means or possibility of enforcement or enjoyment ? Depriving one of the enjoyment of a legal or equitable right must, necessarily, constitute a legal or equitable wrong, and upon the fundamental principles of the common law there must be a remedy so long as there is a right remaining to protect, or a wrong to redress. (3 Bl. Com. 23.) A legal or equitable right necessarily implies a legal or equitable remedy—a remedy of some sort known to the law, practical or theoretical. But for this right, if it exists, there is neither.
■ Even in England the writ of right, and almost the entire catalogue of actions, real and mixed—some fifty or sixty in number—were abolished by the statutes 3 and 4 of William IV. The time of limitations for all real actions retained was reduced to twenty years, and by express provision enacted, that the right, or title of the party, who might have pursued his remedy, shall be extinguished by a twenty years adverse possession. (Angelí on Limit., 356, Secs. 4, 5 ; Ib., App. VI, Secs. 2, 24, 34, 36; 3 Steph. Com. 491; 4 Kent [385]Com. 70, iST. g.) This, in our judgment, was but enacting, in express terms, what was before the practical, if not the theoretical, result, at least after a sixty years adverse possession. Even before the Act of William IV, of the many actions brought within the preceding hundred years on the mere right, after the remedy in ejectment was barred, the Commissioners could not find that more than one or two had succeeded.
Under our Statute of Limitations a five years adverse possession covers all actions, and as effectually bars all rights of other claimants as a sixty years adverse possession under the common law.
Whatever may be true of personal contracts, it certainly cannot be said with reference to realty, in view of the authorities cited, that the statute only takes away the remedy, or that a right, a title, is not practically extinguished as to one party, and acquired by the other. The five years adverse possession, practically, at least, is conclusive evidence of title in the possessor, and if conclusive evidence of title in him, it must be as conclusive evidence of no title in the other. What is the legal definition of title to land ? A title is thus defined by Sir Edward Coke : “ Titulus est justa causa possidendi id quod nostrum est; or it is the means whereby the owner of lands has the just possession of his property.” (2 Bl. Com. 195.) If this definition presents the true idea of title, then, when a party’s means of obtaining possession, or maintaining the possession when obtained, have been extinguished by an adverse possession, it would seem to follow that his title is effectually and substantially extinguished in fact, whatever his condition theoretically may be. And the party who has acquired an absolute right of possession, which will not only shield him in his possession against the attacks of all the world, but, when ousted, will restore him to, and protect him in, his just possession, even against the party having the written title, would seem to have a substantial title. We can see no reason why, for [386]all practical purposes, such a party’s title should not be regarded both in law and equity, as good as though he, also, had a perfect written title. And we are dealing with practical, not merely theoretical, questions. If a party’s right of possession has become absolute; has, by long adverse possession, ripened into what may as well, and as properly, for practical purposes, be called title, as anything else, so that he can maintain his possession, or recover it, when ousted, or maintain all actions for injuries to it against the party having the written title, in all respects in the same manner, and to the same extent, as against parties who never were other than entire strangers to the premises; if the party having the written title has lost, by the adverse possession, all means of recovering possession, or protecting a possession, when acquired without action, and all means of establishing or maintaining any right against the adverse possessor, we can perceive no good reason why such adverse possessor should be annoyed by pretended claims, or have the value of his possession diminished by an apparent title, which has lost its vitality.
We see no good reason why the party, whose adverse possession has practically ripened into a title, should not be entitled to all the remedies to quiet his possession, that are incident to possessions under written titles, which are, in law and equity, no more efficacious to protect the owners in the actual enjoyment of their possessions under them. Statutes of Limitations are said to be statutes of repose. If so, they should be so construed and administered with respect to cases falling within their purview, as to afford complete, not merely partial, repose.
We are not without authority bearing directly on the point. In the case of Pendleton v. Alexander, 8 Cranch, 462, a contest had been going on in respect to boundaries for many years. Pendleton and his grantors had been in the adverse possession from 1741 till the commencement of the action to quiet his possession in 1806. The action was by Pendleton, the party in adverse possession, against the other [387]claimants out of possession. The following statement by Mr. Chief Justice Marshall, shows the nature of the action, and circumstances under which it was commenced, etc.: “ ¡Nathan Pendleton being about to sell land in controversy, tendered to Charles Alexander a deed for quieting the title; and, on his refusing to execute it, instituted a suit to compel him so to do. After the death of Charles Alexander, this suit was brought against defendants, his widow and children. In the Circuit Court a decree was rendered in favor of plaintiff, from which the defendants appealed.” (3 Curtis, Dec. Sup. Ct. U. S. 224; 8 Cr. 466.) Mr. Chief Justice Marshall, in deciding the case, says: “ By the laws which govern this case, a possession of thirty years, under some circumstances, and of fifty years under any, constitutes a title against all the world. The appellee, claiming under a possession perhaps from the year 1732, certainly from the year 1741, has a complete title, unless something can be alleged by the plaintiffs in error which shall deprive him of the advantages of that possession.” (3 Curt. Dec. 224; 8 Cr. 569.) And, again : “ The title of Pendleton, therefore, has from that act all the benefit which can be derived from a possession from the year 1741, when a possession ostensibly adversary by metes and bounds unquestionably commenced, to the institution of this suit in the year 1806. * * The appellee’s title, being secured by a possession of more than fifty years, is unquestionably good, and it is proper that the doubts which hang over it should be removed. There is no error in the proceedings of the Circuit Court, and the decree is affirmed.” (Ib. 226, [470].)
The action and the decree establishing a title and giving affirmative relief quieting it, rest upon a title acquired by adverse possession. The statute of Virginia, under which the title was acquired, did not in express terms provide that the title of the owner should be extinguished by the adverse possession, or that the possessor should be vested with a title. It merely purported, by the terms, to bar a remedy. After reciting and repealing a former Act, the statute pro[388]vides : “ Any person may hereafter maintain a writ of right upon the possession or seizin of his or her ancestor or predecessor within fifty years, or any other possessory action upon the possession or seizin of his or her ancestor or predecessor within forty years next before the .teste of the writ; but no person shall maintain a real action upon his own possession or seizin but within thirty years next before the teste of said writ, as in the said Act is already limited.” It then provides that the process shall be the same and have the same effect as in England. (4 Henning’s Statutes at Large of Virginia, from 1711 to 1736, p. 402, Sec. 9.)
We have examined the subsequent statutes of Virginia and find none affecting this question. The same provision was re-enacted in 1748, and the time in certain other actions relating to lands reduced to twenty years. (5 lb. 415, Secs. 18-21.) This case appears to us to be in point.
So in England; the plaintiff having “ been in possession of a watercourse upwards of sixty years,” brought his bill “ for a perpetual injunction to quiet plaintiff’s possession ” against a defendant who “ claimed the land' through which the watercourse run, by virtue of a forfeited mortgage for a hundred years, and which he had obtained a decree to foreclose.” Plaintiff had a decree. (Bush v. Western, Finch’s Precedents in Chancery, 530.)
The complaint presents a case of adverse possession ripened into a title of the kind considered in this opinion, with a paper title in defendant, Liscom, taking the most favorable view for him, which had ceased to have any vitality, and is incapable of affording the basis of .any right or claim, as against the plaintiff’, recognized in law or equity, but which is nevertheless of record, while the evidence of plaintiff’s title rests in part in parol; and under it a claim of title is set up hy defendant. It must, therefore, constitute a cloud upon the plaintiff’s title, and tend to depreciate its value; and the plaintiff’ is at all times liable to be called upon to litigate it. In our judgment the complaint presents a proper case for determining the adverse claim of defend[389]ant, Liscom, and for removing the cloud. (Head v. Fordyce, 17 Cal. 151; Curtis v. Sutter, 15 Cal. 263; Joyce v. McAvoy, 31 Cal. 287; Pixley v. Huggins, 15 Cal. 129; Hagar v. Shindler, 29 Cal. 55.)
The complaint having presented a good cause of action, it must, -of course, be met by an answer, either taking issue upon some of the material allegations or setting up other sufficient matter in avoidance. The answer does not take issue on any of the material allegations, and for the best of reasons, as counsel say, that they are true and cannot be rightfully denied. Besides, he relies upon the facts as constituting a part of his own case.
Uo issue being taken on the material allegations of the complaint, there, certainly, is no sufficient answer unless it sets up some new matter in avoidance. There are no material matters set up, other than a restatement of the facts contained in the complaint with different legal conclusions drawn from the facts. The title alleged in the complaint under consideration is a twelve years adverse possession under a Sheriff’s deed. If there is any new matter averred, other than has been already stated, to prevent the operation of the statute, or take it out of the bar, appellants’ counsel has not pointed it out, and we have not found it. It may be true, as counsel state, that had Liscom sued to recover possession of the laud, and plaintiff set up his title under the Statute of Limitations in his answer, as he has set it up in his complaint, Liscom might have shown matter in avoidance, or facts taking the case out of the statute; as, that he claimed under a Mexican title, and that five years had not elapsed since the final confirmation. Concede it to he so for the purposes of this case. It is because the statute allows no replication, and the affirmative matter in the answer is deemed by the law to be controverted. But this is not his position. The plaintiff alleges as one of the grounds for his relief a twelve years adverse possession; and the adverse possession is admitted. The answer does not, by way of taking the case out of the statute, allege that defendant [390]derives title under the Mexican Government, and that five years' have not elapsed since its final confirmation. He had an opportunity to allege it in his answer, if such be the fact. But it is not set up, and if the parties should .go to trial upon the present pleadings, that matter could not be given in evidence under the issues. ¡Nothing is said about it in the answer. It is not set up, and, so far as this particular matter is concerned, the defendant stands in precisely the same position as he would if the entire answer were stricken out. In that case there would be nothing to try. So now, as the answer does not touch the question on this point, there is no issue, and nothing to try. That it is matter of defense, and must be pleaded, when the right acquired by adverse possession under the statute -is presented, as in this case, in the complaint, cannot, it seems to us, admit of a question. This principle is so settled in cases arising when replications were necessary. (Richardson v. Williamson, 24 Cal. 297, 298; Vassault v. Seitz, 31 Cal. 228.)
We do not know that Liscom does claim under a Mexican title, or that this matter of avoidance could be truthfully set up, and take it for granted it could not; but we are compelled to meet this view by the argument in the petition for rehearing, which insists that no good reason can be suggested why a claim under a Mexican title, confirmed within five years, could not be shown in the present case. It could not be shown, as we have stated, under the present pleadings.
The answer, in our opinion, presents no matter constituting a defense against the title derived under the Statute of Limitations, and the demurrer to it was properly sustained, and this is the only question presented for our consideration.
Rehearing denied.