Works, J., concurring. I concur in the judgment on the following grounds, stated in an opinion prepared in this cause by Mr. Commissioner Hayne: —
“ The trial court gave judgment for the plaintiff, and the defendants appeal. The complaint was probably intended as a complaint in a suit to quiet title, and is sufficient as such. It may also be assumed for the purposes of this opinion to be sufficient as a complaint in [628]ejectment upon title. We shall consider these different aspects of the ease separately.
“ 1. The judgment cannot be sustained as a judgment in ejectment upon title.
“ (a) It is clear that the plaintiff had no paper title. The findings show that ‘on April 23,1862, the defendant Mary A. Wallace became the owner in fee-simple, by means of a proper conveyance to her, of the property in controversy’; ‘ and that the property was sold for taxes in 1865 to one Mayo, to whom a deed was made.’ But it is further found that ‘ the proceedings culminating in the execution and delivery of said deed to Eli Mayo were not sufficient to vest title in him or to divest the title of the defendant Mary A. Wallace.’ This left the paper title in Mary A. Wallace, who retained it until 1876, when she conveyed it to one Le Boy, in whom, so far as the record shows, it is still outstanding.
“ (b) The plaintiff did not show a title by adverse possession. The findings show that in August, 1865, Mayo was put in possession of the property under a writ of assistance, and that ‘ from that time until March, 1878 (except for a short space of time during the latter part of 1875 and the first of 1876, when John H. Beeves had possession of the front portion of said property), said Eli Mayo had the open, notorious, actual, continuous, and exclusive possession and use of said property, claiming to own it as against the whole world. On March 28, 1878, Mayo conveyed the property to the plaintiff, who entered into possession thereof, and continued in the open, notorious, actual, continuous, and exclusive possession and use thereof, claiming to own the same until about January 9, 1883, when the defendants ousted her.' If the foregoing were the only facts in relation to the matter, there could be no doubt that the plaintiff had acquired a title by adverse possession, upon which she could maintain either an action of ejectment or an action to quiet title. The foregoing, however, are not the only [629]facts in relation to the matter. The findings show that 6 the defendant Mary A. Wallace was a minor until May 2, 1875.’ The plaintiff’s possession before that date, therefore, does not count. And in April, 1878, a statute was passed requiring the payment of all taxes ‘which have been levied or assessed' as a condition of adverse possession (Code Civ. Proc., see. 825); and after this statute went into effect, it was necessary that the plaintiff should have paid the taxes. It is not contended that there is any sufficient affirmative showing as to the payment of taxes. The findings are silent upon the question, and the evidence does not show any payment after 1878. The plaintiff introduced tax-receipts up to 1876, at which period a showing of such payment was not necessary, but none subsequent to that date. And the fact that ‘ Mayo testified that he paid some of the taxes after 1876 ’ is insufficient as a showing of payment after 1878. Now, assuming in favor of the plaintiff that it is not necessary that the findings should affirmatively show that taxes were not levied or assessed, and consequently that, so far as the findings are concerned, the plaintiff has a title by adverse possession, yet, upon the evidence, it must be held that the showing is insufficient. For under the latest decision in the matter it must be held that the burden is upon the party claiming by adverse possession to show either that he has paid the taxes or that none have been assessed. (Reynolds v. Willard, 80 Cal. 605.) It must be held, therefore, that Reynolds v. Willard overrules Oneto v. Restaño, 78 Cal. 374, upon this point, and establishes the rule to be followed. In this view the evidence showed no title in the plaintiff by adverse possession.
“ Upon the record before us, therefore, it must be held that the plaintiff had no title, but a mere naked prior possession. This is not sufficient to support a complaint upon title alone. As a matter of course, evidence of possession raises a rebuttable presumption of title. But [630]here such presumption is rebutted by proof that the title is outstanding in Le Roy. It is equally true that as against a mere trespasser, prior possession is a sufficient foundation for the action. But where prior possession alone is relied on as the foundation of the action, it must be alleged in the complaint. Possession without title is clearly not title, though as above stated it is some evidence of title. And hence a complaint which counts upon title alone is not supported by evidence of prior possession, if it affirmatively appears that the plaintiff has no title. In other words, where the plaintiff relies upon title alone it is sufficient for the defendant to show that the title is outstanding in a third person without connecting himself with it. (Cranmer v. Porter, 41 Cal. 466.) If, therefore, the action is to be considered as in ejectment, the judgment must be reversed.
“ 2. The same result would follow if the complaint be considered to be a complaint to quiet title; for we do not understand that a mere naked prior possession is sufficient to maintain the action. We do not think that one who has no kind of interest in the property, and who may not even be in possession at the commencement of the action, can require all persons who claim au interest in the property to disclose the nature of their claims, and have them judicially determined. Compare People v. Center, 66 Cal. 555, 556. This is not in conflict with Pennie v. Hildreth, 81 Cal. 130. One of the points decided in that case was, that an administrator had sufficient interest to maintain the action, of the correctness of which we have no doubt; but it was also decided in that case that the denial of the plaintiff’s allegation of ownership raised a material issue, and this was put upon the ground that the plaintiff must have some interest in the property. In this regard the court said: 6 The basis of his right to require the adverse interest to be produced, exposed, and judicially determined is his own interest in or ownership of the land. This is the one thing [631]necessary for him to prove in order to make out his case. (81 Cal. 132.) This language is not inconsistent with what was previously said in the case, viz., that it was not necessary that the plaintiff should have title; for that refers to the whole title. The court went on to say that the statute was broad enough to cover ‘ every interest or estate in lands of which the law takes cognizance. But this is a very different thing from saying that it covers a case where the plaintiff has no interest whatever. It may be conceded, without affecting the decision in this case, that any interest which the law recognizes as such is sufficient foundation for a suit to quiet that interest. This would not be in conflict with Von Drachenfels v. Doolittle, 77 Cal. 295. All that was decided in that case was a question of pleading. The plaintiff there filed a complaint to quiet title in the usual form, and under it sought to have a decree that defendant should convey to him the legal title. The court held that this could not be done. The theory of the action was that the defendant had some claim which was invalid and void as against the plaintiff, and it was manifestly in contradiction of the pleading to maintain that the defendant’s claim was not invalid or void, but on the contrary was the legal title, and that a conveyance of it should be decreed. It is not necessary in this case, however, to decide what interest the plaintiff must have to maintain the action. All that it is necessary to hold is that he must have some interest, and that a mere prior possession without right is not such interest.”