¶1*381On Petition for Rehearing Filed April 15, 1916.
¶2In a petition for rehearing, plaintiff contends that § 7381, ■Comp. Laws 1913, bars defendant’s recovery of judgment for title. That section reads: “An action for relief not hereinbefore provided for must he commenced within ten years after a cause of action shall have accrued.” Plaintiff asserts that under the statute governing trials -of equitable counterclaims in adverse claims suits, § 8153, Comp. Laws 1913, defendant is to be regarded as a plaintiff bringing this action and therefore barred from relief for not bringing suit within ten years from time his cause of action accrued. This statute reads: “A defendant interposing a counterclaim shall, for purposes of trial, be deemed plainfiff, and the plaintiff and codefendants against whom relief is sought ■shall be deemed defendants as to him.”
¶3Several answers can be made to plaintiff’s contention. Neither this ■statute of limitations nor the practice statute as to equitable counterclaims can apply. If defendant is not barred by the adverse possession statutes, § 5471, as held in the main opinion, he is certainly not barred by the ten years statute, § 7381. To so hold would be to find mo necessity for the former statute in such cases. Another conclusive answer is that defendant has “commenced” no action within the meaning and terms of § 7381. He has begun no action whatever, but so -far as that statute is concerned is a defendant, and not within its terms. Nor does § 8153 regulative of trials in actions already brought purport to change the situation as to who must bring the suit to be within ■§ 7381, the limitation statute. The statute governing trials expressly states that “for purposes of trial he (defendant) shall be deemed plain"tiff.” This excludes by necessary inference any conclusion that a ■defendant is to be deemed plaintiff for any other purpose than for “purposes of trial.” This statute cannot supplement § 7381 in the manner contended for, even though the limitation statute as so supplemented could he held applicable.
¶4Another answer to plaintiff’s claim is that defendant Smith, the fee -owner, may maintain an action to remove any cloud on his title, and no defense of outlawry as against- such an action could he interposed. “A cloud upon a title must always continue to operate as such during the period of its existence; and as its effect upon the title is continuing, the *382cause of action resting on the right of the owner to have it removed would seem to be continuing also and to be available at all times while the cloud remains.” Cooper v. Rhea, 29 L.R.A.(N.S.) 930, and note (82 Kan. 109, 136 Am. St. Rep. 100, 107 Pac. 799, 20 Ann. Cas. 42).
¶5Another reason for refusing application of § 7381 is that as to plaintiff, if otherwise available as a plea by him against defendant, he has not ten years’ possession to set up against defendant’s title. As to plaintiff, defendant is asserting his cause of action within less than ten years from the time defendant’s cause of action for possession accrued by reason of plaintiff’s occupancy, assuming possession of plaintiff’s grantors could be tacked. 1907 was the earliest prior actual occupancy or possession of the premises that can be asserted by anyone other than Smith, and be within the facts. Until then defendant’s legal title drew to him constructive possession, which was broken only by actual possession in 1907. No ten-year statute could have run as against defendant.
¶6The contention for rehearing based on laches was sufficiently answered in the main opinion.
¶7Rehearing is denied.