HERNDON, J.
— Plaintiffs appeal from the judgment entered October 6, 1966, wherein the trial court ordered that [19]*19“plaintiffs’ complaint shall be and hereby is stricken and that the within action shall be and hereby is dismissed.” A résumé of the procedural history of this litigation is necessary to an understanding of the issues presented for our consideration.
On December 10, 1965, appellants filed in the Central District of the Superior Court of Los Angeles County a complaint in two counts seeking to ‘ ‘ reform documents and quiet title” to certain real property. Appellants alleged that in 1961, they had agreed to sell certain real property to respondents in accordance with escrow instructions filed with the Security First National Bank, Highland Park Branch. They alleged that this sale was consummated by means of a grant deed and certain trust deeds executed by appellants and by respondents, respectively, all of which were recorded on July 11, 1961. Appellants alleged, however, that “by reason of an error in the property description . . . prepared by the escrow department of the Security First National Bank” each of these deeds “included additional property not contemplated to be sold by plaintiffs. ’'
It was further alleged in appellants’ original complaint that the property thus “erroneously, inadvertently, and mistakenly” included in these deeds consisted of “a narrow twenty-foot strip of land giving plaintiffs their main access to a larger parcel [owned by plaintiffs]. ’ ’ This strip at all times had “been fenced and at no time could be mistaken as a part of the real property sold by plaintiffs through the escrow . . .; that plaintiffs have had uncontested and free use of said twenty-foot strip as a means of access to their larger parcel for many years prior to inadvertent conveyance to defendants, and at all times since said conveyance.” (Italics added.)
Appellants sought by the prayer of this complaint to have the error in the deeds corrected and their title to the strip quieted. They offered to repay to respondents any taxes that respondents might have been required to pay by reason of the inadvertent inclusion of this additional strip of land within their grant deed.
Respondents demurred generally to appellants’ complaint on the ground that no cause of action was stated in that appellants had not expressly alleged that the mistake was “mutual” and that in any event the action was barred by the statute of limitations. (Code Civ. Proc., § 338, subd. 4.) By minute order dated March 10, 1966, this demurrer was sus[20]*20tained and appellants were granted 15 days within which to amend.
Although the minute order does not explicitly so state, it is clear that the ruling therein was based upon the court’s acceptance of respondents’ contention that the action was barred by the statute of limitations. Almost the entirety of respondents’ “Memorandum of Points and Authorities in Support of Demurrer” had been devoted to this contention. The further contention that no cause of action was stated by reason of appellants’ failure to make the formal conelusional allegation that the mistake was “mutual” was only briefly and casually stated in the concluding paragraph thereof.
Such priority of emphasis is understandable. The use of the word “mutual” would have added nothing to the allegation that the mistaken legal description of the property was the result of an error by the escrow agent and that both appellants and respondents had executed contemporaneously recorded documents in which the additional property was “inadvertently, mistakenly, and erroneously included.” In addition, appellants had alleged that the mistaken inclusion of the strip of property was “of no force and effect whatsoever for lack of consideration, in that no consideration was paid for the said real property.” The legal import of these allegations is that respondents had been equally mistaken as to the property described in the several deeds since if they had bargained for, and expected to receive, the strip of land in issue, then their purchase price would have been paid in consideration therefor.
Any doubt as to the basis of the court’s ruling was clarified after appellants’ counsel, instead of amending their pleading, determined to voluntarily dismiss the initial action and to refile it in the branch court wherein the property was situated. Their second complaint consisted of general allegations in one count seeking to quiet title to the disputed strip. Respondents moved to have the case transferred to the Central District and in their supporting points and authorities asserted: ‘ ‘ The demurrer [to the original complaint] was sustained primarily upon the ground that the reformation action was barred by the Statute of Limitations and that specific allegations of the reformation action controlled the general allegations of the quiet title action, and accordingly, the quiet title action was also barred. (See Leeper v. Beltrami, 53 Cal.2d [195] [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] (1959).)”
The motion to transfer was granted and respondents then [21]*21filed their demurrer and motion to strike appellants’ second complaint. The same judge who had ruled on the demurrer to appellants’ original complaint heard these subsequent proceedings and properly took judicial notice of the prior action. (Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].)
In their points and authorities in support of their second demurrer and their motion to strike, respondents expressly acknowledged that “A demurrer was sustained [in the prior action] upon the grounds that the same was barred by the applicable statute of limitations.” (Italics added.) Appellants’ points and authorities in opposition to respondents’ motion unmistakably demonstrate that they also shared the view that the only determinative issue was that of the applicable statute of limitations.
Regrettably, from the record before us it appears that appellants failed to call the trial court’s attention to the fact that since they had been in possession of the disputed property throughout the period in issue, the rule enunciated in Muktarian v. Barmby, 63 Cal.2d 558, 560 [47 Cal.Rptr. 483, 407 P.2d 659], governed rather than that of Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803], relied upon by respondents. The court therefore considered appellants’ second complaint as if the dates relevant to the issue of limitations alleged in the original complaint had not been omitted and granted respondents’ motion.
In view of the presentation made by appellants’ counsel, and his decision to dismiss and refile the action in another district of the court, the trial court is hardly to be criticized for its ruling herein. Nevertheless, it was erroneous As stated in Muktarian v. Barmby, supra, 63 Cal.2d 558, 560-561:
“Plaintiff contends that the trial court erred in holding that the three-year statute of limitations governing actions based on fraud or mistake bars his action. (Code Civ. Proc., § 338, subd.
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HERNDON, J.
— Plaintiffs appeal from the judgment entered October 6, 1966, wherein the trial court ordered that [19]*19“plaintiffs’ complaint shall be and hereby is stricken and that the within action shall be and hereby is dismissed.” A résumé of the procedural history of this litigation is necessary to an understanding of the issues presented for our consideration.
On December 10, 1965, appellants filed in the Central District of the Superior Court of Los Angeles County a complaint in two counts seeking to ‘ ‘ reform documents and quiet title” to certain real property. Appellants alleged that in 1961, they had agreed to sell certain real property to respondents in accordance with escrow instructions filed with the Security First National Bank, Highland Park Branch. They alleged that this sale was consummated by means of a grant deed and certain trust deeds executed by appellants and by respondents, respectively, all of which were recorded on July 11, 1961. Appellants alleged, however, that “by reason of an error in the property description . . . prepared by the escrow department of the Security First National Bank” each of these deeds “included additional property not contemplated to be sold by plaintiffs. ’'
It was further alleged in appellants’ original complaint that the property thus “erroneously, inadvertently, and mistakenly” included in these deeds consisted of “a narrow twenty-foot strip of land giving plaintiffs their main access to a larger parcel [owned by plaintiffs]. ’ ’ This strip at all times had “been fenced and at no time could be mistaken as a part of the real property sold by plaintiffs through the escrow . . .; that plaintiffs have had uncontested and free use of said twenty-foot strip as a means of access to their larger parcel for many years prior to inadvertent conveyance to defendants, and at all times since said conveyance.” (Italics added.)
Appellants sought by the prayer of this complaint to have the error in the deeds corrected and their title to the strip quieted. They offered to repay to respondents any taxes that respondents might have been required to pay by reason of the inadvertent inclusion of this additional strip of land within their grant deed.
Respondents demurred generally to appellants’ complaint on the ground that no cause of action was stated in that appellants had not expressly alleged that the mistake was “mutual” and that in any event the action was barred by the statute of limitations. (Code Civ. Proc., § 338, subd. 4.) By minute order dated March 10, 1966, this demurrer was sus[20]*20tained and appellants were granted 15 days within which to amend.
Although the minute order does not explicitly so state, it is clear that the ruling therein was based upon the court’s acceptance of respondents’ contention that the action was barred by the statute of limitations. Almost the entirety of respondents’ “Memorandum of Points and Authorities in Support of Demurrer” had been devoted to this contention. The further contention that no cause of action was stated by reason of appellants’ failure to make the formal conelusional allegation that the mistake was “mutual” was only briefly and casually stated in the concluding paragraph thereof.
Such priority of emphasis is understandable. The use of the word “mutual” would have added nothing to the allegation that the mistaken legal description of the property was the result of an error by the escrow agent and that both appellants and respondents had executed contemporaneously recorded documents in which the additional property was “inadvertently, mistakenly, and erroneously included.” In addition, appellants had alleged that the mistaken inclusion of the strip of property was “of no force and effect whatsoever for lack of consideration, in that no consideration was paid for the said real property.” The legal import of these allegations is that respondents had been equally mistaken as to the property described in the several deeds since if they had bargained for, and expected to receive, the strip of land in issue, then their purchase price would have been paid in consideration therefor.
Any doubt as to the basis of the court’s ruling was clarified after appellants’ counsel, instead of amending their pleading, determined to voluntarily dismiss the initial action and to refile it in the branch court wherein the property was situated. Their second complaint consisted of general allegations in one count seeking to quiet title to the disputed strip. Respondents moved to have the case transferred to the Central District and in their supporting points and authorities asserted: ‘ ‘ The demurrer [to the original complaint] was sustained primarily upon the ground that the reformation action was barred by the Statute of Limitations and that specific allegations of the reformation action controlled the general allegations of the quiet title action, and accordingly, the quiet title action was also barred. (See Leeper v. Beltrami, 53 Cal.2d [195] [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] (1959).)”
The motion to transfer was granted and respondents then [21]*21filed their demurrer and motion to strike appellants’ second complaint. The same judge who had ruled on the demurrer to appellants’ original complaint heard these subsequent proceedings and properly took judicial notice of the prior action. (Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263].)
In their points and authorities in support of their second demurrer and their motion to strike, respondents expressly acknowledged that “A demurrer was sustained [in the prior action] upon the grounds that the same was barred by the applicable statute of limitations.” (Italics added.) Appellants’ points and authorities in opposition to respondents’ motion unmistakably demonstrate that they also shared the view that the only determinative issue was that of the applicable statute of limitations.
Regrettably, from the record before us it appears that appellants failed to call the trial court’s attention to the fact that since they had been in possession of the disputed property throughout the period in issue, the rule enunciated in Muktarian v. Barmby, 63 Cal.2d 558, 560 [47 Cal.Rptr. 483, 407 P.2d 659], governed rather than that of Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803], relied upon by respondents. The court therefore considered appellants’ second complaint as if the dates relevant to the issue of limitations alleged in the original complaint had not been omitted and granted respondents’ motion.
In view of the presentation made by appellants’ counsel, and his decision to dismiss and refile the action in another district of the court, the trial court is hardly to be criticized for its ruling herein. Nevertheless, it was erroneous As stated in Muktarian v. Barmby, supra, 63 Cal.2d 558, 560-561:
“Plaintiff contends that the trial court erred in holding that the three-year statute of limitations governing actions based on fraud or mistake bars his action. (Code Civ. Proc., § 338, subd. 4.) Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code, Civ. Proc., §318 applies; [22]*22failure of trust condition, Code Civ. Proe., § 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., § 343 applies] ; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., § 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. (Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679] ; 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., § 25, p. 493: see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987] ; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. (Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136] ; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81] ; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff’s action was barred by the statute of limitations and thus did not reach the question of laches.” (Italics added.)
It has been suggested that the order of the trial court dismissing appellants’ action is sustainable because of the inappropriate procedure followed by their counsel in dismissing the original action and in filing the second complaint which omitted the specific allegations of fact contained in their original complaint. While this suggestion may have superficial appeal, the record indicates that this was not the theory or the basis upon which the trial court rested its decision.
More importantly, and particularly in view of the error in the trial court’s holding that the action was barred by limitations, it would seem quite unreasonable to impose such a harsh, penalty upon appellants for the procedural mistakes of their counsel. If we assume the truth of all the facts alleged in appellants’ original complaint, respondents would be unjustly [23]*23enriched and justice would be defeated by a judgment which would operate to award them a valuable strip of property for which they had neither bargained nor paid. We have concluded that this cause should be remanded to the end that the rights of the parties may be determined after a trial on the merits.
The judgment is reversed.
Fleming, J., concurred.