Pinney, J.
The judgment in the former case of Stewart v. Stewart, 50 Wis. 445, which was put in evidence by the [368]*368plaintiff, is conclusive upon the title to the tract of land in dispute. All the heirs at law of Alexander Stewart, through and under whom both parties claim title, were the parties to that action. The plaintiff in this action and those of his coheirs under whom he claims were some of the plaintiffs, and the defendant in this action and James A. Stewart, who conveyed, pending that suit, to him his claim under the deed of February 3, 1860, from Alexander Stewart to Archibald A. Stewart and James A. Stewart, were defendants. This judgment is clearly final and conclusive as to all matters adjudged by it. Allie v. Schmitz, 17 Wis. 169. The proposition is elementary, indeed, and it is not necessary to cite authorities to support it. The judgment established the utter invalidity of the deed of February 3, 1860, as a source or foundation of title or claim of title. From thenceforth, as to the parties to it and those in privity with them, it was as if it had never existed, and each and all of the parties were forever after the rendition of this judgment estopped from asserting any title or claim of title to the premises in question under it, and destroyed it root and branch for any and every purpose whatever. Any other view, would be utterly inconsistent with the conclusive effect-of judgments as to matters actually determined by them. In the case of Hoyt v. Jones, 31 Wis. 389, 400, it was said by Dixon, C. J., that “ the effect of the judgment of a court of competent jurisdiction, setting aside and nullifying a conveyance of record of land, is no less than if such record was actually effaced from the register’s books. It becomes as if no such conveyance had ever been executed or ever been recorded.”
The judgment in question was also conclusive on the status or relation of the parties to each other, and their rights in and to the tract of land in question, and conclusively established the fact that the parties to it were tenants in common of the premises, and that all their rights [369]*369and relations to this tract of land in respect to each other were then such as grow out of that relation, and of necessity put an end to the contention that the defendants in that action then held the same adversely under claim of title exclusive of any other right, founding such claim upon the alleged written instrument relied on, namely, the deed of February 3, 1860. This made the defendant’s claim of title necessarily, and his possession under it, in law, what it declared it to be in fact,— that of a tenant in common with the other parties named in the decree; for, this deed aside, the defendant in this action, as well as James A. Stewart, who conveyed to him during the pendency of the former action, were also heirs at law of the said Alexander Stewart, deceased, with the rights of such as established by the judgment, after their claim to the entirety had been declared void. And, if their possession had been adverse up to that time, the judgment put an end to and interrupted its adverse character, and established the rights of all parties to the land equally as heirs of Alexander Stewart, deceased, and restored the seisin of all of them alike, if it had been interrupted as to any, so that the possession of the defendant, if adverse prior to the judgment, cannot be relied on or tacked to his subsequent adverse possession, if such it has been, in order to make out his defense.
Any substantial interruption of an adverse possession before the lapse of the period required to constitute the statutory bar restores the seisin of the rightful owners of the legal title, and, in order to give rise to the statutory bar thereafter, a new entry and disseisin is necessary. “Wood, Lim. Act. 574, 576; Haag v. Delorme, 30 Wis. 594. The running of the statute may be interrupted if the possession ceases to be adverse, although possession in fact continues. If the defendant had made a quitclaim to his coheirs of all his right, title, and interest in the premises acquired under the particular deeds under which he claims, [370]*370there can be no question but that his' continued possession would, in such a case as this, be considered as under and in subordination to the legal title of all the heirs as tenants in common, and not adverse and under claim of title founded on those deeds. After a valid execution sale of land and conveyance by the sheriff, the continued possession of the defendant in the execution is not adverse, but in subordination to the rights of the purchaser at the sale. Swift v. Agnes, 33 Wis. 228, 241.
The judgment in question operated and had in law the effect of a release by the defendant of all right, title, and interest acquired by him under the deeds upon which he now seeks to found his defense under the ten years statute of limitations; and it estopped him, and disabled him in law, from making any claim of title thereafter founded on those deeds. Gower v. Quinlan, 40 Mich. 572; Hoyt v. Jones, 31 Wis. 389, 402; Brolaskey v. McClain, 61 Pa. St. 166. A deed not delivered is not operative for any purpose, and is not, we think, a written instrument, within the statute in question; certainly it cannot be considered such as between parties and privies to an action in which its nondelivery and invalidity have been adjudged. For these reasons the possession of the defendant after the judgment could not become adverse for the purposes of the ten years statute without he acquired a new claim of title or made a new entry or its equivalent. Iiis subsequent possession, even if adverse, has not been under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, and therefore the defense under sec. 4211, R. S.. has not been made out. His possession subsequent to the judgment did not continue twenty years before this action was commenced, so as to enable him to make out a defense under secs. 4213, 4215. The case of Mabary v. Dollarhide, 98 Mo. 198, and cases there cited, are distinguishable from this, in that the judgment or de[371]*371cree relied on to interrupt the course of tbe statute was not one between tenants in common, adjudging void a previous conveyance essential to the statutory bar, and that it bad never been delivered, and that tbe parties to the suit held and owned tbe lands in question as tenants in common, so that by force of tbe judgment the possession of the defendant was made necessarily the possession of each and all of them, and thereby its former adverse character taken away.
2. The silent possession of the defendant since the judgment, accompanied by no act which can amount to an ouster, will not be construed into an adverse possession. Challefoux v. Ducharme, 4 Wis. 554, 564. If the fact that the parties are cotenants is established, the burden is upon the one claiming to hold adversely to establish such a state of facts, known to his cotenant, as will amount to an adverse claim of title. Though in ordinary cases open and notorious possession is sufficient, in case of tenants in common the rule is different. Freem. Coten. § 22; Clymer's Lessee v. Dawkins, 3 How. 674; Barr v. Gratz, 4 Wheat. 213. In Sydnor v. Palmer, 29 Wis.
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Pinney, J.
The judgment in the former case of Stewart v. Stewart, 50 Wis. 445, which was put in evidence by the [368]*368plaintiff, is conclusive upon the title to the tract of land in dispute. All the heirs at law of Alexander Stewart, through and under whom both parties claim title, were the parties to that action. The plaintiff in this action and those of his coheirs under whom he claims were some of the plaintiffs, and the defendant in this action and James A. Stewart, who conveyed, pending that suit, to him his claim under the deed of February 3, 1860, from Alexander Stewart to Archibald A. Stewart and James A. Stewart, were defendants. This judgment is clearly final and conclusive as to all matters adjudged by it. Allie v. Schmitz, 17 Wis. 169. The proposition is elementary, indeed, and it is not necessary to cite authorities to support it. The judgment established the utter invalidity of the deed of February 3, 1860, as a source or foundation of title or claim of title. From thenceforth, as to the parties to it and those in privity with them, it was as if it had never existed, and each and all of the parties were forever after the rendition of this judgment estopped from asserting any title or claim of title to the premises in question under it, and destroyed it root and branch for any and every purpose whatever. Any other view, would be utterly inconsistent with the conclusive effect-of judgments as to matters actually determined by them. In the case of Hoyt v. Jones, 31 Wis. 389, 400, it was said by Dixon, C. J., that “ the effect of the judgment of a court of competent jurisdiction, setting aside and nullifying a conveyance of record of land, is no less than if such record was actually effaced from the register’s books. It becomes as if no such conveyance had ever been executed or ever been recorded.”
The judgment in question was also conclusive on the status or relation of the parties to each other, and their rights in and to the tract of land in question, and conclusively established the fact that the parties to it were tenants in common of the premises, and that all their rights [369]*369and relations to this tract of land in respect to each other were then such as grow out of that relation, and of necessity put an end to the contention that the defendants in that action then held the same adversely under claim of title exclusive of any other right, founding such claim upon the alleged written instrument relied on, namely, the deed of February 3, 1860. This made the defendant’s claim of title necessarily, and his possession under it, in law, what it declared it to be in fact,— that of a tenant in common with the other parties named in the decree; for, this deed aside, the defendant in this action, as well as James A. Stewart, who conveyed to him during the pendency of the former action, were also heirs at law of the said Alexander Stewart, deceased, with the rights of such as established by the judgment, after their claim to the entirety had been declared void. And, if their possession had been adverse up to that time, the judgment put an end to and interrupted its adverse character, and established the rights of all parties to the land equally as heirs of Alexander Stewart, deceased, and restored the seisin of all of them alike, if it had been interrupted as to any, so that the possession of the defendant, if adverse prior to the judgment, cannot be relied on or tacked to his subsequent adverse possession, if such it has been, in order to make out his defense.
Any substantial interruption of an adverse possession before the lapse of the period required to constitute the statutory bar restores the seisin of the rightful owners of the legal title, and, in order to give rise to the statutory bar thereafter, a new entry and disseisin is necessary. “Wood, Lim. Act. 574, 576; Haag v. Delorme, 30 Wis. 594. The running of the statute may be interrupted if the possession ceases to be adverse, although possession in fact continues. If the defendant had made a quitclaim to his coheirs of all his right, title, and interest in the premises acquired under the particular deeds under which he claims, [370]*370there can be no question but that his' continued possession would, in such a case as this, be considered as under and in subordination to the legal title of all the heirs as tenants in common, and not adverse and under claim of title founded on those deeds. After a valid execution sale of land and conveyance by the sheriff, the continued possession of the defendant in the execution is not adverse, but in subordination to the rights of the purchaser at the sale. Swift v. Agnes, 33 Wis. 228, 241.
The judgment in question operated and had in law the effect of a release by the defendant of all right, title, and interest acquired by him under the deeds upon which he now seeks to found his defense under the ten years statute of limitations; and it estopped him, and disabled him in law, from making any claim of title thereafter founded on those deeds. Gower v. Quinlan, 40 Mich. 572; Hoyt v. Jones, 31 Wis. 389, 402; Brolaskey v. McClain, 61 Pa. St. 166. A deed not delivered is not operative for any purpose, and is not, we think, a written instrument, within the statute in question; certainly it cannot be considered such as between parties and privies to an action in which its nondelivery and invalidity have been adjudged. For these reasons the possession of the defendant after the judgment could not become adverse for the purposes of the ten years statute without he acquired a new claim of title or made a new entry or its equivalent. Iiis subsequent possession, even if adverse, has not been under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, and therefore the defense under sec. 4211, R. S.. has not been made out. His possession subsequent to the judgment did not continue twenty years before this action was commenced, so as to enable him to make out a defense under secs. 4213, 4215. The case of Mabary v. Dollarhide, 98 Mo. 198, and cases there cited, are distinguishable from this, in that the judgment or de[371]*371cree relied on to interrupt the course of tbe statute was not one between tenants in common, adjudging void a previous conveyance essential to the statutory bar, and that it bad never been delivered, and that tbe parties to the suit held and owned tbe lands in question as tenants in common, so that by force of tbe judgment the possession of the defendant was made necessarily the possession of each and all of them, and thereby its former adverse character taken away.
2. The silent possession of the defendant since the judgment, accompanied by no act which can amount to an ouster, will not be construed into an adverse possession. Challefoux v. Ducharme, 4 Wis. 554, 564. If the fact that the parties are cotenants is established, the burden is upon the one claiming to hold adversely to establish such a state of facts, known to his cotenant, as will amount to an adverse claim of title. Though in ordinary cases open and notorious possession is sufficient, in case of tenants in common the rule is different. Freem. Coten. § 22; Clymer's Lessee v. Dawkins, 3 How. 674; Barr v. Gratz, 4 Wheat. 213. In Sydnor v. Palmer, 29 Wis. 249, the rule is laid down that, “ where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them, and to turn his occupancy into an adverse possession or enjoyment, so as to acquire the title of the entire estate by lapse of time under the statute óf limitations, he must show xohen knowledge of such adverse claim or .of his intention so to hold was brought home to the other tenants; for from that time only will his possession be regarded as adverse.” Such is always the rule, unless the exclusive use and enjoyment or sole and uninterrupted possession and pernancy of the profits by one tenant in common have been so long continued as to give rise to the presumption of or justify the jury in finding knowledge or acquiescence on the part of the other tenants for the period prescribed by the statute. But, whatever [372]*372view may be taken of this branch of the case, the defense of the statute of limitations, for reasons already stated, wholly fails. Authorities to this effect exist in great number, and we hold that the rule is the same where the co-tenancy of the parties has been adjudged in a suit to which all the cotenants were parties. The evidence wholly fails to meet the requirements of this rule, and shows only an open and notorious possession by the defendant, which, as we have seen, is not, as between tenants in common, sufficient.
Our conclusion upon the whole case is that the judgment in the former suit prevents the deeds under which the defendant claims being made a basis or foundation for the ten years statute of limitations, and this view seems to be decisive of the merits of the case. As to the claim of laches, and of the defendant’s equity founded upon his having made permanent and valuable improvements on the premises, it is sufficient to say that when the judgment was rendered in the former suit, which was affirmed by this court, the defendant well knew that he had no interest in the lands except as tenant in common with the other claimants. He has not, so far as the evidence shows, been misled by the conduct of his cotenants, nor did he notify them, after the judgment in the former case, that he claimed the entirety of the premises. According to his own testimony, he kept on claiming title under the old deed, disregarding the judgment which declared it void and that it had not been delivered. He cannot now have any claim, except to an accounting between his cotenants, which may perhaps afford him a remedy, but of this we express no opinion. For these reasons the judgment of the circuit court must be reversed, and, inasmuch as there is no finding upon the question of mesne profits or damages, a new trial must be awarded.
By the Oourt.— The judgment of the circuit court is reversed, and case remanded for a new trial.