delivered the opinion of the court:
This writ of error was sued out to review a judgment of the district court in an action of unlawful detainer, which was begun before a justice of the peace. It involves the same property and in fact the same transaction and parties as Case No. 6588, (Post 177) which has just been determined. For convenience, we will refer to the case last mentioned as the equity suit, and the other as unlawful detainer. The two were consolidated for hearing and determination in this court. As shown by the opinion in the ecpiity suit, there was an unlawful detainer action between the same parties for possession of the same property pending in the county court on appeal from a justice of the peace. It is made to appear in this case that that first unlawful detainer action ran afoul of some question of jurisdiction in the county court and was dismissed. The present unlawful detainer action was commenced in a justice court while the equity action was pending in the district court. On the incoming of the defendant’s answer, the justice certified the action to the district court. AYe need not stop to inquire whether the justice should have so certified the case, for the district court had jurisdiction in unlawful detainer, and the parties appeared and made motions, filed pleadings and tried the case without objecting to its being there.
Mr. Humphreys, the plaintiff, alleged in his complaint that he had leased the premises to the defendants, the Reitzes, for a certain term; that the term had ended; that under the contract of lease the defendants had agreed to surrender the premises at the end of the term; that demand in writing had been made upon them; that they refused to surrender and
The plaintiff contends that the defendants could not plead and prove in such an action the transaction of the loan, quitclaim and sheriff’s deeds, lease and option, • which, if proven, would make the relation of the'parties mortgagor and mortgagee, as seen in the opinion of this court in the equity suit. If the relation was mortgagor and mortgagee the defendants were entitled to the possession. Sec. 2612 Rev. Stat. 1908, provides that a 'defendant, in an action for unlawful detainer, in his answer, “shall set forth all the substantial facts upon which he relies, entitling him to the possession of thé propei^r described in plaintiff’s complaint.” His possession ás á-'mortgagor is a substantial fact on which he may rely for -possession. Of course if he shall plead such a fact he may prove it and profit thereby. — Adcock v. Lieber, 51 Colo. 373, 117 Pac. 993.
The court refused to’ permit the defendants to introduce evidence tending to prove the transaction of the loan which made'thé relation of the parties mortgagor and mortgagee instead of landlord and tenant' ás alleged in plaintiff’s complaint. This evidence was objected to on two grounds; first, because, as-' claimed, the relation was landlord and tenant; an'd: second,
W,e need not determine whether these matters .were res ad judicata .in face of the fact that an appeal had been taken from the judgment. The plaintiff attempts to .say that his rights under the lease and his right to possession were not adjudicated in the equity suit. The .decree specifically names the lease and finds that it was what it purported.to be; that it had expired.and the Reitzes had no- more rights thereunder; and adjudged that Humphreys was entitled to the immediate possession of the premises and ordered the Reitzes to vacate, and -that.if they did not do so in ten days an appropriate writ should issue.
It was thus made to appear by the plaintiff’s own plea that his rights under the. lease had been- .adjudicated as well as the. rights of the defendants-. • Hp filed his answer- in the equity suit before he brought his action-for unlawful detainer. In-this .answer, not content with, .mere negation, he .affirmatively pleaded his title through the - quit-claim and sheriff’s deeds, as well as the execution of the lease; alleged that these instruments were what they purported to be; that the Reitzes
While the distinctions between actions at law and suits in equity do not exist in this state, yet right principles are always applicable, and under all the circumstances of this case, this is a time for the application of the principle announced in the syllabus' of Quidnick Co. v. Chaffee, 13 R. I. 367, as follows :
*177 “When proceedings.at law and in equity are pending between the same parties and for the same cause of action, the court, on motion, will compel an election of remedies; and when the equity proceedings have been carried to- hearing and decree, the court, on motion, will enjoin the prosecution of the suits at law, and will order the discharge of any attachment made in them.”
From the two records before us, it appears that every issue tendered in both can be determined, every right of each party adjusted, and every relief to which either party may be entitled can be given in the equity suit. If any amendment should be thought necessary to fully accomplish this it may be allowed. So that the further prosecution of the unlawful detainer action would be vexatious and serve no good or useful purpose.
The judgment of the district court is, therefore, reversed and the cause remanded with directions that the actions be dismissed. . Reversed and Remanded.