— But a single question is presented by this record for o-ur determination. It is whether the plea in abatement setting up the pendency, when this ac
It is entirely clear that a judgment in unlawful de-tainer, based, as it must be, upon a complaint predicated upon a lawful entry by the defendant of the lands and a refusal to deliver the possession thereof to the plaintiff upon demand in writing after the termination of his pos-sessory interest, is not and cannot be a bar to an action of ejectment between the same parties for the same land, for the obvious reason that the issues involved in the two actions are not necessarily the same. In one the estate or merits of title cannot be inquired into (section 2135 of code of 1896), whereas, in the other, the title to the land inay be the only question involved. In the action of unlawful detainer the plaintiff is required to show actual prior possession; and, if the action was commenced before the termination 'of the tenancy, the plaintiff must fail. Furthermore, three years is the limitation after the right to possession accrues, within which the suit must be brought. — Section 2136 of code of 1896. That a judgment in the unlawful detainer suit would not he a bar to the action of ejectment is decided in Robinson v. Allison, 97 Ala. 596, 12 South. 382, 604, and we think correctly so. The question here under consideration was directly and pointedly decided in Buettenger v. Hurley, 34 Kan. 585, 9 Pac. 197, and Martin v.
Beyersed and remanded.