The present and former actions between these parties relating to the land in controversy are dissimilar. In the former, Arnold was plaintiff, and, though he proceeded in ejectment, yet his suit was based upon the lease to Woodward, and possession was claimed for *167condition broken. The right to possession, as between landlord and tenant, was alone in controversy. Woodward’s possession as tenant at that time under the lease being then admitted, the question of title was not and could not be litigated; for “the tenant is estopped to deny the landlord’s title.” By entering upon and occupying the premises under the lease, Woodward and his heir were estopped from questioning Arnold’s ownership, and from introducing the patent which during the tenancy had been acquired by Woodward from the -United States. The present action, on the other hand, was instituted by Mrs. Woodward in ejectment against Arnold to try the title to the premises. The lease was ignored in the complaint, and the action brought upon the assertion of a fee-simple ownership under the patent. It is therefore apparent that, besides a reversal of the position of the parties, the pleadings, the issues made, the relief sought, and the evidence admissible in the two cases were radically different. A judgment for Arnold in the former suit would not estop Woodward from prosecuting the present suit. It follows, therefore, that that suit could not bar or abate this one. 6 Wait, Act. & Def. 499, and cases; Vance v. Olinger, 27 Cal. 358; Screw Co. v. Bliven, 3 Blatchf. 240; Osborn v. Cloud, 23 Iowa, 104.
It is said, however, that Mrs. Woodward could not rely upon her patent title until the property held under the lease had been surrendered, and thus the relationship of landlord and tenant terminated. This proposition was announced by the court, on appeal, in the former suit. Arnold v. Woodward, 4 Colo. 249. Upon the reversal and remanding of that cause, Mrs. Woodward acquiesced in the conclusion then pronounced by this court, and took no further steps in that suit. Her sole defense to that action had been declared entirely unavailing, and Arnold was in position to take his judgment, or perhaps to dismiss his action; for he held the actual and exclusive possession, having obtained the same as a result of the first trial. At the time of commencing the present action, *168Mrs. Woodward was not, and for years had not been, in possession of the premises. She did not assert, and for years had not in any way asserted, her right to such possession as a tenant or otherwise. By commencing the present action to try the title she satisfied fully, if she had not done so before, the requirement concerning a surrender of property. The institution of this suit is clearly a recognition by Mrs. Woodward of the fact that the relation of landlord and tenant no longer exists; also that she is not in possession, but that Arnold is. The law commands no foolish or needless acts. To say that, under the circumstances, it was her duty, before commencing this suit, to notify Arnold that she voluntarily surrendered a possession which she did not have, would be to command an idle and useless ceremony; or to hold that, as a condition precedent to her assertion of the present right of action, she should have withdrawn her answer, and notified the court below that judgment might be taken against her in the former suit, would be to require a proceeding equally superfluous; she did not control that suit, and its result was a matter of indifference to her. We think that plaintiff, having a patent from the United States, was entitled to assert her rights thereunder in the present suit.
It is scarcely necessary to add that there is no inconsistency between this decision and the decision in Arnold v. Woodward, supra. That case simply held that, since the patent in question was obtained while Woodward was a tenant under the lease, he could not rely upon it in defending the action of Arnold as lessor or landlord, for possession against him as lessee or tenant; and that he was bound to surrender, and thus terminate the tenancy, before he could be permitted to assert his title. Holding, as we now do, that there has been, a surrender of such possession and a termination of the tenancy, the obstacle to the assertion of ownership under the patent has been removed.
The claim of a bar by the statute of limitations (Gen. *169St. § 21S6) is not well taken. Arnold’s entry in the land-office had been set aside or disregarded, and the patent from the United States had issued to Woodward. Such, issuance of the patent necessarily indicates that all steps required in connection therewith were duly taken. Arnold v. Woodward, supra. During a large part of the period covered by Arnold’s alleged adverse holding, these facts existed and were known to him. Under the circumstances, there was not such a “claim and color of title made in good faith ” as laid the foundation for an application of the statute. Spellman v. Curtenius, 12 Ill. 415.
The complaint in the present action contained no allegation of special damage; therefore the damages recoverable could not include the value of the use of the premises during their occupancy by Arnold. Larned v. Hudson, 57 N. Y. 151. It follows that the admission of testimony and the instruction to the jury on this point were erroneous.
For error in the measure of damages adopted, the judgment must be reversed.
Reed and Pattison, 00., concur.
Per Curiam. For the reasons stated in the foregoing opinion the judgment is reversed.
Reversed.