{dissenting). There is one important particular in which I cannot concur in the able opinion of Mr. Commissioner Richmond. The correctness of the decision in Arnold v. Woodward, 4 Colo. 249, whereby that case was reversed and remanded, is conceded by counsel for appellee. They also admit that upon a retrial of that case the present plaintiff must inevitably be defeated. It is difficult to perceive how her cause is improved by the present action. It will be observed that the former suit is between the same parties *170as this, it is of the same nature, it concerns the same subject-matter, the same l’elief is sought, and it is still pending. Mrs. Woodward seeks in both actions to establish the same title upon the same evidence. It is true, the parties occupy reverse positions as plaintiff and defendant; but the present plaintiff, if successful as defendant in the former suit, would be entitled to the same relief as if successful as plaintiff in the present action. E. S. 1868, ch. 27, § 30. A more complete identity of parties, nature, and cause of action, subject-matter, relief and evidence could hardly arise.
It is claimed, however, that the relation of landlord and tenant no longer exists, and that, in this respect, the present action differs from the former one. In the former opinion it is said that the steps taken by Woodward to acquire title from the United States during his tenancy under Arnold were of necessity hostile to his landlord’s title, and that, before he could assert any rights under a title thus acquired, he must surrender possession of the premises. From this and other language in the opinion it is insisted that, though a tenant may not use a superior title acquired by his own act hostile to the title of his landlord during the tenancy as a defense to a suit brought by his landlord against him for possession, yet that he may, by surrendering possession, use such superior title in an action thereafter brought by himself to regain possession from his former landlord. Conceding the correctness of this proposition, it avails the plaintiff nothing in the present action; its terms are not broad enough to include a party in her situation. Plaintiff has never surrendered possession of the premises in any proper sense of the term. On the contrary, she has strenuously resisted the landlord’s efforts to regain possession; and, though driven from the field by legal process, has steadily maintained an attitude of hostility. So long as the former action remains pending and undisposed of, it is in law a continuing *171menace to the landlord’s possession. A surrender implies a yielding up of the lesser estate by the tenant to him who has the immediate estate in reversion or remainder, whereby the lesser estate is merged in the greater by mutual agreement. Bouv. Law Diet. The surrender must be voluntary, or, at least, the controversy concerning the possession must be fully terminated before the tenant can be permitted to assail the landlord’s title by means of a title inconsistent therewith, acquired through hostile action on his part, while the tenancy continued.
While the former action remains pending and contested, it cannot be well said that plaintiff has surrendered possession; but her status in respéct to the property must be considered the same in legal effect as if she had remained in possession while-the case was being litigated through the various courts. In actions of ejectment under our practice the party in possession may retain it until final judgment, and during the prosecution of an appeal; and if a change is effected through legal process before the final termination of the litigation, it does not affect the rights of the parties. R. S. 1S68, supra.
But it is said that plaintiff has acquiesced in the conclusion pronounced by this court on the former appeal. In what manner has she manifested this acquiescence? The only final judgment ever, pronounced against her was on the first trial of the former action. That judgment she caused to be vacated, as she might do under the statute then in force (R. S. 1868, ch. 27, § 26), and upon the second trial the judgment was in her favor. This court reversed the latter judgment and remanded the cause, but did not enter final judgment nor direct the district court so to do. Since then no action whatever has been taken in the cause by either party, and there is no final judgment therein remaining of record anywhere.
*172It is urged that the lapse of time during which Mrs. Woodward remained out of possession, forbearing to assert any claim to the premises, is a circumstance strengthening her right to maintain this action before the termination of the former one. A most novel doctrine, that a claim is to be received with more favor because it is stale! Great virtue is also claimed for the commencement of this action as an evidence of acquiescence and surrender on the part of plaintiff. A singular way to manifest acquiescence in defendant’s claim, to commence a fresh action against him for the same cause before the former action is terminated! The surrender of possession spoken of in the former opinion must mean something more than a mere physical change of possession,— as the putting of Woodward out and the putting of Arnold in,— for that kind of a change had already taken place before the second trial of the former action occurred; and yet it was held erroneous to admit the Woodward patent in evidence against Arnold on that trial, and the judgment based thereon was reversed for that very reason. How, then, can the present judgment be sustained on the same evidence? As we have seen, the former action in all its aspects is precisely the same as the present. Since long before the second trial of the former action the possession of the property and the'attitude of the parties in relation thereto have remained in statu quo. No change whatever has occurred. Mrs. Woodward has not given or offered any deed of surrender; she has not moved the former action to trial or judgment, nor attempted so to do; she has not withdrawn her answer, nor offered to allow judgment to be taken therein; she has in no way acknowledged the landlord’s original title, nor done any act signifying her acquiescence therein. Her attitude is the same as it was when she paid the costs of the first suit, and obtained a new trial. Everything remains in the precise condition it was when the second trial was *173entered upon. The cause stands contested upon the record, the same as if there had never been a trial. In this view, the matter is too plain for argument that, since Mrs. Woodward confessedly cannot introduce the patent to defeat the former suit pending, she cannot, without in some way disposing of the obstacle thereto, maintain a fresh action against Arnold for precisely the same cause, by the introduction of the self-same patent. It would be a strange anomaly in our jurisprudence if, where two actions in ejectment are pending at the same time, in the same court, involving the same title to the same land, and between the same parties, occupying the same position in respect to the property in the one case as in the other, one party might recover the possession in one action, and the other party recover it in the other action, upon precisely the same evidence. If this be allowable, when and where will the litigation end? If plaintiff may oust defendant by the present action, what is to prevent defendant from regaining possession by prosecuting the former suit to judgment, since it is conceded that plaintiff cannot defend against it? In 1 Bac, Abr. 29, it is said: “The law will not allow two quare impeclits to he brought for the same presentation, viz., a second by the defendant against the plaintiff, when there is one pending in the court by the plaintiff against the defendant; et sic in brevi departitione, because the defendant can have the same remedy on the first writ as he could on a second. The law is so watchful against all vexatious suits that it will neither suffer two actions of the same nature to be pending for the same demand, nor even two actions of a different nature.” R. S. 1868, ch. 27, § 30; Tayl. Landl. & Ten. § 705; 6 Wait, Act. & Def. 496 et seq.; Ward v.'Gore, 37 Howl Pr. 119; Parker v. Colcord, 2 N. H. 36; Tracy v. Reed, 4 Blackf. 56; Hart v. Granger, 1 Conn. 154; Colt v. Partridge, 7 Metc. 575; Ryerson v. Eldred, 18 Mich. 12; Doe v. Baytup, 30 E. C. L. 105.
*174It follows from the foregoing that, under the pleadings and proof, the former suit pending should be held sufficient to abate the present action, and that the judgment by the district court should be reversed for that reason.
Reversed.