— 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*216tion was instituted, of a certain action of unlawful de-tainer brought by these plaintiffs against these defendants for the possession of the land here sought to be recovered, is subject to the demurrer interposed to it. The principle upon which such a plea is allowed and sustained is that the later action is deemed unnecessary and vexatious. And, clearly, in order to hold the'subsequent suit to be unnecessary, it is an essential prerequisite that the judgment in the former or prior action should be conclusive between the parties and operate as a bar to the second.—Rood v. Eslava, 17 Ala. 430; Hall v. Wallace, 25 Ala. 438; Foster v. Napier, 73 Ala. 595; 1 Cyc. p. 28 (2), and cases cited in note 38. It is not enough to sustain the plea that the same land is involved in both actions. It must be for the same injury, and the sainé matters must he in issue that were in issue and might have been tried in the first action; otherwise, the causes, of action are not identical.—1 Cyc. p. 28.
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. *217Splivalo, 69 Cal. 611, 11 Pac. 484, bolding that pleas, in substance the same as this one, were bad.
Beyersed and remanded.
Dowdell, Anderson and McClellan, JJ., concur.