George Sutherland

“ Upon these facts, this court held that plaintiff had an adequate remedy at law, and that a suit in equity could not be sustained, saying (page 151 of 138 U.S., 11 S.C.t. 276, 277) :
'* * * Where an action is simply for the recovery and possession of specific, real, or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of that class. The right which in this case the plaintiff wishes to assert is his title to certain real property ”

“ The present case is entirely different. Here the purpose of the suit is to eject appellants from lands which for five months had been and still were in their exclusive possession, under claim of right and in pursuance of a statute which gives color of title, notwithstanding the challenge to its constitutionality. See Doe ex dem. Trustees, etc. v. Trustees of Newbern Academy, 9 N. C. 233. That challenge does not require resort to a suit in equity. It will be open for determination in an action at law which is the appropriate remedy. ”

“ An injunction will not be used to take property out of the possession of one party and put it into that of another. I High, Inj. (2d Ed.) § 355.'
To the same effect is United States v. Wilson, 118 U.S. 86, 89, 6 S.C.t. 991, 30 L. Ed. 110; Black v. Jackson, 177 U.S. 349, 361, 20 S.C.t. 648, 44 L. Ed. 801. In the latter case the rule was applied, notwithstanding the financial inability of the defendant to respond in damages. ”