LAMB v. rsnnmnn. 9
decisions of the supreme court of this state on this question are right
in principle,
The action at law for the recovery of real property retains its pos-
sessory feature in this state and can only be brought against the
person in possession. Ozark Land Oo. v. Leonard, 20 Frm. Bur. 881.
All the authorities agree that equity has jurisdiction of a suit to
quiet the title, or remove a cloud from the title, of one in actual pos-
session, whether his title be legal or equitable; and the courts are all
agreed as to the ground of this jurisdiction. It attaches because the
remedy at law isinaclequate. The law will lend its aid to those hold-
ing the legal title, and out of possession, to assail those who are in
possession. But it will not aid one in possession, whether his title
be legal or equitable; nor will it aid him, though out of possession, if
his title be equitable, or the land unoccupied. Where the plaintidis
in possession, recourse is had to equity, not because there is some
mysterious virtue in the fact of possession of property that clothes
the possessor with the special privilege of having the controversies
in relation thereto tried in equity, but because he has no means of
procuring the controversy to be tried at law. If a statute should ibc
passed authorizing one in possession of land to bring a suit at law,
against any one claiming it, to settle the title, "the jurisdictionin
equity, if it did not cease as unwarranted, would, at least, become in-
operative and obsolete." Ex parte Boyd, 105 U. S. 647,657. The
possession would be in the plaintid as before, but the essential ele-
ment to give equity jurisdiction-—the want of a remedy at law-
would no longer exist. `
In the case of unoccupied land, the law refuses its aid to any party
for any purpose. It will not adjudicate the title or right of posses-
sion, nor will it remove a cloud. Whether one’s title be legal or
equitable, he is equally denied relief or redress at law, when the land
is unoccupied. The want of an adequate remedy at law is as abso-
lute as it is when the plaintiff has the actual possession. A large
p proportion of the valuable landsof this county are unoccupied. In
some instances lands having great value for some purposes are not
even susceptible of occupation. Owners and purchasers are not in-
different about the title to such lands. A cloud.upon the title to un- ‘
occupied land is not less injurious to the owner than it would be if
he was in possession; and the ground of his equity to have his title
quieted and clouds removed is precisely that upon which jurisdiction
is assumed and relief granted to owners in possession of their lands,
viz., the law`s inability to afford him a remedy.
Equity courts had their origin in the blind and obstinate refusal
of the early common-law courts to expound their rules of decision
and mould their forms of procedure to meet the growing exigencies
of society, and the obvious demands of justice. Courts of equity in
this country should not imitate the bad example of the common-law
courts, and decline jurisdiction in suits falling clearly within the ac-