(dissenting).
I am not in accord with the holding of the majority. The issuance of a temporary writ of injunction implies an urgent necessity which impelled the judge, in the exercise of his power to prevent a wrong, to hold the matter in litigation in statu quo. An injunction is not a remedy which can be used for the purpose of recovering possession of property, and it is not the function of a preliminary injunction to transfer possession of land from one person to another, pending .an adjudication of title, except in cases in which the possession of another has been forcibly or fraudulently obtained and the equities are such as to require that the previous possession thus wrongfully invaded be restored, and the original status of the property preserved, pending the decision of the issue of title. Hodges v. Christmas, Tex.Civ.App., 212 S.W. 825. See Houston Funeral Home v. Boe, Tex.Civ.App., 78 S.W.2d 1091.
Appellees’ petition (paragraph 3) expressly alleges “That said defendant has moved into and attempted to take over the property belonging to the estate of said Shelton A. Story, which property is located at Glen Rose, Texas, and the said plaintiff, Isaac B. Story, Administrator, has filed a forcible entry and detainer suit in the Justice Court of Glen Rose, Texas, requesting the said defendant to give up possession, but said defendant has refused and has employed an attorney at Glen Rose, * * * and an attorney at Dallas, Texas, to represent the defendant and prevent her removal from property to which she has no right, or claim, or interest.” And then again, in paragraph 6, it is alleged: “That the Honorable Judge of the Probate Court, being a special judge in the cause of Shelton A. Story, deceased, to-wit, John Erhardt, has ordered defendant to remove herself and her possessions from the property at Glen Rose, Texas, and from any property ‘belonging to said estate, but said defendant has failed and refused to do so, but has instead employed counsel to appeal the orders of court so ordering her to vacate the property at Glen Rose.” Under the alleged facts, it can hardly be said with any degree of certainty that should control in matters of this kind, that the possession of the property should not be retained by appellant, pending determination of the issue of possession involved in the two pending suits.
It is a fundamental equity rule, recognized by all courts of this State, that extraordinary writs of injunction ought not to be granted where there is a plain, adequate and speedy remedy at law. This rule becomes applicable when a prior pending action identical in substance and purpose, will afford full relief.' To grant an injunction in a separate and independent suit, in order to assert a right which is, or might be, claimed in a prior pending action, would be productive of multiplicity and vexation. There can be no question but that the two actions brought by plaintiff, one in the probate court in which the administration is pending, and the other, the statutory remedy of forcible entry and detainer to remove defendant as a trespasser, if such she is, are plain, adequate and speedy remedies to accomplish the purpose intended by the subsequent injunction proceedings. But, be that as it may, plaintiff, having elected to pursue his legal remedies to accomplish the same result which he now seeks by injunction, is bound to pursue those remedies even though a writ of injunction would be more adequate. The two suits being full, adequate and speedy statutory remedies, and no reason having been shown why either or both may not be tried in the courts where pending, no need for an injunction is apparent. It is a settled rule that injunctions are available only when there is an imperative need. In reason, if, by the temporary injunction, the object of the suit is accomplished — defendant removed from the premises in Glen Rose — then certainly the subject-matter of the two pending suits would become moot.
The temporary injunction is far-reaching; it restrains the defendant 'from molesting, harassing, and interfering with the handling of the Story estate in which she was an interested party — wife of the deceased — -and from employing any counsel, solicitor, or agents to file' or prosecute a claim of any kind against the estate and from coming about any property belonging to the estate. Obviously, the injunction prevents the defendant from prosecuting or defending the two suits brought by the administrator, as well as all other suits that may be brought by or against the *756estate in which she may be a party. I am of the opinion that the trial court, in the exercise of its power to prevent a wrong, was not justified to stalemate defendant in her property rights and remove her from possession of the property involved in the suits. From plaintiff’s petition and evidence adduced on trial, clearly there was no urgent necessity for the issuance of the temporary injunction, and certainly not for mandatory injunction as directed by the majority, in the absence of pleading and some such order granted or refused in the court below. The action of the court shows inconsistent and irreconcilable conclusions : On the one hand, the court, in effect, says that a temporary injunction was imperative to prevent irreparable injury; and on the other hand, that the acts and injuries complained of might well be protected by supersedeas bond. The trial court allowed defendant to supersede the temporary injunction by filing a super-sedeas bond on appeal. Indeed, if the acts of defendant impelled restraint in advance of trial, such must be held vulnerable on appeal and not susceptible to supersedeas. In granting appellant the right to supersede, evidently the trial court concluded that the acts complained of did not justify the order of restraint; and, certainly, not the extraordinary, temporary, mandatory injunction directed by the majority of this court to remove defendant from possession of the property at Glen Rose, thus change the status quo and accomplish the main purpose of the suit.
It will be observed from the judgment of the trial court from which this appeal was prosecuted, that no mandatory injunction was granted or refused, requiring appellant to vacate and restore the premises in Glen Rose to appellees. The judgment recites appellees’ application for the temporary injunction only, and directs that “defendant, Ella C. Story, be temporarily enjoined and restrained from making any sort of claim or claims of any kind against the said plaintiffs or the estate of the said Shelton A. Story, deceased, and from further molesting, harassing, and interfering with the handling of said estate and from employing any counsel, agent, solicitors, or agents of any kind to file or prosecute a claim of any kind against said estate or property and from coming about any property belonging to said estate, * * * The judgment of the trial court does not direct a mandatory injunction writ to remove appellant from the premises at Glen Rose in advance of trial of the cause; hence, in absence of such mandatory order directed by the trial court, this court, on appeal, is without jurisdiction to reform or correct the judgment by changing the status quo of the subject-matter of the suit by removing appellant therefrom. An appellate court has no such power to issue mandatory injunctions, except to preserve the subject-matter of a suit on appeal, or enforce its jurisdiction, where jurisdiction attaches; and certainly an appellate court cannot by such injunction change the status quo of the subject-matter of a suit in advance of trial.
The record in this case shows that appellant, Ella C. Story, and Shelton A. Story were married in 1936. At the time of such marriage, Shelton A. Story owned the Glen Rose property. It was rented at the time and appellant then began to collect the rents and continued such collections until his death in 1940. In the administration of his estate, Isaac B. Story was duly appointed administrator, and, in the course of many litigations, the widow was permitted to continue the collection and retention of rents from the Glen Rose property. In 1942, the exact date is not shown, appellant moved into the Glen Rose property, using and occupying it as her home, and was so using it at the time of the filing of this suit for injunction. The administrator (appellee) was never in actual possession of the property, either in person or by tenants, unless it can be said that perforce of a contract entered into out of court by the parties, appellee was put in constructive possession. The contract is in suit, and until the rights of the respective parties are determined, it can hardly be said that the administrator of the estate had possession, and that appellant was a trespasser, or that she obtained possession by force or fraud as to give rise to a court of equity to grant a temporary mandatory injunction to place the property in possession of the administrator, pending decision of the issue in suit.
I am of the opinion that the arbitrary mandatory injunction by this court, removing appellant from possession of -the property in suit, and directing that it be turned over to the administrator, changes the status quo of the subject-matter and makes the two prior actions to become moo't, perforce of the injunctions. For the reasons stated, the judgment of the court below *757should be reversed and judgment here rendered dissolving the temporary injunction.