
    Hopkins, &c. v. Stephens and Others.
    March, 1824.
    Ejectment — Who Hay Maintain -Trustee- A trustee, holding the legal title, may maintain ejectment, even after the trust is satisfied. Although a cestui <iue trust, after the trust is satisfied, may maintain ejectment, that does not deprive the trustee, holding the legal title, of his right to maintain such an action.
    This was an appeal from the Superior Court of Law for Cabell county.
    In ejectment, the declaration contained two counts; the first of which laid a demise from Samuel M. Hopkins; the second laid a demise from James T. Watson. At the trial, the plaintiff introduced, in support of his title, a patent from the Commonwealth of Virginia, to Samuel M. Hopkins, for the lands in question. The defendants then introduced a deed of conveyance between Samuel M. Hopkins, Oliver Wolcott, and James Watson, reciting that *the said lauds were purchased by the said Samuel M. Hopkins, at the expense and with the funds of the said James Watson, and are held by the said Samuel M. Hopkins in trust for the said James Watson. The deed then conveys the land in question to Oliver Wolcott, his heirs and assigns for ever. The plaintiff then introduced a deed or declaration of trust executed by Oliver Wol-cott, witnessing that the deed last mentioned was made to him in trust for, and for the sole use and benefit of, the said James Watson, and his heirs, &c; and to the end that for his and their benefit, he, (the said Wolcott,) may, from time to time, and as often as occasion might require, sell, dispose of, convey, lease, or contract to sell, convey, &c., the said lands, or any of them, for cash or on credit, in such manner as he, (the said Wol-cott,) might think proper, and most for the advantage of the said James Watson, hL heirs, &c.
    The plaintiff then introduced a deed of conveyance between Samuel M. Hopkins, Oliver Wolcott, Mary Watson, widow, and James T. Watson, which recites, that James Watson, the party to the foregoing conveyances, was since dead, leaving the said James T. Watson, his only son and child, and the person principally interested in his estate; and, that the parties to this deed are willing that the lands and premises aforesaid shall be conveyed to the said James T. Watson, in fee simple, and discharged of all trusts, to the end that he may be able to make absolute conveyances thereof; for which purpose the said Mary Watson, widow of the said James Watson, and interested in his estate, has joined in this conveyance. The deed then conveys the lands in question to James T. Watson in fee simple.
    The jury found a verdict for the defendants, and the plaintiff moved the Court for a new trial; but, the motion was overruled, there being no evidence given of the death of James Watson, and that James T. Watson is his heir, except what appears upon the face of the deed last mentioned. The Court was of opinion, that it was necessary *for the plaintiff to establish these facts, to entitle him to recover on the second count in the declaration; and that the evidence furnished by the said deed (given in evidence by the plaintiff,) was not so conclusive as to justify the Court in granting a new trial.
    To this opinion, the plaintiff excepted.
    At the trial, the defendants moved the Court to instruct the jury, upon the foregoing evidence, that the plaintiff cannot recover upon the second count in the declaration, against any of the defendants in this cause, unless he prove that James Wats*)u, the cestui que trust aforesaid, is dead, and the said James T. Watson is his heir at law; and the Court instructed the jury acordingly. To which opinion and instruction, the plaintiff excepted.
    Judgment was rendered for the defendants, and the plaintiff appealed.
    Call, for the appellant.
    Scott, for the appellees.
    March 31.
    
      
      See monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172; monographic note on “Trusts and Trustees” appended to Lee v. Randolph, 2 Hen. & M. 12.
    
   JUDGE CARR,

delivered the opinion of the Court.

This is an action of ejeciment. The declaration contains two counts; the first on the demise of Hopkins; the second on that of James T. Watson. To support his case, the plaintiff introduced the patent to’ Hopkins, dated in 1796. The defendants, to prove the title out of Hopkins, introduced the deed from him to Wolcott, dated 19th of February, 1806. The plaintiff then exhibited the declaration of trust, executed by Walcott, and dated the 19th of February, 1806 ; and also Ihe deed from Hopkins, Wolcott, and Mary Watson, widow of James Watson, to James T. Watson, dated 22d of June, 1808. “Whereupon,” says the record, “defendants’ counsel *moved the Court to instruct the jury, that the plaintiff cannot recover upon the second count, against any of the defendants, unless he can prove, that James Watson, the cestui que trust, is dead, and that the said James T. Watson is his heir at law. The Court instructed the jury accordingly.” To this opinion, there is an exception; and we are now to decide, whether the opinion be correct or not. We think it erroneous. Why was it necessary for James T. Watson to prove his father’s death, and that he was heir at law? We presume that this idea was taken from the case of Hopkins et al. v. Ward et al., 6 Munf. 38, where this Court say, that the cestui que trust (the trust being satisfied,) may maintain ejectment; and that the deed introduced by the defendants, in that case, shewing that the trust was satisfied, and that James T. Watson was heir, he also might bring ejectment. But, while asserting this doctrine, the Court did not mean to say, that the trustee, holding the legal title, could not support an action of ejectment, nor that his grantee could not. Suppose, in this, case, that the cestui que trust is alive, and the trust unsatisfied; still the trustee, Wolcott, having the legal title, his deed conveyed that title to James T. Watson; and though he would be considered as taking the land subject to the trust, that would not affect his power to maintain ejectment. We say that the legal title passed from Wolcott to James T. Watson, because this is the inevitable effect of the deed; except where the grantor is out of possession; by which we understand such a divestiture or ouster, as prevents the operation of the deed; and we consider the possession of the defendants, stated in this case, far too vague and uncertain, both as to time and its nature, to work this ouster.

The instructions. of the Court, therefore, on this point, were wrong; and (without deciding any other point in the cause,) the judgment is reversed,, and the cause remanded for a new trial, on which no such instructions are to be given. 
      
      JunGiss Brooke, and Greek, absent.
     