
    Leonard Mackall, Trustee for Brooke Mackall, vs. Alfred Richards.
    At Law.
    No. 19,635.
    { Decided April 3, 1882.
    
      I Tlie Chief Justice and Justices Wylie and James sitting.
    1. The common law rule requiring the use of the word “heirs” in deeds of conveyance, in order to pass a fee, does not apply to deqds of trust; the latter are to he construed according to the intention, the trustee taking only such estate as is necessary for the execution of the trust. ■
    2. Where the trust is created solely for the benefit of the cestui que trust, he having the absolute control of the property, the power of disposition and the right of possession, the trustee cannot maintain the ejectment against him. t
    
    3. Where the trustee has no right of possession, save in behalf of the cestui que trust, and the latter conveys his entire interest to another pending an ejectment suit, brought in the name of the trustee in behalf of the cestui que trust, and includes in the conveyance his interest in the mesne profits claimed of the defendant in the pending suit, the trustee has no longer a right of action.
    4. The habendum clause of a trust deed was as follows : “ To have and to hold the said lots, &c., unto the said party of the second part (the trustees) his heirs and assigns forever, for his and their sole use, benefit and behoof forever, in trust, nevertheless, for the use and purpose following, and none others, that is to say: to hold the same for the use and benefit of the aforesaid (cestui que trust) and subject to his absolute control and disposal, and to sell and dispose of the same as the said {cestui que trust) may in writing direct and require.
    
      Held that the cestui que trust had the entire control and power of disposition over the property, including the right of possession, and having conveyed his entire interest pending an ejectment suit brought in his behalf in the name of the trustee, the defendant in the suit could set up the conveyance as a good defense against plaintiff, the trustee.
    Statement of the Case.
    Motion for new trial on exceptions.
    This was an action of ejectment. The plaintiff claimed the fee-simple of the property in question, and alleged that he was lawfully possessed in November, 1870, when the defendant entered and dispossessed him. There was also a count for mesne profits. Plea, not guilty, to which issue was joined. It was stipulated in the case that in 1851 the legal title to the lot in dispute was in W. W. Corcoran and W. 5. Nichols, one undivided moiety then being in each. On the mmf trial the plaintiff read in evidence a conveyance of the un divided moiety of Corcoran to Brooke Mackall, and then a conveyance of Brooke Mackall and Joseph B. Hill, trustee, (as to the Nicholls moiety) to the plaintiff. The habendum clause of the deed to plaintiff was as follows:
    
      “ To have and to hold the said lot, piece or parcel of land and premises, with the appurtenances, unto the said party of the second part, his heirs and assigns forever, for his and their sole use, benefit and behoof forever.”
    “In trust, nevertheless, for the uses and purposes following, and none others, that is to say, to hold the same for the use and benefit of the aforesaid Brooke Mackall, senior, and subject to his absolute control and disposal, and to sell and dispose of the same as the said Brooke Mackall, senior, may in writing direct and require.”
    Evidence was then given of the defendant taking possession of the property, of his occupation of it for a long time, and of his receipt of the rents, and the plaintiff then rested. It was admitted that Brooke Mackall, senior, had died since the commencement of the action.
    The defendant then read in evidence a deed executed by Brooke Mackall, senior, a short time before his death, and while this suit was pending, to his son, Brooke Mackall, junior, “ of all my right, title, and interest in and to all of that certain lot of land and premises (describing the property in dispute, including my interest in a claim for mesne profits against Alfred Richards, for which a suit is now pending; * * * together with all the buildings, improvements, rights, privileges, appurtenances and better-ments to the same belonging, or in any manner appertaining, and all the remainders, reversions, rents, issues, and profits thereof, now due, or to become due ; and all the estate, right, title, interest, and claims whatsoever, either in law or in equity, of the said party of the first part, of, in, to, or out of the said land and premises as hereinbefore mentioned and described. To have and hold the said lot of land and premises, with the appurtenances,-unto the said party of the second part, his heirs and assigns forever, for him and their sole use, benefit and behoof forever.
    
      “ The said party of the first part also hereby requests and directs Leonard Mackall, trustee, to convey the legal title to the aforesaid lot and premises to the said Brooke Mackall, junior, of'the second part, on his demand.”
    Thereupon, the evidence being closed, the defendant asked the court to instruct the jury to render a verdict for the defendant, which being granted , a verdict was so rendered;
    W. Willoushby for plaintiff:
    It was contended by counsel for defendant in the court below that the conveyance from Brooke Mackall to the plain tiff did not execute the legal title in the plaintiff, but that by the statute of uses it vested in the cestui que trust.
    
    It will be observed that by the habendum clause, the deed to the plaintiff conveys the property to him, “ his heirs and assigns forever,, for his and their sole use and benefit, and behoof forever.” The first use is therefore in the trustee, and the legal title is in him, without regard to the nature of the trust.
    “ Where the conveyance or devise is to, and to the use of the trustees, they will take the legal estate, without the aid of any reasoning derived from the nature of the trust.” Hill on Trustee, 235, where the subject is fully discussed; see also Hopkins vs. Hopkins, 1 Atkins, 591; Cooley’s Blackstone, Book 2, p. 386.
    ' “ The claimant must be clothed with a legal title to the lands, and a trustee, having the legal estate, is entitled to bring ejectment even against his cestui que trust. Whenever, therefore, in a conveyance to uses, the statute of uses does not execute the use in the cestui que trust, the foefee> etc., to uses has the legal estate, and may bring ejectment ; thus, where an estate is limited upon an use, the latter use is not executed, but the legal estate is vested in him to whom the first use is limited.” Roscoe on Real Actions, 490.
    cC A use limited upon a use is not limited or effected by the statute of uses. The statute executes only the first use-In the case of a deed of bargain.and sale, the whole force of the statute is exhausted in transferring the legal title in fee simple to the bargainee. But the second use may be valid as a trust, and enforced in equity according to the rights of the parties. Groxall vs. Shererd, 5 Wall., 282.
    “ In all cases in which the trusts are not executed by the statute of uses, the legal estate vests in the trustees, and of course, in such cases, they may maintain ejectment.” Adams’ Eject., 82.
    
      Cestui' que trust is tenant at will to the trustee, and the possession of the cestui que trust is the very possession in consideration of law of the trustees. Adams’ Eject., 51, note, and see page 32 and cases cited.
    In ejectment the court can neither see nor know anything ■about.trusts or equities. It is well settled that both parties must produce a strictly legal title. 24 How., 275, 389.
    It is, however, an apparent relaxation of this rule, that the defendant shall not set up to defeat the action, an outstanding naked title in a trustee, where the trust is entirely satisfied, but this would not prevent the trustee from also maintaining the action in such case. Hopkins vs. Stephens, 2 Randolph, 422, cited in Adams’ Eject., 32, 11 Ohio, 334.
    The decision of the court below was based upon the effect of the conveyances of the cestui que trust to another party, nearly two years after suit brought, and long after issue joined. To this we say, a denial of the allegations of the declaration puts in issue the title of the plaintiff, at the date alleged, or at least his title at the commencement of the action. Any title acquired subsequent to the issue thus joined, must be set up by a supplemental answer, in the nature of a plea puis darrien continuance. Hardy vs. Johnson, 1 Wall., 374, and see 4 Sergt. & Rawle, 134.
    If this be so in a case where the defendant sets up a title in himself, on account of an event occurring subsequent to the joinder of issue, how much more should it be so where he merely sets up an outstanding title in another, with which he does not at all connect himself.
    The defendant’s theory is that the cestui que trust has destroyed the right of action. But “ it is a maxim that no conveyance by cestui que trust can work a forfeiture of the legal estate of tbe trustee, and it has been held that a fine or other alienation by cestui que trust for life does not work a forfeiture of his life estate.” Saunders on Uses, Adams’ Eject., 51, note. "The effect of an assignment by the cestui que trust is, not to change the estate of the trustee, but only to pass to the assignee precisely the cestui’s own interest in the land.” Hill, on Heal Prop., 328, citing 2 Ch. Cases, 78, 2 Blackf.
    And this is all that the cestui que trust intended or undertook to do in this case. He granted simply all his right, title and interest in the land, including his “ interest in a claim for mesne profits against Alfred Richards, for which a suit is now pending,” and requests and directs Leonard Mackall? the trustee, to convey the legal title to the said Brooke Mackall, junior, on his demand. Brooke Mackall, Jr., certainly has not the legal title ; his father could riot and did not profess to give it to him. He certainly now, before making any demand, and obtaining a conveyance in compliance with it, could not maintain an action of ejectment.
    “The defendant may prevent a recovery by showing a title in himself or a clear subsisting title in a stranger, and a clear subsisting title outstanding in another, means such a title as the stranger could recover on in ejectment against either of the contending pai’ties.” 2 H. & J., 152.
    Could Brooke Mackall, Jr., recover in ejectment against the trustee, Leonard Mackall?
    As to the mesne profits :
    “ W hen a term of this kind is created, it does not cease when the trusts are satisfied, unless there is a proviso to that effect in the deed creating the term, and, therefore, when the deed contains no such proviso, the legal estate, however ancient the term may be, and notwithstanding it may have been assigned to attend the inheritance, will remain outstanding in the trustees or their representatives until it be surrendered to the party beneficially interested, or merge in a larger estate.” Adams’ Eject., 87; Sug. Vend., 3d ed., 263, 293.
    
      Even if there had been a conveyance by the trustee himself, it would not abate the suit.
    
      “ Conveyance by lessor after date or demise whether to a stranger or to the defendant in ejectment does not affect the action nor abate the suit.” 2 J:- J. Marsh., 281, citing Run-nington, 414 ; 1 H. and M., 531; 2 Bibb., 535 ; see 21 G., 576 ; 7 Wend., 377; 3 Wheat., 212; Adams’ Eject., 320, note ; Tyler Eject., 577.
    Even the death of the plaintiff would not abate it. 1 H. and M., 531; 1 Bacon’s Abr., 13; 1 H. & J., 280; Tyler Eject., 577 ; 8 John, 507; 3 Mumf., 191 j 2 Mumf., 453.
    Even though the term for which the suit was brought absolutely expires during the. suit, it does not abate the action “ If a term expires pending an action, the party' shall not have possession, but he may have his damages.” 2 Bacon, .431, title Eject.,/, Verdict on Judgment.
    “ The reason why, after there is an end of the title of the plaintiff’ pending the ejectment, he may recover damages and costs, is because the defendant unjustly withheld the possession at the time the action was brought.” 4 Sergt., & Rawle, 134 ; and to the same effect are 1 Nott & McCord, So. Ca., 209 ; 1 Peters, C. C., 292; Roscoe on Real Actions, 490 ; 18 John, 295 ; 1 Bacon Abr., 22 ; 2 Strange, 1056.
    This is the rule even when only the action' for possession of' the land is pending. It is necessary to have a judgment for the land in order that the action for damages and mesne profits may be sustained. Now, in the case at bar, as permitted by rule of this court, there was actually pending the action for mesne profits, and they had been proved. But thé whole action was dismissed, or rather a verdict was directed, barring a recovery for them. The action for mesne profits was a chose in action, unasssignable at law, even by the legal owner thereof, much" less by the equitable owner. Surely the assignment of this equitable claim by the cestui que trust, describing it as his interest in a pending suit, could not destroy . the legal title thereto of the trustee, so that he could not, if , necessary, maintain the suit for the use of the equitable, assignee. •
    
      W. B. Webb and Enoch Totten for defendant:
    The plaintiff’ has no independent title himself, his relationship to the case is purely fiduciary, and his right to recover depends entirely upon the interest that is vested in him by the terms of the trust. These terms then become a matter of the first importance, for upon them depend the power and right of the plaintiff in this case. As some stress is put upon the language of the habendum clause, we quote the whole of that portion of the deed under which the trust arises. It is in these words : “ To have and to hold the said lot, piece or parcel of land and premises, with appurtenances, unto the said party of the second part, (the plaintiff’), his heirs and assigns forever, for his and their sole use, benefit and behoof forever, in trust, nevertheless, for the use and purposes following, and none others, that is to say, to hold the same for the use and benefit of the aforesaid Brooke Mackall, senior, and subject to his absolute control ond disposal, and to sell and dispose of the same, as the said Brooke Mackallf senior, may, in writing, direct and require.”
    The title of a trustee is commensurate with the trust he is to execute — no greater and no less — and this whether his creation be by deed or will.
    “ In the case of a devise to trustees for particular pur poses, the court will consider the legal estate as vested in the trustees as long as the execution of the trust requires it, and no longer; and will, therefore, as soon as the trusts are satisfied, consider the legal estate as vested in the persons who are beneficially entitled to it.” Greenl. Cruise, Title XII, sec. 29, and note.
    Perry on Trusts lays down these two rules of construction, as having been adopted by the courts, in cases like that under consideration :
    
      “ 1st. Wherever a trust is created, a legal estate sufficient for the purposes of the trust shall, if possible, be implied in the trustee, whatever may be implied in the trustee, whatever may be the limitation in the instrument — whether to himself or his heirs, or not; and
    
      “ 2d. Although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be covered further than the execution of the trust necessarily requires.” Perry on Trusts, sec. 312, and note; Jarman on Wills, 156.
    In the United States the distinction between deed and wills in respect to the trustees’ estate has not been kept up, and the general rule is that whether words of inheritance in the trustee are or are not in the deed, the trustee will take an estate adequate to the execution of the trust, and no more nor less. Id., sec. 320, and note.
    This same doctrine is laid down in Hill on Trustees, and numerous authorities are cited in support of it, and the cases where the estate of a trustee has terminated by law, or in which there is the presumption of a conveyance or surrender, are excepted from the general rule that the possessor of the legal title must sue in ejectment. Hill on Trustees, 274, and note ; and to the same effect are Doe vs. Nicholls, 1 Barn. & Cress., 336 ; Nicoll vs. Walworth, 4 Denio,.389.
    But it is conclusive on this point that the Supreme Court of the United States has in more than one case sustained the doctrine announced by the text-writers to the fullest extent.
    In Webster vs. Cooper, 14 How., 499, the court says : “ A devise to trustees and their heirs to the uses mentioned, carries the legal estate to the cestui que use, unless the will has imposed on the trustees some duty, the performance of which requires the legal estate to be vested in them. And in that case they would take an estate commensurate with the exigencies of their trust.” And the learned judge who delivered the opinion of the court cites a number of authorities in support of this doctrine. The same doctrine was again announced by the Supreme Court of the United States in Doe, lessee of Poor, vs. Considine, 6 Wall., 471.
    Chancellor Kent says: “ The general rule is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise to the trustees, and their heirs, they take only a chattel interest where the trust does not require, an estate of higher qualities. This doctrine rests upon a solid foundation of reason and authority, irrespective of the presence or absence -of the statute of uses.”
    And again: and as its latest expression on that subject, in a case that went up from this court, the Supreme Court in express terms endorsed the doctrine laid down in Poor vs. Considine,” and determined that a conveyance made by a trustee, &c., “ was void, because his powers as such trustee had ceased.” Young vs. Bradley, 101 IT. S., 788.
    It will be contended that under the interpretation put upon the statute of uses, a use cannot be linrted upon a use, and that in such case the statute executes the first use only, and applying that interpretation to the case at bar, the use in Leonard Mackall is alone executed, so as to vest him with the legal title, thereby leaving the whole remaining estate a trust. "While it may be questionable how far this interpretation of the statute governs the courts in this country, it is enough to say that the doctrine only applies to those cases where the trust created requires some estate in the trustee for its proper execution. All the cases cited will be found to be cases of this "kind. Naked dry trusts, or trusts which, by their terms, or by operation of law, require no estate to support them, or trusts where a surrender or recon-veyance will be presumed, or trusts which, by operation of law, have terminated, do not come within the rule prohibiting the limitation of a use upon a use. In such cases there is no estate in the trustee the trust is executed in the cestui que trust. In point of fact the cestui que trust in such cases becomes the real party in interest, and the only party in whose name the recovery of the property in question can be had. Rev. Stats. List, of Col., Sec. 809. And see note to G-reenl. Cruise, supra:
    
    No comment is needed upon the deed from Mackall, senior, to Mackall, junior. In effect it is an execution of the trust contained in the deed to the plaintiff. The terms used are explicit, and the aim is, to convey not only the lot in question, but along with it the claim of the grantor for mesne profits in this action. Whatever else may be thought or siad of this deed, there can be no question that its intent was to put the title to the property in Brooke Mackall, junior, and if effective, it leaves the plaintiff in this action either totally divested of all title, or clothed with such a title as a court of law will not regard as sufficient to maintain an action of ejectment.
   Mr. Justice James

delivered the opinion of the court:

The plaintiff, Leonard Mackall, who claims to hold as trustee for Brooke Mackall, senior, sues the defendant Richards in ejectment. The trustee asserts his title to the property in question under a deed to him containing the following clause:

“ To have and to hold the said lot, piece or parcel of N-nds and premises, with the appurtenances, unto said party of the second part, his heirs and assigns forever, for his and their sole use, benefit and behoof forever.
“In trust, nevertheless, for the uses and purposes following and none others, that is to say, to hold the same for the use and benefit of the aforesaid Brooke Mackall, senior, and subject to his absolute control and disposal, and to sell and dispose of the same as the said Brooke Mackall, senior, may in writing direct and require.”

A good deal of the argument of the counsel for the plaintiff has been devoted to showing that the statute of uses did not execute the trust here and that a legal estate was taken by the trustee. It was hardly necessary to have spent any time upon that branch of the case for it is well settled since the statute of uses that where the conveyance is to the trustee for his own use, that is the first use and the legal estate is prevented by the statute from going to the cestui que use, the trustee himself taking it. The question here is what sort of a legal estate did the trustee take? It is very common learning that where an éstate is “ conveyed ” — that is the strict technical term — by will to a trustee, the latter’s estate is ascertained by the intention. JDoes the same rule apply when the conveyance is by deed? We have looked into the authorities very carefully ánd without citing any number of cases, we find, as was declared in a Massachusetts case by the learned real estate lawyer Wilde, and afterwards in a later case reiterated by him, and again in the most positive manner sustained by Chief-Justice Shaw, that while the general common law rule requires the use of the word heirs ” in order to pass an estate in fee simple, deeds in trust are always an exception to the rule, the latter being invariably construed according to the intention. The exception arose in the desire to reach the same end that was attained by means of conveyances to uses before the statute, when the courts of that day held that the common law rule in regard to words of inheritance being necessary did not apply to such conveyances. Hence, since the statute it has been declared that neither does the rule apply to trusts and that they are to be given the same construction. Accordingly, it is held in courts of equity, that if the intention is to give the trustee an estate in fee simple, he takes such an estate ; on the other hand, the same court declares that if the intention be that he shall take a less estate, a fee would not pass notwithstanding the words of inheritance were in the instrument of conveyance. In section 312 of Perry on Trusts, it is said that: “ In all cases where an estate is given to one for the use of another, in such manner that the statute of uses steps in and executes the estate in the cestui que trust, the statute executes in the cestui que trust only the estate which the first donee or trustee takes,” that is, the statute executes or transfers the exact estate given to the trustee. Therefore, if A give an estate to B and his heirs, for the use of C and his heirs, the statute will execute the fee simple in C. But if A gives an estate to B for the use of C and his heirs, the statute will execute only an estate for the life of A in C ; for that is the extent of the estate conveyed to B by a deed in that form, that is, by a deed that has no words of inheritance in B.' While this is the rule in respect to estates which the statute executes, a very different rule applies to estates upon a trust or use not executed by the statute. In these cases, the extent or quantity of the estate taken by the trustee is determined, not by the circumstance that words of inheritance in the trustee are or are not used in the deed or will, but by the intent of the parties.”

It is to be observed that, although it was decided in New York, as reported in 10 John. Rep., 495, that the word heirs ” was not necessary to create a fee in a trustee, yet a Pennsylvania case, in inferring to that decision, seems to imply that such a view could only be taken in equity. But this can hardly be sound ; for when courts of equity come to take hold of the question, it is often necessary for them to determine whether or not by law a legal estate has vested, and how large an estate has been passed.

In a Massachusetts case, for example there was a bill filed for specific performance, and the facts were that the person who had bought from the trustee, made a contract for the sale of the property, and agreed to give a good title, but the proposed vendee refused to take it, being of the opinion that the trustee had only a life estate ; the question coming before the court whether it was a good title at law, it was held to be a good fee, on the ground that these were exceptions to the rule of common law conveyances, and that a conveyance to trustee without words of inheritance, could give him a fee simple, if such an estate was necessary in him for the execution of the trust. He was, in other words, to take as large an estate, and no larger, as was necessary for this purpose. This accords with the rules laid down in "Washburne and Perry, and explains, as Washburne says, how an estate to A and his heirs, in trust for B until the latter shall attain the age of twenty-one years is a mere chattel interest, and if the trustee dies it could not be executed by his heir, but had to be executed by his executor during the remainder of the minority of the cestui que trust. If we apply this rule to the case at bar, we will see that the estate conveyed is for the benefit of Brooke Mackall, senior. This trustee could not, under the language of this deed, control the property, nor could he, as has been contended, bring an action of ejectment against his cestui que trust, for though the general rule was pressed upon us that a trustee could maintain ejectment against his cestui que trust, there are certain essentials necessary to enable Mm to do so ; it is elementary law that be must have the legal title and the right of entry, but this trustee had no right of entry against his cestui que trust.

The cestui que trust had reserved to him, by the very declaration of the trust, an absolute control and power of disposition, and right of possession ; and it is plain that the trustee could not, therefore, maintain ejectment against him. Now, the grantor and cestui que trust, Brooke Mackall, senior, having brought action in the name of the trustee against a so-called stranger, disposed of his interest after the suit was brought, and the estate of the trustee ceased thereby.

The trustee had no right of possession save in behalf of the cestui que trust, and the latter had conveyed all his right to another, including his right of possession. In such a case the trustee could have no right to recover. It is said, however, that he has the right to go on and recover mesne profits ; but this can only be where the two rights go together. Here the loss of one involves the loss of the other ; they are bo,th in the same boat, and both go down together. The right of action having determined, the suit must fail. Cases might be cited where a different rule applies, as where the defendant shows that he has acquired a better title since the action began, but we have found no such application to the entire loss of the plaintiff’s title. The ground is not taken here that the defendant had acquired a new estate after the action began, but that the plaintiff’s right of action disappeared with the right of possession in the cestui que trust.

The judgment below must be affirmed.

Mr. Justice Wylie dissented.  