
    DEN, EX DEM OBERT ET AL v. BORDINE.
    1. Lessors of the plaintiff cannot recover in ejectment, in opposition to their own deeds; however invalid the deeds may be against third persons, they are effectual as between the parties.
    2. A mere cestui que trust cannot recover in ejectment, unless a surrender or conveyance to him of the legal estate can be reasonably presumed.
    3. One joint-tenant or tenant in common may maintain ejectment against his co-tenant, on proof of actual ouster, or of facts from which an ouster may be inferred.
    4. But if there has been no actual ouster, the defendant should apply for a. special rule to confess ouster of the nominal plaintiff, in case an actual ouster of the plaintiffs’ lessor by the defendant should be proved, and not .otherwise.
    5. The demise in ejectment may be laid on the day when the right of entry accrued.
    On rule to show cause why the verdict which had been rendered for the plaintiff, should not be set aside.
    This cause came on to be tried before the Chief Justice at the Middlesex Circuit, in June term, 1838. The declaration contains twelve counts. The first is on the demise of Abram and Isaac Hendricks for 20 years from the 20th of December, 1822: 2d, the same lessors from the 24th of August, 1836; 3d, of Abram Hendricks from the 24th of December, 1822; 4th, the same lessors from the 24th of August, 1836 ; 5th, of Peter G. Obert from the 26th of August, 1836; 6th, of Sarah Moore, Susan, Jacob and Aaron V. Hendricks from the 1st of May, 1835; 7th, of Susan Hendricks; 8th, of Sarah Moore; 9th, of Aaron V. Hendricks; 10th, of Jacob Hendricks; 11th, of Peter G. Obert and Betsey his wife; the four last demises being all from the first of May, 1825; and ' 12th, Sarah Moore, Susan, Jacob and Aaron V. Hendricks and Peter G. Obert and wife from the 25th of August, 1836.
    The defendant confessed lease, entry and ouster.
    The plaintiff, in support of the issue on 'his part, offered and read in evidence the record of a deed for the premises in question, from John Van Nuis and wife to Abram and Isaac Hendricks, dated the 25th of April, 1812, in trust for the heirs of John Hendricks.
    John Yoorhees, a witness for the plaintiff, testified, that the premises in question, described in said deed, now in the possession of the said John Van Nuis, at the date of the said deed. That John Hendricks has been dead some time; that he left eight or nine children; Susan, Aaron V-, Jacob, Isaac, Abram, Sarah Moore, Betsey who married Peter G. Obert, and John, all of whom are-lessors of the plaintiff, except John.
    William Disborough testified, that Mr. Obert, on the first of August, 1837, requested him to bring suit to recover the land mentioned in the above deed ; that he called on the defendant, who, as he understood, was in possession; that the defendant said he was in possession, that he had a title for it, and that he intended to keep it. That on the 7th of August, 1837, he formally demanded of the defendant possession of plaintiff’s portion ; that defendant refused, and claimed to hold the whole. The plaintiff produced a deed from Abram Hendricks to Peter G. Obert, for the premises in question. It was admitted in evidence, after objection by the defendant that it conveyed no title.
    After a motion for a non-suit was over-ruled, the defendant offered and read in evidence, a deed from Isaac Hendricks to Cornelius Bordine, dated the 24th of December, 1822, for the premises in question; by which deed the defendant holds and claims possession. The defendant offered evidence of the death of Abram Hendricks. The court directed the jury to find a verdict for the plaintiff, with the understanding that if, on the return of the postea, the plaintiff should be considered entitled to recover on either count, the judgment should be entered accordingly ; if not entitled, that judgment of non-suit should be entered.
    
      John 8. Blauvelt for the defendant, in support of the rule.
    The title of the plaintiff depends upon the deed of conveyance from John Van Nuis to Abram and Isaac Hendricks, in trust for the heirs of John Hendricks. The last seven counts are upon the demises of the cestuis que trust. Peter G. Obert married one of the heirs. No recovery can be had on these counts, for want of the legal title. A mere equitable title will not prevail even against a wrong doer. Lewin on Trusts, 482; 24 Law Lib. 244; Adams Eject. 32; 8 Cow. R. 543.
    The first and second counts are on the joint demises of Abram and Isaac Hendricks. To support a joint demise, proof of joint title is necessary; Adams Eject. 209, Doe v. Butler, 3 Wend. R. 149. Isaac Hendricks conveyed to Cornelius Bordine, on the 24th of December, 1822, the whole of the premises. If the deed of Isaac Hendricks operated, there was no joint title to support the joint demise.
    Abram Hendricks, by deed dated the 26th of August, 1836, had conveyed or attempted to convey to Peter G. Obert the whole of the premises in question, so that on neither of the four first counts, can there be a recovery on the demises of either Abram or Isaac Hendricks.
    The demise of Peter G. Obert, in the 5th count, is dated the 26th of August, 1836, the demise being laid on the same day on which his title accrued. The demise must be laid after the deed, and must so appear, without aid from inference. But it is submitted that the deed to Obert is void. Abram and Isaac were joint tenants, in the strict sense of the term, of the trust estate. The law of 1812 is not applicable to persons not entitled in their own right, but holding as trustees, There was a right of survivorship, notwithstanding the alienation. A deed, from a trustee t'o a person having notice of the trust is void; and the deed from Abram Hendricks to Peter G. Obert conveyed no title, on which he could maintain ejectment. The deed of Van Nuis sets forth the trust on its face, and Obert took his title with notice of the trust. Trusts cannot be delegated, nor will a transfer of the estate by the trustee, convey any power to the person to whom the transfer is made. Lewin on Trusts, 262; 24 Law Lib. 133.
    
      J. W. Scott, for the plaintiff, contra.
    The conveyance of John Van Nuis was to Abram and Isaac Hendricks, in trust for the heirs or children of John Hendricks, of whom these trustees were two. They were made trustees for the residue of the children; all were entitled to the profits it being a bare naked trust; and the others being at any time entitled to call upon the trustees for a conveyance. John, one of the children is dead, and the others bring the ejectment, Peter G. Obert having married one of the children.
    If there is an actual ouster, one tenant in common may bring ejectment, Per Lord Holt, 7 Mod. 39. So also, although no actual ouster is found where there is a denial of title or other circumstance from which actual ouster may be presumed. Here, however, lease, entry and ouster are confessed. Johnson v. Allen, 12 Mod. 657. Oates dem Wigfall v. Brydon, 3 Burr. 1895. Goodtitle v. Tombs, 3 Wils. 118; Doe v. Pegge, 1 T. R. 758 in notes; 15 John. R. 501; Cowp. R. 218, 219.
    
      Cestuis que trust, may maintain ejectment whenever they are entitled to a pernancy of profits. Courts will presume a reconveyance in favor of cestuis que trust. Thornby v. Fleetwood, 11 Mod. 376 ; Goodtitle v. Nott, Cowp. R. 46. Tankard v. Wade, 1 Irish Term Rep. 166; Doug. 695; Buller N. P. 110; approval of Lord Mansfield’s dictum by Lord Kenyon. Doe v. Staple, 2 T. R. 696.
   The opinion of the court was delivered by

Carpenter, J.

Without entering into an examination of much of the doctrine discussed by counsel in this case, it is sufficient to say, so far as regards the four first counts in the declaration, on the demises of Abram and Isaac Hendricks, and on the demises of Abram Hendricks, that no recovery can be had on those counts against the deeds of the lessors. The case shows conveyances by both Abram and Isaac Hendricks, and the deed in each case is effectual as between the parties to it. Neither can recover in opposition to his deed, in the one case to the defendant, and in the other case to Obert. It operates to estop him ; and however void as against any one having right, neither can recover on these demises in opposition to his own deed. Jackson v. Dumont, 9 Johns. Rep. 60.

It has been urged by counsel that the seven last counts being on the demises of the cestuis que trust, no recovery can be had on these counts, for want of the legal title. Unquestionably, in ejectment, the plaintiff must recover on a legal title. The law, as is well understood at the present day, was brought back to its true principle by the decision of Lord Kenyon in Doe v. Staple, 2 Term Rep. 684, in which he overruled the equitable decisions of Lord Mansfield ; and it may now be considered as well established, that a eestui que trust cannot recover in ejectment, unless indeed, a surrender to him of the legal estate can be reasonably presumed. Lord Kenyon observed that “ he extremely approved of what was said by Lord Mansfield in Lade v. Holford, 3 Burr. 1416, that he would not suffer a plaintiff in ejectment to be non-suited by a term outstanding in his own trustee, or a satisfied term set up by a mortgagor against his mortgagee, but would direct a jury to presume a surrender;” in that case however, holding that the facts would not admit of the presumption. A distinction is recognized between presuming the surrender of a tern?, and the reconveyance of the legal estate in fee. There is no time at which it can be said of the former that its purposes have been fulfilled, and that it would be useless in the hands of third persons; the latter as' soon as the purpose for which the conveyance was originally made has been completed, becomes functus officio. After a lapse of time, a reconveyance may therefore be presumed, to have been made at the period, when the object has been effected ; and when a reconveyance by the cestui que trust might have been required. In England v. Slade, 4 Term Rep. 682, the plaintiff, in an ejectment brought in 1792, offered in evidence, in support of his title, a lease from A.; and it was proved that A. claimed under a will dated in 1777, by which the estate in question was devised to the use of trustees, in trust for A. and to convey the same to him immediately on his attaining twenty-one, and in the meantime for his maintenance. A. came of age in September, 1788 ; no conveyance by the trustees to A. was proved, and the question was, could such conveyance be presumed ? Lord Kenyon, the other judges assenting, held that a conveyance ought to be presumed. “ There is no reason why the jury should not have presumed a conveyance from' the trustees to him, upon his attaining the age of twenty-one years, in pursuance of their trust, according to what was said by Lord Mansfield in Lade v. Holford. It was what they were bound to do ; and what a court of equity would have compelled them to have done, if they had refused. But it is rather to be presumed that they did their duty; and as to the time, the jury may be directed to presume a surrender or conveyance in much less time than twenty years.” In the subsequent case of Doe v. Sybourn, 7 Term Rep. 2, the same presumption was made, and Lord Kenyon laid it down, “ that in all cases when trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, when such a presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a just title from being defeated by a matter of form.”

Courts have been very free to presume deeds, in the execution of trusts according to the duty of trustees, where it is for the sole benefit of the cestui que trust, where the trust has been fulfilled and where it is the duty of the trustee to convey, or a court of equity would decree a conveyance. The cases range as to the length of time from many to a very few years ; but it is evident from the principle upon which the decisions go, that a very short time in case of a clear trust would be sufficient. Law grounds its presumption on the fact, that a court of equity would compel the execution of such trusts; and seems in this instance very nearly to follow the rule in chancery, that what ought to be done shall be considered as done. Cases cited supra, Jackson v. Woolsey, 11 Johns, R. 456. Cowen's Notes to 1 Phil. Ev. 162, note 311.

The cestui que trust is entitled to the possession of the estate, and may call upon the trustee to execute conveyances according to his direction. These are rights which may be enforced by means of a court of equity, at least in cases where the cestui que trust is exclusively interested and when the retainer of the legal estate, in the hands of the trustee, is not needed to answer some ulterior purpose. Lewin on Trusts, 477, 486, 24 Law Lib.

I am of opinion therefore, in accordance with these principles, that the said Abram and Isaac Hendricks holding the premises in question as trustees for the other heirs of John Hendricks; those heirs being entitled to the possession and the profits in proportion to their respective interests, and entitled at any time to call for a conveyance by the trustees ; and no possession or holding, at least until 1822 appearing adverse to these rights, that a conveyance or conveyances by the trustees may be presumed for the benefit of the cestui que trust. That it being a legitimate presumption which the jury were authorized to make, that, at the time when this trust was fulfilled and when the title became vested in the trustees for the sole benefit of the cestuis que trust, the trustees in pursuance of their duty had so conveyed; that the subsequent deeds of Isaac Hendricks to Cornelius Bordine and of Abram Hendricks to Peter G-. Obert, were inoperative and void, so far as related to the interests of the other heirs of John Hendricks, deceased. But those deeds must be considered valid and subsisting deeds, so far, as relates to any interests of the respective grantors in the premises, and vested in said Bordine and Obert respectively the rights of the said Abram and Isaac Hendricks.

One joint tenant or tenant in common may maintain ejectment against his companion, on proof of actual ouster, or of facts from which ouster may be inferred. In this case there can be no difficulty on this point, the case showing the defendant in possession holding adversely under a deed for the whole premises, and denying the title of his co-tenants. But it would seem to be confessed by the consent rule. The practice is, if there has been no actual ouster, for the defendant to apply to the court for a special rule to confess lease, entry, and also ouster of the nominal plaintiff, if an actual ouster of the plaintiff’s lessor, by the defendant, should be proved on the trial, and not otherwise. 2 Roscoe on Real Actions, 574, 29 Law Lib. 161, 3 Burr. 1897.

With regard to the time of the demise laid in the fifth count, it being on the same day wit-h the deed under which Peter G. Obert the lessor in that count claims title, it seems sufficient. It is true that the demise must be subsequent to the time when the claimants’ right of entry accrues, yet it has been held in ejectment on the demise of an heir by descent, that the demise was well laid on the d'ay the ancestor died; for the ancestor might die at five o’clock, the heir enter at six, and make a lease at seven, which would be a good lease. Roe, d. Wrangham v. Hersey, 3 Wils. 274. It is stated in a late work that the demise is usually laid after, but it may be laid on the day when the right of entry accrued. Browne on Actions at Law, 475, 45 Law Lib.

I am therefore of opinion, that the plaintiff is entitled to recover, according to the interest of the respective lessors, on the fifth and subsequent counts; that the rule to show cause, should be discharged, and that judgment should be entered fór the plaintiff.

Rule discharged and judgment for the plaintiff.

Cited in Brown ads. Combs, 5 Dutch. 41.  