The opinion of the court was delivered by Williams, Ch. J. This is an action of ejectment in which the title is to be decided, the judgment in which is conclusive against both the plaintiff and defendant and their heirs. The question presented is, whether, at law, the title of the cestui que trust shall prevail against that of the trustee. In the action of ejectment, in England, when the right of possession, only, is determined, the plaintiff must be vested with the legal title in order to maintain it, and no equitable title will answer. The trustee may maintain this action against his cestui que trust. Read v.

Read, 8 Term, 118. In some of the states, where they have no court of chancery, a cestui que trust has been permitted to recover when chancery would direct a conveyance. But if it were so in this state, it would not help the defendant. There is nothing in the facts offered to be proved, which warrants the inference that a court of chancery would direct a conveyance, though they might prevent the plaintiff from disturbing the defendant’s possession, unless it was to accomplish the purposes of the trust.

There are no dicta in the decisions of any of the states, that the cestui que trust can, as against his trustee, either maintain or defend an action of ejectment. The evidence offered did not presenta case where the jury would have been directed to presume a conveyance. The trustee was under no obligation to convey to the defendant; but, on the contrary, the grantor did not intend that the legal estate should vest in him, and the plaintiff would have violated the trust had he made such a conveyance. The principle is not different, if this was a resulting trust, except that such trust might be proved by parol.

If a trust resulted from the fact that the purchase money was paid, six sevenths by the father, and one seventh by the defendant, the very object of the suit might have been to secure the portion due to the father. The trust, if any existed in this case, could only be enforced in chancery. The judgment of the county court is affirmed.