Brown v. Doe ex dem. Heirs of Weast , 8 Miss. 181 ( 1843 )

Mr. Justice Turner

stated the case, and delivered the opinion of the court.

We are of opinion that Weast held as a trustee for Brown; that Brown having paid the purchase money it is a satisfied trust, and being such, neither he nor his heirs can maintain this action for the possession.

It is laid down in the case of Goodtitle ex dem. Hart v. Knot, Cowper, p. 43, that an estate in trust, merely for the benefit of the cestui que trust, shall not be set up against him: any thing shall rather be presumed. And in 3 Burr. 1901, the court said, they looked upon it as a settled point, that the formal title of a trustee should not in an ejectment be set up against the cestui que trust; because from the nature of the two rights, the cestui que trust is to have the possession. See 6 Peter’s Rep. 432. See also 1 T. R. 758, n.; 2 Wendell, 109, 134; 7 Ib. 379; 6 Munf. 38, 41; 11 J. R. 437; 1 Howard, 358; Runnington’s Eject. 15 to 23, 344 to 348.

If the plaintiffs could be permitted to deny the character of trustee in this case, (and they themselves proved it on the trial,) what would then be their condition? Why, that their ancestor purchased against the adverse possession of Brown; and according to the established doctrine, their deed and purchase, as against Brown, would be void. At common law a purchase under such a state of things would be maintenance. The maxim of the law, as laid down by Lord Coke, is, that nothing in 'action, entry, or re-entry, can be granted. The reason he assigns for this is, for the avoiding of maintenance, suppression of right, and stirring up of suits; for so, under color thereof, pretended titles might be granted to great men, whereby right might be trodden down. C. L. 214, sec. 347; 5 J. R. 498; 4 Kent’s Com. 438; 10 Yerger, Hogan v. Williams; 2 Hill’s N. Y. Rep. 526; 5 Pick. 353; 4 Bibb, 424; 5 J. J. Marshall, 637; 5 Pick. 348; 1 Murphy, 348; 3 Call, 475.

The judgment is reversed, and the cause remanded for a new trial.