To enable a plaintiff in ejectment to recover, he must have a valid and subsisting interest in the premises claimed. (2 Rev. Statutes, 400, § 3, 3d edit.) And he is bound to specify in his declaration the nature of that interest: whether he claims in fee, for his own life, the life of another, or for a term of years, specifying such lives or the duration of such term. (2 Rev. Stat. 3d edit. 401, § 10.) The plaintiff claims the premises in fee, and he may recover, if it appear that Striker had such an estate on the 14th day of February, 1840. If an estate in fee existed in Striker at that time, it was bound by the judgment, and passed by the sale and the sheriff’s deed *328to the plaintiff. (2 Rev. Stat. 454, § 6 ; 3 Watts, 223 ; 2 Yates, 443 ; 3 Cai. 188 ; 3 Wash. C. C. Rep. 546 ; 1 Marsh. 68.)
Striker was in possession of the whole of the premises claimed at the time of the recovery of the judgment, for the leases to Heath and Morrison were made subseqxxently. This was prima facie evidence of an estate in fee. The possession of land raises the presumption of such an estate. (5 Taunt. 326 ; 7 Wheaton, 59 ; 2 Black. 196.) It was a presumption, moreover, which the defendants were estopped from disputing. Striker was estopped, by his participation in and assent to the partition, from denying that he had an estate in fee in the portion allotted to him, and by his leasing to Heath and Morrison, from setting up that he had no estate in the portion demised to them, and they were estopped from disputing his title. (4 M. & S. 347 ; 1 Bingh. 147 ; 2 Ad. & E. 17.) If the plaintiff, therefore, had rested upon this state of facts, he would have been entitled to recover. But he did not rely upon Striker’s possession. He introduced the will, and has shown by it, that as respects the premises in question, Striker is but a cestui que trust, and that the legal estate is in the executors of Hopper.
Under the will, the executors took a trust estate by implication of law, which continued in the trustees, or the survivor of them, or the executors of the survivor, during the lives of the three grandchildren. They were authorized to make repairs, and lease and rent the real estate from time to time, on such terms as they should deem most advantageous to the heirs, and were to pay the rents, issues and profits to the heirs annually, in equal proportions. This was not a mere leasing power. Where something is to be done by the trustees, which makes it necessary that they should have the legal estate, such as the payment of rents and profits to another’s separate use, or any power of management, they take the legal estate. (Bing. N. C. 573 ; 6 Ad. & E. 206 ; 2 Williams’ Saunders, 11, note.) Such is the nature of the trust created by this will. The trustees are to keep part of the land in repair, and pay the rents and profits over to the heirs. It is an active trust, which was valid before the revised statutes, and *329vested the legal estate in the executors. (2 Paige, 387 ; 3 East, 553 ; 1 Eq. Cases Ab. 383 ; 9 East, 1 ; 2 Taunt. 109 ; 4 Taunt. 772 ; 3 Brown’s Parl. Cases, 178 and 458 ; 2 Term Rep. 444 ; 1 Brown’s Ch. Cases, 14 ; Ambler, 93 ; 1 Jarman’s Powell on Devises, 221, note 1.) The absence of express words of devise in the will is not material, for if it be essential to the execution of the trust, that the trustees should have the legal estate, they take it by implication of law. (6 Ad. & E. 206 ; 2 Burr. 860 ; 2 Jarman’s Powell on Devises, 199.) The plaintiff, therefore, by showing that the legal estate is in the executors, has destroyed the presumption of a seizin in fee, which the law implies from the fact of possession. (9 Cow. 86.) The defendants were estopped from showing it, but the plaintiff, by introducing the evidence on his part, has waived the estoppel. (1 Salk. 276 ; 1 Dev. 208 ; 2 Dana, 251 ; A. K. Marsh, 145 ; 9 Cow. 86.)
It may be claimed that, as against the defendants Thomas and Morrison, the plaintiff is entitled to recover upon the ground of priority of possession; for it has been said, that mere priority of possession, though all other title be expressly disproved, is sufficient in ejectment to enable the plaintiff to recover against every one but the party having the true title. (Catteris v. Camper, 4 Taunt. 547, note ; 2 Saund. 111.) The rule is stated a little too broadly by the reporter, in his note to this case, in Taunton. Priority of possession is undoubtedly sufficient where nothing but possession is shown by either party, for the prior possession carries with it the presumption of a legal title. It is but a presumption, however, which may be repelled, and which the plaintiff in this case has repelled, by showing that the legal estate is in the executors. (2 Roscoe on Real Actions, 488 ; 2 Term Rep. 149.)
There is no ground for presuming that the executors released to the heirs. Artificial presumptions are allowed in certain cases, where the fact to be presumed is consistent with the power conferred, as where an act is directed to be done, and such act is a necessary link in a chain of title. (6 Bing. 179.) In such case, a jury may presume as a matter of fact that the *330act was done. (2 Cromp. and Jerv. 461.) But where it would be repugnant to the power given, no such presumption can arise. The trustees had no authority under the will to release to the heirs. A release by them would be inconsistent with the nature of the trust created, and we cannot presume that an act was done which would amount to a breach of the trust, or be contrary to the duty of the trustees. (8 East, 267.) It might be presumed, consistently with the will, that the executors leased to Striker, but this would not avail the plaintiff, for in the absence of any evidence of the duration of the term demised, we could presume nothing more than a tenancy from year to year, (2 Rev. Stat. 3d edit. 29, § 1,) which ceased on the first of May following the sale of Striker’s interest, and before the commencement of these suits. If any presumption can be drawn from' Striker’s possession, it is that he was a tenant at will or at sufferance, having a mere chattel interest in the land, which was not liable to sale on execution. (2 Rev. Stat. 3d edit. § 5.)
The plaintiff having failed to show that he has an estate in fee, cannot maintain this action. Even if a plaintiff might recover a lesser estate than that declared for, he has not shown that he lias any interest which could be the subject of a recovery in ejectment It is provided by the statute, not only that the plaintiff shall specify in his declaration the nature of the estate he claims, but that the verdict shall express what estate he is entitled to recover, whether in fee for his own life or the life of another, stating such lives, or for a term of years specifying the duration of such term. (2 Rev. Stat. 3d edit., 403, §§ 31, 7, 10.) Where, the action is not brought forthe recovery of dower, these are the estates which may be recovered; and no such interest appearing in the plaintiff, the nonsuit should be affirmed.
The partition made between the parties, and the possession under it by Striker, would give him no estate subject to execution, if the estate did not vest in him under the will before such partition was made; and I should rather adopt the conclusion that the legal estate was in the executors under the *331will, they having a right to rent or lease the premises, collect the rents, and pay over the proceeds equally to the heirs.
How far the subsequent limitations of the estate may be void, or what estate the survivors would take on the death of either of the grandchildren, is not material to the decision of this case ; the question now being solely as to the legal estate of the defendant, Striker, at the time of the purchase by the plaintiff.
Ingraham, J.Upon the former argument, I was of the opinion that the plaintiff was not entitled to recover, and my views have not since been changed. My conclusions are :
1. That the plaintiff can only recover on showing a title in himself, without reference to the validity of the defendant’s title.
2. That the plaintiff having proven the will of Hopper, under which the property passed, is bound by the title which he thereby establishes ; and if he shows that it is not in Garrit H. Striker, he shows no legal title to the premises in himself.
3. That by the will of Hopper, the legal estate during the lives of the grandchildren, is in the trustees, and not in them, and that they cannot alienate the property during their lives.
4. That a conveyance in fee by the trustees is not to be presumed, because it is inconsistent with the trust—they having no authority to convey to the cestui que trust during the lives of the grandchildren.
5. That a lease cannot be presumed for a longer period than a year, unless such longer term is proven.
6. I have had more difficulty in the remaining point, viz.: whether the plaintiff could recover by merely proving Striker to be in possession. If there was no other evidence in the cause, I think the plaintiff would be entitled to recover on such proof, because title by possession is prima facie evidence of a fee. (9 Wend. 223.) And if the plaintiff had rested on mere proof of possession, and' of the leasing and proceedings in partition, the defendant would have been estopped from denying that he had title. But if the plaintiff goes further, and shows *332title in another, inconsistent with the title of the person in possession, the case then is entirely changed. The question then is not whether this is such an outstanding title as the defendant could set up for himself, but whether the plaintiff has not shown the fee out of himself. (9 Cow. 86.) If he has, then, although the defendant maybe in possession as a tenant at will or by sufferance, or without title, or as in this case, being the cestui que trust while the legal estate is in another, the plaintiff has shown that there is no estate owned by the defendant which he has a right to, or which he can claim. Although upon this point I feel some hesitation, yet my conclusion is, that the plaintiff having shown a legal estate to the premises to be in the trustees, he is not entitled to recover against the cestui que trust, although in possession.