This is an action of ejectment tried on the 16th September, 1845, and a verdict taken, subject to the opinion of the court. The case has been twice argued before this court.
The plaintiff claims as a purchaser at sheriff’s sale, on the 16th November, 1842, of the interest which Striker, senior, had in the premises claimed, on the 14th February, 1840. Morrison is acquitted, and Thomas holds under Morrison, who had a lease for five years, from 1st May, 1841; Striker, senior, being the lessor.
I. It appears to me that Thomas, the tenant in possession, cannot deny the right or title of the lessor for five years, or a title by possession. This is not selling merely the interest of a tenant at will or sufferance, but the legal estate of one who, by his acts, is at all events to be deemed the lessor, having a legal interest commensurate with the lease granted by him. If the judgment did not bind, or was not a lien upon a leasehold interest of a lessor, from the time of docketing, the lessor’s interest could nevertheless be sold, as it was, under the execution on the 16th November, 1842. The lessor’s title for five years is at least presumptive upon him and his tenants, and it could be sold under execution. This is not selling the lessee’s *333interest, but the right of the lessor, which right or title is presumptively, if not conclusively, established for the time embraced in the lease. The tenant held under this lease, which had not expired when this action was tried Actual possession is prima facie evidence of legal title. The plaintiff comes into exactly such a possession as the debtor had. (2 Black. Com. 196 ; 4 Cow. 602 ; 5 Wend. 248.)
II. The fact also appears that the title of Striker, senior, rests upon Hopper’s will of September, 1815, under which the trustees could have held possession and paid over to Striker only his share of the rents. But the trustees are all dead, and since 1826, Striker has been in possession. The presumption then arises from the lease and possession by Striker, that the trustees have released, and that Striker had the title in fee, which could be sold by the sheriff. This cannot be regarded as the sale of a mere equitable interest, or the interest of a tenant at will, or by sufferance, which are not liable as such to sale on execution. (1 R. S. 722, § 5.) This is the sale of the presumptive legal estate or title in fee. (9 Cow. 81-85 ; 10 Johns. 223.)
III. legal presumptions may be rebutted, but the defendants have not afforded sufficient proof. The will alone is not conclusive. It is not shown by the acts of the parties that Striker only held a lease, or possession, under the trustees, at will or by sufferance. It is not shown that the trustees acted since 1826, and received the rents and paid them over to the devisees, in execution of the will.
It is not shown that the trustees in fact did not release to Striker.
It is not shown that Striker’s lease to Morrison was ever surrendered by the latter, or that Striker, Morrison or Thomas ever attorned as tenants to the trustees. On the contrary, the acts and possession of Striker, and the silence of the trustees during their lives, indicate that the latter had relinquished and released to the former; we cannot presume a possession by Striker under the trustees, when the acts of the parties do not countenance such presumption.
*334IV. A plaintiff in ejectment must recover on the strength of his own title, but this does not preclude him from recovering on a presumptive title in fee, nor from holding a party concluded by his own acts from denying that he had an estate dn fee or for years ; and a tenant under such party is also bound by his landlord’s acts.
V. No trustee under the will of John Hopper has been made a defendant in this suit; if any person now exists who could as trustee, or successor to a trustee under the will, make a valid claim to the estate. Whatever might be the true construction of the will as to the legal estate having been in the trustees or devisees, we cannot disregard the presumptions arising from the silence of the trustees, and now hold, without their claim or any intervention by them in this suit, that the successors or executors of the trustees hold the legal estate. When such executors of any trustees who acted and were duly appointed by the trustees according to the will, bring their action, or come in and support their claim, it will then be proper to decide upon their rights. It does not appear that the trustees ever acted since 1826, or at their decease, according to the will, appointed successors to execute Hopper’s will. We have no evidence that any person but the plaintiff has a right or disposition to claim the interest of Striker, except Striker himself, and his tenant, and their pretensions by way of defence are, I think, unfounded and unsupported.
VI. Mr. Striker, junior, has shown no right available in any way in this suit.
VII. The chancellor (in 2 Paige, 388) has not considered or decided the points arising in this suit. And if his, views of the construction of the will are correct, it does not follow that the trustees could not release to the devisees; nor that the plaintiff in this suit could not, under the circumstances, recover as against Striker, senior, or those holding under him.
VIII. The other ejectment suit of the same plaintiff against Mr. Striker, senior, differs in some of the facts; Mr. Striker is alone the defendant, and he and the other devisees, under the will of Hopper, partitioned the premises in 1821, and executed *335releases. The premises in. dispute in that suit are part of the portion assigned to Striker, which he has been in possession of ever since. The presumptions of his title in fee, and of a release by the trustees, are stronger in that case, and are not rebutted. The partition is not binding upon the trustees, who were not made parties; but it does bind the parties, and their long possession since, leads to the presumption that the trustees acquiesced and released.
IX. My first impressions were clear, that the will vesting the estate in the devisees, was not controlled by its other provisions, giving powers to the trustees; but since the re-argument I am less confident in that opinion. If, however, we concede that the trustees were by necessary implication to be regarded as originally having the right, under the will, to hold the legal estate in active trust, for the benefit of the devisees, I still retain the opinion that the plaintiff is entitled to recover in these suits upon the grounds above stated.
X. A plaintiff in ejectment claiming the premises in fee, is entitled to recover, though he only shows title by possession. (9 Wend. 223 ; 12 Wend. 171.) It is clearly an amendable error. (17 Wend. 80, 81 ; 20 Wend. 635.)
Motion to set aside the nonsuit denied. (a)
а) The decision of the court in this case has been affirmed in the court of appeals.