delivered the opinion of the court,
When an action of ejectment is brought, two things áre necessarily presupposed ; one is that the plaintiff is not in the possession of the land described in the writ, and the other is, that the defendant is in the possession of the land so described. The action is, in its character, possessory; it cannot be maintained by one having the possession of the property, neither can it be maintained against one who has not possession. Moreover, the cardinal principle governing actions of this kind is, that the plaintiff must recover, if at all, on the strength of his own title and not upon the weakness of that of his adversary. The defendant has, in the first instance, nothing whatever to do; upon his possession he may securely rest until the plaintiff shows a better right, and until such right has been shown he cannot be disturbed. From this it follows, that as to the status of the parties to this suit, at the time of the issuing of the writ, there can be no debate ; the defendants were in the possession of the property, and the plaintiffs were not, and to have successfully proposed any thing else would simply have been to prit the plaintiffs out of court. Such being the case the rule applies that until the plaintiffs show a better right to that possession, than that of the defendants, the latter cannot be disturbed in the occupancy of the controverted premises. It would, however, not be a fair presentation of this case to say that the defendants rest solely on their possession, for they have shown a regular prima facie title from William and Mary Ann Salter,the common grantors through William Owen to themselves. The question then remains ; have the plaintiffs shown title in themselves 2 And for the purposes of this case, it must be conceded that they could have proved what they offered to prove. How the material part of the plaintiffs’ offers amoilnts to this ; that William Salter, on the 14th of August 1863, voluntarily executed a deed for the premises in controversy, to Henry Shipp, who agreed orally to hold the same in trust for Salter’s ten children until they paid a certain balance of purchase money and another small debt; that he did so hold it until said indebtedness was paid by Salter’s sons, and then, upon the 28th of April 1864, deeded it to Mary A., then widow of William Salter, under a verbal agreement or understanding, that she would hold it in trust for the aforesaid children. We may here stop ; for by passing over the proof proposed for the purpose of impeaching *447her deed to her second husband, William Owen, we not only avoid a question involving Ihe admissibility of her testimony, but by an admission of title in their alleged trustee, put the case on the best possible grounds for the plaintiffs.
But, when all this is admitted, we have in Mrs. Salter (Owen), but a parol trust, which by force of the 4th section of the Act of the 22d of April 1856, 'was void from its inception. “ All declarations or creations of trusts or confidences,1” reads the statute, “ of any lands, tenements or hereditaments, and all grants and assignments thereof shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else be void.” This language is all embracing, and so clear and positive that the legislative intent cannot be mistaken.
Unless, therefore, this case, can be brought within that pro-. vision of the statute which excepts trusts resulting from legal implication, or construction, commonly called resulting trusts, the plaintiffs have no title. But in order to accomplish this result, it must he shown that Mrs. Salter obtained the deed to the property in dispute by some kind of fraud or artifice which induced its execution. But nothing of the kind has been proposed. All that is alleged is that she agreed to hold it in trust for her children. But we cannot see how it would be possible to create a parol trust under any other conditions. If such a trust is not within the statute, then there can bo none that comes within it. For if a deed, like the one before ns, absolute on its face, be made to one who receives it and does not agree to hold it in trust, there is, and can be, no trust for the statute to operate upon; the transaction begins and ends in an unqualified conveyance. Bound, therefore, as wo must be by the spirit; and letter of the statute, we can but repeat what was held as law in the case of Barnet v. Dougherty, 8 Ca. 372, that a resulting trust can only arise from some fraudulent act by or through which the tillo Jhad been obtained, or by the payment of the money of the alleged use party for the purchase of the property at the time when the conveyance is made, and that neither subsequent fraud nor subsequent payment will avail to raise such a trust.
Nor Is this case at all like that of Church v. Ruland, 14 P. F. S. 432, where the devise was made through the active solicitation and persuasion of the devisee, and under the solemn promise that at her death one half of it should go to her sister’s children. Mrs. Salter took no active part in the creation of this trust. It is not pretended that she, by either solicitations or promises, induced the execution of the deed from her husband to Shipp or from Shipp to herself. Therefore, though the above case goes far towards the destruction of a most valuable *448statute, especially designed for tlie quieting of titles to real estate, yet it does not go far enough to cover this case.
But it is urged that she is willing to execute this..trust] if so, it follows, that neither in act nor even in intent, has she been guilty of a fraud prior or subsequent to the execution of the deed from Shipp to herself. How then can she be said to bo a trustee ex maleficio ? And what is there to prevent the operation' of the statute ? And if the title to the premises in question, and the right of possession, are in Mrs. Salter, how can the plaintiffs who have neither, maintain ejectment? Nor can we understand why they have undertaken such an experiment as this, when according to their own showing, they might have had her title for the asking. A title which, if the proposed proof be taken as true, never passed out of Iier. If the deed of March 2d 1869, executed by herself and husband to William Morris, was without consideration, and designed, as it appears to have been, simply as a means employed to pass her title to her husband, and if, in addition, it can be made to appear that -she did not voluntarily execute and deliver that instrument, then, as between herself and the heirs of her late husband, the transaction was a fraud on her rights, and was wholly inoperative and nugatory. Clothed with her title, the plaintiffs would have had a good standing to maintain their action, and if theycpuld have established the above stated proposition, by the necessary facts, they would, no doubt, have gotten a verdict for the premises in dispute. Standing, however, as they now' do, without title, they cannot of right complain of the rulings of the court below.
The judgment is affirmed.
Tbunkey and Sterbett, JJ., dissented.