The opinion of the Court was delivered by
Gibson, C, J.-The judge refused to let the defendant show an outstanding equity derived from the plaintiff’s ancestor; and this, is the only matter in which the allegations contained in the assignment of errors, are sustained by the record in point of fact. By this decision the defence was narrowed to the statute of limitations.
The defendant offered to prove by declarations of the ancestor, that he had parted with the ownership for a price paid, and that he had surrendered the possession — facts sufficient to take such a case out of the statute of frauds in favour of the vendee, and susceptible of proof by the admissions of the party, when competent in other respects. But the principle that a plaintiff in ejectment can recover only by the strength of his own title and not by the weakness of the antagonist one, must be taken with a grain of allowance in regard *349to equities betwixt parties who stand in privity to each other. That an equity alien and adverse to the plaintiff’s real estate maybe thus set up, I have no disposition to deny; but that an equity which may be waived or abandoned, and which is matter of arrangement betwixt the owner of it, and the owner of the legal estate, may be used by one who stands in no privity with the equitable owner, is what I do not admit. In New York an equitable title cannot be used in a Court of law, either for attack or defence; but it has been held by the Supreme Court of that state, in Jackson v. Todd, (6 Johns. 267,) that the infancy of a grantor cannot be set up by a mere intruder, as a defence to an ejectment by the grantee, because the deed is only voidable; and that as the infant may not choose to avoid it, the intruder shall not. Yet the intruder proposed no more than to show an outstanding title in a third personand the ground on which he was prevented — that he had no concern with the matter — is equally to be found in the case before us. The evidence would have shown no more than an equity in the heirs of Miller; and it lay with them to enforce it- — not with the defendant, who showed neither privity nor connection with them. As their title, resting as it does principally on their own testimony, might be less easily enforced against the plaintiffs, than against the defendant, having successfully asserted it in a Court of record, they are doubtless desirous that the defence may prevail; but he does not claim under them ; nor would they perhaps be willing to convey to him. I mean not to say whether they have such an interest as to disqualify them ; but they certainly have an interest to create a bias: yet the appearance of Mrs. Dalzell, as a witness for the defendant, does not serve to connect him with her title, or put him in an attitude to insist on her rights. Till a vendor has executed the conveyance, he is a trustee for the vendee; and it is entirely clear that an intruder cannot set up the existence of a trust against an ejectment founded on the legal title. In Pennsylvania, land adversely held, may be sold, subject to a covenant to put the vendee in possession; and it would place the vendor in an awkward position, did his agreement, ipso facto, disable him from performing it. A vendee wishing to get rid of his bargain, could always effect his purpose by making common cause with the occupant, though his conduct would be as bad as that of a tenant who surrenders the possession to an adverse claimant. It is not enough to say that such a case might be an exception by reason of its circumstances. When the plaintiff’s title is perfect as a legal one, and where there is nothing but an outstanding equity which is necessarily subordinate to it, ther<£ is no occasion for a rule to give rise to such an exception. Certainly an intruder could not go into chancery to enforce an equity against the trustee without having a spark of interest in it ; and why should he be suffered to do so at law? Though we admit an equitable title to be a legal ground of action and sometimes of *350defence, the decisions in our own Court say he shall not. In Coxe v. Blanden, (1 Watts, 533,) it was said that a Court of law meddles with the relation of trustee and cestui que trust, at the instance of no man; and the same thing was predicated in Bayard v. Colfax, (Coxe’s Digest, 272,) by the Circuit Court of the United States for the district of New Jersey. But tho very point in controversy was settled in Hunt v. Crawford, (3 Penn. Rep. 426;) and it is now to be considered not to be shaken. For the rest, the nature of an adverse possession, was accurately stated, and the defence on the statute of limitation fairly left to the jury on the evidence; so that if there was error at the trial, it was committed by that branch of the tribunal whose conclusions are not subject to our revision.
Judgment affirmed.