Kensinger v. Smith

Mr. Justice Mercur delivered the opinion of the court, A cestui que trust may maintain ejectment in his own name: Kennedy v. Fury, 1 Dall. 76. If entitled to possession he may maintain it against his trustee: Presbyterian Congregation v. [388] Johnston, 1 W. & S. 9. Esther Smith was unnecessarily named as the legal party, but she was powerless to prevent McClain from enforcing his right to the unpaid purchase-money. It is expressly declared in the deed made to the plaintiff in error, and under which she holds, that the land is conveyed “subject to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, being the balance of pur-chase-money due for which a judgment has been entered in the name of Samuel McClain.” In the habendum it is declared she shall hold subject nevertheless to the payment of the said sum “ as aforesaid.” In this state ejectment is an equitable action : Russell et al. v. Baughman et al., post, p. 400, and cases there cited. It lies to enforce unpaid purchase-money clearly shown-in the conveyance to he a part of the consideration on which the deed is made and declared to be subject to its payment. The fact that a judgment note recited in the deed to be for the same purchase-money, was also given, will not defeat ejectment, which would otherwise lie, brought to enforce payment of the purchase-money. We think the remedies are cumulative and either may be pursued. The only error we discover is an omission to fix a time for the payment of the sum found to be due. We therefore amend the judgment so that it shall read judgment in favor of the plaintiff below for the land in dispute to be released on payment of the sum of fifteen hundred and seventy-three dollars and thirty-seven cents, with interest thereon from the 22d December 1879, and costs, on or before the 15th November 1880, and thus amended . Judgment affirmed.