¶1 The distinction between actions at law and suits in equity, as to the forms of procedure, has been abolished in this State; but the distinction between legal and equitable rights still remains. This distinction has been defined and established by the judicial wisdom of centuries and will always exist in every system of law derived from the jurisprudence of England.
¶2 The rights of a cestui que trust under the old system were administered in a Court of Equity. In trusts relating to real property where the purposes of the trust were completed, and the trustee had been paid his reasonable charges and expenses, the cestui que trust could compel a conveyance of the legal estate. Until a cestui que trust has acquired such a perfect equitable title, he cannot, under the C. O. P., maintain a civil action to recover possession of real estate held by, a person under the legal title.
¶3 In our case the plaintiff claims title under a voluntary conveyance from Mary Matthews, who was only a cestui que ■trust, and he acquired her equitable title subject to the rights of the trustee. The claims and charges of the trustee, McDonald, are still unadjusted, and the plaintiff cannot, in any form of action, obtain the legal title and possession of the land in controversy from the trustee or his assignee, unless the trustee is made a party, and his claims are settled and discharged. The plaintiff has not such an equitable title as will enable him to maintain his action in its present form ; but, as the C. C. P. gives such large powers of amendment, his Honor, in the Court below, can allow the plaintiff to amend the complaint by making the necessary parties and praying the proper relief. C. C. P., sec. 65. McKesson v. Mendenhall, 64 N. C. Rep. 286.
¶4 There must be a verme de novo.
¶5 Per Curiam. Venire de novo.