¶2From this statement of the case, it appears that during the time for which the plaintiff claims the rents and profits of the land and damages, the defendant was in possession of the premises as the legal owner of the title, which had been adjudged to him by a judgment in an action by tbe defendant herein against the plaintiff; that afterwards, on the said sixteenth day of February, 1878, said plaintiff herein obtained a decree against the defendant, declaring plaintiff to be the owner in equity, and directing a conveyance of the title to the plaintiff by the defendant. That decree found that the defendant was the trustee of said,title for the plaintiff, and if the said trustee had received the rents and profits of the land while he held it in trust, he could have been called on to account for the same in that suit in equity. (2 Story’s Eq. sec. 794, 795; 1 Perry on Trusts, sec. 17; Starr v. Stark, decided by this court April 22, 1879.) Such was certainly the proper and most convenient remedy for the determination of the damages, and value of the rents and profits received by the trustee, which were incidental to the suit by the plaintiff to settle his rights to the title to the land.
¶3It is claimed by the plaintiff that although he might have obtained the rents, profits, and damages for taking the growing crop in said suit in equity, he may now maintain this action. We think that the defendant, being the legal owner of the land at the time he received these rents and profits, had then the legal right to receive them. And as he was then the trustee of the plaintiff as to the title to the land, he received the rents and profits for the use of plaintiff as his (plaintiff’s) trustee, and was liable to account to him for them. And as no account has been taken and stated of the amount of these rents and profits, it is still an open trust. (Perry on Trusts, sec. 843.) And no action at law can be maintained against a trustee by his cestui que trust before a final account is settled and a balance struck.
¶4It is claimed by the plaintiff that an action can be maintained in this case because the entry on the land was *259wrongful. To make the entry wrongful, it must have been unlawful. The judgment in favor of the defendant in the action for the possession of the land conclusively proves that his entry on the land was lawful, and he can not be treated as a trespasser. And the decree in the case in equity determines that he was the trustee of the legal title, and we do not think that we can now go into the question as to the manner in which he obtained the legal title, or the evidence by which he proved it, for his right thereto is conclusively established by the judgment which still stands unimpeached by the decree in Starr v. Stark, above cited.
¶5That part of the replication which was stricken out seeks to put in issue the validity of the deed by which he proved his title in that case. This can not now be done, for it would be opening that case and trying it over again between the same parties. So we think there was no error in the ruling of the court in striking out this part of the replication.
¶6It will not be necessary to go further into the questions discussed in this case, for, as we hold that the defendant was the trustee of the plaintiff, while he is charged with having held the premises, the plaintiff can not recover damages for withholding them in an action at law.
¶7The judgment of the circuit court will be affirmed.