
    James Haldane and Elizabeth his wife (for the use of John Duffield) against Miers Fisher and Joseph Swift, executors of Jacob Duche.
    S. C. 2 Dall. 176.
    After a recovery in ejectment against the tenants, and the death of theii landlord, indebitatiis assumpsit will lie against his executors to recover the rent and profits received from the time the plaintiff’s title accrued, unless the testator had no notice of the title, or held under a title in which he was mistaken, or there had been laches in the plaintiff. Such action could not be supported at common law, but arises here from the necessary assumption of the powers of a court of equity, grounded on their maxims.
    Motion for a new trial. The action was indebitatus as-sumpsit for 1500I. received, to the use of the plaintiffs. Plea non assumpsit and issue. The cause came on to trial January term 1791, when a verdict passed for the plaintiffs foi 598L 15s. The motion for a new trial was made on the part of the defendants in consequence of a declaration of the judges at the trial, that the defendant's counsel should be permitted to shew, that upon the evidence given, the action was not sustainable, and if the court should be of that opinion, a new trial should be granted.
    On the trial the evidence given for the plaintiffs, as reported by the chief justice, was as follows, in substance. Jacob Duché the testator was seized in right of his wife Hester of a rent charge of 12I. 8s. 4d. per annum, issuing out of a house and lot in the city of Philadelphia, and was in like manner seized of another house and lot in the said city and of a parcel of meadow containing 5^ acres, situate in Moyamensing township in the county of Philadelphia. Hester, the wife, died 23d July 1779 without issue; Elizabeth Haldane, one of the plaintiffs, was her heir at law. The plaintiffs were not apprised of their title to the premises, until the year 1785, and on the 2d March 1786 they for a valuable consideration sold, and by died conveyed the whole of the premises to John Duffield, who commenced an ejectment *1221 aSainst lhe tenants in possession, and reco *vered. -I The said Jacob Duché and Hester his wife, prior to their marriage, viz. on the 30th May 1747, had entered into marriage articles whereby a power was reserved to her, during the coverture, to dispose of her personal estate, but no mention wás made of her real estate. On the nth May 1765, Hester the wife made an appointment in nature of a will, and thereby disposed of 2100I. of the personal estate, of which 50I. were given to Elizabeth Haldane, who received the money from the said Jacob Duché. She also undertook to devise her real estate to her husband for life, and after his death, to his son, the reverend Jacob Duché, jun. in fee, and-constituted her said husband one of her executors. After the death of the said Hester, her husband continued to demise the- real estate and to receive the rents and also the rent charge until after the 2d March 1786, to the amount of 938b 5s. 3d. of which he received himself 743I. 5s. 3d. and Andrew Doz, one of his executors, received after the deed to John Duffield and after the death of Jacob Duché, the testator, 195I. A letter from the testator dated 12th February 1782, was written to Elizabeth Haldane, stating that as his son had been attainted of treason, the real estate of Hester Duché might be lost, unless she as heir at law, would convey the same to him, and offering her Tool, to do so. By another letter dated 10th May 1784, and a third dated 24th July 1784, she was offered 300I. for a conveyance. Elizabeth Haldane then resided in the state of Maryland and her husband was in straitened circumstances.
    The marriage articles between Jacob Duché and Hester his wife, were recorded on the'-12th August 1779, twenty days after the death of the said Hester.
    The case was argued last January term, by Messrs. Uewis and 'Tilghman for the defendants, and by Messrs. Ingersol and Sergeant for the plaintiffs.
    The defendants’ counsel admitted that the plaintiffs were entitled to recover the amount of the rent-charge from 1779 to 1786, but insisted that they had no right to the rents and profits of the house and meadow ground.
    They contended that there could be no such recovery at law, nor even in equity.
    As to the first point, Duché, the testator, held under an apprehension of right the premises in question, and he being a tort-feasor, could not be recovered against in this way. The proper remedy was by ejectment and a recovery of mesne profits. No action of account lies on a wrong done: where there * is a disseisin, there is no privity Owen 35, 83, 84. S. C. • 3 Leon. 24- r*423
    There can be no trial of the title to lands under a suit for money had and received. Nil habuit in tenementis is no plea to an avowry for rent for enjoyment of land under a parol demise, under the statute of 11 Geo. 2, c. 19. 2 Wils. 208. Nor in assumpsit for the use and occupation of lands. Ib. 212, 213. Aliter in debt or covenant for rent on a lease (not by deed indented.) Ib. 217. Action for money had and received lies not to recover back .money paid for the release of cattle damage-feasant, though the distress were wrongful, on principles of private justice and public convenience, by reason of the difficulties which would be thrown on the adverse party. Cowp. 417, 418, 419. Nor does'it lie against a revenue officer, to recover for an over-payment of duties, on account of the great inconveniences which would arise from such a doctrine. Cowp. 66, 69. The action for use and occupation is always grounded on a contract express or implied. 2 Wils. 115. The difference betweén these suits, and actions of trespass for mesne profits, is therefore sufficiently obvious. Trespass is a complete remedy, appropriated for this purpose by law. 3 Blackst. Com. 205. Though great liberality is used, in suits for money had and received, those suits have their restrictions. Great inconveniences would otherwise arise. Such actions may come on to trial in the most distant parts of the state, or even in Europe. Should you go into the titles of lands in such suits, they may be found to depend on forged deeds or wills; the testimony of ancient witnesses may be necessary; proofs of pedigree may be required, &c. To obviate these mischiefs, and all the evils arising from surprize, the policy of the law requires that these actions should be local, wherein such en-quiries may become necessary.
    As to the second point, the defendants’ counsel insisted, that by the practice in chancery,' oiie would be entitled to a decree for rents and profits in four instances alone:
    
      1. On a bill brought by an infant against a person entering on his estate;, because in such case he would be considered as his guardian until fourteen, and his bailiff afterwards.
    2. When dower or other legal estate is clear, but the lands or boundaries cannot be ascertained.
    3. Where there is a trust or mere equitable title.
    4. When there has been fraudulent conduct and concealment by the party holding possession against the rightful owner.
    Under one or other of these heads may all the cases in the books of equity be classed, as 2 Cha. Rep. 259, 261. S. C. 2 *1241 *Cha. ^as- 71» I34- 1 ^as- I2^- 1 Vern. 296. J 2 Wms. 645. 1 Vez. 172. Prec. in Cha. 517. Ib. 453. S. C. 2 Vern. 724. Prec. in Cha. 252. 1 Bac. Abr. 18. 3 Atky. 124.
    Here was no fraud on the part of the testator. He records the marriage articles within twenty days after his wife’s death. This was full notice to all the world, equally as judgments in a Court of Common Pleas are deemed notice to executors. He proves his wife’s will, though by suppressing it, and the articles, he might have entitled himself to all her personal estate as her administrator. The plaintiffs might, by due diligence, have fully informed themselves of their title; their laches must be imputed only to themselves. One who sleeps on his title several years, before he makes entry, shall not turn his suit at law for mesne profits into a bill in equity, unless there be fraud or infancy in the case. Prec. in Cha. 516.
    There can be no right to rents and profits, without some act done to shew possession, either at law or in equity, x Vez. 233. As trespass will not lie at law for mesne profits, till possession is recovered, so neither till then can a bill be brought for an account of them. 1 Atky. 525, 526. Possession in the present instance recovered by Duffield, the alienee, is not tantamount to a recovery by the plaintiffs.
    One depriving himself of his remedy by his own act, shall not have relief in chancery, as the lord of a manor, entitled to rent and fines, selling the manor in fee to another. 4 Vin. Chancery, 388, pi. 1. If lessor enters on his lessee, and suspends his rent, he shall have no remedy in equity. Ib. 389, pi. 5. Hatch, 149; Noy, 82. Bishop of Exon refusing to receive rent, no relief in law or equity for the arrears.' 2 Cha. Rep. 61. Plaintiff suspending his rent by his own act, there is no reason but that the defendant should detain it. 18 Vin. Rent, 363, pi. 4. Toth. 267. So a bankrupt, not pleading his certificate at law to a debt precedent to his bankruptcy, is not to be relieved in equity. 2 Vern. 696. So on a judgment had by default against executors, assets are admitted, and equity will not relieve. So on a judgment against tenant in tail, and scire facias against the heir, if he does not plead the estate tail, he is bound.
    
      Here the substantial equity was with the testator. The intention of his wife was to vest him with her real estate during his life, remainder to his son. It is true, she was mistaken in the means, and her will cannot by law, pass her real property, no power being reserved in her for this purpose. But has ever equity, in a single instance, afforded relief against the plain intention of the parties? Where justice and good conscience are not the basis of a bill praying relief, will not chancery deny it? *If the. testator could pi o" have procured a release from the plaintiffs, for the most 0 trifling consideration, where would have been the inequity? The plaintiff’s claim was founded on a legal advantage, against the manifest will of Mrs. Duché. It is hard in the extreme, when a treaty was set on foot to purchase their right, and when new offers were made, for a stranger to step in and buy the property at one fourth of its value. The maxim, that “he who seeks equity, must do equity,” applies with peculiar force to the case of Duffield, the purchaser.
    On the part of the plaintiffs it was answered on the first point, that the present suit was sustainable at law.-
    Where one receives rents without title, a recovery may be had against him by the rightful owner, and the party may wave the tort, i Salk. 28. (Vide 1 Vin. Assumpsit, 270, where the reason given is, that he acted as the plaintiff’s agent, if not as her husband. S. C. 11 Mod. 146. 12 Mod. 324. Holt 36.) An action for use and occupation may be maintained by grantee of an annuity after a recovery in ejectment against a tenant, who was in possession under a demise from year to year, for all rent in his hands from the time of notice by the grantee, and down to the day of demise in the ejectment, but not afterwards. 1 Term Rep. 378. Indebitatiis assumpsit, will lie for rent received by one who pretends a title. 2 Mod. 263. Cites 4 H. 7, 6. b. Moore 458. This case is expressly in point. Duché the testator, must be considered as the trustee of Mrs. Haldane, the heir at law.
    On the second point there can be no difficulty. This court has always adopted the equity principles, where it could be done on equal terms to prevent a failure of justice. Dali. 210. The testator received a considerable sum beyond the 210ÓI. devised by his wife’s will, part of her personal estate; and a great part of her legacies, he discharged in depreciated paper currency, at the rate of 30 for 1. Where is his substantial equity? Was he in these instánces scrupulously tenacious of adhering to the last will of his wife? A suit for money had and received, is a bill in equity, and in such actions a recovery should be had, when under the circumstances of the whole case, it would be unconscionable for the defendant to retain the money. The testator here knew he had no title, and that he was receiving the rents for Mrs. Haldane.
    
      Chancery has considerably extended the remedy of the real owners of lands, and the person that took the mesne profits by wrong, has been taken as trustee of, and accountant to *12fl w^° the right, founded in equity and good -* conscience, i Bac. Abr. 18. The same principle is recognized, particularly where the adverse party has the title deeds in his possession. 2 Wms. 644. In the case before the court, it must necessarily be presumed, that Duché obtained the possession of the documents respecting the real estate, on his intermarriage.
    So where fraud is made use of, or the person having title is under a mistake, as in the case of two daughters having the same name. Prec. in Cha. 517. The letters of Duché the testator, read on the trial, were calculated to keep Mrs. Haldane in an error, and were full of concealment. They were equally liable to the exception of “ suggestío veri et allegatio falsi. ’ ’ The plaintiffs lived remote from the proper place of inquiry — in another state. Duché held up to their view the forfeiture of their ancestor’s real property, by the attainder of his son, though he well knew and was advised, that his son could claim nothing in consequence of the will.
    No surprise can be pretended in the present suit. The defendants came fully prepared to answer the matters in question. Haldanes, the 'plaintiffs, have transferred all their right to Dufiield the purchaser. He run his risque in buying, and if he is eventually possessed of a good bargain, he is fully entitled to every benefit arising from it.
    They also cited Cowp. 376. Though the executor shall not be chargeable for the injury done by his testator, in cutting down another man’s trees, yet for the benefit arising to his testator for the value or sale of the trees, he shall. In-debitatus assumpsit for money had and received by his testator will lie against an executor, though trover will not for the conversion of his testator.
    The court took time to advise, and this term judgment was given for the plaintiffs.
    The chief justice stated very minutely and particularly the evidence given at the trial, and then said as follows:
    The counsel for the defendants insist, that upon this evidence the present action cannot be maintained, because the testator was a disseisor, and that no action at law or in equity will in such case lie against executors, nor where there is no privity, nor where one receives money as owner, and especially after the plaintiffs have conveyed awa}' their estate to John Duffield. That the testator received this money from his own tenants, and for his own use, and that there was no fraud, concealment or misrepresentation, or infancy in the case. *1271 * In suPPort 0;f these positions the counsel cited many -* cases in the law books, which I shall barely enumerate, viz. 3 Leon. 24. Owen 35, 83. 2 Wils. 115, 208, 2x3, 217. 2 Wms. 645. 3 Atky. 124, 130. 2 Cha. Rep. 61, 259. 2 Cha. Cas. 71, 134. 1 Cha. Cas. 126. 1 Vern. 296. Prec. in Cha. 517. 1 Vez. 170. 4 Vin. 388. pi. x. 389. pi. 5. 18 Vin. 563. pi. 4. 2 Vern. 696, and 3 Blackst. Com. 205.
    The counsel for the plaintiffs in answer, urged, that an action of indebitatus assumpsit will lie against one who pretends a title to lands and receives the rents, by the true owner; for account will lie against him, and the one may be brought as well as the other: that, it will lie for the profits received prior to the demise laid in an ejectment, and that he who receives rents by wrong, shall be construed a trustee or bailiff to him who has the right: that the plaintiffs may consider the testator as a disseisor or not, at their election— they may wave the tort and proceed on the implied contract: that Duché the testator, had no right in law or equity to receive this money, and therefore is not entitled ex cequo et bono to retain it, and that there was not only a concealment but a misrepresentation of the plaintiffs’ title, by the testator. They concluded, that if an action at law for these moneys could not be sustained in England, yet they might certainly be’recovered in a court of equity; and if they cannot be recovered ' in this action, there would be a right without a remedy; for no other remedy can be had in Pennsylvania. For authority they cited 1 Salk. 28. 1 Vin. Abr. 270. 1 Term Rep. 378. 2 Wms. 644. Prec. in Cha. 517. t Bac. Abr. 18. Cowp. 376.
    This does not appear to be a hard or difficult case. If a man receives my rent, it is at my election to charge him with a disseisin, by bringing an assize or other action, or to have an account. Cro. Car. 303. Eit. Sect. 588. But if trespass is brought, and the disseisor dies, it cannot be renewed against his executors, at law; but it may, notwithstanding that actio personalis morihir cum persona, be recovered in equity. It does not seem necessary to determine whether such an action as the . present could be maintained in England. The question here is, whether the plaintiffs are entitled in equity to an account of the rents and profits of Mrs. Haldane’s estate, and if so, for what time?
    Nothing can be clearer, than that the plaintiffs had a right to the real estate of Mrs. Duché in July 1779, and to all the rents and profits to be derived from it from that time. It is certain, that they had this right in law, equity, and conscience; and if they are prevented from recovering them, it must be owing to *some impediment in law or equity. r*-|o« I know no such impediment. They have a right to L receive this money from the time their title accrued, unless the testator had no notice of their title, or was in possession under a title, or such a title as he was mistaken in, or there has been a default or laches in the plaintiffs, in not asserting their title sooner.
    
      Mr. Duché had all the deeds; he of course knew the title of Mrs. Haldane, but he might possibly have apprehended that the devise of his wife was good in law to himself. I say, he possibly was under a mistake for a time; but from his letter of 12th February 1782, it appears that he then knew his own title to be bad, and that of the plaintiffs to be good. It further appeared to the jury, that he not only concealed the title of the plaintiffs from them, but misrepresented his own. From this time he was not a bona fide possessor, and was accountable to the plaintiffs for the rent, whatever might have been the case prior to this time. A man cannot be a faithful honest possessor of what belongs to others. Nothing but ignorance of the facts and circumstances relating to his own and adversary’s titles, can excuse him in foro conscieníi¿z. This cannot be pretended here. Thus it was summed up to the jury on the trial, and they found for the plaintiffs accordingly; that is, the amount of the rents from 12th February 1782, till 2d March 1786, which I think was right and agreeable to equity and the truth of the case. If I erred in the charge to the jury, it was in limiting them to February 1782, and not going back to July 1779, the time Mrs. Haldane’s title accrued. From this circumstance, the defendants retain the rents and profits of an estate for upwards of two years and an half, to which their testator had neither a legal nor equitable title. The cases cited for the plaintiffs, particularly 1 Bac. Abr. 18. Prec. in Cha. 517, and 2 Wms. 644, support this opinion.
    The rule to shew cause why a new trial should not be granted, must be discharged.
    hippenj. concurred.
   Yeates J.*

This is a motion for a new trial, and is brought forward by the defendants, grounded on the idea that the plaintiffs were not entitled to recover in this form of action, the rents of the house and lands whereof Mrs. Hester Duché died seized, from the time that Jacob Duché, the elder, had knowledge of the title of the plaintiffs, (which in all proba-*1291 kility was on the 12th February 1782,) until the day •J of the demise, laid in the declaration in ejectment, on which the recovery of the premises was had, viz. 2d March 1786.

The argument has been conducted on two points; — i-st, Whether the suit could be sustained in a court of common law in England. 2d, Whether a court of equity would not give relief in such a case.

On the first head, the plaintiffs rely on the cases Hasser v. Wallis, (1 Salk. 28.) Birch v. Wright, (1 Term Rep. 378,) and Arris v. Stukeley, (2 Mod. 263.)

But in the first case, the defendant received the rents as the visible husband of the plaintiff, he having married her during the life of his first wife, and the .plaintiff consented on her marriage that he should manage her estate, and therefore it may with propriety be said, that the defendant received the money acting as her agent, if not as her husband deptre.

In the case of Birch v. Wright, there was a privity of estate, as well as contract, and the defendant came into possession as tenant of Mr. Bowes, from year to year, and held over his term. The plaintiff derived his title under Mr. Bowes.

In the case of Arris v. Stukeley, the point directly before the court for their opinion, was, whether indebitatus assump-sit would lie against the defendant for the profits of an office, when there was no contract between the parties, and where the defendant pretended title thereto. The court held, that the action would lie. This was determined, Trin. 29, Car. 2, in the exchequer.

In the case of Howard v. Wood, adjudged Hil. 31 and 32 Car. 2, (and reported in Sir Thomas Jones, 126, and 2 Leo. 245,) the same point came before the court, and the objection was taken, that the defendant claimed title and received the money for his own use; but the court said, if this had been a new case, it would be hard to maintain it, but it had been determined two or three times before, and the above determination in Dr. Arris’s case, is cited in 2 Jon. 128, where it is also said by the court, that if the case had now first come in judgment, they would not allow the action. The ground of the resolution is put on the foot of practice, and to preserve uniformity of decisions.

The obiter resolution in 2 Mod. 263, that indeb. ass. will lie for rent received by one who pretends a title, because in such case action of account would lie, is not warranted by the authority cited from Moore, 458. The words of 4 Hen. 7th 6. b. are general. ‘ lPer Brian. If I have lands, and a “man receives my rents, and without my assent, yet he is “receiver, &c. and * therefore the receipt charges him, pion ‘ ‘ &c. ’ ’ On the contrary, as far as I have been able to *- discover, on a minute search the cases are directly otherwise. In the year book, 2 Hen 4th 12. b. Hankford J. says, “I ‘ ‘ apprehend no man shall be bound to account, except by act 1 ‘ of law, or his own account. By act of law, as guardian in “socage, whom the law compels to account; — by his own act, “where he is, by his own proper will, bailiff or receiver. “But here to make a man to account, where it never was his “will to account, this would be a marvellous thing.” So are the cases expressly in Brooke’s Abridgment, tit. Account, pi. 8, 22, 24, 65, 89; that a receiver by wrong is not chargeable in account, and the case of Tottenham v. Bedding-field, reported in 3 Leon. 24, and Owen, 35, 83, cited on the argument. The distinction is taken between the case of the king and that of a private person, where rents are wrongfully received, in n Co. 90. Eor these reasons my mind is perfectly satisfied, that judging as a mere court of common law, his action could not be supported.

The remaining question is, whether equity would give relief to the plaintiffs in a case similar to the present.

■It is agreed by the defendant’s counsel, that chancery would decree an account of rents and profits, where there has been fraudulent conduct and concealment by the party holding possession against the rightful owner. The plaintiff’s counsel contend, that their suit is maintainable on this ground, and that the letters of the testator were calculated to keep the defendants under an error, and that the communications were not fairly made; I mean those dated 12th February 1782, 10th May 1784 and 24th July 1784. They say further, that it appears by the case of Coventry v. Hall, (reported in 2 Cha. Cas. 71, 134. Cha. Rep. 259 and 1 Bac. Abr. 18.) Chancery have extended their notions, and that the person who took the mesne profits by wrong is taken as trustee for and accountant to him that had the right. From the state of the evidence at the trial (as given by the chief justice) and the charge of the court to the jury, it appears, that it was submitted to the jury on the matters now in'question, to determine in the first instance, whether they were satisfied that there was any misrepresentation or concealment, which would clearly, be a sufficient foundation for chancery to decree an account to be taken of the rents and profits. .

Jacob Duché the.elder came into possession of the premises under the title of his wife Hester, who- held under the will of her first husband, .Edward Bradley. During his intermarriage, he held the lands under the same right, on which the alienee of the now plaintiffs, recovered his possession. «.¶ Had he came for * ward after his wife’s' death, and made J a full and candid representation of her will, instead of a partial one, to the plaintiffs; had he made fair communications to Haldane and wife, instead of holding up the idea that the real estate would be confiscated by the attainder of his son; and after all, if Haldane and his wife had slept for years before they took possession, or instituted a suit for that purpose, my judgment on the whole, would be very different from what it is at present. But according to the facts stated, and the verdict found by the jury, I am bound to believe, that the present case has the ingredient of concealment in it, which is the exception put by the lord chancellor, in the case of the duke of Bolton v. Deane (Preced. in Cha. 517.)

But it has been much relied on by the defendant’s counsel, that the plaintiffs having deprived themselves of their remedy at law, shall not have relief in- chancery. I confess this appeared' to me the most weighty objection on the argument. My mind is however, now better satisfied. It is true, by the plaintiffs conveyance to John Duffield of the 2d March 1786, they parted with their reversion, and therefore had no remedy by distress. But could they have distrained previously, on a demise by Jacob Duché for rents due by his tenants? If they could not, what remedy have they deprived themselves of by their own act? It is not similar to the case of Hitcham v. Finch and Block (reported in 4 Vin. 388, who takes it from 1 Danv. Abr. 753. The original case is in 1 Rol. Abr. 375.) There a copyhold tenant in fee of a manor, surrenders it to the use of one for life, the remainder to B in fee. Tenant for life dies; B pays no fine for his admittance, but after his death, it descends to his son, who surrenders to the use of J. S. in fee. No fine is paid for it, and the rents of the tenement are several years in arrear. The lord grants the manor in fee to J. D. and then brings his bill in equity against J. S. . the purchaser of the copyhold estate for the rent in arrear and the fines due before his sale. The court of king’s bench granted a prohibition to the court of requests (who then exercised an inferior equity jurisdiction, which was afterwards adjudged an illegal usurpation of power) when the above matter being pleaded, was over-ruled on demurrer. It was resolved in B. R. that the lord had deprived himself of his remedy by his own act, viz. the sale of the manor, and should have no remedy in a court of equity, especially against J. S. thé purchaser for the fines and arrears of rent due before his purchase. The cases are materially distinguishable. Previous to this sale, the lord had a fulí and complete remedy by distress. But not so, the plaintiffs in the case before the court. There the remedy was sought against a purchaser for * valuable consideration, unacquainted in all human r*-)™ probability with the real claims of the lord of the L manor. Here the remedy is sought against the estate of the person, who withheld the rent by concealment, and unfair communications, and who alone was benefited by the receipt thereof.

Explained in 10 S. & R., 219, 220, and distinguished from a case where one tenant in common seeks to recover from his co-tenant the price of cer . tain ore, paid by the former to the latter under the mistaken suppositior that the latter had an exclusive title to the land-where the ore was dug.

Upon the whole, on the best consideration I have been able to give to the argument, I am of opinion that the rule to shew cause why a new trial should not be granted be discharged, and that judgment be entered for the plaintiffs on the verdict.

Mr. Justice Bradford declined taking any part in the decision, having tried the cause as one of the plaintiffs’ counsel.

Judgment for the plaintiffs. 
      
      1? is opinion, though, prepared, was not publickly delivered in court.
     