
    Peter B. Brigham & others vs. Fitch Winchester.
    A fraudulently sold and conveyed B.?s land to C., under a power of attorney from B., C. knowing the fraud: B. died without knowledge of the sale, and C. afterwards conveyed the land to A., who sold and conveyed it to purchasers, who paid him therefor, they having no knowledge of the original fraud. Held, that B.?s heirs could not maintain an action ^or money had and received against A., to recover the proceeds of the land.
    This action, which was assumpsit for money had and re ceived, came on for trial, at the last April term, before Dewey, J., who made the following report of the case:
    The plaintiffs’ counsel, in opening the case to the jury, stated that he expected to prove the following facts: That Alpheus Fay, in April 1823, made his last will and testament, by which, after giving a few small legacies, he gave all the residue of his estate to the defendant, and appointed him executor: That in 1826 the said Fay became the absolute owner in fee of three separate farms in Southborough, by foreclosing the mortgages upon them, under which he had, three years before, entered and taken possession: That before this time, the said Fay, being infirm, and unable to manage his business, had given to the defendant a general power of attorney, authorizing him to cultivate, improve, and manage, and sell, and convey, any of his real estate, for and in the name of said Fay, and to the said Fay’s use : That on the 17th of January 1827, the defendant, for the purpose of saving said farms to his own use and benefit, and for the purpose of preventing their descending to the heirs at law of said Fay, if he should die without altering or republishing his will, and pretending to act under and by virtue of said power of attorney, conveyed said farms, without the knowledge or consent of said Fay, and against his will, to Jacob B. Winchester, his father, who resided at Salem: That the deeds so conveying said farms were made in the name of said Fay, and executed by the defendant as his attorney; and that the said Jacob B. Winchester was conusant of all the foregoing facts and purposes, at the time he took said conveyances: That said Fay died, in October 1830, without having known of said conveyances, leaving said will, which was proved and approved on the first Tuesday of December of the same year: That after said will was proved, said Jacob B. Winchester conveyed said three farms to the defendant, who has since conveyed two of said farms to persons who were ignorant of the frauds before mentioned: That some. parts of said two farms were conveyed by the defendant, more than six years before the commencement of this suit, and some parts within six years: That some of the payments for said lands, which were sold more than six years before this suit was commenced, were made to the defendant, more than six years before this suit was brought, and some within said six years; that the defendant has received payment for all the land so sold, and that his said frauds were not known to the plaintiffs until within six years last past: That the plaintiffs are part of the heirs at law of said Alpheus Fay, and claim to recover the money, received by the defendant for said farms so sold, as received to their use; and that their rights to recover said money are (as they allege) in no part barred by the statute of limitations, by reason of the fraud and concealment, by the defendant, of the causes of action.
    ■ Upon the foregoing' statement being made, the defendant’s counsel insisted, that if all the facts therein alleged should be proved, the plaintiffs could not recover. Whereupon the judge advised a nonsuit, which was entered, by agreement of parties, subject to the opinion of the whole court. New trial to be granted, if the plaintiffs are entitled to recover on the facts above stated by their counsel; otherwise, the nonsuit to stand.
    
      Newton, for the plaintiffs.
    The case of Fay v. Winchester, 4 Met. 513, shows that the lands, when sold by the defendant, belonged to the plaintiffs; and he cannot now deny that the title passed by his deed conveying them. A recovery by the plaintiffs, in this action, will be a confirmation of the title, and estop them from claiming the lands. Wilkinson v. Scott, 17 Mass. 249, is an authority for the plaintiffs’ recovery in an action for money had and received; and the statute of limitations bars no part of their claim, inasmuch as the defendant’s fraud was not known by them till within six years next before the commencement of this action. First Massachusetts Turnpike v. Field, 3 Mass. 201.
    
      Washburn, for the defendant.
    This action is brought to try the title to lands, and such title cannot be tried in assumpsit. Baker v. Hoiuell, 6 S. & R. 481. Allen v. Thayer, 17 Mass. 299. Bigelow v. Jones, 10 Pick. 161. Miller v. Miller, 7 Pick. 136. 2 Stark. Ev. 110, 111. It was decided, in Fay v. Winchester, 4 Met. 513, that nothing passed by the defendant’s deed to Jacob B. Winchester, made under the power of attorney from Alpheus Fay. But Fay’s heirs, while disseized, cannot maintain assumpsit for the land, or for its products Allen v. Thayer, ubi sup. Boston v. Binney, 11 Pick. 9.
    The doctrine of waiving a tort, and bringing assumpsit, applies only to personal property. 1 U. S. Digest, Assumpsit, 171-182.
   Dewet, J.

The foundation of the plaintiffs’ right to maintain the present action is, that no legal title to the lands sold by the defendant, the avails of which are now sought to be recovered, ever vested in the defendant. They were originally the property of Alpheus Fay. And the position is, thát the conveyance of the same to Jacob B. Winchester, and the subsequent transfer from him to the defendant, were fraudulent in law, and wholly ineffectual to divest the legal title of said Fay ; leaving the estate in said Fay, free to vest, on his death, in his heirs at law, of whom the plaintiffs are part. The case of the plaintiffs assumes, therefore, that the defendant had no valid title to these lands, when he sold them, and that the conveyance by him, and entry thereon by the grantees, were a disseizin, as to these lands. Taking the case in the most favorable view for the plaintiffs, it presents a case of a disseizee bringing an action for money had and received, against the disseizor, who has entered upon his lands, put him out of possession, and conveyed the same to a stranger, to recover of such disseizor the money he received as a consideration of such conveyance.

It is true that, in cases of torts to personal property, the tort may be waived, and assumpsit for money had and received may be brought, when the wrong-doer has converted the property into mor.ey. But it is to be recollected, that the rule in regard to the transfer of personal property materially differs from that as to real estate. By instituting an action of assumpsit for money had and received, and thus waiving the tort, or by bringing an action directly upon the tort, and recovering damages for the value of the property converted, the plaintiff, by his judgment and satisfaction thereof, actually transfers the title in such personal property to the other party. But real estate is not to be transferred merely by force and effect of an action of this character. Where there is no color of agency, no professing to convey the estate as the estate of the disseizee, or by any authority under him, but obviously by a title adverse to the disseizee, no transfer of title or estate could be effected by the judgment that might be recovered in an action of assumpsit by the true owner against one exercising acts of ownership or control of the estate. Here was no privity between these parties who are now litigating before us. The defendant was not their agent, and did not assume to act under them, or by any authority derived from them. There is, therefore, nothing for them to ratify or adopt, and, by such adoption, give validity to the transfer by the defendant to his grantees.

Had such sale of these lands been made during the life time of Alpheus Fay, he might have adopted the act of the defendant, professing to be his agent, and holding a written power of attorney from him, and have required the defendant to account for the avails of the sale; inasmuch as this would have ratified the anterior sale to Jacob B. Winchester, and have given effect to the deeds subsequently made by the defendant. Such ratification would not avail the plaintiffs, however, if it could now be established; for if the title passed out of Alpheus Fay at all, it was by force and effect of the deed made by the defendant to Ja.cob B. Winchester, which was executed by the defendant in the name and as the agent of said Fay. If this sale to J-icoo B. Winchester be ratified, that was a transaction in the life time of Alpheus Fay, and the avails of all the real estate of said Fay, sold by the defendant in tne life time of Fay, are assets of the estate of Fay, and are to be accounted for as such. The defendant was both executor and residuary legatee of Fay, and, as such, entitled to all his assets.

The foundation of the plaintiffs’ claim, as already stated, involves directly the question of title to real estate. But indeb-itatus assumpsit for money had and received will not lie to try questions of title to real estate. This principle has been often applied in this court. In the case of Codman v Jenkins, 14 Mass. 96, it was held that indebitatus assumpsit for rent will not lie in favor of a stranger who claims title, or by one of two litigating parties claiming the land. In Bigelow v. Jones, 10 Pick. 161, it was decided that a party who was disseized of real estate could not maintain assumpsit to recover of the dis-seizor money which he had received for trees severed and sold during the continuance of the disseizin. See also Allen v. Thayer, 17 Mass. 299. 2 Stark. Ev. 111. 1 Leigh’s Nisi Prius, 46.

The case of Miller v. Miller, 7 Pick. 136, where a tenant in common recovered of his cotenant, in this form, of action, for trees severed and sold, was put upon the ground that there was no controversy about the parties’ title to the land from which the wood was taken. Had it been otherwise, it seemed to be understood that the plaintiff must have been nonsuited.

In the opinion of the court, this objection presents an insuperable bar to the maintenance of the present action. Before the plaintiffs can establish the facts which, in their own view of the case, are essential, they must show that the real estate sold by the defendant was their property; that the defendant’s title to the same, though he had a good apparent paper title, was tainted with legal fraud, and invalid in law. It would be necessary to pass upon the legal title of the defendant at the time he made sale of these lands, and also, as it would seem, to pass upon the further question, whether any valid title has been acquired by the purchasers under him. This latter inquiry seems necessarily involved in the case, inasmuch as if the estate of the plaintiffs was not lost by means of such conveyance by the defendant, but remained vested in them, tuen they might recover the land itself against the present tenants of it, and of course ought not, in an action for money had and received, to recover the value of such land.

These questions of title to real estate are not to be settled in this form of action ; nor do we feel authorized, much less is it our duty, to express any opinion upon the question, in whom is the legal title to these lands. That must be settled in a real action between the proper parties.

It may be said, that if the present action cannot be maintained, and it should hereafter be held, in a real action, that by force and effect of the defendant’s deeds, the purchasers acquired a valid title to these lands, (they being grantees for a valuable consideration, and without notice of that legal fraud which would have avoided the title of the defendant, if the heirs at law had litigated with him,) the plaintiffs would be remediless. If such were to be the effect, we do not perceive that it would change the result to which the principles of law lead us in the present case.

Cases often occur where, by reason of laches, parties lose rights which might have been enforced at an earlier period, and while the estate remained in the hands of those who were connected with the original taint of legal or moral fraud, as the case may be. Take the case of a fraudulent sale made to delay or defeat a creditor. This sale may be avoided, and the property taken for the benefit of the creditor, while it is in the hands of the fraudulent purchaser; but if the creditor slumber over his rights until such estate has been conveyed to an innocent purchaser, his rights are lost.

Whether any such effect has followed from the neglect of these plaintiffs to institute a real action against the defendant, to recover the lands from him before he made a conveyance of the same to those who now assert title through him, is a question which we have not considered, and upon which no opinion is expressed.

Nonsuit to stand.  