
    Thomas Sheldon versus Isaac Welles.
    The plaintiff and defendant indorse a note for 4000 dollars as joint sureties, — the promisor mortgages to the defendant, as security for his indorsement, land worth less than 2000 dollars, and before the note falls due, becomes insolvent,—and the defendant, afterwards, on receiving 2000 dollars from the plaintiff, agrees to take up the note and e< to pay the plaintiff one half of all that he, the defendant, may receive from the promisor on the note.” Held, that this contract embraced the mortgage previously given. Held, also, that an action of money had and received, brought before foreclosure, was premature.
    Whether that would be the proper form of action at any time, or at least before a demand and refusal to convey half the land to the plaintiff, quaere•
    Assumpsit for money had and received. Trial before Wilde J.
    On the 17th of July, 1816, Henry King made two notes for 2000 dollars each, which were indorsed by the plaintifi and the defendant, and were discounted at the Phoenix bank in Hartford. On the 23d of October following, the notes were renewed by giving a note for 4000 dollars, payable in 95 days to the plaintiff, and indorsed hy him and the defendant, and on the 29th of January following the indorsers had regular notice that the note had been dishonored.
    On the 22d of July, 1816, H. King mortgaged to the defendant, as collateral security for indorsing as before men"oned, an undivided moiety of certain land, which was subject to a previous mortgage, and also to a lease for life to Bohan King. In April 1821, the defendant paid 357 dollars in discharge of the previous mortgage, on which there had been an entry to foreclose ; and in April or May, 1823, he took possession of the mortgaged premises, the tenant for life having deceased. This action was commenced in August, 1825. The property mortgaged, in its present unincumbered state, was variously estimated at from 1300 to 2500 dollars.
    On the 3d of February, 1817, the plaintiff conveyed to the defendant land estimated at 1500 dollars, and indorsed to him notes to the amount of 500 dollars ; and on the same day, the defendant gave to the plaintiff a writing, in which, after reciting that they were called upon to pay the note for 4000 dollars, and that the plaintiff had on that day, by his contract, bound himself to pay the defendant one half of the note, in the manner pointed out in the contract, he binds himself to pay the 4000 dollars, and to save the plaintiff from any further trouble and expense on account of the indorsement ; and he “ agrees to pay the plaintiff, one half of all that he, the defendant, may receive from H. King, on the note for 4000 dollars.” The defendant accordingly paid the note in April, 1817.
    The defendant’s counsel contended, that on this evidence an action for money had and received would not lie, as the defendant had received nothing on the mortgage, and as at the commencement of the action the mortgage was not foreclosed. It was also contended, that by the true construction of the defendant’s contract, taken in connexion with the evidence in the case, the defendant was not obliged to pay the plaintiff any thing on account of the mortgage. It was left to the jury to determine, upon the whole evidence, whether the parties intended in the contract to have reference to the mortgage, the legal construction of the contract being reserved for the consideration of the whole Court. A verdict was found for the plaintiff; which was to be set aside and a nonsuit to be entered, if the Court should be of opinion that the plaintiff is not by law entitled to recover ; otherwise judgment was to be entered on the verdict.
    
      Bates and Blair insisted that the form of the action was misconceived,
    because no money nor any thing which could be considered as money, nod been received by the defendant; 
      Dimsdale v. Lanchester, 4 Esp. R. 202; Longchamp v Kenny, 1 Doug. 137; Leery v. Goodson, 4 T. R. 687 , Floyd v. Day, 3 Mass. R. 403; Young v. Adams, 6 Mass. R. 189; Randall v. Rich, 11 Mass. R. 494; Nightingal v. Devisme, 5 Burr. 2589; Noyes v. Price, 1 Esp. Dig. (3d ed.) 99; Pickard v. Bankes, 13 East, 20 ; and because here was a special contract, which ought to have heen declared on, in order to apprize the defendant of the nature of the defence proper to be made.
      Weston v. Downes, 1 Doug. 23; Power v. Welles, Cowp. 818; Lindon v. Hooper, ibid. 414; Payne v. Whale, 7 East, 274; United States v. Grundy, 3 Cranch, 354. They insisted likewise, that the defendant’s contract, which was to be construed without the aid of paroi evidence, was prospective, and did not refer to any security which the defendant had already obtained.
    
      Sept. 30th.
    
    
      E. H. Mills and Collins, contra,
    
    cited as to the form of the action, Randall v. Rich, 11 Mass. R. 494; Beardsley v. Root, 11 Johns. R. 464; Porter v. Brown, Addison, 37; and they contended that the fact of the equity of redemption’s not being foreclosed when the action was commenced, was immaterial, inasmuch as the defendant was sure of having the property ; either in land, by foreclosure, or in money, upon a redemption.
    
      
       See 2 Stark. Ev. (5th Amer. ed ) 55,57,71, and notes.
    
   Parker C. J.

delivered the opinion of the Court. Two questions arise in this case; one, on the construction of the contract, whether it imports a promise to pay what might be received by Welles on account of the note, from funds already in his hands, viz. from the land mortgaged by King before the making of the contract, or only what might be received afterwards from other sources not under the control of Welles at the time of making the contract; the other, whether an action of money had and received lay, Welles having entered under the mortgage for condition broken, but the equity of redemption not being foreclosed when the action was commenced.

On the first question, there is no doubt but that within the spirit of the contract, considering the relation in which the parties stood to each other on account of their engagement for King, they manifestly treating each other as joint sureties, and Sheldon having secured Welles for one half of the amount of the note, it was the intention to share what might be received from funds of King placed in the hands of Welles Otherwise Welles would pay less than one half, and perhaps lose nothing by his suretiship, while Sheldon would at all events be a loser, and perhaps to the whole amount of what he had secured to Welles ; which would not consist with the mutuality of their engagement, and -cannot be, presumed to have been their intention. And this construction is not contradictory to the very words of the contract.

But on the second point we think it equally clear, that the plaintiff is premature in bringing his action, for the mortgage is as yet only security to Welles, and he cannot be made to pay one half of its value in money, he having promised to pay only one half of what might be received by him of King. If any action will lie for money, it cannot be until the tide to the land has become complete in Welles, and even then, if he chooses to convey to the plaintiff one half of the land instead of paying money, he will perform his contract according to its letter and spirit.

Plaintiff nonsuit. 
      
       In order to support an action for money had and received, it must m general appear that the defendant has received money or cash, and not merely money’s worth. 1 Chitty’s Pl. (6th Amer. ed.) 385; Chitty on Contracts, (3d Amer. ed.) 183; 2 Stark. Ev. (5th Amer. ed.) 62; Lucket v. Bohannon, 3 Bibb, 378; Beardsley v. Root, 11 Johns. R. 464; Danforth v. Dewey, 3 N. Hamp. R. 79; Richardson v. Duncan, 3 N. Hamp. R. 508; Barnard v Whiting, 7 Mass. R. 358.
      But property paid or received as money will support the action for money paid or had and received. Ainsley v. Wilson, 7 Cowen, 662; Arms v. Ashley, post, 74.
     