
    Eliphaz Arms versus Thomas W. Ashley.
    Where the holder of a note indorsed to him as security for a debt, having recovered a judgment against the promisor, and levied on the rents and profits of his land for a term of years, signed a writing, not under seal, promising to pay to the plaintiff all the rents which he should receive after his debt should be paid, or to allow the plaintiff the use and improvement of the land after such payment, it was held3 that this was a sufficient declaration of a trust;— and that the debt having been paid in the lifetime of the trustee, rents received by his heir under color of descent, might be recovered by the plaintiff in an action of money had and received.
    
      Held also, that the value of a specific chattel received in payment of rent, might be recovered in such action.
    
      Held also, that after verdict it was too late to object that no consideration for the trust moved from the plaintiff.
    Assumpsit for money had and received ; plea, the general issue.
    At the trial, before Wilde J., the plaintiff introduced evidence, showing that in 1805, his father, T. Arms, being indebted to E. Ashley, father of the defendant, indorsed to him a note against one Murray. E. Ashley recovered a judgment in his own name against Murray upon the note, and in 1807 levied his execution on the rents and profits for nine* teen years, of land which had been assigned to Murray’s wife as dower in the estate of a former husband. In 1808, E. Ashley signed a memorandum in writing, not under seal, in which, after reciting these facts, he promises to pay to the plaintiff, all such sums of money as he shall receive upon the judgment, after his demand against T. Arms shall be paid, or to allow him the use and improvement of the land after such payment. E. Ashley received the rents till 1812, when he declared that his debt against T. Arms was satisfied, and he refused to have any further agency in the premises. The land was thereupon let by the plaintiff. In 1817, after the death of E. Ashley, the defendant forbid the tenant, who held trader a paroi agreement, to pay the rents to the plaintiff, and claimed them himself as heir at law of E. Ashley, and they were paid to him accordingly. He received in part payment, a cutter, worth 15 dollars, which he still owned.
    
      Sept. 29th.
    
    The defendant’s counsel objected to the whole of the foregoing evidence as irrelevant, and contended that the memorandum signed by E. Ashley was a mere personal contract, and did not in law amount to a declaration of trust; but the judge overruled the objection, reserving the question for the consideration of the whole Court. The judge also instructed the jury, that the value of the cutter could not be recovered in this form of action. A verdict was found for the plaintifi for the rents received, not including the value of the cutter. If the Court should be of opinion that the plaintiff was entitled to reco'ver a further sum, the verdict was to be enlarged ; but if they should be of opinion that the evidence was inadmissible, and that the plaintiff was not by law entitled to recover in this form of action, a nonsuit was to be entered.
    Wells, for the defendant.
    This is an attempt to try the title to real estate in an action of assumpsit; which it is well settled cannot be done. 1 Chit. PI. 341, [6th Amer. edit 368, and notes ;] Stearns on Real Actions, 409.
    The defendant cannot be responsible to the plaintiff, unless on the ground of a trust. The memorandum in evidence, is not sufficient as a declaration of trust, since it is not under seal, and it sets forth no consideration ; and no trust results by implication of law in favor of the defendant, for the consideration, if any, did not proceed from him. The facts show a use rather than a trust; but if there is a trust, a court of law cannot compel its execution. Jenney v. Alden, 12 Mass. R. 375; Newhall v. Wheeler, 7 Mass. R. 198; Cox v. Edwards, 14 Mass. R. 491; Northampton Bank v. Whiting, 12 Mass. R. 104; Botsford v. Burr, 2 Johns. Ch. R. 405; Steere v. Steere, 5 Johns. Ch. R. 1; Bac. Abr. Uses &c., B, 1; Prescott v. Tarbell, 1 Mass. R. 208; Storer v. Batson, 8 Mass. R. 431; Davis v. Hayden, 9 Mass. R. 518; Widgery v. Haskell, 5 Mass. R. 154. But in fact the memorandum is a mere personal contract, and the remedy for a breach would be against E. Ashley’s personal representatives ; it therefore cannot be a trust.
    
      April term 1827, at Greenfield
    
    
      Newcomb and Bigelow, contra.
    
    The memorandum was a sufficient declaration of a trust; Barrell v. Joy, 16 Mass. R. 221; and the legal estate descended to the defendant charged with the trust. The cestui que trust could not question the legal tide of the trustee in any action ; Newhall v. Wheeler, 7 Mass. R. 198; Somes v. Skinner, 16 Mass. R. 348; Russell v. Lewis, 2 Pick, 510; and he has well brought his action of money had and received to recover the rents, which ought, injustice, to be paid over to him. 2 Stark. Ev. 109, cites Arris v. Stukely, 2 Mod. 260.
    After the verdict it is too late to make the objection of want of consideration
    The value of the cuvier should be added to the amount of the verdict. Randall v. Rich, 11 Mass. R. 494 ; Beardsley v. Root, 11 Johns. R. 464.
   The opinion of the Court was read as drawn up by

Parker C. J.

When this case came formerly before us, the objection now urged, that the action could not be maintained, because the title to real estate was involved, was considered and overruled. The plaintiff does not claim any title to the estate out of which the rents and profits grew, nor does he contest any title set up by the defendant. The action is brought to recover out of the hands of the defendant, ■ money which he received as trustee to the plaintiff, and to his use ; and though the more proper tribunal for such a claim is a court of equity, we understand it to have been settled. in this commonwealth, where, until lately, there was no judicial power to enforce directly the execution of trusts, that the common law will always lend its aid to the recovery of damages for the breach of such trusts. And where the trust is simply the receipt of money for the use and benefit of one for whom land or other property yielding a profit is holden by another, under an obligation to pay over to the first the money so received, we see not why an action for money had and received is not the proper form of remedy.

It is said, however, that here was no trust, but that the writing relied upon to prove it, is evidence of only a personal contract of E. Ashley with the plaintiff, on which the defendant is in no degree answerable. Butwe are satisfied that the writing is a sufficient declaration of trust within our statute, agreeably to the decision of this Court in the case of Barrett v. Joy.

No consideration, it is true, is expressed in the writing as passing from the plaintiff to E. Ashley, but a consideration may be proved aliunde, and probably would have been proved, if this objection had been taken at the trial, for in the former report ol the case it appeared that the judgment recovered by E. Ashley against Murray was founded partly on a debt due by Murray to the plaintiff,’which was assigned to Ashley for the purpose of his recovering one judgment for both debts, for the use and benefit of Ashley as well as himself. This, however, cannot be the foundation of our decision in the case now before us ; but as the want of consideration was not objected to at the trial, and no question respecting it is presented by this report, it cannot now be the ground of a new trial, for it should have been objected when the plaintiff might have had an opportunity to avoid the objection.

Considering, then, that the legal estate in the rents and profits levied upon was in the defendant’s father, who agreed to hold the same after a certain period for the use of the plaintiff, and that the defendant, under color of descent from his father, has possessed himself of the rents and profits belonging to the plaintiff, we see no objection to their being recovered in this action ; 3 and therefore do not set aside the verdict; but we think it ought to be increased in the sum of 15 dollars, which was received as rent from one of the tenants of the defendant; for whether he received the rent in money, or in any chattel, at an estimated price, for so much money, can make no difference, as appears by the cases cited by the plaintiff’s counsel. 
      
       The rule of law, that the title to land cannot be tried in an action for money had and received, does not apply to cases where only the past-gone rents oi land are in question Monypenny v. Bristow, 2 Russ. & Mylne, 117.
     
      
       See Mien v. Impett, 8 Taunt. 263; S. C. 2 Moore, 240.
      This action for money had and received is said to be founded m the principles of justice, and has been greatly extended on the ground of its being considered like a bill in equity. See Moses v. Macferlan, 2 Burr. 1012; Stratton v. Bastall, 2 T. R. 370; Wright v. Butler, 6 Wendell, 284; 2 Stark. Ev. (5th Amer. ed.) 64; Chitty on Contracts, (3d Amer. ed.) 182; Allen v. M‘Keen 1 Sumner, 277.
     
      
       See Davenport v. Mason, 15 Mass. R. 85; Howell v. Deluncey, 4 Cowen 427; Maigley v. Haner, 7 T. R. 341.
     
      
       As to the enforcement of a trust against one who comes into the possession of property bound by the trust, see Story’s Comm. Eq. c. 9, § 533 p.506,507.
     
      
      
        Ainsley v. Wilson, 7 Cowen, 662; Sheldon v. Welles, ante 63, note.
     