
    Cloherty's Ex'r. vs. Creek.
    Apb,eal from Baltimore County Court. Ms sump sit for money had and received. The general issue was pleaded. And at th^ trial the plaintiff, (now appellee,) gave in evidence, that the testator of the defendant, (the appellant,) being the son-ip-law and agent of a certain Philip Slaylor, did as such contract and agree with the plaintiff to sell'him a certain lot of ground in Baltimore for the sum of 190. And algo gave in evidence the following agreement, executed by Philip Slaylor; “This indenture, made the 8th day, of May, in the year of pur Lord one thousand eight hundred and four, between Philip Slaylor, of Baltimore county, and William Creek, of the same county. The said Slaylor doth sell g house and lot to the said William Creek, his heirs, executors, administrators or assigns, for the consideration of the sum of one hundred and ninety dollars, to be paid to, the said Philip Slaylor, or his heirs, executors, administrators or assigns. The said Philip Slaylor, or. his heirs, doth agree to give the said William Creek, or . his heirs, a deed at the last payment of ninety dollars, ■which ig to he paid the first day of February 1805.
    
      I» C being the argent of P S,d»d as such contract-with . W C to aell to him a home anti lot for S$190, and an a* greement in writing; to that effect was entered, into by P S with' W C, and that onjiayinent óf the money a deed should be ¿ocecuted to W C by P S» The d-mount of the ppr* phase money was paid by W C to' P C, who, before the payment of the money to him stated to W C, that if any difficulties should arise about the title tp the Jot, he was good for the money, > and would return it to fnni. In an-action ¡¿ormoueyhad add received,- brought fcy W C against P C, evidence was f' iven'thíu a claim’ iid been made to a part of the iotsj and it had" been actually -enclosed with a fence h\ H Pi and that no deed fortheJothad ever been made or tendered by P S, oi; nny other person, to W C» Thfcourt refused to :d.ii ect thejui-y, that* no parol evidence could be received t<) show that a'eluim hau been made to any part of the lot, and tliawt had been enclosed; or to direct them that the plaintiff not entitled u* recover. • ............ • '
    
      ' hiss
    
      Philip ¡>4 Stalor.™
    
    mark and (Seal.)
    Also a receipt endorse;! on the said contract, dated the 8th of May 1804, signed by thp defendant’s testator, for 55100. Also a note executed by the plaintiff to the defendant’s testator, on the 8th of May 1804, tor &.'«> payable ter> months after its date. Also receipts therccn, endorsed by the defendant’s testator, for the amount n! said note. The plaintiff farther gaye in evider.ee, that before the payment of the money mentioned in the first recited receipt, and before the execution of the above noté of hand, the plaintiff told the defendant’s testator,that he the plaintiff was 2 coloured man, and not acquainted with titles to land, YVlierenpon the defendant’s testator, told him the plaintiff, 'that if any difficulties should arise about the title to the lot, that he was good for the money, and would return the same to the plaintiff. Upon which the money was paid to the defendant’s testator, and the said note of hand was signed. The plaintiff further gaye in evidence, that a claim had been made to a part of the said lot, and the same had actually been enclosed with a fence, by a certain Robert Oliver', and also thixt no deed for the lot had pver been made or tendered by Philip St ay lor ¡ or any other person, to the. plaintiff. The defendant thpn prayed the court to direct the jury, that no parol evidence could be receive;] to show that a claim had beep made to any part of the lot. and that the same bad been inclosed; and also further prayetj the court to direct the jury, that the plaintiff was not entitled to recover ju this action. But the Court, [Nicholson, Ch. J.] refused to give either of the directions. The de* fendant excepted; and the verdict and judgment being a*, gainst him, he appealed to this court.
    The cause \vas argued before Chase, Qh. J„ and Be* shaman, Faiile, and Johnson, J,
    
      Glenn, for the Appellant.
    There are several objections jn point of law to the right of the appellee to recover the sum claimed from the appellant.
    1. There was a voluntary surrender on the part of the appellee, and no lega! eviction; and there is no case in the books where a similar recovery to the present has beep had, without a regular proceeding at law against the premises, and a repovery thereupon. Were the'law otherwise, it would be the most easy thing in the world for a man who had made a bad bargain, to permit a claim to be set up against the property purchased, and a surrender by covin of the premises to ti;e party claiming. If an ejectment had be.en instituted against Creek, and a recovery of the lot had ensued, then an action for money had and received might have been maintained against Siaylor, the bargainor, b,ut not even in that case against Cloherty, who had merely received the money for another, and had afterwards parted with it. Crips vs. Reade, 6 T. R. 606.
    2. The appellee cannot pecover in this action, because no notice of any claim bejng set up to the property in question was given by him to either Siaylor, tjie bargainor, op to Cloherty, the testator, apd consequently, as neither of them was notified of the claim, neither of them hadan opportunity of defending the property against the claim thqs set up; and indeed, for aught that appears, the person who has fenced in a port of the lot had no legal title to the same, and unless that is made manifest to the court, it cannot be conceived how the appellee can pretend tp claim to have the money paid by him refunded. If A sells a lot to B, and makes a general warrantie — in order jo main-, tain an action on the warrantie, B must show a legal eviction by due .course of law; or at least notice must be given to A, with a request to defend the lot against a claini made against it.. .To support this, he pited Harr. and But. Co. Lit. tit, Warrantie, 565.
    
    S. Before the action for money had and received was instituted, the plaintiff below ought to have made an offer to surrender to Siaylor, the'Seller of the lot, that part of it which had not been taken away by any claim whatever, as. he could not, (as he has done in this case,) go for the whole amount of the purchase money without such surrender or offer. Weston vs. Downes, 3 Doug. 23. Towers vs. Barrett, 1 T. R. 133. Stratton vs. Rastall, 2 T. R. 366.
    4. The action for money had and received is not the proper form of action, as it was a special understanding, <and therefore ought to have been specially set out. Esp. N. P. 138, 9. The reason in equity why such a claim as this made by the appellee against the appellant, is resist* sil, is because Cloheriy, the testator, liad parted with all the money he had received for Slay I or from the appellee, long before the institution of this suit; anil it is apprehended that Slaylor is the person to whom the appellee should look, if indeed he has a remedy against any person.
    Magruder, for the Appellee.
    The defendant’s testator gold to the plaintiff a lot of ground, and agreed, in case of any difficulty with respect to the title, to refund the money received by him on account thereof. It is not stated in the bill of exceptions that the defendant’s testator, who it appears was the agent of his father-in-law, had, or that his executor had, paid over the money when this suit was instituted; and after the coutract with the plaintiff, while any doubt with respect to the goodness of the title existed, lie ivas bound to retain it in his hands. It appears too, that in order to get the money, be engaged to be personally responsible. The objection, therefore, that the defendant’s testator was only an agent, cannot be sustained.
    The counsel for the appellant contends, that there ought to have been an eviction, and the defendant’s testator, or his constituent, ought to have had notice of the adverse claim, and an opportunity of defending the title in an action of ejectment. But it does not appear that the plaintiff ivas ever in possession of the lot, or able to get possession of it. The evidence is, that Oliver was in possession of part, and bad actually enclosed it; and upon the statement of facts in the bill of exceptions, it must be presumed that he was in the possession at the time of the sale. There could then be no eviction of the plaintiff, and for want of title, fno deed having been executed or tendered to him,) he could not institute a suit for recovery of the lot. The deiendant’s testator could not, or would not, give possession to the plaintiff, the latter therefore had a right to dis-affirm the contract, and sue for the money paid by him. The counsel for the appellant says, that the plaintiff ought to have made, or offered to make, a surrender of the property to the defendant’s testator; but before this can bs necessary, it ought to have been proved by tiim, and the bill of exceptions should have stated that the plaintiff had, obtained the possession. This not being stated, cannot be presumed. The action for money had ami received is the proper and usual form in which the purchase money recovered back in cáse of any defect of title, or disaffirm'» anee of & contract. The first branch of the defendant.’» application, in the court below, wa» certainly improper;. None other than' parol evidence could be offered of the adverse claim1. The' second application to the court,- wa's ío’mstf'ú'ct the jury, “that the plaintiff was* not entitled to recover in this actloy.” It is not stated that the whole' of the testimony,- adduced by the plaintiff in support of his-action,- is set forth iñ the bill of exceptions, and the defendant does not pray the court to instruct the jury that the evidence therein mentioned was uót sufficient to maintain the action. This court canriot reverse the judgment,- unless they are of opinion, that the testimony stated in the exception was sufficient to defeat the plaintiff in this action, notwithstanding any further proof that he might be able to adduce. There is nothing in the record to show that proof was not offered by the plaintiff” below of an eviction, after due notice to the defendant’s ’testator of the adverse claim. But from the expressions of the bill of exceptions, we are led to infer, that the counsel for the defendant contended, that the testimony-stated in the exceptions precluded the possibility of the' plaintiff’s recovery “in this action,” whatever testimony he might be able to offer, that the objection went entirely to the form of action, or was grounded upon the conclusive testimony offered by the defendant.
   JUDGMENT AFFIRMED,  