#### Seth Miller *et al.*Executors, *versus*Jedediah Miller.

If a tenant in common sells trees growing on the land, and receives payment, whether in money, goods or real estate, he will be liable to his co-tenant in an action for money had and received, provided that no question is made in regard to the title of the land held in common.

In such action the statute of limitations begins to run from the time of the payment and not from that of the sale ; and if a promissory note is taken from the purchaser, upon which payments are afterwards made, the statute begins to run from the times of the payments.

Assumpsit for money had and received. Pleas, the general issue and the statute of limitations.

The action was- commenced by Seth Miller, the testator, October 30, 1821.

At the trial, before *Morton*J., it appeared, that a tract of land in Middleborough was divided many years ago into eight *139lots. The testator and the defendant were owners m equal parts of one of these lots, containing twelve acres, as tenants in common. The defendant owned likewise several of the others adjoining the one owned in common.

The defendant sold the wood standing, in lots, to different purchasers, bounding each lot; and the boundaries thus given, and within which the several purchasers cut off the wood, included a portion of the lot owned in common by the testator and the defendant. Leases were given of these lots to the several purchasers of wood, to enable them to cut off the wood.

A part of the wood was sold to the purchasers to be coaled, and to be paid for by one half of the coal, delivered at Fall Brook furnace. The coal was delivered at the furnace in 1816 and 1817, and credit for one half of it was given upon the books at the furnace, to the defendant.

Another portion of the wood was sold in June, 1815, and was to be paid for when it was cut off; but it was two years before it was all cut off. Payments were made to the defendant at differents times, beginning a considerable time after the purchase.

Another portion was sold in June, 1815, to be paid for after it should be cut off. For this a note on interest was given, which was paid at different times, the first payment being a considerable time after the purchase.

For some of the wood sold, the defendant received in payment real estate.

There was no evidence of any request by the testator to the defendant to account, or to pay the money received by him, nor that the real estate received in payment for wood had been sold by the defendant.

Upon this evidence the jury were instructed to find a verdict for the plaintiff for one half of the amount which the defendant had received in payment for wood sold from the lot owned in common, within six years before the commencement of this action, whether the payment was made in money or real estate, or otherwise. They were also instructed to include all the payments made upon the note within that period, and the credits given to the defendant at the furnace, provided they were satisfied that he availed himself of them.

*140*Oct. 26th,*1827.

A verdict was found for the plaintiff, and the defendant ex cepted to the above instructions.

*Eddy,*for the defendant.

This action cannot be maintained, as it involves a question of title to real estate, which the Court will not try in an action of *assumpsit. Lindon*v. Hooper, Cowp. 414 ; *2*Stark. Ev. 110, 111 ; 1 Esp. Dig. 98 ; 1 Chit. PI. 341 ; *Allen*v. Thayer, 17 Mass. R. 299; *Codman*v. Jenkins, 14 Mass. R. 96. The plaintiff might have prosecuted upon *St.*4 & 5 *Ann. c.*16, § 27, (which has been adopted here, 1 Dane’s Abr. 170, — *Jones*v. Harraden, 9 Mass. R. 542,) or on *St.*1785, c. 62, or by a bill in equity; and if he had taken either of these three remedies, the title might have been tried and it would have been stated upon the record. *Wheeler*v. Horne, Willes, 208 ; *Sargent*v. *Par*sons, 12 Mass. R. 149.

There was no privity of contract between the parties ; the defendant never consented to become the plaintiff’s bailiff; but if the plaintiff may waive the tort and consider the defendant as his agent, he ought to have made a special demand before bringing the action. *Taylor*v. Bates, 5 Cowen. 379 ; *Clark*v. Moody, 17 Mass. R. 145 ; *Ferris*v. *Paris,*10 Johns. R. 285 ; *Smith*v. *Hodson,*4 T. R. 217.

Assumpsit for money had and received lies only where the defendant has actually received, or may be presumed to have received *money,*or where he has given a discharge of a debt which was payable in money. Proof of the receipt of goods or real estate is not sufficient. 1 Chit. PI. 340 ; *2*Stark. Ev. 106, 107, note 1 ; *Tuttle*v. *Mayo, 7*Johns. R. 132 ; *Longchamp*v. *Kenny,*1 Doug. 137 ; *Leery*v. *Goodson,*4 T. R 687 ; *Whitwell*v. *Bennett,*3 Bos. & Pul. 559 ; *Pickard*v. *Bankes,*13 East, 20 ; *Ralston*v. *Bell, 2*Dallas, 242 ; *Young*v. *Adams,*6 Mass. R. 182 ; *Taylor*v. *Higgins,*3 East, 169 ; *Cumming*v. *Hackley,*8 Johns. R. 159 ; *King*v. *Leith,*2 T. R. 145 ; *Kitchen*v. *Campbell,*3 Wils. 304 ; *Lightly*v. *Clouston,*1 Taunt. 112; *Nightingal*v. *Devisme,*5 Burr. 2589 ; *Moore*v. *Pyrke,*11 East, 52 ; *Floyd*v. *Day,*3 Mass. R. 403 ; *Randall*v. *Rich,*11 Mass. R. 494 ; *Beardsley*v. *Root,*11 Johns. R. 464 ; *Fanning*v. *Chadwick,*3 Pick. 423.

The defendant took a promissory not ? in his own name for *141part of the wood, and according to the case of *Floyd*v. Day, above cited, he thereby made himself liable immediately for money had and received. In regard therefore to this note the plaintiff’s demand is barred by the statufe of limitations.

*May term*1828, *at Plymouth*

Wood, for the plaintiff.

The opinion of the Court was drawn up by

Parker C. J.

It does not appear that at the trial there was any controversy about the title of the parties to the land from which the wood was taken, the price of which was sued for in this action. If that had been the point in dispute, the plaintiff might have been nonsuited,1 and turned over to his writ of entry or petition for partition. The action proceeded on the admitted fact, that the plaintiff and defendant were tenants in common of certain land, and the question was, whether the wood was taken from that land, and if so, whether the defendant was liable for a moiety of the proceeds. We think the objection since raised, that the action involved the question of title to real estate, cannot now be made.

As to the objection founded on the statute of limitations, we think the jury were instructed right, *viz.*that the statute began to run from the time when the money was received, and not from the time of the sale of the wood. In this action the plaintiff affirms the sale and asks for his share of the proceeds. He had a right to waive his action of trespass given by the statute and to consider the defendant as his agent in disposing of tire wood.2 This is for the benefit of the defendant, as he can deduct all reasonable charges, and is answerable only to the extent of funds which he has received.

In regard to the objection that the price of some of the wood was received in real estate, we think, as the sale was made for money, the defendant was answerable for the price when he discharged the purchaser, whether he received cash *142or any thing else. He may be considered as the purchaser of the real estate with the money for which he sold the wood. The plaintiff consents to the sale for money, but not that real estate shall be substituted. ■ Suppose after selling the wood for money to be paid at a future day, the defendant had set off a debt which he owed the purchaser, for the price ; he would virtually have received the money. So he has by taking the real estate.3

3

 See *Miller*v. Miller, 9 Pick. 34; Chitty on Contr. (4th Am. ed.) 476, and note 1 ; *Ainslie*v. Wilson, 7 Cowen, 662.

1

 See *Bigelow*v. *Jones,*10 Pick. 165; *Haven*v. *Foster,*9 Pick. 112; *Boston v*. *Binney,*11 Pick. 1 ; *Binney*v. *Chapman,*5 Pick. 127; *Buell*v. *Cook,*4 Cowen, 238 *Wyman*v. *Hook,*2 Greenl. 338; *Barker*v. *Howell,*6 Serg. & Rawle, 481.

2

 See *Garainer Manuf. Co.*v. *Heald,*5 Greenl. 381; Chitty on Contr. (4th Am. ed.) 19, 20, notes, and 477, notes ; *Gilmore v. Wilbur,*12 Pick. 120; *Jones*v. *Hoar,*5 Pick. 290; *Whitwell*v. *Vincent,*4 Pick. (2nd ed.) 452, note 2; *Webster*v. *Drinkwater,*5 Greenl. 319.