Baker against Howell.
Saturday, April 28.
An action for money had and received, will not lie for the price of sand taken from a sand bar to which darn claim ti-by the ant.
In Error.
ERROR to the District Court for the city and county _ , ... 1 y Ot Phi lade Ipflta.
The declaration was in assumpsit, for money had and re- . , , . , „ ceived. I he pleas were non assumpsit and payment. On tria^ a verdict was taken for the plaintiff, subject to the opinion of the Court upon the facts stated in the following which was agreed to be considered as a special verdict,
The plaintiff and defendant are both inhabitants of the county of Philadelphia.
By deed, bearing date May 2d, 1801, William Smith and wife, and Richard Smith and wife, of New Jersey, conveyed to the plaintiff, in fee simple, an island, or mud flat, in the river Delaware, near the upper end of Petty’s Island, and within the limits and jurisdiction of the state of New Jersey. Under this deed the plaintiff claimed title to a sand bar adja*477cent to the said island, or mud flat, as part of the land conveyed by the said deed.
The defendant had a lease of the said sand bar, dated November, 9th, 1813, from a certain Hugh Hatch, of New Jersey, who claimed title to the said sand bar by virtue of a deed from Charles Ellis, of New Jersey, dated June 2d, 1810, and a warrant and survey of the same date.
For ten years and more prior to the commencement of this suit, and during its continuance, the plaintiff had fished on the said island, and had taken and sold sand from the said bar. The title to the said sand bar, and the possession thereof, for ten years prior to the commencement of this suit, are found to be in the plaintiff.
The defendant had, from time to time, prior to, and during the years 1814 and 1815, taken sand from the said bar, claiming a right to take the same under his said lease. The sand thus taken, was brought by the defendant to the county of Philadelphia, and there sold by him. This action is brought to recover the proceeds of the said sale.
The defendant had, at different times, both before and after this suit was brought, paid the plaintiff for sand taken by him from the said bar; and on the 11th November, 1814, he paid the said Hugh Hatch fifty-five dollars for sand taken from the said bar under the said lease.
If, upon these facts, the Court shall be of opinion that the present action will lie, judgment to be entered for the plaintiff in the sum of 237 dollars 67 cents, with interest; if otherwise, judgment to be entered for the defendant.
The Court below decided, that the action would not lie, and the plaintiff removed the cause by writ of error.
E. S. Sergeant and S. Levy, for the plaintiff in error.
If this action cannot be supported, its failure will be the result of a technical nicety, in which the merits of the case have no share. Both parties residing in the county of Philadelphia, the defendant is not compelled to submit to a for*478eign jurisdiction, but is tried by his own laws. He undergoes no hardship, because the plaintiff can recover no more than in conscience is due, and the defendant is let into every equitable defence, and every set-off he can prove, which, if the action had been trover or trespass, would have been denied to him. If the plaintiff cannot recover in this action, he is without remedy. He cannot bring ejectment, because he is in possession, nor trespass, because the defendant resides out of the state in which the land lies, and it would be scarcely possible to serve him with process in Jersey.- Our positions are, 1st. That trespass or trover may be supported in a case like this. 2d. That wherever trover lies, and the property has been converted into money, the plaintiff may wave the tort and bring an action for money had and received. If there had been a doubt about the title, or the defendant had been in possession, a very different case would have been presented; but both the title and the possession being found to be in the plaintiff, it comes within that class of cases in which trover has been held to be the proper action. Wherever trespass lies for taking goods, trover lies also. 2 Sound. 47, note k. Thus in Bishop v. Montagu, Cro. El. 824. Cro. Jac. 50, trover was maintained for five oxen. But the cases which bear the strongest analogy to this, and from which it is impossible to distinguish it, are those in which the action was brought for the produce of land. If a stranger enter and cut down trees, the owner of the land may have either trespass or trover. Com. Dig. 141. Allen, 82. 20 Vin. 419. In Rackham v- Jessup, 3 Wils. 339, the plaintiff, claiming a right to cut rushes on a common, did cut them, and the defendant carried them away. The plaintiff brought trover, and being nonsuited at the assizes, the nonsuit was set aside and a new trial ordered. If the plaintiff be seised of land, and the defendant enter and cut down trees and bark them, and carry away the bark, trover lies. Berry v. Hurd, Cro. Car. 242. But the case of Player v. Roberts, Jones, 243. 6 Bac. Ab. 684, approaches even nearer to the question under consideration, from the nature of the property which was the subject of the suit. It was trover for coals dug out of a mine by the defendant, and the action was held to be maintainable. The same rule holds as to lead, or any other mineral, provided the plaintiff is in possession of the mine out of which it is dug. 1 Sound. 47,-note c. These authorities are con-*479elusive as to the right to maintain trover for the produce of the soil of the plaintiff, improperly converted by the defendant; and sand, unquestionably, is as much the produce of the soil, as coals or lead, or even as trees and herbage. There is nothing in the objection, that the title to land cannot be tried in a transitory action. Such an action, it is true, is not the proper mode of trying the title directly, but if it be incidentally involved, it may be tried. So it was held in Clarke v. M'-Intire, Addison, 235, which is cited, and recognised to be law by Judge Duncan in delivering the opinion of the Court in Mather v. The Ministers of Trinity Church, 3 Serg. £sf Razóle, 509. If the law were otherwise, the defendant might set up a pretended title in every case of this kind, and thus defeat the action of a plaintiff whose title is indisputable. In Biddulph v. Ather, 2 Wi/s. 23, which was trover for a sloop,' no objection was made to the form of action, because it involved a prescriptive right claimed by the plaintiff, as lord of a particular manor, to have all wrecks of the sea thrown upon that manor.
If. trover would lie upon the facts of this case, the question is settled, for the authorities are conclusive, that a party wave the tort and recover in assumpsit„ Chitty PI. 90. Lamine v. Dorrel, 2 Ld. Raym. 1216. Astley v. Reynolds, 2 Str. 915. Humbly v. Trott, Cozop. 372. Longchamp v. Kenny, Doug. 137. Bull. N. P. 131.
But whatever the law may be in general, the plaintiff in this case is concluded by his own acts. He has repeatedly paid the plaintiff for sand both before and since the commencement of this suit; and after such a recognition of his title, he cannot be permitted to call it in question.
Wharton and Rawle, jun. for the defendant in error.
Liberal as Courts have been in extending the action for money had and received, and they have perhaps already pushed it too far, they have never yet carried it to the extent to which the plaintiff now seeks to carry it; for.his object is to try,in such an action, not incidentally, but directly and immediately, the title to land. The plaintiff’s claim is founded on an alleged right, to a sand bar in the river Delaware, and the defendant resists his claim, by virtue of a lease from a third person, in whom he alleges-that the title is vested. The single question in the Court below was, who was the rightful *480owner, and a jury empannelled in a transitory action, were not only called upon to decide the title to real property, but the title to real property situate within the jurisdiction of another state. If this can be done, they may with equal propriety be called upon to determine the title to lands in the remotest parts of the world, and the monstrous injustice will be done to the defendant, of compelling him to submit his title to a tribunal utterly destitute of those lights which are necessary to guide it to a just decision. The present suit bears a strong analogy to a bill in equity for an account of rents and profits; but under such circumstances, chancery would never decree an account. Before such a decree will be given, the title must be completely settled at law, except in' cases of trust, infancy, or fraud, or where deeds necessary to the plaintiff’s title are in the possession of the defendant and a discovery is necessary, in which case equity will sometimes decree an account as well as a discovery. Coventry v. Hall, 2 Ch. Rep. 134. Townsend v. Ash, 3 Atk. 311. Maddock, 72. 85, 86, 87. This was- the case of a disputed title, and until that was settled in a proper form of action, a suit in the nature of a bill for an account, cannot be sustained. On another ground this suit is not maintainable, considering it in the nature of a bill in equity. The plaintiff had a full and adequate remedy at law, either by an action of trespass or by eject- ment, and afterwards an action for the mesne profits. It does not follow, because the jury have found for the plaintiff, on the question of possession, that he is in possession. The property, in fact, is of such a nature, that neither party could have ah absolute possession; the plaintiff therefore might proceed as if the defendant were in possession, for the purpose of trying the title. These legal remedies being in the plaintiff’s power, he cannot resort to a suit in equity, for equity never grants relief where there is an adequate remedy at law. Tilley v. Bridges, Pr. in Ch. 252. Duke of Bolton v. Deane, Pr. in Ch. 516. Owen v. Aprice, 1 Ch. Rep. 17. Nor can this suit be maintained as an action at law. In Haldane v. Fisher, 1 Teates, 121, it was decided, that an action of this description can only be supported upon the equitable powers possessed by Courts of law in Pennsylvania. An action of account would not lie, because the act complained of is a wrong. Tottenham, v. Beddingfield, 1 Leon, 24. But the case of Mather v. The Ministers of Trinity *481Church, in which it was decided, that trover would not lie for stone taken from a quarry to which both parties claimed title, puts the question to rest. In the cases cited on the other side, the produce of the soil had been severed from the freehold, and converted into a chattel, before the conversion, which distinguishes them from the case under consideration, in which the plaintiff’s demand is founded upon an injury done to the freehold. It is not a case in which the tort may be waved, for the authorities which support that doctrine all speak of goods-, and do not apply to an injury to real estate, for which trespass only can be supported. The effect of applying that doctrine to such a case would be to convert into a transitory action, that which, in all its essential features, is local. Admitting that trover might be supported, it does not follow that assumpsit can ; for these actions are in their nature totally different, the former being founded on tort, the latter on contract. There was, between the parties to this suit, no privity of contract, without which, unless there be mala Jides, an unjust receipt of money, or want of consideration, this action cannot be maintained! Rapalje v. Emory, 2 Dali. 52.