Sec 731

If A.'s property is wrongfully sold by B., A., waiving the tort, may sue for the proceeds in B.'s hands, as money received to A.'s use; and this applies to a sale of real property,6 as well as of personal,7 as where coal is wrongfully severed and sold by the owner of an adjacent mine,1 and where trees on the plaintiff's land are wrongfully cut down and sold.2

A. may recover proceeds of his property wrongfully sold by B."

1 Lythgoe V. Vernon, 5 H. & N. 180; Brown V. Holbrook, 4 Gray, 102; Wilder V. Aldrich, 2 R. I. 518. As generally sustaining the , text, see Mathers V. Pearson, 13 S. & R. 258; Vantine V. Wood, 13 Penn. St. 270; Shaffer V. Montgomery, 65 Penn. St. 329.

2 Morrison V. Thompson, L. R. 9 Q. B. 480; Dutton V. Wilbur, 52 N. Y. 312; Dodd V. Workman, 26 N. J. Eq. 484; Love V. Hoss, 62 Ind 255.

3 Wh. on Agency, sec 232, 236, 244, 335, 716. 4 Leake, 2d ed. 61; see supra, sec .

352, 357 for authorities; Lightly V. Clouston, 1 Taunt. 112; Foster V. Stewart, 3 M. & S. 191; see Peters V. Lord, 18 Conn. 337.

5 Bowes V. Tibbetts, 7 Greenl. 457; Munsey V. Goodwin, 3 N. H. 272; James V. LeRoy, 6 Johns. 274; 2 Parsons, 52.

5 Morgan V. Elford, L. R. 4 C. D. 352; Miller V. Miller, 7 Pick. 136.

7 Leake, 2d ed. 93; Dicey on Parties, 91; Collins V. Brook, 5 H. & N. 700; Holt V. Ely, 1 K. & B. 795; Burnap V. Partridge, 3 Vt. 144.

Sec 732

It is a false pretence, as is elsewhere shown, for a party to obtain money or goods from a bailee or other agent on the allegation of being sent for by the real owner.3 Hence, as a party obtaining money on false pretences may be charged with receiving such money to the owner's use, money thus obtained fraudulently from a third person may be recovered by the owner.4 And a party collecting rents on color of agency for the landlord, may be compelled to pay the money so received over to the landlord in an action for money had and received;5 though, if the money be received on claim of adverse title, the suit in this shape does not lie, as the reception was adverse, and not on pretence of agency.6 Wherever, as a general rule, the defendant receives money he knows belongs to the plaintiff, he is bound to pay such money to the plaintiff.7 But mere complicity in a criminal act does not make all parties concerned liable, in an action of this kind, to refund to parties injured any sums the latter may have lost by such guilty act. The defendant, to sustain such a suit, must be shown to have received money which had been acquired from the plaintiff, or to have been received ostensibly to the plaintiff's use.8

Sec 733

Money, however, received by false pretences or false personation, cannot be followed into the hands of strangers when such strangers have obtained possession of it bona fide, and for a good consideration.1 It is otherwise, as to parties with notice, parties acting as agents or confederates of the wrong-doer, and parties who are not purchasers for value.2 - The party obtaining the money fraudulently cannot by any device pass title to his assignee with notice;3 and the burden is on the holder to prove good faith and fairness.4 - Where a purchaser of a promissory note, purporting to be endorsed by a savings bank, sues the bank on the alleged endorsement, he ratifies the purchase which he cannot afterwards attack as fraudulent; nor can he, in the same action, recover, under a count for money had and received, on the ground of fraud in the endorsement.5

When A.'s money in B.'s hands is wrongfully obtained from B. by C, it may be recovered from C. by A.

1 Ibid.; Powell V. Rees, 7 A. & E. 426; Phillips V. Homfray, L. R. 6 Ch. 770; Ashton V. Stock, L. R. 6 C. D. 719; see Haygarth V. Wearing, L. R. 12 Eq. 320.

2 Hambly V. Trott, 1 Cowp. 376; Powell V. Layton, 2 B. & P. N. R. 370.

3 See Wh. Cr. L. 8th ed. sec 1142; see supra, sec 282 et seq.

4 Litt V. Martindale, 18 C. B. 314; Andrews V. Hawley, 26 L. J. Ex. 323; cited Leake, 2d ed. 90; Abbotts V. Barry, 2 Brod. & B. 369; Herrin V. Libby, 36 Me. 350; Hall V. Gilmore, 40 Me. 578; Christmas V. Spink, 15 Ohio,.

600; Connecticut R. R. V. Newell, 31 Vt. 364; James V. Hodsden, 47 Vt. 127; and see supra, sec 282 et seq.; and see, as to frauds generally, sec 232 et seq.

5 Marshall V. Hopkins, 15 East, 309; Clarence V. Marshall, 2 C. & M. 495.

6 Ibid.; Leake, 2d ed. 90; Hickman V. Upsall, L. R. 4 C. D. 144.

7 Supra, sec 723; Barlow V. Browne, 16 M. & W. 128; Freeman V. Otis, 9 Mass. 272; Hall V. Marston, 17 Mass. 579.

8 National Trust Co. V. Gleason, 77 N. Y. 400.