The opinion of the court was delivered by
— It is evident that the plaintiffs cannot recover for use and occupation, on either countin the declaration. To entitle them to recover for such claim, there must be a count for use and occupation. From the facts detailed in the bill of exceptions, the plaintiffs can have no right to recover the avails of the farm for the year that the defendant was in the possession of it, unless it be under the appropriate declaration for such claim.
The fact that this farm was sold by the consent of all parties in interest, on a credit, as to a part of the purchase money, is conclusive upon the plaintiffs that they cannot call the defendant to an account, in an action for money had and received, as to such portion, until he is in the receipt of it, or, at least, until there has been an expiration of the time of credit. Though the defendant, in the sale of the farm, was acting in the character of a trustee, still it was a trust coupled with a personal interest, and the defendant cannot be made, ipso facto, liable, as for money had and received from the circumstance of his having taken the note payable to his order. A part of the note, when paid, in fact, belongs to the defendant.
As the farm was deeded to the defendant to enable him to make sale of it, and out of the avails to indemnify himself against his liabilities, most certainly he would have the right to apply the moneys first received for that purpose, and more especially,'in this case, where the evidence shows that the credit was given by the consent of the plaintiffs. The judgment of the county court is affirmed.