Judge Burnet’s
dissenting opinion:
In stating the reasons that have induced me to dissent from the opinion expressed by the court in this case, I shall confine myself to the second reason filed for a new trial, viz: that the testimony does not support an action for money had and received. The ease appears to be this. Ronck, being the owner of certain lots in the town of Washington, mortgaged them to Barr, and afterward sold them to the defendants, who agreed to satisfy the mortgage. The defendants afterward sold one of the lots to the plaintiff for one hundred and twenty-five dollars, who, by the agreement, was to pay the purchase money to Ronck, and receive from him a deed, the defendants promising to discharge the mortgage. The plaintiff paid the purchase money, and received his deed, according to contract. The defendants did not satisfy the mortgage, as they were bound to do, in consequence of which the lot was sold on a judgment obtained on the mortgage, and purchased in by one ■of the defendants for the benefit of the plaintiff, who was required. *365to pay tbe expense of drawing the deed. The plaintiff took possession of the lot at the time of the contract, lived on it himselfj and rented it to different persons.- He still holds the deed; he has-not restored the possession to the defendants, or offered to do so; nor has he given notice that he considered the contract at an end. On this state of the case, the question to be decided is, whether he-can now recover from the defendants the money paid to Ronck in an action for money had and received. It is well settled that an action of assumpsit may be sustained on a sale, either for the price-of the thing sold, or to recover back the purchase money, when there is a defect in the article sold, or a fraud in the vendor. It is-also settled, that in every sale the vendor is supposed to have a good title, and if it turns out that his title is defective, the vendee may waive the contract, and recover back the money paid; and it is admitted that this principle applies to contracts for the sale of real estate, as well as of goods *and chattels. 5 Burr. 2639;. 2 Black. 1078. In the case before us, it appears that the lot sold to .the plaintiff was incumbered by a mortgage, of which he had notice, and in consequence of which it was afterward sold by the sheriff. The plaintiff, therefore, had a right to waive the bargain, and recover back the purchase money, unless his title had been otherwise secured. Without stopping to inquire whether the-offer of a deed from the sheriff, on condition of paying the sura of one dollar, under the circumstances of this case, was not such a. security of title as would bar him from tbe right of abandoning the contract, I will proceed to the inquiry, whether he has in fact waived the bargain, so as to entitle himself to this action, or whether,, as the case stands, he was not turned over to his s¡Decial action on the contract. In cases where the article sold has not been delivered, if there be a defect in the thing itself, or a fraud in the vendor, the vendee, by giving notice that he declines the bargain, may recover back his money in this form of action. But if possession has been given, the action for money had and received can not be maintained till the thing purchased has been restored; for till that be done, the contract is not at an end; it remains open, and the proper remedy is an action founded on the contract. Until the contract be terminated, its stipulations are matters that may be controverted. A contract may contain a warranty, or, as in this case, a promise to remove an incumbrance, and while the contract remains open, these stipulations may be disputed, but they *366can not be tried in this form- of action. The plaintiff must resort to - the contract. In the case of Towers v. Barrett, 1 Term, 133, this action was sustained, but it was on the ground that tho property purchased had been returned, and the contract thereby terminated; and it was admitted in that case, that while the contract continued open, the plaintiff could only recover damages, and that for that purpose he must state the special contract, and the breach of it. It was also said by Justice Buller, in that case, that if the plaintiff intended to recover back his money, he must rescind the contract, byreturning the property in a reasonable time, otherwise he will be put to his action for damages on the special contract. Weston v. Downes, Doug. 23, was an action for money had and ^received. The plaintiff was nonsuited by Lord Mansfield, on the ground that there was a special contract, and that the defendant ought to have had notice, by the declaration, that he was sued on that contract. Buller, Justice, observed that the action would not lie, because the defendant had not precluded himself from entering into the contract by taking back the horses, and that when the contract is open it must be stated specially.
In Power v. Wells, cited in the last case, the defendant had warranted a horse sound, which proved to be unsound. The plaintiff having tendered a return of the horse, which was refused, brought an action for money had and received, to recover back twenty guineas paid on the contract, and it was held by the court that the action would not lie. The distinction seems to be clearly settled that when the contract has been disaffirmed, and the property restored, assumpsit will lie to recover back the money paid, but where the contract is open, or the property remains in the hands of the vendee, t.he action must be on the contract itself. In this case there is nothing in the evidence from which an inference can be drawn that the contract was terminated. On the contrary, it appears to be open, and subject to litigation. The plaintiff accepted, and still holds a general warranty deed for the lot, which is an affirmance of the contract. He was put into possession, has occupied and rented it, and the person now in possession is his tenant, holding over. The evidence of the first witness is nothing more than the expression of an opinion, by one of the defendants, that the plaintiff was liable to pay the expense of the sheriff’s deed, and that he had no right to rent the lot till he had done so, or, in other words, that the plaintiff was bound by the bargain to *367do something more than he had done. This language, so far from conveying an idea, that the contract was at an end, could only have proceeded from a conviction that it was opened and disputed. The import of it seems to be, that Waddle, having purchased in the lot, to quiet the title, the plaintiff ought to pay the expense of the deed, as, by the contract, the deed was to be made by Ronck, without expense to the defendants. If Waddle had believed that the contract was at an end, his language must have been very different. But whether this opinion of Waddle *was correct or not, does not alter the case. The interest to be drawn from it is still the same, that the contract was open and disputed. If it be admitted that the release to Ronck has discharged the action of covenant, so as to make him a competent witness, it does not divest the plaintiff of his claim of title, nor of his possession. He may still consider Waddle as his trustee, and by a decree in chancery, require him to convey the right derived from the sheriff. The existence of such a remedy is a complete negative to the pretense that the contract is' closed. The general rule on this subject is, that if there be a special contract it must be declared on. The safety of the defendant requires that he should be informed of the real ground of action. Should this rule be dispensed with, he may be surprised at the trial, and subjected to a judgment that might have been avoided, had he known in time the nature of the plaintiff’s claim. He may also be exposed to the danger of a second recovery for the same cause. In Wear v. Burroughs, 1 Stra. 648, the plaintiff declared on a special contract, and also on an indebitatus assumpsit. At the trial he proved a special agreement, but variant from the one declared on, and the chief justice would not permit him to have recourse to his general counts. The same principle will be found in 1 Ld. Raym. 735; 1 Term, 447; 4 Term, 314. The plaintiff, in this case, having omitted a special count altogether, can not be in a better situation than if he had stated a special contract, and proved one different in substance from that which he had set out The omission is as fatal as the variance and on the same principle.
See note A, at the end of the volume.