| Ala. | Dec 15, 1884
The action for money had and received is based upon an implied assumpsit, and, like that for use and occupation of land, can not generally be maintainéd against one holding lands adversely, or in repudiation of the plaintiff’s title, at the time of the defendant’s occupation, or the collection of rents by him. — 2 Green. Ev. § 120 ; Weaver v. Jones, 24 Ala. 423 ; Fielder v. Childs, 73 Ala. 567" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/fielder-v-childs-6511678?utm_source=webapp" opinion_id="6511678">73 Ala. 567. The chief reason of this rule is, that the title to lands can not be tried collaterally in a personal action of this nature ; the law affording an easy remedy to the plaintiff by ejectment, with incidental damages for mesne profits as compensation for the unlawful detention of the premises.— Cooper v. Watson, 73 Ala. 252" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/cooper-v-watson-6511616?utm_source=webapp" opinion_id="6511616">73 Ala. 252 ; Stringfellow v. Curry & Co., 76 Ala. 394" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/stringfellow-v-curry--co-6512007?utm_source=webapp" opinion_id="6512007">76 Ala. 394. While these principles were admitted in Price v. Pickett, 21 Ala. 741" court="Ala." date_filed="1852-06-15" href="https://app.midpage.ai/document/price-v-pickett-6504957?utm_source=webapp" opinion_id="6504957">21 Ala. 741, it was further held, that “where the possession is not adverse, the true owner is entitled to recover the rents which have been received by another the court observing, that “in such case, it is money had and received to the use of the owner; and as the person to whom the rent was paid would be compelled to account in equity, he may also be held responsible in the equitably action for money had and received.”
The present record does not show that the plaintiff was in possession of the lands in question, either at the time of suit brought, or at the time the defendant collected the rents. On the contrary, it affirmatively appears that the possession of the defendant was adverse during the period of time when the rents in controversy were collected by him, and that such collection was made under a claim of title based on a purchase of
The court erred in refusing to charge the jury, as requested by the defendant, to find for the defendant if they believed the evidence, and also in giving the converse charge requested by the plaintiff.
Beversed and remanded.