Thеre are only two questions presented by the record. First, has the plaintiff a right of action against the defendant; and secondly, is his right of action barred by the statute of limitations ?
The note in suit was never indorsed. The defendant’s intestаte was the holder, and the plaintiff’s intestate had the legal title. The defendant’s intestate unquestionably had the right to bring the action upon the note as holder and recover judgment thereon, for when the holder produces the note sued on, and offers it in evidence, it raises a presumption of fact that he is the owner, and unless rеbutted by the defendant entitles him to judgment.
Pugh
v.
Grant,
But it is a presumption which is only evidence against the defendant in fan actiоn upon the note, and, as a mere presumption, cannot avail the holder in an action brought against him by the legal owner.
When a note is sued*on and reduced' to judgment in the name of the holder, it is such a conversion in the absence of any proof as to his right of possession, as will give the *194 legal owner an action of trovеr against him, and the action would be barred after three years from the conversion. But the legal owner, if he еboses to do so, may waive the tort and bring an action in nature of assumpsit for money had and received to his use, where the money has been collected, and the statute in that case bars the action after thrеe years from the time of the receipt of the money, or a demand therefor, according to the rеlation of the parties.
But it is contended by the defendant's counsel, that while-.the action of trover is barred after three years from the conversion, the action of assumpsit being in this case for the same cause оf action, must be subject to the same limitation. This position of the learned counsel is not supported by the ¡authorities. For it is held that an action of assumpsit may not be barred by the statute, when to an action for a tort upon the same demand the statute may be pleaded. When there has been a tortious taking of his property, the injured party may bring trespass or trover, or he may waive both and bring assumpsit for the proceeds, when it shall have been converted into money; and if he choose the latter mode of redress, the tort-feasor сannot allege bis own wrong for the purpose of carrying back the injury to a time which will let in the statute.” Angel on Limitаtions, §72, and cases cited in note 2.
So in
Lamb
v.
Clark,
The position was taken in the argument before us that *195 the defendant was an agent and the statute did not begin to srun against him until a demand, and the demand not hаving been made until within three years before the commencement of the action, there was nothing to prеvent the plaintiff from recovering the sums received by the defendant, both' before and within the three years befоre the commencement of the action. Butin this we do concur. For while it is well settled that time does not bar a direct or express trust, as between trustee and cestui qm trust, till the trust is put an end to by a disavowal of the trustee (as is evidenсed, for instance, by a demand and refusal,) yet it is as well settled that whenever a person takes possessiоn of property in his own name, and is afterwards by matter of evidence or construction of law changed intо a trustee, lapse of time may be pleaded in bar. ingel on Limitations §471. And it is laid down by the same author, in section 178, that if one receive money or goods of another, believing that they belong to him, when in fact ex sequo et bono they belong to а stranger, that is an implied trust, and the stranger is entitled to recover and he may be barred by the statute of limitations.
Wе take the distinction to be, that if it is an express trust or agency, a demand is necessary to terminate the trust and sеt the statute in operation; but if it is only an implied or constructive trust or agency, then no demand is necessary, but the'statute is put in motion as soon as the property is taken into possession or the money received. Therefore, as the defendant in the case before us offered no evidence as to the means by which his intestate acquired the possession of the note, he must be deemed a tort-feasor, and as the actiоn of assumpsit is founded in contract, for the purposes of this action, he is regarded as an agent only by cоnstruction and becomes liable to the plaintiff’s action, as soon as he received the proceeds of the note, and the statute began to run from that time, and no demand was necessary to put it in motion.
*196 We are therefore of the opinion that the sum of one thous- and and fifty-nine -fair dollars received by the defendаnt’s intestate on the 14th day of January, 1875, is barred by the statute of limitations, but that there is no bar to the recovery of thе sum of two hundred and eighty Tin? dollars, with interest, that sum having been received within three years before the death of Ann Camp, plaintiff’s intestate, and the action was brought within one year after the issuing of letters of administration on her estate. C. C. P., §43.
The judgment of the superior court must be reversed and judgment entered in this court in accordance with this opinion.
Error. Reversed.