I concur in the judgment of reversal, but as I differ with the Chief Justice upon certain points in the case, it is proper that I should state the reasons which control my opinion upon these points. The plaintiff relies for a recovery upon the invalidity of the contract under which the money in controversy was paid. It is claimed that the contract was void for want of authority in the persons professing to represent the city, and that the money was paid under a misapprehension upon this subject, and without consideration. There is no doubt of the invalidity of the contract; but it appears that, upon the payment of the money, a deed was executed in the name of the city, and that the plaintiff took possession of the property intended to be conveyed. If this deed is available as against the city for any purpose, or if injury or inconvenience is likely to result from it, before the plaintiff can recover, the property must be reconveyed and the possession surrendered. A recovery upon any other terms would be so unjust and *638inequitable that it cannot, of course, be allowed. In actions of this nature, relief is administered upon equitable principles, and a party-asking the assistance of the Courts in such cases must do whatever equity and justice may require. “The action for money had and received,” says the Supreme Court of New York, “is an equitable action, and will lie whenever the defendant has received money belonging to the plaintiff,' which, according to natural equity and justice, he ought to refund or pay over. It should not be extended, however, to cases in which the defendant may be deprived of any right, or subjected to any inconvenience thereby.” (Rathborn v. Stocking, 2 Barb. 135.) “ It is a universal rule,” says the same Court, “ that where a party seeks to recover back money paid upon a contract, on the ground that it is void for fraud, or that it has been rescinded, such party must restore or offer to restore whatever he has received under the contract, so as to put the other contracting party in statu quo. * * * Whatever may be valuable to the defendant must be restored to him, though it be of no value to the plaintiff.” (Moyer v. Shoemaker, 5 Barb. 319.) In Cope v. Williams, (4 Ala. 262) it was declared -by the Supreme Court of Alabama that a party in possession of land under a void contract of purchase must surrender the possession before he can maintain an action for the recovery of the purchase money. In Indiana, this point has been differently determined; but it is certain that where the contract is not absolutely void, money paid under it cannot be recovered back without a surrender of the possession ; and if a. deed has been executed, there must also be a reconveyance.
The law upon this subject is perfectly well settled, and there can be no doubt that if the effect of a recovery in this case will not be to put the parties in statu quo, the action must fail. The deed to the plaintiff is signed by the Mayor and sealed with the corporate seal of the city. It is admitted that the Mayor was the legal custodian of the seal, and that it was affixed by him, or under his authority. This is sufficient to entitle the deed to be read in evidence, and a party relying upon it need not go behind the seal for the purpose of showing the authority for its execution. It derives its character from the seal, and the seal itself is prima facie evidence of all the authority necessary'to render it a valid and sufficient conveyance of the property.
“ Where the common seal of a corporation,” say Angelí & Ames, “ appears to be affixed to an instrument, and the signatures of the proper officers are proved, Courts are to presume that the officers did not *639exceed their authority; and the seal itself is prima facie evidence that it was affixed by proper authority. The contrary must be shown by the objecting party.” (Ang. & Ames on Corp. sec. 224.) This doctrine is fully supported by the authorities referred to for that purpose. “ It is sufficient to observe,” says the Supreme Court of Tennessee, “ that the seal of a corporation to an instrument constitutes prima facie evidence that it was planted there by the proper authority, and that the instrument is the act of the corporation. (Levering v. The Mayor, etc., of Memphis, 7 Humph. 553.) “The mere proof of the seal,” says the Supreme Court of Pennsylvania, “is at least prima facie evidence that it was duly affixed; and, in the absence of evidence to the contrary, dispenses with the necessity of positive proof. * * * The seal itself is'prima facie evidence that the contract was duly entered into by the corporation.” (The President, etc., of the Berks and Dauphine Turnpike Road v. Myers, 6 Serg. & Rawle, 12.) “ The appearance,” says the Court of Chancery of New Jersey, “ of the common seal of a corporation to an instrument, is evidence that it was affixed by proper authority. * * * But while the common seal is held to be evidence of the assent and act of the corporation, it is not conclusive. It may, nevertheless, be shown that it was fixed without proper authority. The matter is susceptible of investigation. The burden of proof is thrown upon the objecting party, and he will be required to produce such evidence as shall be clear and satisfactory.” (Leggett v. New Jersey Manufacturing and Banking Company, 1 Sax. Ch. R. 541.) To the same effect is the language of the Court of Chancery of New York in Lovett v. Steam Saw Mill Association (6 Paige, 54). “It lies,” says the Court, “ with the party objecting to the due execution of the deed to show that the corporate seal was affixed to it surreptitiously or improperly, and that all the preliminary steps to authorize the officer having the legal custody of the seal to affix it to the deed had not been complied with.” The same opinion is expressed by the Supreme Judicial Court of Massachusetts, in Burrill v. Nahant Bank (2 Met. 163). “ The deed,” says the Court, “ duly executed under the corporate seal of the bank, and produced by the party claiming under it, is prima facie a good title, and it is for those who wish to set it aside to impeach it.”
It is unnecessary to multiply authorities upon this subject. I have looked carefully through the cases, and find that the weight of authority is overwhelmingly in favor of this doctrine. Miller v. Ewer (27 *640Maine, 509) and Johnson v. Bush (3 Barb. Ch. R. 207) may perhaps be regarded as opposing authorities; but the latter is not so considered.
It is impossible to doubt that the deed in this case is sufficient prima facie to pass the title. The money sued for is a part of the consideration which was paid for the property embraced in this deed, and the plaintiff, after taking possession of the property, conveyed it to a person who is still in possession, holding adversely to the city. Under these circumstances, it would be unjust to permit the plaintiff to recover without procuring a reconveyance of the property and a surrender of the possession. The proposition that this deed is a mere nullity cannot be maintained. I admit that, for the purpose of passing the title, or creating directly any right or interest as against the city, it is, in fact, inoperative and void. I admit, also, that it may be attacked collaterally, and its invalidity shown in any proceeding in which it is attempted to be used. The objections to it do not, however, appear upon its face, and I am unable to see upon what principle it can be regarded as an absolute nullity. Its invalidity must be shown by the party impeaching it, and evidence aliunde must necessarily be resorted to for that purpose. Prima facie it is a valid and sufficient conveyance, and it is such a cloud upon the title that equity would, upon a proper application, set it aside. It is sufficient to support an adverse possession, and a party holding under it must be deemed to hold adversely, and not in subordination and subjection to the real title. It can hardly be said that such a deed, however ineffectual for the purpose for which it was intended, is an entire nullity. Possession under it may ripen into a perfect title, and it cannot fail to prejudice the interests, if not the rights, of the lawful owner. In such cases, the law requires that the parties shall be placed in statu quo, and the Courts proceed upon the broadest principles of equity and justice. I see no escape from the conclusion, that before the plaintiff can recover, the property must be reconveyed, and the possession surrendered.
I think, however, that this judgment should not be affirmed. The effect would be to bar the plaintiff’s claim, and leave the title to the property still in the city. This would be as unjust as it would be to allow the plaintiff to recover without a surrender of the property. Upon a retrial of the cause, the plaintiff should be permitted to show that he had procured a reconveyance of the property and a surrender of the possession. This I deem to be the equity and justice of the case, and I therefore concur in the reversal of the judgment. I do so, *641however, upon condition that the plaintiff pay the costs of this appeal, and that the Court below be directed to dismiss the action, unless proof be made at the trial of such reconveyance and surrender.
The plaintiff elected to take judgment in the form indicated by Justice Cope.