ON MOTION FOR REHEARING.
Guerry, J.This court is not unmindful of the fact that this suit was brought by the executor of the transferee of the tax fi. fas. Neither are we unmindful of the ruling made in Alexander v. Dean, 157 Ga. 280 (121 S. E. 238), nor of code section 4421, and that this section is applicable to actions pending at the time of the death of one of the parties. A representative of a deceased tortfeasor may not be sued in an action of trover, where the action is brought after the death of the testator, “yet the law would afford •the plaintiff some form of action.” “No mischief is done, for, so far as the cause of action does not arise ex delicto, or ex maleficio of the testator, but is founded in a duty which the testator owes the plaintiff upon principles of civil obligation, another form of action may be brought, as an action for money had and received.” Alexander v. Dean, supra. As was said in Citizens & Southern National Bank v. Hendricks, 176 Ga. 692 (168 S. E. 313, 87 A. L. R. 230), “The provisions of code section 4421 do not apply to causes of action, but merely to actions.” This code section does abate the right of actions in trover or tort by the death of either party, but does not abate an action already started. “It would be otherwise if the plaintiff, waiving the tort, had sued as for money had and received.” Citizens &c. Bank v. Hendricks, supra. That is exactly what was done in the present case. The plaintiff elected to sue for money had and received. An action for money had and *775received will lie on an implied contract or assumpsit, or it will lie whenever one party has money or other property of a definite value which ex aequo et bono belongs to another. The fact that an action for deceit would lie does not prevent the plaintiff from planting his case on the “natural equity” which the law recognizes. “Mere breach of contract does not constitute a fraud which will sustain an action in tort for fraud and deceit, nor does a fraud necessarily give rise to an implied contract which will sustain an action ex contractu. But the same act or transaction may constitute both a breach of contract and an actionable fraud, in which case the injured party may sue either in contract or in tort; and there are cases where from the circumstances constituting the fraud the law will imply a contract, and authorize an action either in tort or on the implied contract, the tort, in case the action is brought in contract, being waived.” 1 C. J. 1020.
Viewed in this light, it becomes immaterial whether the transfer or assignment of the judgment was made “without recourse.” If it was fraudulently made and one party has money which under the principles of natural justice belongs to another, a right or cause of action exists for money had and received. The writing of the words “without recourse” was only a part of the transaction which gave rise to the natural equity to repay the money implied by law, and, as already shown, it can have no effect on the plaintiff’s right to recover in this case. If the suit were on the fi. fas. a different question might have been presented, under the ruling made in Thompson v. First State Bank, 102 Ga. 696 (29 S. E. 610). However, in the Thompson ease, which was the assignment of a judgment without recourse, no question of fraud, through forgery or fictitious issuance, was involved and what was said therein does not mean that any person or municipality may issue a duplicate fi. fa. against a taxpayer, when it has prior to that time already issued the same fi. fa. and ■ collected the full amount due thereon, and then sell such duplicate fi. fa. which is worthless and fictitious, and protect itself by a transfer without recourse. The action against the municipality here is not an action on the fi. fa. and its transfer, but is an action that arises out of the natural equity of the plaintiff’s case.
The allegation with respect to the reasons why plaintiff and his testator did not discover the alleged fraud are sufficient to with*776stand the demurrer with respect to the statute of limitations.
With regard, to the statute of limitations, if money is procured by fraud and plaintiff waives the tort and sues in contract, the statute of limitations will commence to run from the time the fraud was discovered, in the same manner as if the action was in tort. Penobscot R. Co. v. Mayo, 68 Me. 470. Rehearing denied.