The opinion of the court was delivered, January 29th 1872, by
Sharswood^ J.There is but a single question in this case, namely, whether the court below erred in refusing to affirm the point presented by the defendant. They gave their reasons for so doing in an opinion accompanying the answer. Whether the *354reasons were right or wrong is totally immaterial. By dissecting this opinion the plaintiff in error has made seven assignments. The first is the only one necessary to be considered. The court were asked to say that the verdict and judgment in the case of John B. Mackey, executor of David Mackey against John Mackey, in which the money claimed in this suit was recovered, is a conclusive bar to the plaintiff’s recovery in this case. That they were right in declining to affirm this point is abundantly clear. It would have been manifest error to have done so. Elizabeth Coates in this action demanded of the administrator of John Mackey money had and received by John Mackey to her use. She gave evidence by the testimony of witnesses to repeated declarations by him in his lifetime that he had received and held the money collected of James Steele for her. The administrator produced and gave in evidence the record of a suit by John B. Mackey, the executor of David Mackey, against John Mackey, for the money in question, to which he had pleaded a set-off, and recovered judgment in his favor. Supposing it all to have been bond, fide, on what principle can that record be an estoppel to the plaintiff below, any more than mere payment to David Mackey would have been ? She was no party nor privy. The defendant, John Mackey, gave her no notice to come in and defend. As to her it was res inter alios acta.
It is contended, however, that John B. Mackey, the executor of David Mackey, had the legal title to sue, and that the title of Elizabeth Coates, if she had any, was only an equitable one as cestui que trust, and that John B. Mackey must be regarded as having sued to her use. It would follow that John' Mackey would be protected by the judgment in that case. But this contention is founded upon an entire mistake of the relations of the parties. The plaintiff below claimed and had given evidence to show that David Mackey had assigned the mortgage of James Steele, upon which the money had been collected, to John A. Mackey, in trust for her. This was a question of fact in the cause for the jury. Assuming it to be so, it is plain that John A. Mackey, and not David Mackey, was the party who received the money to the use of Elizabeth Coates, and was her trustee. The claim of John B. Mackey, the executor of David Mackey, was hostile to her title. If her allegation of fact was true, he had no right, legal or equitable, to the money. David Mackey had assigned the mortgage under seal to John A. Mackey. John A. Mackey had recovered the amount, and paid it to John Mackey, for the use of Elizabeth 'Coates. A trustee sued by a stranger on a title hostile to his cestui que trust, in order to protect himself by the recovery against him, must at least show that he acted bond, fide; that the cestui que trust, if sui juris, was notified of the suit, and had an opportunity to defend. So far from this, the evidence, if believed by the jury, tended to show that John Mackey with a full know*355ledge of the title of Elizabeth Coates had set up an old paid note as a defalcation, declaring, however, at the time, that he did this for the purpose of protecting the money in his hands, as the proper money of Elizabeth Coates, from the hostile demand of John B. Mackey, the executor of David Mackey. It would be a great perversion of law and justice to hold that he could now avail himself of that judgment as a conclusive bar to a recovery in this suit.
Judgment affirmed.