The opinion of the court was delivered by
Kennedy, J.The first error assigned has reference to that part of the charge, in which his honour, the judge of the district court, says, “he (meaning the defendant) sustained no fiduciary character as regarded the plaintiff; he was not his guardian; he acted neither as plaintiff’s agent or trustee by any contract, express or implied, either in law or equity.” This is certainly all true, strictly so in point of fact;' at least it must be so considered, when not a syllable of testimony appears to have been adduced tending to prove the" contrary; and more especially, when, as the learned judge says in the preceding clause, “ by the plaintiff’s own showing, the defend*341ant took possession of the land, held and occupied it as his own, received the rents as his oion, for twenty-five years, and sold it as his own.” It is true, the defendant’s father was the guardian of the plaintiff, who it seems attained full age in 1803 or 1804, ten years, at least, before the death of the defendant’s father, in the course of which time, it might well be presumed that the guardian had rendered a satisfactory account of his guardianship to his ward; and that the latter, if he had any claim to the lot in question, would have asserted it. Nothing of the kind, however, is even pretended until nearly twenty years afterwards. But the evidence on the part of the defendant is, that the father not only cleared the lot in the first instance, in 1800, it being then woodland, but ever after-wards, as long as he lived, leased it out, occupied it by his tenants, had buildings and improvements put on it, and in short used it in every respect as his own. These things were certainly different from, if not incompatible with what his duty as a guardian required; and not only so, but attended with an expense and charges which, as guardian, he could not have claimed any reimbursement on account thereof from his ward, and therefore not at all likely that they were made for the benefit of the latter. And further, when in addition to all this, it does not appear that William Braden, the father of the plaintiff, ever, at any time during his life, claimed the lot or had the possession of it; but on the contrary, it being shown conclusively that George Wallace, in 1789, the year perhaps preceding the death of William Braden, purchased the lot from the commonwealth, and obtained a patent therefor from the same, investing him with the legal title to it for his own use, it would not seem that there was the least ground upon which a trust even in James Robinson, the father of the defendant, could be established or presumed to exist in favour of the plaintiff. Neither could it have been fairly inferred therefrom, that the plaintiff had any interest in the lot in common with the father of. the defendant, or indeed that the plaintiff ever had any real interest in it at all, of any kind whatever. We, therefore, can perceive no error in what the court said to the jury on the subject of trust.
In regard to the second error, it may be observed, that it is impossible not to see that the action of assumpsit has been substituted here by the plaintiff for ejectment. It is not the case of a personal action brought for the breach of a promise or contract, relative to land or real estate, in any shape or form that can possibly be imagined or given to it. If it were so, and the title to such land had been brought in question, incidentally or collaterally, and in order to effectuate justice, it became necessary to inquire into and pass upon it, it would have to be done ex necessitati rei, notwithstanding the action is personal. But when, as in this case, no contract or promise whatever is even pretended to have been ever made between the parties, for the breach of which this action is brought; but on the contrary, the plaintiff, in order to sustain his case, com*342menced in the very outset, hy introducing evidence which possibly might be thought bysome,as tending to show that he had some colour of claim to the land, instead of money as claimed in his declaration, though it would appear to be nothing more, at most, than the merest shadow of a claim, especially after it was proved beyond the possibility of a doubt, by the production of the patent itself from the commonwealth, that the legal title to the land was vested in a third person, upon whom the plaintiff did not even attempt to show that he had the least semblance of claim for it whatever: His greát endeavour on the trial was to show that he had a right to the land, and not the money, under any obligation or contract entered into by the defendant for the payment of it, or performance of any thing else, for the non-performance of which money might be recovered as an equivalent or satisfaction. It is therefore literally a personal action brought to try the title to land, and instead of recovering the land itself, upon showing a good title to it, to recover from the defendant the value thereof in money, by showing what is not denied, that the defendant, after having been in the possession of it for twenty-five years, claiming it as his own, converted it to his own use, by selling it as his own absolute and exclusive property. It is, therefore, most palpably impossible to sustain the plaintiff’s claim in this action, without subverting the rule laid down and recognised in the cases of Mather v. Trinity Church, 3 Serg. & Rawle 509; Baker v. Howell, 6 Serg. & Rawle 476; Brown v. Caldwell, 10 Serg. & Rawle 114; Irvaine v. Hanlin, 10 Serg. & Rawle 220; Snyder v. Vaux, 2 Rawle 423, and Powell v. Smith, 2 Watts 126. The rule of these cases shows clearly that the action of assumpsit is not the proper form of action, in which conflicting titles to land or the right of the inheritance can be tried. 6 Serg. & Rawle 481. The second error, therefore, has nothing in it, and cannot be supported.
Neither can we perceive any thing to complain of in the third error assigned. The court merely spoke of the possession which the defendant took and held of the lot, as it was shown to be by the evidence adduced by the plaintiff himself. In short, it was impossible to view it or to speak of it, as being other than, adverse to all the rest of the world.
Judgment affirmed.