— -It is true, that the title to land cannot be tried in an action of assumpsit for money had and received ; and for that reason, rents which have been received under an adverse holding cannot be recovered by the rightful owner in this form of action. But where the possession is not adverse, the true owner is entitled to recover the rents which have been received by another; in such case, it is money had and received to the use of the owner; and, as the person to whom the rent was paid would be compelled to account in equity, he may also be held responsible in the equitable action for money had and received. Monypenny v. Bristow, 2 Russ. & M. 117. Upon the case made by the record, no question could have been raised in the court below upon the title, as the bill of exceptions shows that the title after the death of Mrs. Price was in the plaintiffs, and there is nothing to show that any adverse claim was set up by the defendant.
In relation to emblements, the right of the tenant was unquestionably conferred for the encouragement of agriculture: but this right has never been held to obtain until the seed is sown, and the common law has drawn a distinction between the right to emblements and the costs of the preparation of the ground for the reception of the seed; as where the tenant for will is ousted after ploughing and manuring the land, he wholly loses his costs and labor, although if he had planted he would have been entitled to the emblements. Bro. Ab. Title, Emblements, 7. If, therefore, the term of the lessee was determined by the death of the tenant for life, he would *744only be entitled to tbe emblements of tbe land then seeded. Thompson v. Thompson, 6 Mun. 518.
We are also satisfied, that tbe'plaintiffs below properly sued in their joint names. Tbejr were tenants in common, and might join in any action on a contract in relation to their estate — 1 Chitty’s Pl. 9; as in an action of debt for rent — 1 Co. Lit. 317; — although they must sever in an avowry for rent; and the reason is, that the avowry savors of the realty, but until the distress and avowry the rent is in the 'personalty. Co. Lit. ib.
The charge of the court, that the plaintiffs, upon the facts admitted, were entitled to recover nine tenths of thp rent received by the defendant, cannot be sustained. The land was rented for the year 1847, commencing on the first of January. The lease was determined by the death of the tenant for life, in March, 1847; and the land which was actually seeded by the lessee, was about one tenth of the whole tract. Upon this portion, the lessee was entitled to the emblements; and for the whole land, subject to this right of emblements, the plaintiffs were entitled to rent from the seventeenth of March, 1847, and that portion, if received by the defendant, there being no claim of title, could be recovered by the plaintiffs in this action. But as this amount was not positively proved, and was only to be inferred from the facts admitted, the court could not determine it as a legal result, and say that the amount received by the defendant for less than ten months was nine tenths of the rent which was paid for the whole year. The rent received by the defendant for the land, from the determination of the lease in March to the end of the year, was a question for the jury to determine.
For this error, the judgment is reversed, and the cause remanded.