The action for money had and received is based upon an implied assumpsit, and, like that for use and occupation of land, can not generally be maintainéd against one holding lands adversely, or in repudiation of the plaintiff’s title, at the time of the defendant’s occupation, or the collection of rents by him. — 2 Green. Ev. § 120 ; Weaver v. Jones, 24 Ala. 423 ; Fielder v. Childs, 73 Ala. 567. The chief reason of this rule is, that the title to lands can not be tried collaterally in a personal action of this nature ; the law affording an easy remedy to the plaintiff by ejectment, with incidental damages for mesne profits as compensation for the unlawful detention of the premises.— Cooper v. Watson, 73 Ala. 252 ; Stringfellow v. Curry & Co., 76 Ala. 394. While these principles were admitted in Price v. Pickett, 21 Ala. 741, it was further held, that “where the possession is not adverse, the true owner is entitled to recover the rents which have been received by another the court observing, that “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 equitably action for money had and received.”
The present record does not show that the plaintiff was in possession of the lands in question, either at the time of suit brought, or at the time the defendant collected the rents. On the contrary, it affirmatively appears that the possession of the defendant was adverse during the period of time when the rents in controversy were collected by him, and that such collection was made under a claim of title based on a purchase of *191the lands at sheriff’s sale. It does not seem to us material that a suit in equity was at the time pending against the defendant and another, to reform a deed of conveyance to the same lands, so as to declare defendant a trustee holding the legal title for the complainant, and that relief was decreed on the bill thus filed. Perhaps, a liability to account for such rents, as in the nature of equitable mesne profits, might have been enforced in that suit, upon the theory of a trust. — Trial of Title to Land (Sedgw. & Wait), § 687; Dozier v. Mitchell, 65 Ala. 511. The evidence before us fails to show whether there was or was not such a recovery ; nor is the decree rendered in the chancery cause introduced as evidence before us. The question of res adjudicada, or former recover}', as to this matter, therefore, does not properly arise on this record. — Adams v. Olive, 62 Ala. 418; 1 Greenl. Ev. § 511; Shumake v. Nelms, 25 Ala. 126. The defendant appears to have resisted the suit, and the rents having been collected under claim of title by one in possession, the law can infer no implied agreement on his part to pay them over to plaintiff on demand.
The court erred in refusing to charge the jury, as requested by the defendant, to find for the defendant if they believed the evidence, and also in giving the converse charge requested by the plaintiff.
Beversed and remanded.