The plaintiff has brought an action for money had and received, to recover 200 dollars paid to the defendant, in part purchase of a certain piece of land, to which the defendant had agreed to give a title by deed. The payments were to be made, 200 dollars, at the time of the contract, which sum was actually paid; 200 dollars, at the end of one year; and 200, at the end of two years. Thus far the facts were agreed.
The contract was verbal; and the plaintiff adduced evidence tending to show, that the defendant was to give a deed of the land, on the payment of the first 200 dollars; and that the defendant held under one Bishop, by a deed fraudulent as to creditors, which fact he suppressed from the knowledge of the plaintiff; and that the creditors of Bishop had actually levied on, and appropriated to themselves on execution, the whole of the property.
The court charged the jury, if they should find, that a conveyance of the land, was to have been made to the plaintiff, on making the first payment, and that the conveyance had not been made, although the defendant had received the said payment, no demand was necessary to authorize a recovery of the money. They were further charged, if they should find, that the defendant, at the time of making the said contract, had not a good title to the premises, which was known to himself, but was suppressed fraudulently, with intent to induce the plaintiff to accept the deed from the defendant, that then no demand of the money was necessary. Two other instructions were comprised in the charge to the jury, one of which depended on a special demand never made, and of consequence, was of no importance in the case, and the other stated, that no inference could be deduced from the facts admitted, that the conveyance was not to have been made, before the 600 dollars were paid, with which no fault has been found. Laying these out of the case, the following general question is presented for decision; Whether the two first instructions contained in the charge were correct.
*3551. It is a principle well established, if the purchaser has paid any part of the purchase money, and the seller refuses to complete his part of the contract, that the purchaser may make his election, either to affirm the contract, by bringing an action for its non-performance, or to disaffirm it ab initio, and bring an action for money had and received to his use. The principle stated above is proved, by Dutch v. Warren, cited 2 Burr. 1011. and Farrer v. Nigtingal, 2 Esp. Rep. 639.; and in Dowdle v. Camp, 12 Johns. Rep. 451. it is clearly implied. The plaintiff was not bound to pay the money, unless contemporaneously with the delivery of the deed; and if it were actually advanced in expectation of that event, it would be unjust to hold, that it might not be recovered back. It would, most clearly, be the payment of money by mistake, to which the defendant could have no possible claim.
It was a duty existing on the defendant, to deliver to the plaintiff a deed of conveyance, or to repay the money received, although the plaintiff, at his election, might decline taking it back; and where there is a precedent debt or duty, a special demand is not necessary. 1 Chitt. Plead. 323. Birks v. Trippet, 1 Saund. 33. and n. 2. by Williams. Bull. N. P. 151.
These principles fully sanction the first instruction contained in the charge of the court.
2. Where money is paid through mistake, or the deceit of another, an action for money had and received is sustainable to recover it back. If land is actually sold, when under a prior incumbrance, so that the vendor, who has received the purchase money, cannot give a title, this action lies. Putnam v. Westcott, 19 Johns. Rep. 73. Caswell v. Black River Manufacturing Company, 14 Johns. Rep. 453. A fortiori, may it be maintained, where the money of the plaintiff has been procured by fraud. Hogan v. Shee, 2 Esp. Rep. 522. Robinson v. Anderton, Peake's Rep. 94. I forbear the citation of more cases; the principle being perfectly familiar, and incontrovertibly established. Nor can there exist a question, that no special demand is necessary, in a case of this description.
I barely subjoin the remark, that money paid to a person for a bill forged by himself, would be recoverable on demand, on no surer principles, than a similar advancement to a person perpetrating a fraud, as in the present case, through a different medium.
I perfectly concur with the judge on the circuit, in the correctness of the charge; and would not advise a new trial.
*356The other Judges were of the same opinion.New trial not to be granted