The evidence offered by the plaintiff was improjjerly refused by the court. It appeared inferentially from the evidence which had already been given, that the defendant had accepted and recognized the power of attorney, and that he had, in effect, assumed to act as the agent of the plaintiff; and the plaintiff offered to show that he had fully and in fact recognized the agency, and induced the plaintiff to place confidence in him, as such. In that confidential relation he was bound to the utmost degree of good faith, - and had no right, while professing to act in that capacity, to make himself the agent of other parties for the purchase of the lands he was authorized by the plaintiff to sell; nor to take any advantage of the confidence his position inspired, to obtain the title himself. Nor could he make a valid purchase from his principal, while that confidential relation existed, without fully and fairly disclosing to his principal all the propositions he had received, and all the facts and circumstances within his knowledge, in any way calculated to enable his principal to judge of the propriety of such sale.
By his agreement with Wilkins and others in London, which appears to have been read in evidence without objection, it clearly appears that the defendant violated his *443duty to the plaintiff, or that he would be compelled to prove recreant to them: he had undertaken to act in two inconsistent capacities. For, while recognizing and referring to the power of attorney, he assumes the position of a joint purchaser, to some extent, of the same lands, with the three London parties, and undertakes to act as their agent, in a manner wholly inconsistent with his duties to the plaintiff. Prima faeie, this agreement is indicative of an intent to defraud the plaintiff, his principal. There was but one way in which it could be reconciled with good faith and honesty of purpose, and that was by laying the whole transaction, every fact and inducement connected with, or bearing upon it, fully and frankly before his principal; and if he then chose to ratify it, or to continue further to avail himself of the defendant’s agency in the sale, the transaction would have been fair and honorable towards the plaintiff at least. Whether he did this or not, this court have no means of knowing except from the offer of the plaintiff to prove the contrary; and for the purpose of disposing of this case in this court, we are under the necessity of considering the evidence offered and rejected as true. The .further evidence offered by the plaintiff and rejected by the court, would, if it had fully met the offer as made^ have tended strongly to show, and would have authorized the court or a jury to find, substantially, that the defendant, on his return from London, in accordance with a previous understanding with his associates there, fraudulently concealed from the plaintiff all knowledge of the agreement in question, falsely representing to the plaintiff that he had sold the land to certain parties in London, not naming them, for only twenty-two thousand dollars, which he represented to be the highest sum he could ob tain for them; of which he had received two thousand dollars down, which he was ready to pay over: and by the fraudulent concealment of all the real facts of the case, as well as by various false and fraudulent repre*444sentations and pretences (particularly set forth in the bill of exceptions) induced the plaintiff to believe such sale had been made, and though the power of attorney had been exceeded, to consent to the sale thus fraudulently represented to have been made; and that the defendant, still professing to be acting as the agent and for the interest of the plaintiff, who still reposed confidence in him as such, induced the plaintiff to receive the two thousand dollars, as part of the supposed purchase price; and that by equally false and fraudulent representations, and, as he led the plaintiff to believe, for the purpose, and as a necessary or convenient means, of carrying into effect his agency in completing the sale to the London parties, he induced the plaintiff to execute to him a deed of the property, taking back a mortgage from the defendant without any personal liability on his part, for the supposed balance of twenty thousand dollars in six months; the defendant representing to the plaintiff that if this sum should not be paid by the purchasers within the time, he would reconvey to the plaintiff, and the two thousand dollars would be forfeited to him. In short, such evidence would have shown that the defendant ¡rurposely took advantage of the confidence which he knew the plaintiff reposed in him as his agent, and obtained the deed from him by a gross and deliberate fraud; a fraud not depending upon the subsequent non-performance of a parol promise, but an actually preconceived and deliberate intention to cheat and defraud the plaintiff, accompanying and forming part of the transaction itself.
The deed being thus obtained, the land in equity and good conscience, as between the plaintiff and the defendant, still belonged to the plaintiff; or, to express the same idea in the more formal and technical language of a court of equity, the effect of the transaction was to place these lands in the hands of the defendant, subject to a trust in favor of the plaintiff, by operation of law; such being *445the legal effect which a court of equity would give to the whole transaction: — See Lloyd v. Spillet, 2 Atk. 250 ; Rutherford v. Ruff, 4 Desaus. 350; 1 Paige, 147; 2 Bouv. Inst. 327.
This species of trust may always be proved by parol, notwithstanding the statute of frauds. Ii this could not be done, the statute, which was intended to prevent fraud, would itself become the most efficient protection to fraud ever contrived by human ingenuity: — See Hill on Trustees, 166; 1 Hovenden on Frauds, 471, and cases cited; Jenkins v. Eldredge, 3 Story, 181; Cox v. Cox, 5 Rich. Eq. R. 365.
But the plaintiff is not here seeking strictly to enforce a trust, and I refer to this doctrine of trusts only for the purpose of showing that the land in equity and good conscience still belonged to the plaintiff, after the execution of the deed; and if so, the money which the defendant afterwards received on the sale of it must also belong to him ex equo et hono.
But the plaintiff, to sustain his count for money had •and received, and to show that money had come to the hands of the defendant which, of right, belonged to the plaintiff, further offered to show that the London parties, having failed to carry out their written agreement with the defendant, he, the defendant, in August, 1853, with, out the knowledge or consent of the plaintiff, actually sold these lands to one Henry Weld Fuller, subject to the mortgage from defendant to plaintiff, for the sum of fifteen thousand dollars in cash, which was 'paid to the defendant; the purchaser undertaking to pay off the plaintiff’s mortgage of twenty thousand dollars; thus making the real purchase price thirty - five thousand dollars, of which, -putting the transaction upon the ground of an agency on the part of the defendant, the plaintiff had received two thousand, and a mortgage for twenty thousand, leaving a balance due him of thirteen thousand dollars.
*446This deed to Fuller being properly recorded, the plaintiff was, of course, precluded from disaffirming the sale and recovering the lands, or from enforcing a trust against the grantee, without proving actual notice to the purchaser of defendant’s fraud in obtaining the deed. Such notice can not be presumed without proof, and, as there appears to-have been no pretence of any such notice, Fuller, so far as. the present case is concerned, must be considered a purchaser in good faith without notice.
As the plaintiff, therefore, could not avoid the sale by a bill in chancery, and as his only remedy there, upon the facts offered to be shown, must be confined to the purchase money, he brings his action for money had and received for the balance of the purchase money, thirteen thousand dollars, in the hands of the defendant; thus affirming the deed to Fuller, the defendant’s agency in the sale, and- his own deed to the defendant. But this no more affirms or admits that the money received for the property belongs to the defendant, than a plaintiff admits the same thing in the ordinary case of waiving a tort and suing for the proceeds of the property wrongfully sold.
The plaintiff, therefore, does not seek to show the fraud of the defendant for the purpose of avoiding any deed: and the cases cited from New York and some other states, to the effect that fraud of this kind can not be shoAvn at law to avoid a deed — a doctrine which I think may well be doubted under our statute (Comp. L. §4327; see 2 Pars. on Cont. 280) — have no application to the present case.
The plaintiff does not sue upon any parol contract required by the statute to be in Avriting, nor upon any express contract whatever; but upon one which the law implies from the equities of the whole case; or rather, upon a duty on the part of the defendant, which the law recognizes as springing from the whole transaction. Nor is the action brought to recover back the consideration *447paid on a contract rescinded; and the plaintiff is no more bound to tender back what he had received upon his land, than the principal, in an ordinary action against his agent for money received in the course of his agency, would be bound to return to the agent the amount he had already received from him, before he could recover for the balance. The plaintiff sues for a part of the price of his land, fraudulently received by the defendant as his agent. Neither the provisions of the statute relied upon, nor any provision of the statute of frauds, any more conflict with such an action than if it had been brought for the price of goods wrongfully sold.
The statute relied upon, and which requires certain estates and interests in lands, and express trusts relating thereto, to be created or declared by deed, was fully complied with in the present case: — Van Alstine v. Wimple, 5 Cow. 162. This statute has no reference to an action brought for the price of land, nor does it in any way operate to exclude parol evidence in support of such action, which may still be maintained by such evidence, though the deed acknowledge the receipt of the consideration : it is in this respect but a receipt, and only prima facie proof of payment of the consideration: — 1 Phil. Ev. by Cowen, Hill & Edwards, 477, n. 131, and cases cited. The legal effect of the deed as a conveyance, which is its real purpose, is not altered by parol proof in such cases; nor is it any more altered or- affected by the like proof in the case before us.
We must consider this case, upon the evidence offered by the plaintiff, as falling substantially within the ordinary rules applicable to actions brought by a principal against his agent for money received by him on the sale of his principal’s property. To hold otherwise would be to sanction the doctrine that an agent may, at any time, get rid of his obligations to his principal by his own fraud, and that he may set up this fraud in bar of his principal’s right to the proceeds of his own property.
*448Bat it is objected that the plaintiff’s remedy is in equity, and that this is an attempt to convert the action of assumpsit into a, bill in equity. We do not mean to say that the plaintiff could not have sustained a bill in equity upon the facts of this case. A court of equity might sustain such a bill for the purchase money, as founded upon the notion of a trust; and the plaintiff might be entitled to a discovery. In respect to the discovery, such a bill might, perhaps, hi some cases of the kind, be a more advantageous remedy. But if, for want of such discovery, this action is less advantageous to the plaintiff, that can be no ground of complaint on the part of the defendant. The plaintiff may waive his right to discovery, and take upon himself the risk of being able to prove his case without it.
We understand the law to be well settled, that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties; and if it appear, from the whole case, that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover. And that, as a general rule, where money has been received by a defendant under any state of facts which would, in a 'court of equity, entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action. We do not mean to say there are no exceptions to this rule, standing upon some rule of policy or strict law, in peculiar cases; such as money wrongfully recovered upon a judgment which remains unreversed (as in the case of Moses v. Macpherlan, 2 Burr. 1005), or where there is a special agreement still open and unperformed. But we are aware of no such exception applicable to a case like the present: nor can we discover any plausible reason why it is *449not just as competent to inquire into such a fraud, in a case like the present, in a court of law as in a court of equity. The view we have taken of the nature of this action for money had and received has, we think, been the well settled legal view of the action, at least since the case of Scott v. Surman, Willes, 404, 405, (in the year 1742) long previous to the case of Moses v. Macpherlan. ‘The opinion of Lord Mansfield in the latter case, as to the general nature of the action, has not, that we are aware, ever been overruled by any respectable authority; though it has been overruled as applied to some of the facts of that case.
That such is still held to bo the equitable nature of this action, might be shown by a very long list of authorities both in England and in this country; but we cite only the following as illustrating what may be considered an almost unbroken series of judicial decisions: — Abbotts v. Barry, 2 B. & B. 369; Hill v. Perrott, 3 Taunt. 274; Kelley v. Solari, 9 M. & W. 54; Wiseman v. Lyman, 7 Mass; 288, 289, (where the nature of the action is very fully explained) Hess v. Fox, 10 Wend. 436; Eddy v. Smith, 13 Wend. 488; Mowatt v. Wright, 1 Wend. 360 (which like Hess v. Fox, confirms Moses v. Macpherlan as to the equitable nature of the action); Weeks v. Hunt, 13 Vt. 144; Scott v. Williamson, 11 Shep. 343; Beardslee v. Horton, 3 Mich. 560.
That this action lies, and all these equitable considerations apply, as well where the money has been obtained by fraud as by other means, see Litt v. Martindale, 36 E. L. & Eq. 424, and Abbotts v. Barry, above cited: and even where money has been received, as here, by the fraudulent procurement of a deed, which is affirmed by the action: — Bliss v. Thompson, 4 Mass. 488; and see Penemore v. United States, 3 Dall. 357.
And the same equitable considerations apply to any defense set up in this action: — Eddy v. Smith, ut supra.
In Wright v. Butler, 6 Wend. 284, it is expressly held *450that “actions of assumpsit on the money counts are resorted to as a substitute for bills in chancery, and are encouraged wherever the law affords no other remedy, and where a court of equity would compel a defendant to repay the plaintiff a sum of money which the latter had been compelled to pay for his benefit.’’ Substantially the same view as to the count for money had and received was held in Scott v. Surman, Willes, 404, and by the Supreme Court of Massachusetts in Peabody v. Tarbell, 2 Cush. 226; and see Gangwer v. Fry, 17 Pa. St. R. 491.
We think all the evidence offered by the plaintiff was clearly admissible. The judgment of the Circuit Court must therefore be reversed, and a new trial granted.
Martin Cii. J., and Manning J., concurred. Campbell J., did not sit, having been counsel for one of the parties.