delivered the opinion of this court.
The appellant claims in this suit a sum of money, which he alleges was received by (lie appellee for his use.
The facts may be given in a few words. Goods were conveyed, by the owners of them, to the appellant, in order to secure the payment of a sum of money due from the former to the latter. Subsequently to the date of this deed, the same persons conveyed them to the appellees, who made sale of them on the 7th February 1845, and received the purchase money.
In making this sale the appellees committed a tort, for which damages might bo recovered. But the party who could have sued for the tort, might waive it, and claim the proceeds of sale, or a part thereof, in an action for money had and received.
According to the decision of this court iti the case of Jamieson vs. Bruce, 6 G. & J., 72, the appellant is to be deemed the owner of the property conveyed to him, and his right to institute this suit could not be controverted, if there existed no other fact in the case. It seems though, that on the 8th September, (the day subsequent, to the sale of the goods by the appellees,) the appellant, himself, executed a deed, thereby designing to assign to the persons, for whose use this suit was brought, his interest in the deed of mortgage, and because of the execution of this instrument it is insisted, that this suit ought to have been instituted in the name of the cestui que use, instead of the appellant. This is the material question upon this appeal.
*204It is thought that the court below erred, in instructing the jury, at the instance of the defendant, that upon this statement the action could not be sustained.
The suit might have been instituted for the conversion of the property, or for money had and received. The latter was preferred. The defendant, then, is to be regarded as a person duly authorised to sell, and to receive the proceeds of sale. For whose use did he receive them? Surely for the use of the person, who, at the time, was the owner of the goods, and who alone could then authorise him to make the sale. But the cestui que use, it is said, is, by virtue of the assignment, entitled to the money, (or a part of it,) for which the goods were sold. This is true, but then if compelled to sue for it, he must make use of the name of the assignor, as he cannot allege that this money was received for his use, when, at the time it was paid to the defendant, the cestui que use had no interest in the goods.
If this action for money had and received, can be brought at all in this case, (and this is not doubted,) then the legal plaintiff must necessarily be the person in whose name, though for the use of another, it is to be prosecuted. The sale is to be considered as made by authority derived from him; the money was received, at the time it was paid, for his use; and though he has since assigned all interest in the debt, and the property to secure that debt, yet this assignment did not give to the assignee a right to sue in his own name.
If instead of an action for money had and received, it had been thought proper to bring an action of trover for the conversion of these goods, that action must have been brought in the name of the person who was the owner of the goods at the time of the conversion; and so the action which was preferred, must be instituted in the name of the person by whose authority the sale, to be a legal one, must have been made at the time it was made: although if the sale had not been made until after the assignment, the suit could not have been instituted in the name of Leighton.
In deciding this question, we cannot antedate the assign*205ment, nor post-date the sale and receipt of the purchase money. On the day of the receipt of the money, the appellant had a chose in action, which he is permitted to assign.
So, too, notwithstanding the tort, if the plaintiff chooses to sue for money had and received, neither party can allege that, the legal plaintiff on the day after the sale, could, by deed, transfer the legal title to the goods; as neither can say, that on that day the legal plaintiff had not parted with his title to the goods. This would deny the plaintiff’s right to waive the tort, and affirm the sale, made on the 7th September.
The defendant being the mortgagee of the equity of redemption, is entitled to the money, provided he satisfied the mortgage. It is to recover the amount due on this mortgage, that this action is brought; and it cannot be said that the assignment of a later date, was such an assignment as required the assignee to institute the suit in his own name.
The court below erred in granting the prayer of the defendant, and in rejecting the first prayer of the plaintiff.
With respect to the third and fourth prayers of the plaintiff, we do not discover that they were warranted by the testimony, and for this reason we affirm them.
In refusing to give the first instruction prayed by plaintiff, and in granting the prayer of defendant, the court erred.
The rest affirmed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.