On Rehearing.
PER CURIAM.Our attention has been called to what is claimed to be an error in the opinion to the effect that when Morton and Williams delivered the warehouse receipts to the State National Bank as better security for an indebtedness they owed it, and when the bank sold the same and received the price of it and credited the amount thereof on the debt of Morton and Williams to it, the said Morton and Williams did not receive such property right as to be sufficient upon which to found a trust in invitum, and to support such a liability. We thought the credit which Morton and Williams received from the State National Bank was not such a res as to support the claim of a constructive trust in respect to it. It was on that theory alone that we thought the bill of complaint was subject to the demurrer of Morton and Williams.
We allowed an amendment to be filed to enable complainant to make it clear that a personal judgment against Morton and Williams is sought here only on the theory they are jointly liable with the State National Bank, Saunders v. McDonough, 218 Ala. 207[3], 118 So. 389, which is alleged to have received from Morton and Williams the cotton on which complainant had a lien and sold the same and received value for it, althoug'h thereby Morton and Williams did not receive any property by the transaction on which a constructive trust could be fastened against them. They are proper parties in a suit in equity to enforce the claim against the State National Bank, and being liable to complainant for a breach of their trust a personal judgment may be rendered to do complete justice in the one suit. Leach v. Gray, 201 Ala. 47, 77 So. 341, 7 A.L.R. 890.
With reference to a constructive trust, it is said in 3 Bogert’s Trusts and Trustees, section 481, page 80 (part 1) : “In each there is to be found an acquisition of property by a trustee or other fiduciary by means of a breach of one of his duties as fiduciary and the assertion of a right by the cestui or other intrusting party to the benefit of such property through the declai-ation of a constructive trust.” And again in section 471, page 3, it is said that a “constructive trust may be defined as the device used by chancery to compel one who unfaiidy holds a property interest to convey that interest to another to whom it justly belongs. When a court of equity finds that a defendant is the holder of a property interest which he retains by reason of unjust, unconscionable, or unlawful means, it naturally desires to take such interest from the defendant and vest it in the wronged party”. We quote from page 11, as follows: “In many cases where a constructive trust is decreed, the plaintiff has the choice between a remedy at law and the coxistructive trust or another remedy in equity. In a suit to obtain a constructive trust, it is not necessary to pi'ove the inadequacy of the remedy at law. The complainant may freely elect between the-relief which the law can give and the constructive trust device”. And on page 17, it is said: “The decree which establishes the constructive trust usually recites that the defendant is declared to be a constructive trustee of the res for the complainant and is directed to convey the res to the complainant”. It is said in 65 Corpus Juris 968, et seq:
“While it has been said that the right to follow and recover trust property *593first existed only with reference to the identical trust property in its original form, which it was necessary to identify, it is now settled that the cestui ■que trust may follow the trust property through any change in form or species and have the trust attached to the property in its new form, for the product of the trust property follows the nature of the original thing itself. Thus the cestui que trust may generally claim, as subject to the trust, any proceeds which the trustee has received for the trust property, or any property into which the trustee has invested or converted the trust property, or the proceeds thereof, provided, of course, the property claimed can be identified as the product into which the trust property can be traced.”
Sometimes a complainant seeks to claim the res itself (or a lien on it), the thing which the trustee received in disposing of trust property. When so, it must be found and identified in possession of defendant or of one who holds with notice so that the court through its processes may seize the identical thing and deliver it to the complainant, or enforce a lien on it and subject it to sale. This right is given full force and effect in our cases and the limitations are also stated. Hutchinson v. National Bank of Commerce, 145 Ala. 196, 41 So. 143; Nixon State Bank v. First State Bank, 180 Ala. 291, 60 So. 868; Brooks v. Greil Bros. Co., 192 Ala. 235, 68 So. 874; Lummus Cotton Gin Co. v. Walker, Sup’t, 195 Ala. 552, 70 So. 754; Evans v. Evans, 200 Ala. 329, 76 So. 95; Hanover National Bank of New York v. Thomas, Sup’t, 217 Ala. 494, 117 So. 42.
A complainant may have a personal judgment for the money value of the property withheld, with or without a lien on it, or for the property itself. But in any event, there must be property received by the alleged trustee in invitum as the consideration for the trust property unlawfully disposed of, so that a constructive trust may be fastened. If there be no such property equity is not available to enforce a constructive trust even merely to render a personal judgment.
We have not found a case or authority where the property on which a trust in invitum was sought to be fastened in equity was merely a credit on an existing debt owing by the recalcitrant trustee to the person to whom he illegally disposed of the trust property.
We improperly observed in the above opinion that a suit at law for money had and received would not lie when such credit was all that the erring trustee received. That has been taken out of the opinion. The contrary has been held in this State. Alabama Dry Dock & Shipbuilding Co. v. Ward, 32 Ala.App. 535, 27 So.2d 710, certiorari denied, 248 Ala. 371, 27 So.2d 716; 58 C.J.S., Money Received, § 3, p. 912; 41 Corpus Juris 32.
But we think that holding does not conflict with the requirement that to enforce a constructive trust there must have been a tangible form of identifiable property which was received as the consideration for the sale of trust property or into which it may be otherwise traced and identified. An action on a common count for money had and received is available when one person has received money or money’s value which in equity and good conscience belongs to complainant. Barnett v. Warren, 82 Ala. 557, 2 So. 457; Farmers’ Bank and Trust Co. v. Shut and Keihn, 192 Ala. 53, 68 So. 363; Dorsey v. Peppers, 202 Ala. 321, 80 So. 403; Allen v. M. Mendelsohn & Son, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063; Tipton v. Duke, 221 Ala. 77, 127 So. 524; Goodall Real Estate & Insurance Co. v. North Birmingham American Bank, 225 Ala. 507, 144 So. 7.
That action is available to such a beneficiary at his election when a constructive trust arises under those circumstances, but it is not limited to a situation where a constructive trust may be decreed. Whereas a constructive trust will not always be decreed when a suit for money had and received is available.
The principles applicable to a suit for money had and received are discussed in our cases digested in 14 Alabama Digest, Money Received, 1 et seq. and pocket *594part, and support the statements made above. See, also, Johnston v. Johnston, 256 Ala. 485, 55 So.2d 838.
The opinion should be modified as indicated and the application for rehearing overruled.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Opinion modified; application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON, STAKELY and CLAYTON, JJ., concur.