delivered the opinion of the Court.
This is an action of assumpsit, instituted by the appellant, to recover certain sums of money paid by him as •assessments of benefits upon certain vacant lots of ground, for the opening of Wilkins avenue ; and which said lots had been purchased from the City at a sale of the residue of certain lots, attempted to be taken in the whole by the “ Commissioners for Opening Streets,” and not required for the bed of the said avenue.
The property was taken and sold under Ordinance Eo. 25, of April, 1813, (City Code of 1819, p>. 996,) which provides, that “ in ever}7 case where it shall be necessary, in order to effect the object proposed, that a part only of a house and lot, or of a lot, shall be taken and used, or destroyed, and the owner or owners thereof shall claim to be compensated for the whole, the said Commissioners may ascertain the full value thereof, as if the whole lot and improvement were necessary to be taken and used for such proposed object; and the whole amount of such valuation, when finally decided on, shall be paid or tendered to the owner or owners thereof, or vested in City five per cent, stock, &c.,” and the Ordinance then provides that the Street Commissioners shall, in the manner there*358in prescribed, “sell the materials of any house which it shall be necessary to remove, in whole or in part, and the residue of any lot of which a part shall he taken and used as necessary to effect the object confided to the Commissioners, and for which the owners shall claim to he fully compensated, at public auction to the highest bidder, for cash, to be paid on the day when full possession shall be given of the property or materials so sold, and the said Commissioners, or a majority of them, on receiving the price or sum of' money so hid, shall convey to the purchaser,” &c., and then after some other provisions not necessary to be noticed for the purposes of this case, the Ordinance goes on to provide, “that when a lot is destroyed for the purposes for which it is used or for building purposes, then the said Commissioners shall give notice in writing to the owner or owners thereof, or their agent or agents, of the damage about to be sustained, and that such owner or oioners, or their agent or agents as aforesaid, shall have the space of thirty days to determine lohether they will or not surrender-the lot so damaged.”
The alleged defect in the title acquired by the sale under which the appellant bought, as to the Carroll property, is, that some of the owners were infants, and could not assent to the surrender of the property, and that their guardian had no power to make such surrender; and as to the other lot, (the Murray lot,) that the owner did not in fact make the required surrender ; and we think' these-are fatal defects.
The Ordinance itself provides for the owner or his agent making the surrender, which would seem in terms to exclude the idea that any one but the ownerj or his duly constituted agent, should be able to make the transfer of the-property to the city; and as the surrender contemplated is equivalent to a sale or grant of the property to the city, or at least, a contract for a sale, no one who is not sui' juris, could in law be capable of making it; and there is. *359no power conferred by law upon the guardian of an infant to act for or bind his ward in making such a disposition of his estate.
The principles governing the proceedings under the Ordinance in question, by which the city assumes to take and sell property situated like this, not actually required to be used for any public purpose, are laid down in the case of The Mayor and City Council of Baltimore vs. Clunet, 23 Md., 449, in which the Court, answering the objection to the validity of the Ordinance, that it took, without the consent of the owner, property not necessary for any public use, say:
“ It does not sanction the taking of any property from the owner without his consent, not necessary for the public use. If more land is taken in any case than is required for the bed of the street, it is always done with the consent of the owner, to whom the option is given of retaining the fragment of a lot, when part is taken hy the city, or of claiming compensation for the whole, and allowing the part not taken, to be sold for the benefit of the parties charged with the cost of the improvement.”
Here then, we see the validity of the proceeding is made to depend upon the consent of, and surrender by the owner. As we find, therefore, in the case before us, that some of the owners of the Carroll property were under legal disability to consent or agree to the surrender, (which was equivalent to a sale) of their estate, and that there was no one capable in law to act for or bind them, we must hold that the proceeding was invalid to authorize the sale of that property by the city. In like manner, as to the Murray lot, the owner not having in fact made the surrender which was a condition precedent to the exercise of the power to take and sell the property, it is also clear that the proceeding was also without due authority and invalid.
The purchaser, therefore, took a defective title as to all the lots so bought.
*360The only question then is, can the appellant recover back the amount paid by him for the assessment of benefits made upon the said lots so bought by him ?
If the money so paid is to be treated as an assessment or tax, the voluntary payment would, it is well settled, preclude the right to recover it back. Mayor, &c. vs. Lefferman, 4 G., 436; Morris vs. Mayor, &c., 5 G., 244; Lester vs. Mayor, &c., 29 Md., 415; Cooley on Taxation, 566.
But we do not think this payment stands on such ground. Under the facts and circumstances of this case, we consider the money so paid as standing clearly on the footing of purchase money. In the advertisement of sale, it was stated that the purchaser should pay the price to be bid at the sale for the lots sold, and such sum ás should thereafter be assessed upon them for benefits.
The amount is paid because the purchaser stipulated to pay, as a part of the contract price, in addition to the sum bid at the sale, the amount which should thereafter be assessed as benefits, and hence it must be considered as a part of the purchase money agreed .to be paid for the lots, just as fully as the amount specifically bid a.t the sale. It does not matter that this additional sum was not known at the time of purchase. It was an amount to be definitely fixed, by a certain and defined course of procedure, and according to the maxim, “ id certum est quod oertum reddi potest,” there could be no uncertainty about the contract, which thus rendered the purchase money an entirety, though made up of one fixed sum, and another to be thereafter ascertained in a certain and defined mode.
The payment therefore being on account of the purchase of real estate, the title to which fails owing to the want of power in the vendor to make good its contract, and to convey a perfect title, and the consideration consequently failing, the right to recover back' the money so paid, is well settled upon principle and authority. 2 Addison on Contracts, (3rd Am. Ed.,) sec. 533; 1 Suyden on Vendors, *361(Perkins’ Ed.,) 251, n. (x.;) Share vs. Webb, 1 T. R., 132; Cripps vs. Reade, 6 T. R., 606; Johnson vs. Johnson, 3 B. & Pul., 162; Farran vs. Nightingale, 2 Esp., 639; 2 Chitty on Contracts, 920, &c.; Cloherty vs. Creek, 3 H. & J., 428.
(Decided 28th June, 1881.)And it is a general principle, that an action for money had and received will lie for any money in the hands of the defendant, which ex aequo et bono belongs to the plaintiff. Vrooman vs. McKaig, 4 Md., 450.
The case, (which was tried before the Court without a jury,) was presented to the Court below upon an agreed statement of facts, in which the right was reserved to except to the admissibility of certain facts contained in the statement and exhibits ; and the first exception shows that the defendant excepted to all the evidence going to show a defect of title in the lots bought, and that the Court allowed this exception, and excluded such evidence from consideration. For the reasons we have given as to the right- of the plaintiff to recover, this ruling was erroneous.
The second exception embraces the prayers. The plaintiff offered six prayers, all of which were rejected, and the defendant offered one prayer which was granted.
We are of opinion that the plaintiff’s fifth prayer, and his sixth prayer, (except as to the requirement of the allowance of interest, which was a matter of discretion,) correctly and substantially presented the law of the case, according to the principles we have laid down, and ought to have been granted ; and that the prayer of the defendant, which denied the plaintiff’s right to .recover, should have been rejected ; and finding these errors in the rulings of the Court below, it follows that the judgment must be reversed, and a new trial awarded.
Judgment reversed, and new trial awarded.