Daugherty v. Daugherty , 116 Iowa 245 ( 1902 )

Si-ierwin, J. —

2

3 -It is necessary to determine the character of this action, fox, if it is one which was solely cognizable in a court of chancery before the adoption of the Code, then the statute of limitations would not begin to run until the fraud was discovered, while, if it is outside of this class of actions, the demurrer was rightly sustained. ' The appellant contends that it is an action for an accounting, and therefore exclusively cognizable by a court of equity; but we do not think this position is well taken, for it seems to us clear that assumpsit will lie for money had and received for plaintiff’s use. The. action of assumpsit lies for money in the hands of another, which in equity and good conscience he is bound to pay over. Mason v. Waite, 17 Mass. 560. Where the relation of debtor and creditor exists, and the amount of the debt is ascertáinable, accounting is not the proper remedy. 1 Cycloh pedia Law & Procedure, 407. Nor will the action lie upon mere equitable title to recover for the avails of land sold. 1 Cyclopedia Law & Pocedure, 407; Cearnes v. Irving, 31 Vt. 604. The petition alleges, in substance, that the defendant has received a sum of money certain, which, in equity and good conscience, belongs to the plaintiff, and which 'he asks that he recover. This certainly does not require an accounting, in the legal sense of the term. It is purely and simply a declaration in assumpsit. And while the additional averments of the petition as to fraud and trusteeship bring it within the class of actions which have sometimes been taken cognizance of by courts of chancery, it does not belong to the class exclusively or solely so cognizable. The fraud in the alleged transaction could be as well proved in law as in equity, and, in cases where the same relief can be had in law that a court of equity could grant, the action is not confined to chancery. McGinnis v. Hunt, 47 Iowa, 668. This being true, this case is within the rule of Relf v. Eberly, 23 Iowa, 467, and McGinnis v. Hunt, supra, unless it is affected by the change in section 2741 of the Revision of 1860, or unless the petition brings it within the rule of District Tp. v. French, 40 Iowa, 601, and Carrier v. Railway Co., 79 Iowa, 80.

4 Section 9, chapter 167, Acts Thirteenth General Assembly changed section 2741 of the Revision by eliminating therefrom the words “As above contemplated,” and it is contended that an action may now be maintained at law after the discovery of the fraud; but we have held that the statute, as amended, still applies to fraud in cases which are only solely cognizable in equity. Gebhard v. Sattler, 40 Iowa, 152; Brown v. Brown, 44 Iowa, 349; McGinnis v. Hunt, supra. In District Tp. v. French and Carrier v. Railway Co., supra, and Blakeney v. Wyland, 115 Iowa, 607, there were affirmative acts of concealment, and they were all cases involving transactions with persons in positions of trust and confidence. Such is not the case here, except in so far as it is created by relationship.

5 In his reply brief, the appellant contends that the fact that the defendant bought the land with knowledge of the fraud of the plaintiff’s mother in procuring a conveyance thereof from him to David O. Daugherty created the relation of trustee and cestui que trust, and that this action is to impress the trust upon the money in the hands of the’ defendant, and is therefore solely cognizable in equity. But if his premise is good the result claimed does not necessarily follow; for a well recognized exception to the general rule as to such relation is to be found in just such cases as the one before us. Judge Story, in his work on Equity Jurisprudence (volume 1 [13th Ed.] p. 58), says, in speaking of this subject: “And even trusts, though in general of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law; as, for instance, * * * that larger class of cases where the action for money had and received for another’s use is maintained ex aequo eb bono.”

We think the demurrer was properly sustained, and the judgment is aerirmed.