Bbaley, J.
The demurrers admit the special count, with a prayer for damages “ to be paid by the several defendants in proportion to their interests in said premises,” and whose recitals evidently were intended by the pleader as a full and accurate statement of all the facts at his command, which if proved would be sufficient to maintain the action. See Robinson v. Green, 3 Met. 159; Hall v. Marston, 17 Mass. 575, 579. If, however, the plaintiff should prove these allegations she could not recover a judgment against the defendants jointly, as their liability and the measure of recovery is expressly stated to be proportional to their respective interests in the land, nor individually, even if properly pleaded as to each by distinct counts, as the contract not being in writing the provisions of R. L. c. 173, § 3, are inapplicable. Grocers’ Bank v. Kingman, 16 Gray, 473, 475. Costigan v. Bunt, 104 Mass. 217. Colt v. Beamed, 118 Mass. 380; S. C. 133 Mass. 409,412. Fuller v. Morse, 4 Gray, 294, 295. Colt v. Clapp, 127 Mass. 476. But while this question cannot be passed unnoticed, it has not been argued, and we take up the demurrers as presented.
Before considering the liability of the other defendants that of the defendant Cotting first should be determined. Being interested only as trustee in an undivided portion of the estate he succeeded to the title but not to the debts incurred by his predecessor, unless he assumed them, and the taxes having, been paid and discharged before his appointment he is not a debtor, for neither original authority nor ratification in his representative capacity are even inferentially pleaded. Sells v. Delgado, 186 Mass. 25, 29. Tuttle v. First National Bank of Greenfield, 187 Mass. 533, 535. His demurrer, therefore, must be sustained.
Upon his elimination, the contract of the other defendants to repay the amount paid for taxes assessed on the land in which they had the legal title must be founded upon a request to the plaintiff to advance the money, either actually made or arising out of the legal relations of the parties, or if voluntarily advanced, then on subsequent ratification. Massachusetts Ins. Co. v. Green, 185 Mass. 306, 307. Bancroft v. Abbott, 3 Allen, 524. But, there being no statement that the defendants actually requested a loan or received and appropriated the plaintiff’s [61]*61money, unless the allegations of agency and of an implied obligation to repay by accepting the benefit which may be found to have accrued by a discharge of the taxes cure this omission, the defect is fatal. Winsor v. Savage, 9 Met. 846, 348. Brown v. Fales, 139 Mass. 21, 28. Massachusetts Ins. Co. v. Creen, ubi supra.
A borrower of money possesses the absolute right to decide for himself to whom he shall become a debtor, and voluntary advancements made in his behalf, but without his knowledge, do not create an express or implied contract between him and the lender. Kelley v. Lindsey, 7 Gray, 287. Provincetown v. Truro, 135 Mass. 263, 265. Boston Ice Co. v. Potter, 123 Mass. 28. Earle v. Coburn, 130 Mass. 596. Massachusetts Ins. Co. v. Creen, ubi supra. Kemp v. Balls, 10 Exch. 607, 610. To avoid this initial difficulty, the plaintiff’s general agent is alleged with one hand to have embezzled and with the other to have appropriated her money as the agent of the defendants, who would be bound by this act if within the scope of his employment. But authority to pay taxes did not charge them with constructive notice, for their agent not being empowered to borrow money for this purpose, even the plaintiff does not urge that he was authorized to steal for their benefit, or that his embezzlement conferred upon her any greater right than if, being unauthorized, he had made and delivered the defendants’ promissory note for the amount. Allen v. South Boston Railroad, 150 Mass. 200, 206. Craft v. South Boston Railroad, 150 Mass. 207, 210. Kelley v. Lindsey, ubi supra. Railroad National Bank v. Lowell, 109 Mass. 214, 215. Agatvam National Bank v. South Hadley, 128 Mass. 503, 507, 508.
The plaintiff strongly relies upon the case of Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, as a conclusive authority that the defendants were charged with constructive notice. But that case as pointed out in Indian Head National Bank v. Clark, 166 Mass. 27, 31, was expressly decided upon the broad ground that the title to the funds of the defendant which had come into the possession of the plaintiff through the fraud of a person who was the treasurer of both, and who at the time alone had knowledge of the transaction, did not pass, and the money could be recovered back. It further was said in the [62]*62opinion, that “ the rule is general, that, if one who assumes to do an act which will be for the benefit of another, commits a fraud in so doing, and the person to whose benefit the fraud will enure seeks, after knowledge of the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all, and to be chargeable with the knowledge of it, so far at least as relates to his right to retain the benefit so secured.” In the present case the money when appropriated, neither actually nor constructively came into the possession of the 'defendants. Winsor v. Savage, ubi supra. Kelley v. Lindsey, ubi supra. South Scituate v. Hanover, 9 Gray, 420. Railroad National Bank v. Lowell, ubi supra. Agawam National Bank v. South Hadley, ubi supra. Provincetown v. Truro, ubi supra. Massachusetts Ins. Co. v. Green, ubi supra. Stoddard v. Ham, 129 Mass. 383, 386. Bolloff v. Ayer, 162 Mass. 569. Lamborn v. County Commissioners, 97 U. S. 181, 185. The defendants urge that the agent’s fraud was manifestly an independent act of his own, although for what purpose committed the declaration does not disclose, and, being outside of his agency for the defendants, his knowledge of the defalcation cannot be imputed to them. Innerarity v. Merchants’ National Bank, 139 Mass. 332, 333, 335. Bowditch v. New Hngland Ins. Co. 141 Mass. 292, 293. Indian Head National Bank v. Clark, 166 Mass. 27, 31. But this ground of demurrer is not open on the declaration.
The plaintiff further relies on subsequent ratification by conduct, but when this is invoked while there is an allegation that, “though often requested to do so,” the defendants have neglected to repay, the averment is not accompanied by the further allegation that the declination was made with knowledge of the transaction, yet an allegation of this nature is essential under the present declaration, if the plaintiff goes upon this theory, for ratification rests on knowledge by the ratifier of the unauthorized act of his agent. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381, 382. Beacon Trust Co. v. Souther, 183 Mass. 413, 416. Root v. Bancroft, 8 Gray, 619.
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Bbaley, J.
The demurrers admit the special count, with a prayer for damages “ to be paid by the several defendants in proportion to their interests in said premises,” and whose recitals evidently were intended by the pleader as a full and accurate statement of all the facts at his command, which if proved would be sufficient to maintain the action. See Robinson v. Green, 3 Met. 159; Hall v. Marston, 17 Mass. 575, 579. If, however, the plaintiff should prove these allegations she could not recover a judgment against the defendants jointly, as their liability and the measure of recovery is expressly stated to be proportional to their respective interests in the land, nor individually, even if properly pleaded as to each by distinct counts, as the contract not being in writing the provisions of R. L. c. 173, § 3, are inapplicable. Grocers’ Bank v. Kingman, 16 Gray, 473, 475. Costigan v. Bunt, 104 Mass. 217. Colt v. Beamed, 118 Mass. 380; S. C. 133 Mass. 409,412. Fuller v. Morse, 4 Gray, 294, 295. Colt v. Clapp, 127 Mass. 476. But while this question cannot be passed unnoticed, it has not been argued, and we take up the demurrers as presented.
Before considering the liability of the other defendants that of the defendant Cotting first should be determined. Being interested only as trustee in an undivided portion of the estate he succeeded to the title but not to the debts incurred by his predecessor, unless he assumed them, and the taxes having, been paid and discharged before his appointment he is not a debtor, for neither original authority nor ratification in his representative capacity are even inferentially pleaded. Sells v. Delgado, 186 Mass. 25, 29. Tuttle v. First National Bank of Greenfield, 187 Mass. 533, 535. His demurrer, therefore, must be sustained.
Upon his elimination, the contract of the other defendants to repay the amount paid for taxes assessed on the land in which they had the legal title must be founded upon a request to the plaintiff to advance the money, either actually made or arising out of the legal relations of the parties, or if voluntarily advanced, then on subsequent ratification. Massachusetts Ins. Co. v. Green, 185 Mass. 306, 307. Bancroft v. Abbott, 3 Allen, 524. But, there being no statement that the defendants actually requested a loan or received and appropriated the plaintiff’s [61]*61money, unless the allegations of agency and of an implied obligation to repay by accepting the benefit which may be found to have accrued by a discharge of the taxes cure this omission, the defect is fatal. Winsor v. Savage, 9 Met. 846, 348. Brown v. Fales, 139 Mass. 21, 28. Massachusetts Ins. Co. v. Creen, ubi supra.
A borrower of money possesses the absolute right to decide for himself to whom he shall become a debtor, and voluntary advancements made in his behalf, but without his knowledge, do not create an express or implied contract between him and the lender. Kelley v. Lindsey, 7 Gray, 287. Provincetown v. Truro, 135 Mass. 263, 265. Boston Ice Co. v. Potter, 123 Mass. 28. Earle v. Coburn, 130 Mass. 596. Massachusetts Ins. Co. v. Creen, ubi supra. Kemp v. Balls, 10 Exch. 607, 610. To avoid this initial difficulty, the plaintiff’s general agent is alleged with one hand to have embezzled and with the other to have appropriated her money as the agent of the defendants, who would be bound by this act if within the scope of his employment. But authority to pay taxes did not charge them with constructive notice, for their agent not being empowered to borrow money for this purpose, even the plaintiff does not urge that he was authorized to steal for their benefit, or that his embezzlement conferred upon her any greater right than if, being unauthorized, he had made and delivered the defendants’ promissory note for the amount. Allen v. South Boston Railroad, 150 Mass. 200, 206. Craft v. South Boston Railroad, 150 Mass. 207, 210. Kelley v. Lindsey, ubi supra. Railroad National Bank v. Lowell, 109 Mass. 214, 215. Agatvam National Bank v. South Hadley, 128 Mass. 503, 507, 508.
The plaintiff strongly relies upon the case of Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, as a conclusive authority that the defendants were charged with constructive notice. But that case as pointed out in Indian Head National Bank v. Clark, 166 Mass. 27, 31, was expressly decided upon the broad ground that the title to the funds of the defendant which had come into the possession of the plaintiff through the fraud of a person who was the treasurer of both, and who at the time alone had knowledge of the transaction, did not pass, and the money could be recovered back. It further was said in the [62]*62opinion, that “ the rule is general, that, if one who assumes to do an act which will be for the benefit of another, commits a fraud in so doing, and the person to whose benefit the fraud will enure seeks, after knowledge of the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all, and to be chargeable with the knowledge of it, so far at least as relates to his right to retain the benefit so secured.” In the present case the money when appropriated, neither actually nor constructively came into the possession of the 'defendants. Winsor v. Savage, ubi supra. Kelley v. Lindsey, ubi supra. South Scituate v. Hanover, 9 Gray, 420. Railroad National Bank v. Lowell, ubi supra. Agawam National Bank v. South Hadley, ubi supra. Provincetown v. Truro, ubi supra. Massachusetts Ins. Co. v. Green, ubi supra. Stoddard v. Ham, 129 Mass. 383, 386. Bolloff v. Ayer, 162 Mass. 569. Lamborn v. County Commissioners, 97 U. S. 181, 185. The defendants urge that the agent’s fraud was manifestly an independent act of his own, although for what purpose committed the declaration does not disclose, and, being outside of his agency for the defendants, his knowledge of the defalcation cannot be imputed to them. Innerarity v. Merchants’ National Bank, 139 Mass. 332, 333, 335. Bowditch v. New Hngland Ins. Co. 141 Mass. 292, 293. Indian Head National Bank v. Clark, 166 Mass. 27, 31. But this ground of demurrer is not open on the declaration.
The plaintiff further relies on subsequent ratification by conduct, but when this is invoked while there is an allegation that, “though often requested to do so,” the defendants have neglected to repay, the averment is not accompanied by the further allegation that the declination was made with knowledge of the transaction, yet an allegation of this nature is essential under the present declaration, if the plaintiff goes upon this theory, for ratification rests on knowledge by the ratifier of the unauthorized act of his agent. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381, 382. Beacon Trust Co. v. Souther, 183 Mass. 413, 416. Root v. Bancroft, 8 Gray, 619. This situation obliges the plaintiff to take the position that when these distinctions are given their full weight, her money has been bestowed on the defendants, who, not having declined the benefit thereby received, an implied obligation is raised to [63]*63make reimbursement. In Claflin v. Godfrey,. 21 Pick. 1, 6, it was said by Mr. Justice Morton when speaking of assumpsit for money had and received, “It approaches nearer to a bill in equity than any other common law action; and indeed has many of the advantages ... of a chancery suit.” See Cole v. Bates, 186 Mass. 584, 586. While an equitable action as thus defined does not rest on privity of contract, but on an obligation which the law implies where the defendant is shown to have been unjustly enriched at the expense of the plaintiff, yet as this liability is never presumed in favor of mere volunteers, proper descriptive allegations mast be made before it can be proved and enforced. Homestead Co. v. Valley Railroad, 17 Wall. 153. It is not alleged that the taxes constituted a statutory lien with notice of which the defendants would be charged, and that having been discharged by payment, then upon such knowledge their subsequent silence could be treated as evidence of acquiescence and acceptance. The phrase, “used the same to pay said taxes,” refers equally to the taxes due from Berry, who, as trustee, was an owner in common, as well as to the defendants. R. L. c. 12, § 15; c. 13, §- 73. See Richardson v. Boston, 148 Mass. 508. But if held to refer to them alone, even then, when read in connection with the remaining allegations, it is neither susceptible of this meaning, nor by the most liberal construction is it an averment that before the bringing of. the action they knew of the payment. If Berry, as a tenant in common, on payment by him with the plaintiff’s money, freed the land from an incumbrance which all were bound to discharge, might have resorted to actions at law, or to a single suit in equity, against his cotenants for contribution, or to a lien on their respective shares as provided by statute, the plaintiff cannot at law be subrogated to his rights. Dewing v. Dewing, 165 Mass. 230, 232. Story Eq. Jur. (13th ed.) § 496. R. L. c. 13, §§ 73, 74. Jackson Co. v. Boylston Ins. Co. 139 Mass. 508, 510. Webber Lumber Co. v. Shaw, 189 Mass. 366.
The question whether upon an amendment under R. L. c. 159, § 6, changing her action into a bill in equity in which all parties can be joined, upon proof of the substantial facts alleged, with proof of farther allegations, that a lien for the taxes existed at the date of their payment, and that upon being made acquainted [64]*64with the diversion of the plaintiff’s money, the use of which by operation of law not only discharged the incumbrance, but has actually conferred a benefit upon them, the defendants have declined or neglected unconscionably to repay, she can be decreed suitable and adequate relief has not been argued, and does not call for a decision. See O’Brien v. Murphy, 189 Mass. 353 ; Von Arnim v. American Tube Works, 188 Mass. 515, 520; Niles v. Graham, 181 Mass. 41, 48; Nathan v. Nathan, 166 Mass. 294, 295; Webber Lumber Co. v. Shaw, ubi supra; Wallis v. Shelly, 30 Fed. Rep. 747, 748; 2 Pomeroy Eq. Jur. (3d ed.) § 912; 3 ibid. § 1044; Rill v. Lane, L. R. 11 Eq. 215, 220.
It will be open to the plaintiff to take such further proceedings in the Superior Court as she may deem advisable, as the statute permitting a report upon an interlocutory question at law limits the full court to the determination of the question reported, and such decision, therefore, must be confined within the scope of the original judgment or order. St. 1900, c. 311. R. L. c. 173, § 105. Commonwealth v. Burton, 183 Mass. 461, 474. Newburyport Institution for Savings v. Coffin, 189 Mass. 74, 75.
Order reversed; demurrers sustained.