Wright v. Wright

Superior Court of Delaware

Wright v. Wright

2 Del. 350

DecidedJuly 5, 1838

StatusPublished

This text of 2 Del. 350 (Wright v. Wright) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Wright, 2 Del. 350 (Del. Ct. App. 1838).

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Opinion

By the Court.

The important fact is, that the tenants by elegit had rented the land to other persons, who held it at the time of the sale, and who paid the money over to the defendants. Can the plaintiff’s recover the rent so paid in an action for money had and received to their use? It is a general principle, that if a person receives money belonging to another, and has no legal or equitable right to retain it, the law deems this to be so much money had and received to the use of the true owner, and raises a promise by implication, from the person receiving, to pay it over. Comyn Cant. 250, chap. 4; 1 Salk. 28, &c.; Roscoe Ev. 231. Now the objection which struck us with most force was, that there was no privity of contract between plaintiff and defendants; the plaintiff a purchaser, and the defendants tenants by elegit, both of whom held under the law. The act (Big. 213) gives an apportionment. But it is argued that this must necessarily be by the action for use and occupation. We think not so. The right of action is general; that by use and occupation applies where the lease is by deed ; in other cases the plaintiff is entitled to choose his form of action. The plaintiff has then the right to use that form of action which is suited to his case, and the question is, whether the action for money had and received will lie. We *353 think it will. We distinguish between the case of a tenant by elegit and sub-tenants. We don’t decide that if the Wrights had continued in possession plaintiffs could have recovered in this action; we incline to think not. It would not have been in any sense money received to the plaintiff’s use; and the remedy is under the statute. We assent to the argument, that where a statute gives a specific remedy, that remedy must be followed; but we don’t regard this statute as confining the remedy in all cases to the action for use and occupation; nor do the defendants here stand as tenants themselves, but as persons who have received money from the actual tenant, who was the party regarded by the law in giving the action for proportions of the rent. Dig. 365, sec. 8, also bears on this question.

Ridgely, for plaintiff Cullen, for defendant,

Nonsuit refused, and verdict for plaintiff for the proportion of the rent after purchase.

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By the Court.

The important fact is, that the tenants by elegit had rented the land to other persons, who held it at the time of the sale, and who paid the money over to the defendants. Can the plaintiff’s recover the rent so paid in an action for money had and received to their use? It is a general principle, that if a person receives money belonging to another, and has no legal or equitable right to retain it, the law deems this to be so much money had and received to the use of the true owner, and raises a promise by implication, from the person receiving, to pay it over. Comyn Cant. 250, chap. 4; 1 Salk. 28, &c.; Roscoe Ev. 231. Now the objection which struck us with most force was, that there was no privity of contract between plaintiff and defendants; the plaintiff a purchaser, and the defendants tenants by elegit, both of whom held under the law. The act (Big. 213) gives an apportionment. But it is argued that this must necessarily be by the action for use and occupation. We think not so. The right of action is general; that by use and occupation applies where the lease is by deed ; in other cases the plaintiff is entitled to choose his form of action. The plaintiff has then the right to use that form of action which is suited to his case, and the question is, whether the action for money had and received will lie. We *353 think it will. We distinguish between the case of a tenant by elegit and sub-tenants. We don’t decide that if the Wrights had continued in possession plaintiffs could have recovered in this action; we incline to think not. It would not have been in any sense money received to the plaintiff’s use; and the remedy is under the statute. We assent to the argument, that where a statute gives a specific remedy, that remedy must be followed; but we don’t regard this statute as confining the remedy in all cases to the action for use and occupation; nor do the defendants here stand as tenants themselves, but as persons who have received money from the actual tenant, who was the party regarded by the law in giving the action for proportions of the rent. Dig. 365, sec. 8, also bears on this question.

Ridgely, for plaintiff Cullen, for defendant,

Nonsuit refused, and verdict for plaintiff for the proportion of the rent after purchase.

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Bluebook (online)

2 Del. 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-wright-delsuperct-1838.