¶1By the Court —
¶2— The parties to this action were owners as tenants in common of the judgment mentioned in the complaint. By the terms of the assignment to them either of the assignees were expressly authorized to collect the judgment to *406their joint use. This authority extends to whatever may necessarily or reasonably be done to effect the collection, and within these limits whatever may be done by either is done as the trustee or agent of the other to the extent of his interest. The ordinary mode of collection is by execution upon the judgment, and in the absence of personal property by sale of real estate,' at which the plaintiff in the execution may become the purchaser.
¶3It is not only proper, but in our State it is usual and may be necessary in order to protect the plaintiff’s interest, that he become the purchaser at the sheriff’s sale. In this instance the defendant Campbell, one of the assignees, proceeded to collect the judgment, and at the sale under .the execution issued upon the judgment, bid off the property described in the complaint, in his own name, and in due time the title in him became perfect. This to the extent of the purchase, we think, was within the scope of the power conferred by the assignment. No other facts except the purchase in this manner are stated which show any fraud or a bad faith in the purchase, or that the action of the defendant was not for the benefit of the assignees of the judgment, and necessary for their protection, nor that the purchase was not intended to be in pursuance of this power. Although perhaps the purchase should have been in the joint names of the assignees of the judgment, the mere fact of the purchase in the name of the defendant, under these circumstances will not be considered fraudulent, “for in such case a court of equity will presume that the party meant to act in pursuance of his trust and not in violation of it.” 2 Story Eq. Jur., Sec. 1210, and authorities cited. The defendant, therefore, holds the land in trust for the plaintiff to the extent ol that' portion of her interest in the judgment which has been satisfied by the sale. This is not the case of a grant to one for a valuable consideration which has been paid by another, within Sec. 7, Chap. 32, of the Comp. Stat., p. 382, and is not affected by that section.
¶4We think the facts stated in the complaint do not show that the land Avas taken by the defendant in his own right as money, but that it Avas purchased by the defendant on the joint account, and for the joint benefit of the assignees of the judgment. The defen*407dant, therefore, is not liable as for money had and received. The demurrer was properly sustained, but as the plaintiff desires to amend his complaint, he may have that privilege. Let the order appealed from be so far, modified as to permit the plaintiff to serve an amended complaint within twenty days after notice of this decision.