The opinion of the court was delivered,
by Thompson, C. J.It seems to us that nothing can be clearer, as it appears from the history of this case, than that there was error on part of the court below in the rejection of the defendant’s third .offer of testimony. This offer virtually includes the second, which was also rejected, and needs not be discussed separately.
It is quite true, as stated in the argument of the defendant in error, that the assignments of error in this case are not according *162to the rule of court, as construed in Burkholder v. Stahl, 8 P. E. Smith 371, and might he disregarded by this court. We have concluded, however, to grant the counsel of the plaintiff in error a dispensation in this particular case, upon the excuse made, and their promise to do better in future. But this liberality must not be relied upon to cover cases in which the excuse is less cogent than it was here. The error of these assignments is in omitting the identical matter of the exception from the assignment itself. It is not sufficient that it appears in the bill of exceptions. There it is historical — in the assignment of error it is a material part of the pleadings in this court, and cannot be legally omitted: Burkholder v. Stahl, supra.
Now, as to the 3d assignment of error: Israel Smith, the defendant below, offered to prove that the land in controversy was his own by purchase, and possession for some thirty or forty years. That in 1855 he became embarrassed, and his brother, A. B. Smith, under whom Tome, the plaintiff, claims, purchased up the claims of certain creditors, with Israel Smith’s money, and obtained judgments thereon against him, and sold the property and bought it in on these judgments, agreeing to hold title for his use ; he, Israel, remaining in possession, making improvements as the owner thereof all the while, and afterwards. In 1855, after the judgments obtained by A: B. Smith, if we mistake not, Israel Smith pledged the land by deed as security to Bell, Ilolienback & Co. for money loaned to improve the property. In 1862 there was a final settlement by arbitrament between Bell, Ilolienback & Co., and A,. B. and Israel Smith, and of certain suits between the former and Israel Smith. In this submission to arbitration, it was agreed that in the event that Bell, Ilolienback & Co.’s claim was satisfied there should be a reconveyance of the land by them to A. B. Smith, who at the time held the sheriff’s deed of the property in trust for Israel Smith; and he agreed to hold the title on the same trust as he was holding the sheriff’s deed. The arbitrament resulted in finding a balance due from Bell, Hollenback & Co. to Israel Smith, of $2605.58, and an award of the reconveyance of the land, according to the terms of the submission, to be made by Bell, Hollenback & Co. to A. B. Smith, and this was accordingly done about the date of the award. In 1868 the plaintiff below, it is alleged, in collusion with A. B. Smith, procured an assignment of some judgments against him, revived 'them by consent, issued executions on them against the defendant, A. B. Smith, who waived inquisition, and agreed to a condemnation of the lands in question, in possession of Israel Smith, and proceeded to a sale of them on a venditioni, and bought them in and procured a sheriff’s deed therefor on the 4th of April 1869. At the sale, the defendant Israel Smith gave notice of his -claim to the lands, and forbid the sale. All this is *163contained in the defendant’s third offer, and more, to wit: that A. B. Smith agreed to reconvey the title he held in trust, by virtue of the deed from Bell, Hollenback & Co. to Israel Smith, when he should pay him some costs and expenses incident to the trust; that he did pay the same, and in 1865 A. B. Smith did reconvey the land, and that the plaintiff, long before his judgment against A. B. Smith, was informed by Israel Smith how the land was held by him, and that A. B. Smith had no interest in it.
If these facts were substantially established, it cannot be doubted that they would constitute a good defence against the title of the plaintiff below. It was not the case of a parol sale of lands by A. B. Smith to Israel Smith, and within the Statute of Frauds and Perjuries. It was a trust by parol; the title in the trustee, and the possession in the cestui que trust. If the plaintiff below was informed of this before he proceeded, he would take no better title than that of his judgment-debtor. This is too familiar to require a reference to authorities to prove. As he derived title through him, he could attain no other or greater than such as he had. If he had notice of the reconveyance by A. B. Smith to Israel, as was offered to be proved, although not on record, the defendant being in possession, manifestly he would acquire no title under A. B. Smith. If he could, any man’s property might be sold for any other man’s debt. If he had not notice of this, but had of the trust "m A. B. Smith, then he would only be invested with the title of the latter. This being so, he could not recover possession any more than could A. B. Smith, and he certainly could not. We held in Clark v. Trindle, 2 P. F. Smith 492, and since, that the limitation within which a parol trust can be enforced, did not apply to a case where the cestui que trust was in possession in execution of the trust. That was Israel Smith’s position, not only when the trust originated, and for years after, but by the declarations of A. B. Smith offered to be proved after he acquired a title from Bell, Hollenback & Co. The third error is therefore clearly sustained, and as it embraces the second, we need not further notice this error.
I think the rule which constitutes cross-examination, and which is discretionary to some extent with the court, was very rigidly administered in rejecting what constitutes the first assignment of error. We would not reverse for this alone, for the defendant might have called and asked the witness as his own, the rejected question, and there could hardly be an objection to that. But for the reasons given, this case must go to a retrial; both law and justice seem to demand it. We see nothing further which needs discussion in this ease.
Judgment reversed, and venire de novo awarded.