The opinion of the Court was delivered by
Gibson, C. J.The rule in Galbraith v. Elder is, that a counsel who has been consulted about a title shall not set up a title in opposition to it; and is not the case of the defendants within it ? It is not disputed that the title in contest was at first in Dr Say; but the parties claim it adversely through different channels. The plaintiff claims it by a tax sale; subsequently to which he leased the land to a tenant, who, becoming refractory, was reduced to submission by an ejectment conducted by Mr Huling in opposition to the title of Dr Say, who was also a defendant. Some years afterwards, the plaintiff leased the land to one of the present defendants, by whose consent the others entered as tenants to Mr Huling, who had in the mean time purchased Dr Say’s right on a judgment pursuant to a scire facias, brought by Mr Huling as Dr Say’s counsel, on a mortgage for purchase money given by one Conn, to whom the Doctor had sold the land. As was ruled in Fager v. Campbell, (5 Watts 287), a tax sale passes the ownership clear of mortgages and derivative interests; consequently, if this tax sale is good, the title under the mortgage is bad, and thus the title of Mr Huling is brought into conflict with the title of his quondam client. Tax sales anterior, as this was, to the statute of 1815, were seldom faultless ; and Mr Huling’s former position as the plaintiff’s professional adviser, would give him a decisive advantage by disclosing to him the assailable points of his antagonist’s case.
Had he barely prosecuted the mortgage to judgment and execution, he would have done nothing inconsistent with his former relation; for the sale on the liberari facias did no more than en*351force the mortgage between Dr Say ^nd Conn, the purchaser from him, by transferring the legal title .that was in him, as well as the equity of redemption that was in Conn, to a purchaser subject to the effect of the tax sale. But he would not be permitted to enforce the purchaser’s title by impeaching the tax sale, either as a witness or a counsel, and h fortiori he shall not do so as the purchaser himself. He is nakedly a purchaser of Dr Say’s title, which he was retained to oppose; and he stands, in relation to it, as he would have stood had he purchased it immediately from Dr Say himself, with a release of Conn’s equity of redemption. What then must be the event of an attempt to set up Dr Say’s title, which Mr Huling had successfully opposed ? The rule in Galbraith v. Elder is, that such a purchase enures to the benefit of the client; and although it had not been established before that case by precedent, it was sustained by analogies drawn from relations less confidential than that which exists between counsel and client. But the defendants argue that the land was bought in for Dr Say himself, because the purchase money was paid by Mr Huling’s receipt for a part of the mortgage debt; and hence an allegation of a resulting trust. But if that were the object, Dr Say, or his legal adviser, committed an egregious blunder in the choice of a trustee. Why select the former adviser of his antagonist, or why not take the conveyance directly to the Doctor himself? The rule that a professional advocate shall not purchase an antagonist title for any one but his client, is a wholesome one, and it is founded in a wise policy, which is to be enforced even where the purchase is in trust; for the creation of a connection so intimate as the relation of cestui, que trust and trustee would be inconsistent with the duty which binds him to silence in regard to the confidential communications of his client, from which he can never be absolved. Here, however, there is no evidence of a trust, for Mr Huling appears ostensibly for himself, and takes defence in his own name, so that there can be no misapplication of the rule in bringing it to bear on him. The defendants, however, standing in the place of the plaintiff’s lessee, could not resist the landlord’s title, but it was not thought necessary to take that ground in the court below. Points of error in regard to the admission or exclusion of evidence, have been raised, which it is unnecessary to determine, because the defendant is so entirely concluded by the rule in Galbraith v. Elder, as to be beyond the reach of injury from incompetent evidence.
Judgment affirmed.