"Without, at this time, discussing the question whether a court of equity would grant the relief upon the ground first stated in the bill by correcting the mistake in the levy of the writ of attachment, the levy of the special execution and in the certificate of purchase, we have no doubt that a general demurrer would not lie to the bill, as under the second ground set up for relief the complainant, by his bill, has shown himself entitled to the alternative re'ief prayed.
"When Froelich conveyed the premises to Keller, according to the averments of the bill, they had notice of the alleged mistake, as well as of-the state of the title, and Froelich conveyed by warranty deed the whole three lots for a consideration considered adequate for a perfect title. Knowing of complainant’s claim by virtue of his certificate of purchase, and to protect his covenants in his deed, he left sufficient money in the hands of Keller, the purchaser, to be applied by him in discharge of said incumbrance, and Keller in accepting the money undertook to discharge the trust thus imposed upon him and voluntarily assumed by him.
No one will doubt that the grantor had the right to direct the payment of enough of the purchase money to complainant to clear the title, and Keller having accepted the money to be thus applied, can not now be heard to say he is willing to lose the title to lot 2, as it is far less in value than the money left with him to pay off the incumbrance. The money was left with him for a specified purpose, and by accepting he undertook to apply it as requested. It is true that it does not appear from the bill that he bought subject to the incumbrance and promised to discharge it as part consideration of the purchase, thus creating an assumpsit upon which complainant could maintain an action at law under our decisions, but this only goes to show in a clearer light, that he accepted the money as a trustee for the complainant, to be paid to him in discharge of his incumbrance.
It was the duty of Keller to thus apply the money at once while the right to redeem existed, but he can claim no exemption in the execution of such trust occasioned by his own violation of duty, so long as the complainant insists upon its performance.
We think these principles are too elementary to require the citation of authorities to support them.
The very fact that complainant has come into a court of equity asking for a decree compelling Keller to apply the money left with him for the purpose of making the redemption to that purpose, is a sufficient allegation that the complainant is willing and ready and offers to have such redemption made and perfected.
Upon this ground in the bill if no other, the complainant was entitled to relief, and the court should have so decreed, and, as it did not, its decree dismissing the bill will be.reversed and the cause remanded to the end that a hearing may be had upon the merits.
Decree reversed.