in a concurring opinion, suggested that a wife might be estopped from setting up a title acquired by a husband’s default in paying his taxes.
We have been unable to find a case in which the precise question before us has been adjudicated.
It seems to be settled law that a husband, whose duty it is to look after the business interests of his wife and family, as well as to support them, will not be permitted to acquire title to the property of his wife by purchase at a tax sale; but we know of no law to prevent a wife from purchasing at a public tax sale the lands of her husband, or of others of which he is in possession, provided the purchase is made on her own account and with her own money. A wife is under no obligation, moral or legal, to pay the taxes on her husband’s property.
If, however, such purchase was made with the funds of the husband, or by his procurement, or for his use, or in pursuance of an arrangement made between the husband and wife, in fraud of the owner or joint owner of the property, a *355very different question would arise. A purchase by the wife of real estate in possession of the husband, under an agreement requiring him to pay taxes, is of itself sufficient to excite suspicion.-
Filed Feb. 20, 1892.In the case before us there is no suggestion of fraud or unfair dealing, except such-as might be inferred from knowledge of the wife that the husband had agreed to pay the taxes. We are of the opinion that this is not sufficient. We can not infer that which is not pleaded.
We do not hold that Rebecca Hendricks acquired the legal title to the property in controversy by her purchase. That is not before us. It does, however, appear that she has expended money in the purchase of this land; that, as between her and the plaintiffs in the action, they ought to refund to her, if her tax deed does not transfer the title, and that she has by her conveyance transferred her right to this fund to the appellants.
In such case, before the plaintiff can be heard in a court of equity to ask that such sale and conveyance be set aside and declared void, and their title quieted, they must do that which equity requires, namely, pay or tender that which has been expended for their benefit. Shannon v. Hay, 106 Ind. 589; Rowe v. Peabody, 102 Ind. 198; Hewett v. Fenstamaker, 128 Ind. 315.
It follows that the court should have sustained the demurrer to the second paragraph of the complaint.
The court did not err in refusing to grant a second change of judge after one had been allowed upon application of one of the defendants. Peters v. Banta, 120 Ind. 416; Griffith v. Dickerman, 123 Ind. 247.
Some other questions are presented for our consideration by the appellants in their brief, but inasmuch as they are not likely to arise on a second hearing, and we are not favored with an argument by the appellees, we will not discuss them.
Judgment reversed.