The opinion of the court was delivered by
Kennedy, J.Unless the evidence mentioned in the bills of exceptions tended to prove something that would either, in law or equity, have made the defendant, William Robinson, a trustee as to a moiety, or some other part of the lot at least, for the benefit of the plaintiff or his assignor, John Braden, there is no ground whatever upon which it could, with propriety, have been received. But there is no pretence for saying that it tended, in the slightest degree, to prove a trust created by the agreement of the parties. Its tendency, at most, was only to prove that James Robinson, the father of the defendant, being the guardian of John Braden, until he attained full age, paid the taxes assessed on the lot in question probably as such, while he was guardian; and that afterwards having become part owner of it, as it appeared from the 'evidence adduced by the plaintiff himself, might have paid them on account of his interest therein out of his own moneys. For it was not offered to show that, during the time he paid the taxes, he had in his hands any moneys belonging to John Braden, out of which he might have paid them; nor do I consider that this would have materially altered the case, if such proof had been offered. The offer, however, was to prove, in the first place, that James Robinson at the time of his death had moneys of John Braden in his possession, or in other words, that he was indebted to Braden for moneys received for the use of the latter, which must have come into the hands of the defendant, who succeeded to all the rights of his father. But admitting that, from the evidence thus offered, the jury might have inferred an agreement made by James Robinson in his lifetime with John Braden, to pay the taxes assessed upon the lot, there is still no colour for saying that such an agreement was to endure beyond the will and pleasure of the parties, much less beyond the life of either. It could not after the death of James Robinson, impose any obligation of an executory nature upon either his real or personal representatives; consequently upon the death of James Robinson, Braden had no reason to confide in William Robinson’s paying the taxes upon the lot as his father had done in his lifetime. It was then the duty of Braden to have attended to it himself if he wished it done, or if inconvenient for himself to do so, to have employed some one to do it for him; *358and in case of his neglect to do this, the loss that might accrue therefrom was most unquestionably to be his own. If James Robinson were indebted, or had moneys in his hands belonging to John Braden at the time of his death, his estate was bound for the payment of it, and to this source Braden ought, in due time, to have looked for payment. And had the indebtedness existed, the probability is very strong that he would have done so. But it is entirely out of all reason to hold that William Robinson on that ground could be made responsible for any loss that might accrue to Braden or his assignee by reason of not paying the taxes assessed on the lot. And even had William Robinson, without the consent of Braden, applied the money, owing by his father, in that way until he had paid taxes exceeding in amount the actual value of the lot, Braden might have abandoned all claim to the lot, and what remedy would the defendant then have had for the money so paid? I doubt very much whether he could in a suit brought by Braden against his father’s estate to recover the debt coming from it, have been allowed to defalcate or set it off. It may perhaps be thought that this could not possibly have occurred. But although it may be true that in this case, on account of the great increase in the value of the lot, fronMapse of time and other causes, it could not have happened, yet it is certainly true, that in hundreds of other instances, the aggregate of the taxes assessed upon unseated lands within the state, for a series of years has exceeded their real value, and there have been instances in which the owners thereof have declined paying the taxes for this reason. And for this reason also, it frequently happens that the commissioners of counties have to buy such lands at sales made thereof for taxes in arrear upon them; because nobody is willing to take them and pay the taxes that may be assessed upon them annually. The lot in question does not appear to have been of much value originally, for down as late as 1816 it was only valued at 50 dollars in the assessment. Neither did the other evidence offered and rejected go to show that William Robinson had ever agreed, or come under any obligation to John Braden, to pay the taxes for which the lot was sold, or that he, on account of moneys in his hands belonging, or owing by him to, John Braden, ever agreed to purchase the lot afterwards from Leckey, in trust, either in whole or in part for the use of Braden. The fact supposing it to be so, which is the utmost that the evidence offered in the second place tended to prove, that William Robinson had sold lot No. 41, which Braden claimed to have an interest in, and that he had received thereon a large amount of money, it was not proposed to be proved that it had ány connection with the title to the lot in question, or the purchase of it from Leckey, so as to give Braden an interest in it. And without something of this sort, it would only show that William Robinson, at the time he bought the lot of Leckey, was indebted to Braden in a sum of money equal, say at least to half of the purchase-money *359But surely it was never held that the purchase of real estate by a debtor in his own name, and professedly for his own use, created a trust therein in favour of his creditor, so as to entitle the latter either in a court of law or equity to claim and recover the estate. But besides,it would be a sufficient objection to the admission of such evidence, that it would necessarily give rise to the trial of several collateral issues, of which the defendant could not be supposed to have any previous notice; and therefore could not be prepared to meet the plaintiff on them; this might, and most probably would produce great injustice. For instance, had the evidence offered been received, it would have raised the question whether John Braden had any right or interest in lot No. 41, or Robinson the defendant was not the sole owner, when he as such sold it; and if it should have appeared from the evidence that he was not, and that Braden had an interest in if, then a statement of an account showing the moneys disbursed and received by the defendant on account of the lot must have been gone into, settled and adjusted between the parties. But it is evident this could not all have been effected so as to have done justice, without previous notice given to the defendant that he might have come to the trial prepared to meet the plaintiff on all these issues. We therefore conceive that the court below was clearly right in rejecting the evidence offered.
We are also of opinion that the exceptions taken to the charge of the court have not been sustained. The court in saying to. the jury that “the responsibilities and trust of his father did not descend upon the son,” (the defendant,) plainly meant, that if there were any responsibility or trust created on the part of the father, it could not from any thing that appeared in the cause be considered 'more than personal, and therefore that it died with hint. If there were any trust or responsibility resting on the father to pay the taxes assessed on lot No. 11,9, it was of this nature; for there is not the slightest ground for raising a responsibility or trust of the sort connected with the title to the lot, which could have descended therewith upon the son. Neither are we prepared to decide that the court erred in what it said to the jury, as to one tenant in common buying in an outstanding and better title, with a view to turn the other out of possession and become himself the sole owner of the estate. But such was not the relationship between John Braden and William Robinson when the latter bought the lot of Leckey. Neither Braden nor Robinson had the least colour of claim to it then, The sale made of it some eighteen years before that, divested them completely of all their right to it after the expiration of two years from the date of the sale. Had either of them redeemed the lot as provided by the act of assembly, within the two years, such .redemption would doubtless have enured to the benefit of both, because it would have been a defeasance of Leckey’s purchase, and have placed Braden and Robinson in the same position that they stood, in regard to the ownership of the lot, at and im*360mediately before the sale thereof. Neither, however, having redeemed the lot within the two years, the purchase of it by Robinson from Leckey must be regarded in the same light as if it had been effected by any third person, or as if Robinson had never had any interest or right in it whatever before.
Judgment affirmed.