The plaintiff’s action is based upon the theory that the three hundred dollars paid to the defendant, James Rogers, as specified in the contract, became the money of Michael Rogers, and was held in trust for him by James. But we are not able to see howr Michael ever acquired any interest in this money. He never sold his interest in the land to Geraghty, nor became in any way a party to the transaction out of which the contract grew. It- does not appear, indeed, that he ever heard of it. So far as the record shows, he died seized of his interest in the land, and, if he did, and if he died intestate, as perhaps we might presume, that interest passed to his heirs. No trust in the money having been created in favor of Michael, no interest in the money accrued to any one by inheritance from him.

Has any thing transpired since Michael’s death by reason of which the defendant, James Rogers, became trustee for. the plaintiff ? If Michael died intestate, seized of his interest in the realty, and the plaintiff is his only heir, then she took *94that interest, and, so far as we can see, she holds that interest still. It is true, she tenders into court a deed of warranty of that interest, executed to Geraghty, and makes Geraghty a party to this action, and takes a default against him. But she expressly makes the tender upon the condition that Geraghty release James on his contract, and to that Geraghty says nothing. It does not appear, therefore, that James is released. Geraghty may prefer to hold him for the three hundred dollars, and ten per cent interest. James not being released, the tender of the deed goes for nothing, and the title to the land in question, according to the plaintiff’s own showing, is still in herself. This being so, it does not appear to us that she is in a condition to hold James as her trustee for the money. We do not think that her petition shows a cause of action against him.

Reversed.