The opinion of the court was delivered, June 9th 1872, by

Could we regard the sealed writing executed by Daniel Rogers, of the 17th of April 1836, as a mere agreement for the sale and conveyance of the land referred to in it to Joshua Johnson, it might be subject to the objection made to its present execution by the plaintiff in error. But this is not its true character. It is to be interpreted and enforced according to the circumstances attending its execution. Rogers had purchased Johnson’s land at treasurer’s sale on the 10th of June 1834, and was himself the first to inform Johnson of the fact in 1836, when on a visit to Rogers, saying to him, “ I have bought a couple of your tracts of land to save them for the family.” He expressed his willingness to reconvey them at any time on being refunded what he had paid. In consequence of this the writing in question was executed,'Rogers saying if there were a magistrate there to take the acknowledgment he would have conveyed at once. Johnson was a resident of Maryland, and told Rogers his business out there was to pay taxes and redeem any land that might he sold; and but for this agreement of Rogers, would have redeemed the land. By the terms of the writing Rogers was to convey at any time Johnson might require him to do so. The governing fact in the case is, that the time of redemption had not passed, and Rogers had no absolute title to the land. His act therefore was not an agreement for the transmission of an estate, the sale of which depended on his own will alone, for he could not prevent his title, such as it was, from being destroyed by the redemption of Johnson. The agreement, therefore, was nothing more than the evidence of a redemption outside of the treasurer’s office, where at law it would have been made. Still by its own terms *228it was a redemption coupled with a condition which must he performed to make it effective; and this it is which resembles it to a bargain and sale in some aspects, and leads to the controversy about its character. The payment of the money and commission was essential to the final effect of the instrument. But it must be remembered that the taxes and costs and twenty-five per cent., which are evidently the money and commission meant by the writing, do not represent the price of the land, but only that of Rogers’s inchoate title.

The land really belonged to Johnson, who being prevented from redeeming it by the voluntary act and agreement of Rogers, was under no obligation to pay for his own title. Rogers is estopped from claiming as a vendor of the land itself after the time of redemption had passed. If, after the lapse of the term for redemption, he' could claim to hold an absolute title by his treasurer’s deeds, the agreement would be nugatory, and he would take a title by his own prevention, which the law would not tolerate. Hence, the principles which the plaintiff in error would apply to the case as one of ordinary bargain and sale, to be affected by delay in equity, or one wanting in mutuality, because the paper was not executed by Johnson, do not govern the case. The fact is, if Rogers can hold the land by his deeds, he has Johnson’s land without paying for it, and by his own prevention of a redemption, which would have been made in due season, and would have avoided his title. The only question, therefore, which can arise on this agreement is that of non-payment of the taxes and percentage. Fortunately for this case that question does not embarrass it, for when Mr. Hammond, the agent of the Johnsons, came to see Rogers about the land in 1865, the latter recognised his agreement, said he had sold $1900 worth of bark from the land, and on being told by the agent that that was all right, and if it was not enough he came prepared to pay any balance, he said he would write in a few weeks and send on a statement. Besides this, there was evidence that he had used the land from an early day before 1840 for pasture, and had in addition gotten from it about $1000 worth of sawed timber. In the mean time he had never denied his liability, or called on Johnson to make payment of the taxes and percentage. Under these circumstances it would be a long stretch of authority to treat the writing as obsolete, and the title as fully vested in Rogers. What has been said covers all the errors assigned, and without discussing them in detail, we may say we discover no error, and the

Judgment is affirmed.