The opinion of the court was delivered, by

— Without referring in detail to the errors as assigned, we may say there are two errors in the charge of the court below necessary to be noticed. One was in submitting to the jury the finding of a material fact, on which the case in a great measure turned, without instructing them upon the bearing this fact was to have upon the verdict. The other was in holding that the receipt of Cooper of the redemption-money under the treasurer’s sale of 1862, estopped him and his assignee from claiming title under the treasurer’s sale of 1860. The action was in case, and the declaration set forth the fraudulent concealment by Cooper of the redemption of the sale of 1862, as the gist of the action. Rescission of the purchase on the ground of fraud in the sale, was clearly the basis of the suit for which the plaintiff claimed his damages. Had there been no treasurer’s deed but that of 1862, and the assignment had been specially upon it, the case would have been a clear one. But there was evidence tending to show that Bushley purchased Cooper’s interest in both the deeds of 1860 and 1862; that both were handed over by Cooper to Bushley; that it was a question between the parties, whether both deeds should be assigned to carry the title; and that Cooper thought as he had both deeds, the assignment carried all his title. The court was, therefore, right in submitting the question of fact to the jury, as to what the real bargain of the parties was, which they intended to consummate by the assignment, endorsed upon the deed of 1862. But this fact was of no moment unaccompanied by any instruction as to its effect upon the case. If the real bargain was a sale of the entire interest of Cooper under both deeds, and the assignment was made upon that of 1862 only, under a mistaken belief that it would convey all his interest in the land under both sales; it was a case of mistake in the very transaction itself, and at the time of it, which could be reformed. The submission was, therefore, not of a question of law, as the plaintiff in error asserts under the first assignment of error, but of a question of fact, out of which arose a question of law, and here it was the court erred in failing to instruct the jury l^pon the legal consequence of the finding. For if the bargain was for the entire title of Cooper under both deeds, then the redemption of the sale in 1862 did not affect his title under the sale of 1860, and the plaintiff’s purchase had not failed. In this event this action could not be maintained, for he lost nothing by the concealed redemption of the sale of 1862, and the alleged fraud did him no injury, unless Cooper was estopped from claiming title under the sale of 1860 by his receipt of the redemption-money under the sale of 1862, as the court held. This leads us to consider the question of estoppel. There was no evidence to show that the land was seated, or that the taxes for which the land was sold in 1860 were paid before the sale, or that the sale of 1860 had been avoided by a redemption. Cooper’s title under the sale of *2561860 was therefore absolute and indefeasible. When the sale took place in 1862, Cooper was both the owner of the estate sold and the purchaser at treasurer’s sale. His was the hand to pay as well as to receive the redemption-money. The most that can be said of that sale is, that it did not divest his title under the sale of 1860, but was simply the means of coercing the payment of his own taxes, with costs, as a penalty for his neglect. Then what was the effect of the payment of the taxes, costs, and twenty-five per cent., constituting the redemption-money, by one who had been an owner of the land, but whose title was extinguished by the sale of 1860 ? In the first place, there is no evidence that his payment was in the slightest degree induced by Cooper. His payment was, therefore, wholly voluntary, and uninfluenced by Cooper. In the next place, he had not even a scintilla juris remaining in him after .the sale of 1860 became absolute, to which his payment could attach, in order to create a title in equity. He was, therefore, a mere stranger making a voluntary payment. In the last place, the money he paid did not represent the value of the land, or even a price put upon it by Cooper; but was merely the public charge upon the land, with the costs and percentage incurred by the nonpayment of that charge. The sum thus paid, therefore, did not represent a price or consideration given for the land to constitute either a trust or a purchase of it. The payment then being voluntary, and induced by no act of Cooper, and the sum received by him not representing the value of the land or any price put upon it by Cooper, on what principle in law or equity can it be said that Cooper’s title under the sale of 1860, passed by his receipt of the money paid to redeem the sale of 1862 ? Clearly, the most that can be founded upon his receipt of the money paid under the circumstances stated, voluntarily by a stranger to the title, would be an implied parol sale of Cooper’s title, if such an implication could arise, by reason of the payment of a sum not representing the value or price of the land. Rut to such a parol sale, were it implied, the Statute of Frauds and Perjuries would be a complete bar. The consequence would be the same, if a trust were implied instead of a sale. The court erred, therefore, in holding that either Cooper or his assignee were estopped by the receipt of the redemption-money paid upon the sale of 1862, from setting up title under the deed of 1860.

On the other hand, if the facts found were that Cooper sold only his title under the treasurer’s deed of 1862, and so specially assigned it to Bushley, the concealment by Cooper of the redemption of that sale, in which he had acquiesced by taking the money, would be such a fraud on Bushley as would enable the latter to rescind, and to recover from Cooper the money paid and interest, and any special expense to which he was put in making the purchase. How far Cooper’s sale of the title under the deed of 1862, *257would convert him into a trustee of the title under the deed- of 1860, for Bushley, is a question not raised in the case, and depends upon the true facts of the sale as to the title intended to be bargained for. Nothing can be said, therefore, on that question.

In regard to the question of tender before suit, if the fraud were found by the jury to entitle the plaintiff to rescind, there can be no difficulty as the case was presented. The sale of 1862 being wholly inoperative, if that were the only title which was intended to be conveyed, or which would legally pass by the assignment of that treasurer’s deed, nothing passed by the assignment of Cooper to Bushley. There was nothing, therefore, to be reconveyed, unless Cooper might require it, ex majore cautela, and if he did, this could be provided for in the verdict at the time of trial. Such is the doctrine of Babcock v. Case, 11 P. F. Smith 427. If any interest or estate had passed from Cooper to Bushley by the sale, even though an imperfect or a defeasible interest, a reconveyance would be necessary, and that, according to the doctrine of Pearsall v. Chapin, 8 Wright 9, would require the reconveyance to be tendered before suit- brought. The purchaser cannot hold what he has actually obtained, and yet ask a return of the price he has paid.

Judgment reversed, and a venire facias de novo awarded.