The judgment in the equitable action conclusively establishes the fact, as between the parties, that Barbes had waived his right to rescind the contract on account of failure to deliver possession of the farm in October. Such being the fact, he should have taken possession of the farm in March or April, 1896, when it was repeatedly offered to him. Not taking possession at that time, it is difficult to. see why Boberts did not take a proper and reasonable course in placing the farm in the hands of Stellah for cultivation under an agreement for a fair division of the crops for the benefit of the person who should ultimately prove to be entitled thereto. To leave the farm unoccupied and uncultivated would certainly have been to subject the same to great risk, and would be directly contrary to all principles of good husbandry; to place it in the hands pf hired help, without supervision, would have been unquestionably unsatisfactory and unremunerative. Under the peculiar and unexpected circumstances in which Roberts was placed, being himself a nonresident, it seems to us that he adopted the only prudent and reasonable course in an honest endeavor to preserve from loss the interest of both himself and Barbes. Certainly, he seems to have exercised entire good faith, and, .if he erred in judgment (which is not shown), it must be remembered' that Barbes was at least partially responsible for the situation. Being so responsible, he cannot take advantage of a state of facts which he was largely responsible in bringing about. This action is really an action for money had and received, and such actions are subject in great degree to *178equitable rules, and we conclude that the circuit court was-right in holding that he had no right to rescind the contract in July, 1896, because, by his own acts, he had helped to bring -about a state of facts upon which he bases his right to rescind.

We do not, see, however, upon what principle the court-allowed the counterclaim for taxes paid by Roberts against the crops. Such a judgment appears anomalous. The crops-were in no sense before the court, and how can a judgment of lien upon them be enforced in this action ? Furthermore, the payment seems to have been purely voluntary. The taxes were not delinquent when paid, hence Roberts was not obliged to pay them to protect himself, nor did Garbes request him to pay them. A man cannot make another his debtor in that way.

By the Court.— So much of the judgment as adjudges the defendant entitled to recover upon his counterclaim is reversed, without costs, and the balance of the judgment is affirmed, and the action is remanded with directions to dismiss the counterclaim. Uo costs are allowed to either party, save that the appellant is to pay the fees of the clerk of this court and the costs of printing respondent’s brief.