
    Stewart against Brown.
    If a person purchase at a sale for taxes under an agreement, that another person should be equally concerned, he would be considered in equity as holding for himself and the other, as tenants in common.
    If such person put a tenant into possession, the possession ,o£ the tenant is his possession, and the right of the other to a partition would remain unimpaired.
    In Error.
    ERROR to the Common Pleas of Armstrong county.
    . ' 1 . This was an action of partition brought by Nathaniel Stewart against’Robert Brown. The plaintiff proved, that the land of which partition was demanded was purchased by the defendant and himself, as tenants in common,’ of the sheriff of Armstrong county, who sold- it by -virtue of an execution issued on a judgment obtained by Robert Stewart against James Reed.. Some time after this purchase the same land was sold for taxes, and the defendant became the purchaser. The plaintiff alleges, that the last purchase was made under an agreement between the defendant and himself that each should be one-half concerned, and gave evidence tending to prove it: but the agreement was denied by the defendant, who. insisted, that he made the purchase wholly on his own account. No title was shewn in James Reed. Some time after the last purchase William Menor entered into possession of this land, but whether he entered in his own right or as a tenant under the defendant was disputed, the evidence being-contradictory. - -
    The-counsel for the plaintiff requested the opinion of the Court upon two points. 1. If the land was purchased by Robert Brown, at treasurer’s sale, under an agreement with Nathaniel Stewart, that it should be for their joint benefit, may not an action of partition be supported by the said Nathaniel Stewart, notwithstanding the entry of William Menor, under an agreement with Robert Brozvn after the writ of partition issued? To which the President of the Court answered, that the purchase by Robert Brown being in his own name and with his own money, appears to exclude the supposition, that it was made for the joint benefit of both parties.
    2. Is the entry .and possession of William Menor, undér Robert Brown, to be considered as an ouster of Nathaniel Stezvart ? Answer of the President of the Court. The entry of Menor, supposing it under Brown, ought rather to be con - sidered as a possession adverse to that of the plaintiff, than, an actual ouster:' but it has the same legal effects» •
    
      Foster for the plaintiff in error.
    Kelly, contra.
   Tilghman C. J.

If the defendant purchased at the sale, for taxes under an agreement, that the plaintiff should be equally concerned, he would be considered in equity as holding for the plaintiff and himself as tenants in common. If the defendant himself, therefore, were in the actual occupation of this land, the plaintiff, would' be entitled to partition. And if Menor came into possession as tenant of the defendant, the plaintiff’s right to a partition would remain unimpaired, because the defendant would still be seised of the freehold, the possession . of his tenant being his own possession. The President of the Court of Common Pleas was mistaken, therefore, in- saying, that the entry of Menor, supposing it to be under the defendant, ought to be considered as a possession adverse to the plaintiffs and amounting to an ouster; because the same equity which made the defendant a trustee, as to a moiety, for the benefit of the plaintiff, would operate on Menor. So that the possession of Menor would-, be considered as the possession of both the plaintiff and the defendant. What was the fact it is not for this Court to say: but it appearing, that the jury were misdirected in matter of law, I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded;

Yeates J. was sick and absent.

Gibson J. concurred.

Judgment reversed, and a venire facias de novo awarded.  