
    Bartholemew against Leech.
    An agent having the charge of unseated lands cannot become a purchaser thereof at a sale for taxes, without a previous explicit renunciation of the agency.
    A surplus bond given by the purchaser of unseated land sold for taxes must contain a specification of the land sold; otherwise it is vicious, and therefore the title in the purchaser is defective.
    ERROR to the common pleas of Mercer county.
    Edward Bartholemew against Joseph Leech. Ejectment for the one-seventh part of five hundred acres of land.
    The plaintiff gave in evidence a regular legal title to the land in dispute. The defendant gave in evidence an assessment of taxes upon the whole tract for the year 1831 of 10 dollars 25 cents, and a sale of it by the treasurer to John Lepch for 473 dollars, a deed from the treasurer to John Leech, and from him lo his son Joseph Leech the defendant. The bond given by John Leech to the treasurer for the surplus purchase money was in the following form :
    “Know all men by these presents, that I, John Leech, of Mercer county and commonwealth of Pennsylvania, am held and firmly bound unto D. T. Porter, treasurer of Mercer county in the commonwealth aforesaid, in the sum of 899 dollars 76 cents, the same to be paid to the said D. T. Porter, his certain attorney, executors, administrators or assigns. To which payment well and truly to be made, I do bind myself, my heirs, executors and administrators firmly by these presents, sealed with my seal, dated the 11th day of June in the year of our Lord 1832. The condition of this obligation is such, that if the above bouuden John Leech, his heirs, executors, administrators or any of them, do well and truly pay or cause to be paid unto the above named D. T. Porter, his certain attorney, executors, administrators or assigns, the just and full sum of 449 dollars 88 cents, when thereunto required by the owner or owners at the time of sale made by the said treasurer of Mercer county, his, her or their heirs, assigns or legal representatives, without any fraud or further delay than that which the law provides in such cases, then the above obligation to be void, or else to be and remain in full force and virtue. And I the aforesaid John Leech do hereby authorize and empower J. J. Pearson, Esq., or any other attorney of any court of record in the commonwealth of Pennsylvania or elsewhere, to appear for me in any such court in any suit or action brought or to be brought on the above obligation, and after one or more declarations filed for the above penalty, thereupon to appear for me and confess judgment or judgments to the plaintiff or plaintiffs in such suit or action, as of any term, with costs of suit and release of errors.
    “John Leech, [l. s.]”
    Indorsement, “John Leech, for the purchase of lot No. 92, in the fifth district, of five hundred acres.”
    The plaintiff then proved that John Leech had been an agent of captain Bartholemew, the father of the plaintiff, in taking care of the land and paying the taxes, and gave in evidence his account against the estate for taxes paid by him for the land from 1813 to 1828 amounting to 128 dollars including commissions, credit for 94 dollars, and a receipt for the balance 34 dollars dated the 15th of January 1829, signed “John Leech, agent.” John Leech was then called as a witness, and said “that the account was in his hand writing and that he gave it to John Bartholemew ; that when the land was advertized for sale, he wrote to John, and inclosed the letter to a member of the legislature from his county, informing him that it was sold, that he had no funds in his hands, and did not buy it in trust for them but for himself; that he had had a conversation with Mr Holstein, who said he would attend to it, that they were acquaintances of his.” The defendant was acquainted with his father’s agency. The defendant had cleared forty acres of the land, built a large barn and saw mill.
    The plaintiff requested the court to charge the jury that the relation of principal and agent which had subsisted between the plaintiff’s father and John Leech had not been so explicitly renounced as to enable him to become a purchaser, and that if it had, the surplus bond was so defective in not describing the land sold as to vitiate the sale.
    The court below charged the jury against the plaintiff on both these points and directed the jury to find for the defendant. Verdict accordingly.
    
      Holstein and Forward, for plaintiff in error,
    cited, 6 Watts 451; 10 Serg. & Rawle 239 ; Purd. Dig. 862 ; 6 Watts 64 ; 5 Watts 247 ; 13 Serg. & Rawle 193 ; 14 Serg. & Rawle 380; 2 Penn. Rep. 496.
    
      Pearson, for defendant in error,
    cited, 2 Yeates 88 ; 4 Watts 138; 1 Watts 42; 3 Binn. 54; 14 Serg. & Rawle 333; 1 Peters’s C. C. 356 ; 11 Serg. & Rawle 134; 2 Penn. Rep. 501 ; 7 Serg. & Rawle 306 ; 14 Serg. & Rawle 352.
   The opinion of the Court was delivered by

Gibson, C. J.

It is not denied that the defendant’s father had been the plaintiff’s agent and curator of the land. The father himself testified that his agency had expired before the sale; but that is not enough. To capacitate him as a purchaser' on his own account he must have explicitly resigned his trust. The most open, ingenuous and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire a personal interest in the subject of it. To leave a doubt of his position in this respect is to turn himself into a trustee. It is unnecessary to recur to authority for a principle so familiar or so accordant with common honesty. The agent was employed in this instance expressly to preserve the land from being sold ; and taking his agency to have been left unclosed by the absence of an explicit renunciation of it, neither Leisenring v. Black, 5 Watts 303, nor Riddle v. Murphy, 7 Serg. & Rawle 230, presented a stronger case to restrain the agent from purchasing for himself. Within the three preceding years he had been reimbursed his expenses and paid for his services; but that was not a dissolution of the previous relation; and it is not pretended that there was any other evidence of it. On the contrary, the fact that he gave intelligence of the sale to a co-tenant of the plaintiff, as well as to a friend of the family, evinces a consciousness that his duties as a fiduciary were not entirely closed. He. is therefore to be treated as having been a trustee.- But did the defendant purchase of him with notice 1 Knowing, as he probably did, of the former existence of the agency, he would be bound to inquire into the duration of it; and he would stand affected by it.

There is, however, an objection to the treasurer’s sale which goes to the root of it. The surplus bond contains no specification of the land ; and being referable to nothing in particular, it could neither create a lien nor give notice of one. As any thing but a common bond for the payment of money it was insensible and incurably vicious. Nor is it helped by the treasurer’s subsequent indorsement of the district and number of the tract. That was an indorsement for the officer’s convenience, but .no part of the instrument. In an action on it to reach the land (he terre-tenant might urge, with irresistible force, that the purchaser had not given the treasurer power to pledge it; and in looking into the bond, which alone is the purchaser’s act, it would not be discovered that the purchaser had pledged it himself. The indorsement was a memorandum for the convenience of filing, which might have been made with equal propriety by the prothonolary’s clerk. To whom, then, is the misprision to be charged % In White v. Willard, 1 Watts 42, and Fager v. Campbell, 5 Watts 247, the title was not prejudiced by the treasurer’s omission to have the bond put on file ; but it had been held otherwise where'the purchaser had given no bond at all: and the instrument in the present case is certainly not the bond directed by the statute. But it is insisted that, as the purchaser does not furnish the instrument, his title is not to be avoided by a blunder in the preparation of it. The treasurer is certainly charged with the business of preparation ; but he is bound to perform it under the direction of the purchaser, who is bound, on the other hand, to know the of his title and to point out errors in the concoction of it. When the bond is delivered, his participation ends, and the exclusive business of the treasurer begins. That the purchaser previously acts at the peril of his title is shown by Connelly v. Nedrow, 6 Watts 451, where a deposit of the surplus money was not allowed to be an equivalent for the statutory security. The defect is fatal, and the plaintiff is entitled to recover.

Judgment reversed, and a venire clenovo awarded.  