
    The State and State Bank, Ex parte.
    "Where two complainants are claiming the same property — the one as purchaser at execution sale against the other — their interests are distinct and several, and' they will not he allowed to sue together as such for the purpose of divesting the title of a third party, also execution purchaser of the same party..
    The Bank of the State of Arkansas, upon a bill for injunction, will be required to verify the allegations of her bill, and give bond, like other suitors; and will not be allowed to prosecute her suit under cover of privileges which belong alone to the State, by uniting the State with her as complainant.
    The State, averring in her bill in chancery, that she bid off property at execution sale against the State Bank, but neither alleging that she paid the amount bid, or offered to pay it, but only that she was able and willing to pay, and that the Bank had the means and was able to pay, does not show such title as will warrant the granting of an injunction to restrain a purchaser of the same property, at a subsequent execution, sale, from asserting his legal remedies.
    
      
      Motion for a Mandmrms to compel the Oireuit Judge of Pulaski County to grant an Injunction.
    
    S. H. Hempstead, for the motion.
    3?IKE & CummiNS, contra. •
   Mr. Justice Walker

delivered the opinion of the Court.

This is an application for a mandamus to compel the judge of the Circuit Court of Pulaski county to grant to the complainants an injunction.

The judge, as appears from his endorsement upon the bill, refused to grant the injunction, because the State had no interest in the property described in the bill, and was not entitled to any relief in the premises, and because the Bank, the other complainant, who, in the opinion of the judge, had a right to equitable relief, refused to swear to the bill, or to give security according to law,‘in the sum of $6000, for the payment of damages in case the injunction should be dissolved.

This, the complainants refused to do, upon the ground, that the State is a party complainant; and, as such, is not bound to make such affidavit, or to enter into bond as ordinary suitors are. The defendants deny that the State has any such interest in the matter in litigation, as to entitle her to an injunction, and that the Bank, the other complainant, who, from the case made by the bill, is alone entitled to relief, is only entitled to it upon the usual terms imposed upon other suitors.

From the state of case presented by the bill, it is very evident that there is not only no community of interest between the complainants; but, on the contray, their respective claims are utterly irreconcilable with each other. Because, if the sale made by the sheriff to the State is valid, then the Bank, the defendant in execution, has no interest in the property, and if, on the other hand, the sales were fraudulent and void, the property still belongs to the Bank, and of course the State has no claim to it.

So far as the title of the State is concerned, every thing depends upon her sustaining the validity of her own title: because, unless she has title to it, it is a matter of no consequence with her, whether the sheriff and Newton perpetrated a fraud in the after-sale of the property or not. Having no rights under her purchase, of course none could be affected by the conduct of others. If the bid by the State, through her agent, became forfeited by a failure on her part to pay the sum bid to the sheriff, or for other cause, and the sheriff, in combination with others, perpetrated a fraud in the sale of the property, it must have been to the prejudice of the Bank, the defendant in execution, and for which she has a distinct cause of action; and so far from the State being made a party complainant, the Bank, under the circumstances, with far more propriety might have made the State a party defendant, denying the validity of her purchase as well as that of Newton’s, with an appropriate prayer that both titles be canceled. There is no identity of interest between the State and the Bank in this property, no reference is made to the interest or liability of the State as a stockholder, or as responsible for the capital upon which the Bank went into operation; nor does she claim as one interested in the property of the Bank, which, since the liquidation act, has been held by the Bank, to be disposed of for the benefit of her creditors ; but, on the contrary, the title set up in the bill is purely as purchaser, at judicial sale, of property which she alleges was sold as the property of the Bank. The complaint is, that a judgment was obtained against the Bank upon which execution issued, and was levied upon certain lots of land situate in the city of Little Rock, the property of the defendant in execution (the Bank,) which were exposed to sale according to law, and bid off by Euclid L. Johnson, as the agent of the State, for her, at the price of $205. That the sheriff knew that the State was able and willing to pay said bid, and that the Bank had the means to pay, and was well able to pay the same for the State, and all that the sheriff had to do was to call upon the State or the Bant for the same, and that it would be paid; that the State has at all times been willing to pay said bid; that afterwards, at the. request of Johnson (the agent), the sheriff executed and delivered a deed to the State, conveying the property with its appurtenances to her; and that the deed recites and admits the receipt of the purchase money, and by virture of all which the State becomes the lawful owner of the property, and so continues to - be. These, together with the farther allegation, that after the sale to Newton, the Bank, in behalf of the State, paid the balance of the debt due the plaintiff in execution, to Mr. Watkins, the attorney for plaintiff, and that whether paid or not, she has tendered the money to the sheriff, and is yet willing to pay the same; may be considered the grounds upon which the State rests her claim to equitable relief — grounds which, as we have said, are not only wholly independent of, but are also adverse to, those of the Bank. Where co-plaintiffs have interests in the subj ect of the suit, but such interests are distinct and several,, they will not be allowed to sue together as such, nor in ease one of the parties plaintiff has no interest in the subject matter in issue, can they be joined. This rule is folly recognized and settled by authority. 1 Danl. Ch. Pl. & Pr. 350; Story’s Equity Pl. 544; Boyd vs. Hoyt, 5 Paige 65.

And if not permitted to join in ordinary cases, where they have distinct rights, with much more reason would they be precluded ñ-om the right to assert privileges as suitors, which alone extend to one of them.

But, in the case before us, the parties do not stand in so favorable a position as co-plaintiffs do, who have distinct interests in the same subject matter, because the State, in this instance, fails to show any right whatever in the property, according to her own showing, because she neither paid the purchase money, nor did she offer to pay it, until after the day of sale, at which the property was bid off to her; and, when such is the case, the sheriff may treat the bid as forfeited,, and proceed under the statute to re - sell tbe property. Tbe allegation that tbe sheriff knew that tbe State and the Bank bad money, and were ready and willing to pay tbe bid, when applied to, is no sufficient excuse for not paying -or offering to pay, witbin reasonable -hours, on tbe clay of sale. A mere willingness or abibty to pay, -is not sufficient. "Willingness must be evidenced by payment, or an offer to pay. Tbe law knows no distinction between bidders at a cask sale; tbey are required to pay tbe money bid, or bold themselves ready, and offer to pay at tbe place of salé, if required. No vabd title passed to tbe purchaser, even by deed, unless tbe purchase money was paid. Until this is done, the sheriff has no right to make tbe deed’, be cannot charge himself with tbe amount bid, and make tbe deed, because this would be to substitute himself as debtor to tbe creditor. This, tbe policy of tbe law forbids, as was expressly held in The State vs. Lawson, sheriff, 14 Ark. R. 121. And so rigidly is this law enforced, that even where tbe sheriff bad received from tbe purchaser tbe larger part of the money bid, and credited him for tbe balance, tbe deed was set aside. Dickerson vs. Gilliland, 1 Cow. 498.

There is no averment that tbe purchase money was paid, or offered to be paid, on tbe day that the property was bid off by tbe State. Tbe averment, that “tbe deed recites and admits” payment, is clearly not an averment that the money was in fact paid, but only that it was so recited in tbe deed; and, from tbe guarded language, in which it is expressed : tbe deed recites and admits, &c., tbe averment of a tender after that time, negatives tbe idea that payment was in fact made. This being the case, it is evident that -the State, according to tbe case made in tbe bill, acquired no title to tbe property as purchaser, and as -she sets up no other title or claim to tbe property, tbe Bank, whose claim is of a very different nature, can derive no aid, from the mere fact that tbe State is named as party complainant in the suit, nor will she be allowed to prosecute her'suit under cover of privileges, which alone belong to tbe State as a suitor in tbe assertion of her own rights. That tbe Bank may be unable to give tbe security required, is a misfortune common to all poor suitors. It is not contended tbat sbe is not as mucb bound to comply with the terms imposed by the statute, as any other suitor, and if unable to do so, like all others, she must abide the consequences.

The application must be denied.

Mr. Chief Justice "Watkins not sitting in this case.  