
    Rush’s Administrator v. The State.
    In 1853, the Commissioners of the Sinking Fund sold certain real estate to A, on credit, and took his obligation therefor, with B as surety, payable in five years, with interest, payable annually, and gave A a certificate, which recited the sales and terms thereof, and that “in case of any default of payment, according to the terms of purchase, then the premises shall be immediately forfeit and revert to the State, with all payments and improvements thereon, and the State shall be entitled to re-sell at any time.” A took posses-session, and, before maturity of his obligation to the State, sold the land in separate parcels to different persons, and received in full the consideration therefor, and gave them respectively his bond for title-, at a future time. A,, and B, his surety, failed to pay the State for the land, and the State, having tendered a deed to A, sued A and B, on their obligation for the purchase-money, making A’s grantees parties.
    
      Held, 1. That they were proper, if not necessary, parties, for the purpose of adjusting the equities between them and the surety of A.
    
    2. That, in the absence of other intervening equities, B, as A’s surety, upon payment of the money, would be entitled to be subrogated to the rights of the State in respect to tlie land.
    3. But, under the circumstances of this case, the equities in favor of A’s grantees, who have once paid .for said land, are superior to those of B, as such surety.
    4; That it was optional with the State, either to enforce the contract with A, by complying with its terms on her part, and collecting the purchase-money, or to avoid the contract in. consequence of the breach thereof by A,' and to re-sell the land.
    APPEAL from the Hush Circuit Court.
   Worden, J.

In December, 1853, at a public sale of lands, which, had been mortgaged to the State, to secure loans made by the Sinking Fund, Harvey D. Bush purchased, on credit, 320 acres, for the sum of 734 dollars and 27 cents, and, to secure the purchase-money, executed, with Greenberry J3. Bush as his surety, the following bond, viz:

“Know all men by these presents, that we, Harvey D. Bush, and G. B. Bush, are held and firmly bound unto the State of Indiana, in the penal sum of 1468 dollars and 54 cents, tor the payment whereof we bind ourselves, our heirs, executors and administrators, sealed with our seals, and dated this 10th day of December, 1853.
“ Whereas, the said Harvey D. Bush has purchased from the said State, through her Commissioners of the Sinking Fund, at the sum of 734 dollars and, 27 cents, the following pieces, parcels, or lots of land, lying and situated in the county of Owen, and State of Indiana, to-wit: (here follows. a description of the land), on a credit of five years from the date hereof, with interest annually, in advance, at the rate of 7 per cent, per annum, and has paid 51 dollars and 39 cents, being one year’s interest in advance, and received a certificate of such purchase.
“Now, therefore, the condition of the above obligation is such that, if the said Harvey D. Rush shall well and truly pay to said State, at the office of the Sinking Eund, in Indianapolis, the like sum of 51 dollars and 39 cents, ¿nnually, in advance, on the 10th day of December, in each year, and said principal sum, on or before the expiration of five years from the date, and will not commit or suffer any waste of said premises, then this obligation to be void, else to remain in jfull force.
“Harvey D. Rush, [seal.]
“G-. B. Rush, [seal.]”

The .certiflgate of purchase mentioned in the above bond, ^executed by-the Sinking Eund Commissioners to said Harvey, .after reaching the facts of the sale, and the payment of the ¡first year’s interest, stipulates, that if said Harvey D. Rush , should make the payment of interest and the principal when lit should become due, he should receive a deed for the premises; “but in case of any default of payment, according to the -terms of purchase, the premises shall be immediately forfeit and revert to the State, with all payments arid improvements thereon, and. the State shall be entitled to re-sell at any • time.’

Harvey D. Rush, in .pursuance .of his purchase, took pos- . session of the land, and, before the final payment from him to the State become due, sold a part thereof to one Middleton, and the residue to O. J. and II. Winters, receiving the consid- . eratioh therefor, and executing to MiddUton and the Winters, title bonds, conditional for conveyances to be made on or before the 25th of December, 1858.

The purchase-money due from Rush to the State, not hav'ing been paid, this suit was brought for its recovery. Harvey D. Rush was insolvent, and a non-resident of the State. He was brought into Court by publication only. The two Winters and Middleton were also made defendants. There was final judgment against Greenberry B. Rush for the amount due the State. His administrator appeals.

Several questions are made on the pleadings. These pleadings need not be further noticed in particular, as the questions involved may be passed upon without further reference to them. It is objected that the Winters and Middleton were improper parties defendant, and that their joinder was calculated to prejudice the defence of Greenberry B. Rush. We think they were proper, if not necessary parties. The State* as was necessary for her to do, brought into Court a deed to Harvey D. Rush for the premises. In the absence of any intervening equities, Greenberry, being the surety of Harvey D., might, perhaps, upon the payment of the money, be entitled to be subrogated to the rights of the State in respect to the land, or other such relief as might be just to all parties, and no detriment to the State. Eor the purpose of settling in one suit the equities between Greenberry and the purchasers from Harvey D. Rush, the latter were proper parties. And, it seems to us, that the equities of the purchasers from Ham vey D. Rush are superior to those of Greenberry, as such surety. Their equity was perfect when they bought the land and paid for it. It was older than that of Greenberry, who acquired no equity until he had paid, or been adjudged to pay, what was due on the land to the State.- If, upon judgment being rendered against Greenberry, he would have been entitled, as surety, to have the land first sold and applied to the payment of the judgment, or to have had the land otherwise applied to his benefit, in the absence of any equitable rights of third persons, the rights of such third persons acquired before any such rights accrued to him, must prevail over his, according to the maxim that he has the better title who was first in point of time.

This brings us to the main question in the case. .It is insisted, that inasmuch as the certificate of purchase provides that, in default of payment, according to the terms of the purchase, “then the premises shall be immediately forfeit and revert to the State, with all payments and improvements thereon, and the State shall be entitled to re-sell at any time,” the whole contract is avoided, and liability on the bond ceases, except for any deficit after selling the land. In other words, it is insisted, that the State can not enforce the contract by tendering a conveyance and suing for the purchase-money, but must first re-sell the land, and hold the original purchaser and surety liable only for any deficit. We can not give the contract that construction. In our opinion, it was optional with the State, either to enforce the contract by complying with it on her part, and collecting the purchase-money, or to avoid the contract in consequence of the breach thereof by the purchasers, and to re-sell the land. This view is fully .sustained by the authorities. Canfield v. Westcott, 5 Cow. 270; Clark v. Jones, 1 Denio 516; vide, also, Ludlow v. The N. Y. & Harlem R. R. Co., 12 Barb. 440.

One further question only is made in the cause. An issue was formed as to the State's title to the property. To show such title, the plaintiff offered in evidence a certain certificate of the State Auditor, which, was admitted over the objection of the defendant. We ar,e not aware of any statute which makes a certificate of the character of the one in question (it not being of the records, &c., of the office, as provided for by the 283d section of the Code,) competent evidence. But the .judgment should not be reversed on this ground, for the reason that, independently of the certificate, there was sufficient evidence before the Court, which tried the cause, to raise a fair presumption that the State had title, and there was no evidence to rebut such presumption. Independently of the certificate, the finding was in accordance with the evidence.

Thomas A. Hendricks and Geo. C. Clark, for the appellant.

Torhet $■ Reid, for the appellee.

Per Curiam.

The j udgment below is affirmed, with costs, and 1 per cent, damages.  