On the 19th day of May, 1836, appellants'contracted with appellees for three unadjudicated Lovely donation claims. They agreed to give for them $3000, and paid in hand $600, and were to pay the balance oh or before the 29th of September following, if said claims were allowed; if not, appellees were then to refund the $600, with ten per cent, interest. Appellants sued on this contract, and 'alleged that said claims had been adjudicated by the Register and Receiver, and rejected, and that appellees had not refunded.the $600, with interest, as stipulated. Appellees pled that said claims had not been adjudicated and rejected. Issue was joined and trial had, which resulted in verdict and judgment for appellees.
At the trial, there were three instructions asked for by appellants, all of which the court refused to give, and appellants excepted. The two first were founded upon the erroneous assumption that the certificate of the Register was part of the evidence before the jury, when it was but the basis for the admission of the copy as evidence; the whole scope of the certificate being to make the copy of the entries evidence of the same dignity as the original entries in the books of the Land-office. The court therefore correctly declined giving the jury the two first instructions. It is very obvious, however, that it erred in refusing the third. For, so far from its having been necessary for the appellees to be notified of the adjudication and rejection of the claims, it was clearly their duty, under the contract, to prose-ecute the claims to final adjudication, and that, too, by the 29th of September, 1836, for that was the time agreed on by the parties for the payment of the balance of the purchase money for the claims, if allowed; if rejected, for the refundment of the $600 with interest.
The judgment is therefore reversed.