Opinion oe the Court by

The judgment is for $212, with interest from the 6th day of February, I860, the day of the contract and payment of the $20T *83claimed in the petition, so that in any view of the case the judgment is for too much hy $5. But the judgment was otherwise erroneous.

As Morehead was in possession of the land under his purchase with appellant’s bond for title, the court should not have adjudged the purchase money paid to he refunded without first rescinding the contract on equitable principles and ascertaining the balance due, if anything, on an account taken of the money paid and interest and improvements, if any, on the one side and rents and waste, if any, on the other.

Same disposition should have been made of appellant’s cross-petition against Daugherty. The warning order against him is as to the petition in which he was not made a party, and does not apply to the cross-petition, as to which he was not before the court. He seems to have been a necessary party, hut as the appellant neither brought him before the court himself nor sought to compel Morehead to do so, as a defendant to the petition, we would not feel authorized to reverse the judgment for the apparent irregularity as to the cross-petition concerning Daugherty.

As the judgment must he reversed, however, for the other reasons indicated, the appellant should be permitted to prepare his case on his cross-petition if he will do so within a reasonable time, and if he will not do so the same should be dismissed without prejudice as to Daugherty. v

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.