This action, as disclosed in the complaint, was instituted upon an allegation of an equitable estate acquired by *Page 345 purchase made by the plaintiff Mibra for herself for life and the other plaintiffs, her children, in remainder, and to annual the proceedings prosecuted by the defendant Macy as administrator of the intestate, Thomas C. Nichols, for the sale of his lands, under which the defendant Allen bought and received a deed therefor.
The proceedings have been, for irregularities and other causes, adjudged void, and it was declared that while the equitable estate in the land conveyed to the defendant Thompson with a parol proviso for redemption, vested in the intestate, it was chargeable with the purchase money paid by said Allen and used in the payment of the intestate's debts by the administrator, to the rights of which creditors so paid he is entitled to be subrogated, and also with the value of the money advanced by said Mibra in redemption of said land.
The result is that the equitable estate in fee was vested in the intestate, and liable to be sold and converted into assets for the payment of his debts; and is now moreover incumbered with the moneys advanced by the plaintiff Mibra for herself and children, and also those paid by the defendant Allen and used in a due course of administration. There has, then, been no recovery of the land by the plaintiffs, within the meaning of section 276 of the Code of Civil Procedure, but the case falls within the scope of section 278, wherein costs may be allowed or not, at the discretion of the court.
We deem this a proper case to refuse costs to either party and leave each to pay his own, and each one-half of the allowance to the referee.
PER CURIAM. Judgment accordingly. *Page 346