This is a question of costs prising under the “ Act to reduce the expense *534of foreclosing mortgages in the court of Chancery,” passed May 14, 1840. 1 J
The complainants’ bill alleges that the defendant, by agreement in writing, contracted to purchase of the complainants a lot of land, and to pay" the complainants therefor in certain installments, after the full payment of which the complainants were to execute a deed of the land to the defendant. It alleges farther, that the time of payment for the land has expired, and that the defendant has made no payments of principal or interest; and prays that the defendant may be decreed specifically to perform the contract, by paying the amount covenanted to be paid thereby; or, in default thereof, that he may be foreclosed of any right or claim to said land by virtue of such contract. Before any decree is made, the defendant comes in and offers to pay; and the only question is as to the amount of the costs. It seems that the vendor of lands, situated like the complainants, may file a bill for a specific performance of the contract; and may, if he chooses, have the premises sold to satisfy the contract; and if they do not raise sufficient, may have a decree over-for the payment of the deficiency. In that case, the surplus would go to the defendant. The vendor, however, is not bound to take such a decree for the sale of the premises. He may have a decree as in a case of strict foreclosure, providing that, if the vendee does not pay the purchase moneys with costs, within the time limited by the decree, he shall be barred and foreclosed of his right to claim, on his part, a specific performance of the contract afterwards. (Clark vs. Hale, 7 Paige, 382.) The prayer of this bill is for the latter relief. The defendant seems to suppose that this is a bill to *535foreclose a mortgage, within the meaning of the act in relation to costs, passed May 14, 1840 ; and that the costs of this suit should be governed by that act. In "this I cannot agree with him. The instrument proceeded upon, is not a mortgage. The object of the bill is not, as in case of common mortgages, for a foreclosure and sale of the premises. Even though this contract has expired, the defendant might possibly have an equitable right to enforce the specific performance of this contract hereafter. It is to foreclose this right, that this bill is filed. If the cause went to a decree, the decree would be that the defendant pay the purchase money, with interest and costs, or be foreclosed. There would be no positive decree for costs against the defendant; and if the defendant did not pay according to the decree, no costs could be collected of him." The complainant would have to pay his own costs, as the price of extinguishing the defendant’s equitable interest in the contract. The payment of the costs is imposed only as one of the conditions of giving the defendant the advantage of his contract. I can see nothing in this case to bring it within the act of May 14,1840, either within its words or spirit.
The costs must be taxed under the old fee bill.