after disposing of the question of costs under a particular rule, proceeded to consider the question as to the costs of the suits at large, as follows :
Edgar was brought into court in the original suit, an innocent and bonafide mortgagee .He had no concern with a greater portion of the matter in the bill, in which nineteen other defendants were charged. He answered, by setting up his mortgage fairly taken, and denying all knowledge of any fraud in Amos'Eaton, in procuring the releases which *72appeared upon record, and which showed the land to be free from incumbrance when he took his mortgage.
There can be no just ground for charging Edgar with costs in the original suit. He has done nothing which he had not a right to do. But he filed a cross bill; and under ' the circumstances of the case he was justified in doing it. After his answer to the original bill, Pendleton should either have dismissed it, as to him, or gone on to establish his allegations, and to make manifest his prior and better title. Instead of doing so, he resorted to his judgment at law, and proceeded to sell the very land covered by the conflicting mortgages.- By this means, he drove Edgar, by necessity, to resort to a cross bill, and to stay the sale by injunction, until the merits of the original suit had been discussed and settled. That cross bill was not properly a bill to redeem. That was not its character or object. It was to stay the execution at law, and to insist on the validity of his claim under .Edgar’s mortgage. The great prolixity and expense of the answer to the cross bill, and of the proofs taken in the cross cause, were matters of the defendant’s~own seeking in that cause. The whole suit was forced upon Edgar, by the act of the original plaintiff, and Edgar ought not to be charged with the expenses of it. Suppose the original plaintiff had gone on to proof and hearing, in the original cause, and obtained the decree which he finally obtained, there would have been no equity in condemning Edgar in the costs of the suit. He was brought into court innocently, and he had a right to stand upon his mortgage, until the falsity of the releases was made out. The cross bill does not alter the equity of the question of costs, as it would have stood, if there had been no cross bill, for it was the act of the original plaintiff in quitting his suit after the defendant’s answer, and resorting to his execution at law, that rendered Edgars bill necessary.
Nor do I think that the offer-mentioned in the answer *73to the cross bill alters the case. Edgar was bound' to accept of a composition, and leave the question of title and right between them undecided. That was a matter resting in his discretion, and cannot enter into the consideration of the case, as it stood upon actual litigation; and, besides, the answer being put in issue, there is no proof which I have seen of this offer.
Upon the whole, both parties are equally innocent, and have been equally struggling to avoid- a loss, and I cannot, according to the course and practice of the court, punish either party with costs, as against the other.
There is another fact in this case which is important, as to the question of costs. The costs of the original plaintiff ought to be charged upon the fund which was in contest. That is the proper subject of the charge, and I have no evidence that it is not fully adequate to satisfy the plaintiff’s debt, interest, and costs. The plaintiff elects to foreclose the equity of redemption, by which he takes the subject to himself, by a strict and technical foreclosure, instead of selling it under the direction of the court. I have no ground, then, in the absence of positive proof, for any other presumption than that the land is sufficient for all the purposes for which it ought to be charged.
"Ordered, that neither party in either- suit have costs, - as" against each other.