The complaint was dismissed in the former actions, on the ground that an action of ejectment would not lie on such a state of facts, and not on the ground that the plaintiff was not entitled to any relief. This court had decided at general term, that the foreclosure proceedings were a nullity, the action'being commenced against a mortgagor, whose civil rights were suspended, and who was incompetent to appear in it. If that decision was correct, Davis has a strict right to redeem the mortgaged premises.
It is true this action and the former ones are in the same court, tinder the former system, the former actions could have been brought only in a court of law, and the present one only in a court of equity. If the same rules be applied now as were applied under that system, these motions should not be granted. The practice in this State seems to have been this. A court of equity would not stay the proceedings in a suit brought in it, until the costs of a previous action at law, in which the plaintiff was defeated, were paid, unless the second suit appeared to be vexatious. A court of law was governed by the same rule as to staying proceedings until the costs of a former suit in chancery were paid. Unless the two .suits had been in the same court, or in courts of the same nature, and proceeding on the same principle and in the same, mode, the second action would not be staid until the costs of the former one were paid. (2 Johns. Ch. R., 461; 19 Johns., 196; 7 Paige, 53). Perkins v. Hinman, (19 Johns., 237), was a -case in which both actions were in courts of law, although not in the same court.
- The judgments in the former actions did not determine that Davis had no merits, but that in an action stating facts entitling him to legal relief only, and in which all the parties interested in the controversy were not "before the court, he *365could" not obtain the equitable relief to which he would have been entitled, on the facts as they then appeared, if all the parties in interest had been before the court, and the complaint had stated the facts which the evidence disclosed. This suit is not vexatious, but on the contrary, assuming the foreclosure proceedings to be void, Davis has a strict right to equitable relief. A court of chancery would not have granted this motion, if the former system was yet continuing, unless it should depart from the decisions of Chancellors Kent and Walworth. I see no difficulty in these defendants having provision made for paying the costs of the former actions, by the decree to be entered in this, if the plaintiff succeeds. Besides, it is not alleged that Riley is irresponsible, and he is liable as Davis for the costs of this action.
The motion is denied, without costs to either party.