delivered the opinion of the court, January 3d 1881.
In January 1872, appellant sold and conveyed to Joseph Eox eighty acres of land, and as security for the payment of $2750, purchase-money thereof, took from the grantee and his wife their joint mortgage of the land so conveyed, together with a small tract called the “Homestead” containing about twenty-three acres, sixteen acres and twenty-four perches of which belonged to Mrs. Eox in her own right. She was therefore surety for her husband, at least to the extent that her separate property was thus pledged for his debt.
The mortgage, payable in six instalments with interest, contained the following clause: “Provided that as soon as the said first party shall pay to the second party the sum of $1000 of the purchase-money aforesaid then the last mentioned and described tract of twenty-three acres shall be released from this mortgage.” After *481making several payments, amounting in the aggregate to $983.75, and tendering the further sum of $61, the mortgagors demanded a release of the “Homestead” tract, claiming they were entitled thereto by the terms of the agreement. The appellant on the other hand contended that the payments should be first applied to the accrued interest on the whole mortgage debt, and then on account of the principal; and, claiming that the mortgagors were in default, he issued a scire facias for the purpose of collecting the residue of the $2750 by sale of both pieces of land. The bill was then filed, setting forth the fa.cts, as claimed by the appellees, and praying for • a mandatory decree requiring the mortgagee to release the homestead lot.
Construing the agreement, in the light of the evidence before him, the master decided that the homestead lot was pledged only for the payment of $1000 of the purchase-money, and the other tract was bound for the residue ; that the payments, as made by the mortgagors, were first applicable to the $1000, and accrued interest thereof, in relief of the homestead lot, and as soon as that sum, principal and interest, was paid, the appellees were, entitled to the release. The court adopted the conclusion of the master and made a decree that upon the payment of $120.38, which was found to be the balance of the $1000 and interest, the appellant should execute the release contemplated by the proviso above quoted.
On behalf of appellant, it is claimed, among other things, that the appellees had a full and adequate remedy at law, and hence their bill should have been dismissed for want of jurisdiction. We do not think so. While the appellees may not have been without remedy in an action at law, it cannot be said that they had any remedy as complete and adequate as that afforded by a bill in equity. It is not pretended that the ease is within the statute relating to the satisfaction of mortgages. As already observed Mrs. Fox was surety for her husband to the extent of her separate estate pledged for his debt; and, if it was agreed that, the homestead of the mortgagors should be included in the mortgage as special security for the first $1000 of the purchase-money, with the distinct agreement that as soon as that sum with its interest was paid, the special security, in which, alone Mrs. Fox was directly interested, should be released, they were clearly entitled to have the agreement to release specifically executed as soon as the condition precedent was performed. They were not bound to wait and take the risk of making special defence on the trial of the scire facias, and in the meantime suffer the homestead to remain apparently covered by the mortgage. The court was right, under the circumstances, in asserting its jurisdiction of the case as presented in the bill, and in adopting the conclusions of the master so far as they were necessary to support the decree as to the main subject; but, we think there was error in imposing any part of the costs on *482the appellant. While it is true he demanded the payment of more money than he was entitled to before he would release the homestead lot, the appellees had not paid or tendered a sum sufficient to entitle them to the release. In strictness the court might have dismissed the bill when it was ascertained that the full amount had not been paid or tendered before it was filed ; but this would have resulted in requiring them to pay the costs, and perhaps, after paying or tendering the full amount required, to commence de novo by filing a new bill, &c. In equity proceedings, when such expense and delay can be avoided, without prejudice to the rights of either party, there is no good reason why it should not be done. If the appellees are required to pay the costs and also $120.88, residue of the $1000, found to be yet due the appellant, with interest thereon from date of the decree, equal and exact justice, as nearly as may be, will be done.
The decree of the Court of Common Pleas, except so much thereof as relates to costs, is affirmed; and, in lieu of said excepted portion of said decree, it is now adjudged and decreed that the appellees pay the costs, including the costs of this appeal, and for the purpose of enforcing the decree, as thus modified, the record is now remitted.