The appellants do not object to that portion of the order allowing a writ of restitution; but they do object to so much of the order as directs the clerk of the circuit court to pay the defendants or their attorney, out of the money deposited in court by the plaintiff Mathias Mohr, the sum of $286.90, the costs of this court on reversing the judgment, together with interest thereon and costs on the execution, and also to that portion directing that Mr. Oots-hausen be made a party plaintiff. In respect to the first branch of the order, it is insisted by appellants’ counsel that the moneys deposited in court did not in fact belong to Mathias Molvr, who was liable for costs on the record; and therefore that they ought not to be applied to the payment of his debt. We have some doubt about the correctness of this view, but we shall not examine the evidence bearing upon this question; for, assuming that the money did really *155belong to Mathias Mohr, we still think, under the circumstances, it ought not to be applied as ordered by the circuit court This money was a special deposit, paid into court by Mathias Mohr under the judgment which he had obtained, and for a particular purpose. As a condition to his having possession of the premises which he had recovered, he was required to pay into court, for the defendants in the action, the purchase money, interest, taxes, and assessed value of the improvements made by them. It will be seen that this money was paid into court for a specific and definite object. It does not seem right and proper to lay hold of the fund . thus paid into court, and appropriate it to an entirely different purpose from that intended. It may be said that it is no hardship to require Mathias Mohr to pay the costs out of this fund,— which is a perfectly honest debt,— especially in view of the fact that they cannot be collected on an execution against him. But it is more important that the utmost good faith be observed in all judicial proceedings, and that where money is paid into court for a specific and definite purpose it should not be diverted to another and different purpose, except for the most satisfactory reasons. It is true, the fund was in the custody of the law; but, as we have said before, it was paid in as a special deposit. The defendants had no equitable lien upon it for any costs which might be subsequently adjudged in their favor by this court. Besides, it appears that the money deposited was borrowed of one Yalentine Scheiber, and the same was duly assigned and set 'over to him soon after the judgment under which it was required to be deposited was reversed by this court. This was some three months prior to the making of the order appealed from. It is not at all probable that the money would, in the first instance, have been ordered to be paid into court as security for any costs which might accrue in the action; and upon the conceded facts we discover no ground for holding *156that an equity for costs attached to the fund while in the custody of the law.
In respect to the other branch of the order, we can perceive no sufficient reason for making Mr. Gotzhausen a party plaintiff. Whatever interest he has in the premises is that of a mere mortgagee. An undivided half of the property was conveyed to him by Mathias Mohr and wife, as security for any professional services which he might render in the litigation, and for such necessary disbursements as he might be compelled to make in the case. It is apparent that this merely constituted him a mortgagee. Now, this action of ejectment can be determined, and the title to the property settled as between the real parties in interest, without his being before the court. It is true, in the assignment of the fund which was made there is a recital to the effect that, long before the entry of the judgment in the circuit court for the recovery of the property, all the interest of the plaintiff was sold and transferred to F. W. Gotzhausen and one U. R. Mohr, who were the real parties in interest. But the affidavits used on the hearing of the motion for the order appealed from conclusively show that this recital was a mistake, and that all the interest which Mr. Gotzhausen had in the property was that of a mortgagee. This being the case, we see no necessity for making him a party plaintiff to this action. A complete determination of the controversy can be had without his being before the court.
It follows, from these views, that the order appealed from must be reversed, and the cause remanded for further proceedings according to law.
By the Court.— So ordered.
Cassoday, J., took no part.