delivered the opinion of the Court:
As to the main question involved in this litigation, the decree of the circuit court is, undoubtedly, correct. It gave to the complainant below the very relief which his original and amended bills both prayed and which they were framed to secure. The other relief, a foreclosure of the mortgage, was only asked in the alternative and in the event that the relief actually granted should not be given.
The answer denied the complainant’s right to relief of any kind, either a conveyance of an undivided half of the Blackmore interest or a foreclosure of the mortgage, claiming that Lowry purchased the Blackmore. interest for his own exclusive benefit. The proof showed that the purchase should be considered as made for the joint benefit of Price and Lowry, and, on the eve of the hearing, Lowry amended his answer, admitting that fact, and conceding the right of Price to a conveyance, on payment of one-half of the. cost of procuring the deed. Then Price amended his bill, asking for a foreclosure. The granting of this prayer would have been inconsistent with the allegations of both the original and amended bills, and-with the relief primarily asked therein, as well as with the evidence. The evidence showed, as the bill stated, that the purchase from Blackmore was for the common benefit of Price and Lowry, to be made at their joint expense; and this arrangement, which was made with the attornies and agents of Price, was certainly ratified by him when he filed his bill in this case, if not before.
It was, however, an error in the decree to award an execution against Price in favor of Lowry, in order to enforce payment of one-half the costs of procuring the Blackmore title. Lowry was not the actor in this case. If he had desired affirmative relief, by compelling payment of one-half the purchase money, he should have filed a cross-bill, instead of resisting the right of Price to a conveyance until all the evidence had been taken.
Ueither was it equitable to charge Price with interest on one-half the expenses of procuring the Blackmore title, from ., the time of procuring it until the decree. Lowry had been constantly denying the right of Price to a conveyance, and had furnished no statement of the money expended, one-half of which Price had been desirous of paying. Under these circumstances, we think interest should not have been charged.
"We are also of opinion that the costs should have been taxed against Lowry, as he had denied the right of Price to a conveyance until - the evidence was taken. Probably the attention of the court was not particularly called to these provisions of the decree. We might not reverse merely for an erroneous ruling in regard to costs in a chancery case, but as this question is raised, and as the decree must be reversed on other grounds, we do not wish to sanction the order as to costs, by passing it over in silence.'
The decree of the court below is reversed and the cause remanded.
Decree reversed.