21 N.J. Eq. 230 | New York Court of Chancery | 1870
The object of this suit is to compel the defendant to cancel or release a mortgage. The complainant contends that the mortgage is fully paid. The defendant contends that the mortgage is not quite paid, and that there is besides some costs due on a decree by which the premises were directed to be sold for its payment in a foreclosure suit.
In June, 1860, the defendant filed a bill to foreclose this mortgage; he neglected to proceed, and in 1869 this bill was dismissed; no costs on this dismissal can be recovered by the defendant. But in August, 1860, a prior mortgagee commenced a suit to foreclose, which proceeded to final decree. Conover, the defendant here, was made a defendant in that suit, and in it a final decree was had in May, 1861. This decree is in favor of the defendant, for the amount due on his mortgage, and costs to be taxed at $23.18, which have never been paid. The receipts produced by the complainant, if sufficient to satisfy the mortgage debt and interest, clearly do not cover their costs; and two of these receipts are expressed to be on account of the mort
The bill must be dismissed.