
    S. Titus, Administrator of Titus, against Velie and others.
    Where a bill for a foreclosure was filed by a second mortgagee, and the first and third mortgagees were made parties, but the latter did not disclaim, or offer to release; Held, that the third mortgagee was not entitled to have Ms costs paid until after the plaintiff was first paid his debt and costs.
    THE bill was filed by a second mortgagee, for a foreclosure and sale; and the.first and third mortgagees were made parties ; but they did not disclaim, nor was any release tendered by them, before suit.
    The third mortgagee now applied to have his costs paid i.o him, before the plaintiff was paid.
    
      T. J. Oakley, in support of the application,
    cited, Kenebal v. Scrafton, 13 Ves. 370. and Catlin v. Harned, 3 Johns. Ch. Rep. 61.
    D, S. Jones, for the plaintiff,
   The Chancellor said, that the costs must be denied* emtil the plaintiff was first paid his debt and costs. In the case of Catlin v. Harned, the junior encumbrancer disclaimed, Here the defendant did not, and, of course, it must be presumed, that he would not have released to the plaintiff, had he been asked to do so. There is no good reason why he should have his costs, to be paid by the plaintiff, in case the fund falls short. In Kenebal v. Scrafton, the first mortgagee, who filed his bill, and foreclosed, had his costs, though the fund proved insufficient to pay all the mortgagees.

Motion denied.  