
    Lewis vs. Conover.
    When a mortgagee is made defendant to a suit for foreclosure, and the final decree in that suit gives such mortgagee his costs, he will not be required to cancel or release his mortgage before the costs are paid. The mortgage is merged in the decree, and such relief will not be granted until the decree is fully satisfied.
    
      Qumre. Whether, after such decree, a suit can be maintained in equity to compel the release or canceling of the mortgage.
    This cause was argued upon bill, answer, replication, and proofs.
    
      Mr. S. M. Dickinson, for complainant.
    
      Mr. D. Allen, jun., for defendant.
   The Chancellor.

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 mortgago and decree. Besides tliis, it appears to me that the whole debt and interest is not paid. The letter of June 30tli, 1866, agreeing to pay seven per cent, from that date, and the act of March 15th, of that year, entitled the defendant to interest at the rate of seven per cent. This would leave a small sum due on the mortgage. The mortgage is merged in the decree, and even if a suit can be maintained in equity to compel the release or canceling of a mortgage after such decree, no such relief will be granted until the decree is fully satisfied.

The bill must be dismissed.  