Archer v. Cole

When this case was originally before the court it seemed to me, and I so stated in the short opinion prepared by me, that as the plaintiff had only established a claim to the extent of $111.50, as found by the jury, and the defendant had under his equitable defence made a tender of $160, being much more than suffi*413cient to satisfy the debt and costs up to that time, that the plaintiff was only entitled to recover his costs up to the time of the tender, and the defendant should either be entitled to the costs subsequently accruing, or be discharged from the payment of costs thus incurred.

I am satisfied that he should not be compelled to pay costs.

Under the old rule in chancery, if the defendant had filed a bill to redeem, it is pretty clear that under the circumstances of this case he would have recovered costs. (See 1 Paige, 617 ; 4 id., 527.)

Under the Code, the defendant could set up this equitable defence, and was not driven to a cross-action to assert his rights, and under the fifth defence the defendant has established his right to relief as claimed by him. In an action of ejectment., the defendant can set up an equitable defence, or claim specific performance of a contract to purchase the premises which are the subject of the action. The right of the plaintiff to recover at law is perfect, but it is qualified, and may even be wholly defeated, by a defence that can only be enforced by the aid of the equitable powers of this court.

In equitable actions costs are allowed or denied at the discretion of the court.

We are not embarrassed in this case by the difficulty that there is a want of proper parties, and that thus the equitable relief claimed by defendant cannot be given, because no such objection is taken ; and besides, if necessary the interests of outstanding parties can be protected by the final judgment in this case.

So far as these parties are concerned, there is no difficulty in adjusting their rights, and as the defendant has established his equity, I am of opinion that the judgment should be without costs.