Opinion
(June Term, 1831.)
One who defends an ejectment upon an equitable title cannot in equity recover his own costs at law, but he may those he has paid the plaintiff at law.
AFTER the decree made in this cause ( 16 N.C. 379) for a reconveyance by the defendant to the plaintiffs of the land conveyed to him by mistake, an order was made that the defendant should repay the plaintiffs the costs of the ejectment, and a reference as to those costs was directed.
Badger for defendant.
Seawell for plaintiffs.
The clerk, in his report, does not distinguish between the plaintiff's own costs, when defendant in ejectment, and those which they paid the plaintiff at law as his costs. The last only can be decreed to be repaid by the defendant to the plaintiffs. Their own costs the defendants at law threw away by defending in that court upon an equitable title, and cannot recover back. Keaton v. Cobb, 16 N.C. 439. The clerk must again inquire upon that point, and in his report distinguish the taxed costs at law of the plaintiffs, or either of them, from those of the present defendant.
PER CURIAM. Order renewed.