¶1The mortgage of the defendants was not merged in the judgment as to the plaintiff, he not being a party to the foreclosure, and it being his interest that the mortgage should not merge. The same rule applies to the plaintiff's mortgage and the foreclosure thereon. As to both these parties, the question in this case must be decided as though neither mortgage had been foreclosed. When Thompson sold to Ryder, he sold subject to the payment of his mortgage to Miller, now held by the defendants, and after that, Ryder executed the mortgages to the plaintiff.
¶2The liability of Thompson for the costs, and the liability of Ryder to Thompson under his assumption of the mortgage of Thompson, would make Ryder liable for the costs; but I am at a loss to see any liability for them from Gage, because he held a second mortgage on the premises. He never assumed the payment of any mortgage, and never made any promise of any kind to Thompson. I can see no liability to Thompson, or no ground on which he could maintain an action against the plaintiff. The court below erred in this respect, and the plaintiff was entitled to redeem on payment of the mortgage and interest.
¶3The judgment should be reversed, and judgment ordered for the plaintiff.