dissenting:
There was a reference to the master to take an account of what was due on the mortgages, with direction to the master to only allow Koon interest at the rate of six per cent per annum. The master took the account. On exceptions filed before him, some changes -were made by him, and he reformed the account. To the reformed account exceptions were filed and-overruled.-- -The master’s report stating .the account as reformed by him, was filed in the circuit court, and that court passed upon the exceptions to the reformed account, and sustained the master’s report,- except as to one item. The master reported to be due on the notes and mortgages, $11,182.73. After deducting therefrom the item as to which the court sustained an exception, being a credit of $1000, with interest thereon, in favor of complainant, the court found there remained due from complainant the sum of $9547.73, upon which sum, with interest, being paid within three months, it was decreed the mortgages should be released, and in default thereof the bills should stand dismissed, and that complainant pay the costs of the cause. By the decretal,order, it was “ordered that the fourth exception of said complainant to said amended report be sustained, and that complainant be allowed the credit of $1000, as of the date of November 16, 1871, and which the said master refused so to allow; and it is further ordered, that in all other respects the amended report of said master,-of date June 21, 1882, be confirmed, and all the other exceptions of said complainant thereto be overruled, and the court finds that by deducting the said item of $1000, with interest thereon from November 16, 1871, from the sum of $11,182.73, the amount found to be due by said master in his amended report, there remained the sum of $9547.73 due from complainant, June 21, 1882, the date of said report. ” The third and fourth exceptions are as follows:
“Third—Said master should allow a credit to Hollingsworth, of November 16, 1871, $1000, which he has not-done.
“Fourth—There should not be allowed both the items of September 13, 1871, $1000, and the item of October 2,1871, $1699.30, but only $1600, as this was all the item ever paid Hollingsworth about that time, and the allowance of the other, and interest, is erroneous. ’’ ■
It is claimed that it appears by the above that both the third and fourth exceptions were sustained by the court, and that there is a manifest error in not deducting, the item of the fourth exception, $1699.30, from the amount afterward declared as being due. It appears sufficiently that there was here a clerical error, which corrects itself, in miscalling the exception which was sustained, the fourth instead of the third. It is quite plain from an inspection of the above portion of the decree, in connection with the third and fourth exceptions, that there was but one exception sustained, and that was the third; that there was but one item of exception to be deducted, which was $1000, and that was the subject of the third, and not of the fourth, exception.
Plaintiff assigns as error the rulings of the court in not sustaining a large number of exceptions to the master’s report, all going to particular items of debit and credit in the account. An examination of the evidence will show that there is testimony to sustain all the findings of the master which are excepted to, and those of the court, and that it is a question only as to the credibility of witnesses which is presented in this regard,—that the master has given credence to one witness rather than to another. After considering the conflicting testimony of witnesses, and the circumstances relied on as being in corroboration or otherwise, there is no such error appearing in any of the findings of the master, or of the court, as in my judgment to. call for a reversal of the decree.
As to the objection that the amount found due was an entire debt, and not apportioned on each of the mortgages, it would seem to be too late for plaintiff in error to raise this objection for the first time in this court. He made no such objection before the master, or before the circuit court. Had he done so, the amount found due would doubtless have been apportioned to the two mortgages. But the master was allowed to proceed and find what was the entire debt-due upon -the two mortgages, and not the amount due on each mortgage separately, without any intimation of dissent thereto, or any expression of desire that there should be a contrary course, finding the amounts due on the mortgages separately. And it was the same throughout the proceeding in the circuit court. It does not seem fair, after thus lying by and apparently acquiescing in the master’s mode of computing the indebtedness, to now for the first -time, in this court, raise this objection. It should be deemed to have been waived. ■
• The matter of costs objected to, was in. the discretion of the circuit court, and as a general rule a party coming into a court of equity to redeem, pays costs to the defendant, in addition to the amount due upon the mortgage, although he obtains the relief prayed for. (2 Barbour’s Ch. Pi\ 199.) The supplemental bill prays that if anything is -found to be due from the complainant, he be allowed to pay it. The bill is to be regarded as one to redeem.
I perceive no error in the decree, and am of opinion it should be affirmed.
Mr. Justice Craig : I fully concur in the dissenting opin7 ion of Justice Sheldon.