the amount bid, namely, eleven thousand dollars. His right to hold the property until the payment of the amount bid, and his liability to account for rents, carry the right to have the full benefit of the deed of trust, including interest on the debt at the rate therein specified: Harper v. Ely, 70 Ill. 581. Defendant is in no sense a volunteer. He purchased to protect himself, as second mortgagee, and at the request of the plaintiff. He is entitled to the full benefit of the deed of trust, and that gives him at least eight and two thirds per cent. Defendant contends for ten per cent. But, for the reasons before stated, this complaint is not presented by the record.

8. Numerous other objections are made to the report of the referee by the plaintiff, and especially as to the amount allowed for services rendered defendant as an attorney, and as to the amount with which the defendant is charged as revenues earned by the stallion Magic, the joint property of these litigants. The referee heard the mass of evidence, and stated the accounts with great care, and we are satisfied with his conclusions. As to the other matters of complaint, so far as we can see from the imperfect abstracts on this branch of the case, the referee's report, as modified and confirmed by the court, is without error, both as to the finding of the facts and the statement of the account.

9. Finally, as to costs: These were, by the final decree, ordered to be taxed to plaintiff, except as otherwise adjudged during the progress of the cause. The statute provides: "In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." Other sections provide that costs shall be given at the discretion of the court, first, where the defendant shall plead several matters, and a verdict shall be for plaintiff on any issue; second, where there are several counts in the petition, and the verdict on any one shall be for the defendant. These statutes are the same now as in the Revised Statutes of 1845, save the present statute speaks of a "petition," and the former of a "declaration": R. S. 1845, p. 242, secs. 6, 8, 9; R. S. 1879, secs. 990, 992, 993. These provisions in the code of 1845 have reference to actions at law alone, for the eighteenth section provides: "Upon the complainant dismissing his bill in equity, or defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant his costs; and in all other cases in equity, it shall be in the discretion

of the court to award costs or not, except in those cases in which a different provision is made by law." Under this statute, it was the uniform ruling of this court, in equity suits, not to interfere in the taxation of costs by the trial court unless there had been an abuse of the discretion: Shields v. Hickerson, 7 Mo. 134; Walton v. Walton, 19 Id. 668; Walker v. Likens, 24 Id. 304. In the revision of 1855, this section is modified by substituting "plaintiff" for "complainant,” and "plaintiff dismisses his suit" for "complainant dismisses his bill in equity." The section still remains, as thus modified: R. S. 1879, sec. 1002. The chief purpose of the change in the phraseology of these sections was to conform them to the nomenclature of the new code, in which the party complaining is called plaintiff, and the first pleading a petition, both in actions at law and in equity.

As a general rule, where the plaintiff is the prevailing party in a suit in equity, he should recover costs. It was so held in Hawkins v. Nowland, 53 Mo. 328, but without any consideration of the history of these statutes. Where, however, substantial issues are found for one party, and like issues found for the other, the taxation of costs will rest in the discretion of the court, and will not be disturbed unless there has been a clear abuse of that discretion. This discretion is vested in the court when the verdict is for one party on one count or defense, and for the other party on another count or defense, and there is no reason why the principle should not be applied in equity suits, though there be but one count, there being distinct issues. Some support is given to this conclusion by what was said in Dupont v. McLaran, 61 Mo. 511. In this case, there were many distinct issues, that as to the right to redeem being found for the plaintiff, and those as to the amount of money to be paid for the defendant. We may, therefore, settle the question upon equitable principles.

The general rule is, that the plaintiff, and not the defendant, must pay the costs in a suit to redeem from a mortgagee's possession, and this though he succeeds. There are exceptions to the rule, however, as where the mortgagee sets up an unwarranted or unconscientious defense, and thereby makes costs and delay: Slee v. Manhattan Co., 1 Paige, 81; Brockway v. Wells, 1 Id. 618; 2 Jones on Mortgages, sec. 1111. In the case last cited, it is said: "The defendant Brockway does not appear to have acted fraudulently or in bad faith in selling the contract. He only mistook his legal and equitable rights, and

that forms no ground for charging a mortgagee with costs on a bill to redeem."

In the case of Harper v. Ely, 70 Ill. 582, a sale under a trust deed was held void on the ground that Haddock virtually purchased at his own sale, and for this reason the sale was deemed fraudulent. Ely purchased from him with notice. The bill was one to redeem, and it was held that the costs were properly adjudged against the complainant. In Phillips v. Holsizer, 20 N. J. Eq. 308, the question was, whether, under the circumstances, the transaction was a mortgage or a contract to reconvey. The defendant refused to accept the money when tendered, and resisted the suit on the ground that the transaction was not a mortgage, and failed in his defense; yet he was allowed costs of the suit. The plaintiff made default in payment of the debt secured by the deed of trust, and has been in default for years as to the mortgage debts. He has shown no haste in paying these debts, and made no tender to defendant. Defendant purchased and went into possession at the urgent solicitation of plaintiff. He has been mistaken, but honestly mistaken, as to the character and legal effect of that purchase, and the repeated charges of fraud on his part are without any support in the reliable evidence in the case. The decree is practically a foreclosure in favor of defendant for over eighteen thousand dollars. Heavy as the costs must be, they are properly taxed to plaintiff; certainly no abuse of the discretion of the trial court is shown.

The judgment is in all respects affirmed, except as hereafter stated. Each party will, of course, pay the costs of his appeal to and in this court. In view of these appeals, the plaintiff will have six months from this date in which to make the deposit of money specified in the original decree. And to this extent the decree is modified.

DUTIES AND LIABILITIES OF MORTGAGEE IN POSSESSION: See the note to Caldwell v. Hall, 4 Am. St. Rep. 69-71, discussing the points raised in the principal case.

OBJECTIONS NOT RAISED IN Lower Court ARE NOT AVAILABLE ON APPEAL: Viele v. Germania Ins. Co., 26 Iowa, 9; 96 Am. Dec. 83, and note.

RIGHT TO COSTS, GENERALLY: See note to Ela v. Knox, 88 Am. Dec. 180185; Blue v. Blue, 38 Ill. 9; 87 Am. Dec. 267.

PURCHASER AT FORECLOSURE SALE IS SUBROGATED TO RIGHTS OF MORTGAGEE, and is entitled to interest until redemption: Anson v. Anson, 20 Iowa, 55; 89 Am. Dec. 514.

AGREEMENT BY PURCHASER AT EXECUTION OR JUDICIAL SALE to hold the property for the benefit of the defendant, or to permit him to redeem, not

withstanding his right to redeem has otherwise lapsed, will be enforced in equity: Freeman on Executions, sec. 337; Denton v. McKenzie, 1 Desau. 289; 1 Am. Dec. 664; Miller v. Antle, 2 Bush, 407; 92 Am. Dec. 495; Beegle v. Wentz, 55 Pa. St. 369; 93 Am. Dec. 762.

OBJECTION NOT MADE IN THE Lower Court will not be noticed on appeal: Viele v. Germania Ins. Co., 26 Iowa, 9; 96 Am. Dec. 83, note 111; Hendrickson v. St. Louis R. R. Co., 34 Mo. 188; 84 Am. Dec. 76, and note; Gates v. Andrews, 37 N. Y. 657; 97 Am. Dec. 764.

ADAMS V. COWLES.

[95 MISSOURI, 501.]

PROCESS-NOTICE BY PUBLICATION. - Action to cancel a deed as fraudulent is a suit for the establishment of a right to or against real estate, so as to allow notice to non-resident defendants by publication of summons, provided by section 3494, Revised Statutes of Missouri.

PROCESS-NOTICE BY PUBLICATION. - In action to cancel a deed as fraudulent, and to obtain title to the land, notice to non-resident defendants by publication of summons is sufficient under the statute, if it describes the land, and states the object of the suit, especially when collaterally attacked.

MISSOURI CIRCUIT COURT IS ONE OF GENERAL JURISDICTION, proceeding according to the course of the common law, and nothing will be intended to be out of its jurisdiction but what specially appears to be so. QUESTION OF JURISDICTION MUST BE TRIED by the whole record in Missouri, and when it appears therefrom that the court had no jurisdiction over the person or subject-matter, the judgment is void, and will be so treated in a collateral proceeding.

NOTICE BY PUBLICATION. -JUDGMENT RECITAL as to the terms of an order of publication on non-resident defendants, if contradicted by the order itself, must yield, and the order must control.

WHERE JUDGMENT of Court of General JURISDICTION RECITES due service of notice on non-resident defendants, and there is nothing in the order of publication or the record which specifically contradicts such recital, it will be presumed, upon collateral attack, that the court has acted correctly and with due authority, and its judgment will be as valid as though every fact necessary to jurisdiction affirmatively appeared; and if the statute required an affidavit of non-residence to be filed prior to the order of publication, it will be presumed, in the absence of proof to the contrary, that such affidavit was filed.

FORMAL REQUISITES FOR VALIDITY OF OFFICIAL ACTS ARE PRESUMED when such acts are shown to have been done in a manner substantially regular.

Adams and Bowles, for the appellant.

A. Comingo, for the respondent.

BLACK, J. This was an action of ejectment for the undivided one half of 320 acres of land in Bates County. Both parties claim title through William A. Glenn, who conveyed

the land to William C. Glenn in June, 1869, and he conveyed to Hartwell in 1881, from whom defendant claims by sundry deeds. Judgments were recovered against William A. Glenn in August, 1869, under which the property was sold to Dwight Ferris. The deeds from the sheriff to him are dated March 10 and 11, 1870. Ferris conveyed to Dunstan Adams in 1875, and Dunstan Adams conveyed to plaintiff. Before Ferris conveyed to Adams, he procured a decree in a suit against William A. and William C. Glenn, setting aside the deed from William A. to William C. Glenn, on the ground that it was made to hinder, delay, and defraud the creditors of William A. Glenn. The validity of that decree is the only real controversy in this case. The defendant claims that the decree is a nullity for want of jurisdiction over the defendants, and so the trial court held.

The petition in the case of Ferris against Glenn and Glenn was filed in the circuit court of Bates County on the 12th of October, 1870. A summons was issued for the defendants at the same time, but there is no return on it whatever. At the same time the clerk made an order of publication, the material portions of which are as follows: "Now, at this day comes Dwight Ferris, plaintiff in the above-entitled cause, before the undersigned, clerk of the circuit court of Bates County, in vacation, and files his petition, stating, among other things, that the above-named defendants, William A. Glenn and William C. Glenn, are non-residents of the state of Missouri. It is therefore ordered by the clerk aforesaid, in vacation, that publication be made, notifying them that an action has been commenced against them by petition and affidavit in the circuit court of Bates County, and state of Missouri, the object and general nature of which is to obtain a decree of title to the following described real estate, to wit." The property is then described, and defendants are notified to appear at the March term, 1871. At that term, the plaintiff made proof of publication, and at the September term, 1871, the plaintiff took a decree by default. The record in that case was put in evidence in this one, but no affidavit of non-residence of the defendants appears among the files.

1. The statute (R. S., sec. 3494), allows the service of notice by publication "in all actions, at law or in equity, which have for their immediate object the enforcement or establishment of any lawful, right, etc., to or against real estate." If the deed to William C. Glenn was fraudulent, then it was