Barrows, J.
This case comes before us for a hearing upon certain exceptions taken to the report of a master in chancery, appointed in pursuance of an opinion rendered in the case, and reported 44 Maine, 286, holding the complainant entitled to redeem the mortgaged premises, upon payment of such sums as should be found to be legally and equitably due upon the mortgage.
The mortgage was originally given to the father of the defendant by her brother, who received a conveyance of the father’s farm, and gave the mortgage to secure the performance of certain covenants and stipulations by him then entered into for the support of his father and mother, upon the farm, during life, and the furnishing of certain privileges to his sisters while they remained unmarried, and other matters which it is not necessary here to specify in detail.
The mortgager, in a few years, parted with his interest in the premises, and the complainant acquired it while a writ of entry was pending in the name of the father, the original mortgagee, to recover possession of the farm for an alleged breach of condition.
In that action a conditional judgment for $250 and costs was made up at the October term, 1851; and the same not being paid, the mortgagee went into possession under a writ of possession, Feb. [319]*31924, 1852, aud conveyed the farm to the respondent, by deed of warranty, May 2, 1853.
The complainant, holding the title of the mortgager, in January, 1855, within three years after the mortgagee went into possession, tendered to the respondent the amount of the conditional judgment and interest, demanded an account of rents and profits which the respondent refused to give, and offered to pay any additional sum that might be found due upon an adjustment of the rents and profits, and brought his bill to redeem, which ho was held by the court entitled to do in these terms: “ The conditional judgment having been entered in the action, Harnden v. Harnden, upon the mortgage, the plaintiff to be entitled to redeem, must pay such further sums, if any, as have since accrued.”
The master finds a certain sum accruing since the entry of the conditional judgment which he says the complainant ought to pay in order to redeem.
The most formidable objection to the master’s report, and the one now principally relied on in argument by complainant’s counsel, is that the respondent is estopped by the conditional judgment rendered upon the mortgage, from claiming anything that might subsequently accrue, — that that judgment must be conclusively presumed to embrace all the damages, both past and prospective, occasioned by the violation of the condition and the failure of the mortgager to furnish support.
But we think it unnecessary to consider whether there is anything in the condition of this mortgage, or in the manner in which the conditional judgment upon it was made up, to distinguish the case in principle from Philbrook v. Burgess, 52 Maine, 271; and Sibley v. Rider, 54 Maine, 463.
It is a sufficient answer to the objection, that it is now, for the first time, suggested in an argument to the full court upon exceptions to a master’s report in which it does not appear that any such position was taken before the master, or any exception alleged to his ruling upon that point.
We hold that, in a hearing of this description, a party must be [320]*320confined to such exceptions as he filed to the master’s report, and cannot be permitted to go out of those exceptions to raise other objections never before taken, and which he must be held to have waived. Pingree v. Coffin, 12 Gray, 315. Smalley v. Corliss, 37 Vermont, 435.
We have no reluctance in applying the rule to the present case, because in doing so we are only conforming to the view' which, until very recently, the. complainant and his able counsel seem to have taken of his equitable rights and duties, and to the view which the court entertained in this very case, when the master was appointed, — such an appointment being _ totally unnecessary if this objection ought to have prevailed.
It is manifest that in the making up of the conditional judgment on the mortgage, no prospective damages for the breach of the condition were included. The report states that testimony was offered tending to prove that the complainant proposed to the mortgagee to provide for the support of the beneficiaries named in the mortgage, and it would seem that the mortgagee assented to this; but the master finds, further, that the complainant did not make adequate provision for their support, and that they received no part of their support from him. Under these circumstances, equity does not permit him to resort to a legal estoppel which has once been so completely waived in order to preclude the mortgagee or his assignee from the benefit of such provision as the mortgage was designed to secure; for equity looks to the intention of the parties rather than to the form of their proceedings, and strives to give effect to such intention when fairly disclosed.
We proceed now to consider the exceptions that were actually taken to the master’s doings. ■
■ The first exception is to the allowance made by the master for the support of the mortgagee and his wife, after September, 1853, when they removed from the farm, against the position taken by the complainant that by the conditions of the mortgage they were to be supported there and not elsewhere. The exception would be well taken if it did not also appeal’ by the master’s report that the complainant, though he assumed the duties and obligations of the mortgager ap[321]*321patently with, the assent of the mortgagee, neglected to furnish the necessary means of support. This being the case, the mortgagee and his wife were under no obligation to maintain themselves upon the farm, but might seek the support required by their age and infirmities where it could best be afforded, which was with their daughter, the respondent; the plaintiff cannot complain if loss and expense have resulted from his neglect to fulfill the obligations which he had undertaken, since it does not appear that the expense incurred for their support, by their daughter, was extravagant or unreasonable.
The second exception relates to the expíense for support accruing after the conveyance by the mortgagee to the respondent. This objection we think equally ill-founded. The complainant insists that the conveyance to the respondent was a release and discharge of all the mortgagee’s claim for support under the conditions of the mortgage, inasmuch as it passed all his title to the land, which was the only means he had of enforcing the performance of the condition; and that the assignee of such a mortgage could take nothing by such assignment except what was due at the time of the assignment, and could claim nothing for the future support of the mortgagee and other beneficiaries named in the mortgage, in case of the failure of the mortgager or his assignee to furnish it. Not so in either particular.
No good reason can be shown why such a conveyance should be construed as a release to the mortgager, or his assignee, who has (with the consent of the mortgagee) undertaken, but has not performed the duties of the mortgager, from the obligation to afford support according to the conditions of the mortgage. Manifestly, nothing of that sort was intended.
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Barrows, J.
This case comes before us for a hearing upon certain exceptions taken to the report of a master in chancery, appointed in pursuance of an opinion rendered in the case, and reported 44 Maine, 286, holding the complainant entitled to redeem the mortgaged premises, upon payment of such sums as should be found to be legally and equitably due upon the mortgage.
The mortgage was originally given to the father of the defendant by her brother, who received a conveyance of the father’s farm, and gave the mortgage to secure the performance of certain covenants and stipulations by him then entered into for the support of his father and mother, upon the farm, during life, and the furnishing of certain privileges to his sisters while they remained unmarried, and other matters which it is not necessary here to specify in detail.
The mortgager, in a few years, parted with his interest in the premises, and the complainant acquired it while a writ of entry was pending in the name of the father, the original mortgagee, to recover possession of the farm for an alleged breach of condition.
In that action a conditional judgment for $250 and costs was made up at the October term, 1851; and the same not being paid, the mortgagee went into possession under a writ of possession, Feb. [319]*31924, 1852, aud conveyed the farm to the respondent, by deed of warranty, May 2, 1853.
The complainant, holding the title of the mortgager, in January, 1855, within three years after the mortgagee went into possession, tendered to the respondent the amount of the conditional judgment and interest, demanded an account of rents and profits which the respondent refused to give, and offered to pay any additional sum that might be found due upon an adjustment of the rents and profits, and brought his bill to redeem, which ho was held by the court entitled to do in these terms: “ The conditional judgment having been entered in the action, Harnden v. Harnden, upon the mortgage, the plaintiff to be entitled to redeem, must pay such further sums, if any, as have since accrued.”
The master finds a certain sum accruing since the entry of the conditional judgment which he says the complainant ought to pay in order to redeem.
The most formidable objection to the master’s report, and the one now principally relied on in argument by complainant’s counsel, is that the respondent is estopped by the conditional judgment rendered upon the mortgage, from claiming anything that might subsequently accrue, — that that judgment must be conclusively presumed to embrace all the damages, both past and prospective, occasioned by the violation of the condition and the failure of the mortgager to furnish support.
But we think it unnecessary to consider whether there is anything in the condition of this mortgage, or in the manner in which the conditional judgment upon it was made up, to distinguish the case in principle from Philbrook v. Burgess, 52 Maine, 271; and Sibley v. Rider, 54 Maine, 463.
It is a sufficient answer to the objection, that it is now, for the first time, suggested in an argument to the full court upon exceptions to a master’s report in which it does not appear that any such position was taken before the master, or any exception alleged to his ruling upon that point.
We hold that, in a hearing of this description, a party must be [320]*320confined to such exceptions as he filed to the master’s report, and cannot be permitted to go out of those exceptions to raise other objections never before taken, and which he must be held to have waived. Pingree v. Coffin, 12 Gray, 315. Smalley v. Corliss, 37 Vermont, 435.
We have no reluctance in applying the rule to the present case, because in doing so we are only conforming to the view' which, until very recently, the. complainant and his able counsel seem to have taken of his equitable rights and duties, and to the view which the court entertained in this very case, when the master was appointed, — such an appointment being _ totally unnecessary if this objection ought to have prevailed.
It is manifest that in the making up of the conditional judgment on the mortgage, no prospective damages for the breach of the condition were included. The report states that testimony was offered tending to prove that the complainant proposed to the mortgagee to provide for the support of the beneficiaries named in the mortgage, and it would seem that the mortgagee assented to this; but the master finds, further, that the complainant did not make adequate provision for their support, and that they received no part of their support from him. Under these circumstances, equity does not permit him to resort to a legal estoppel which has once been so completely waived in order to preclude the mortgagee or his assignee from the benefit of such provision as the mortgage was designed to secure; for equity looks to the intention of the parties rather than to the form of their proceedings, and strives to give effect to such intention when fairly disclosed.
We proceed now to consider the exceptions that were actually taken to the master’s doings. ■
■ The first exception is to the allowance made by the master for the support of the mortgagee and his wife, after September, 1853, when they removed from the farm, against the position taken by the complainant that by the conditions of the mortgage they were to be supported there and not elsewhere. The exception would be well taken if it did not also appeal’ by the master’s report that the complainant, though he assumed the duties and obligations of the mortgager ap[321]*321patently with, the assent of the mortgagee, neglected to furnish the necessary means of support. This being the case, the mortgagee and his wife were under no obligation to maintain themselves upon the farm, but might seek the support required by their age and infirmities where it could best be afforded, which was with their daughter, the respondent; the plaintiff cannot complain if loss and expense have resulted from his neglect to fulfill the obligations which he had undertaken, since it does not appear that the expense incurred for their support, by their daughter, was extravagant or unreasonable.
The second exception relates to the expíense for support accruing after the conveyance by the mortgagee to the respondent. This objection we think equally ill-founded. The complainant insists that the conveyance to the respondent was a release and discharge of all the mortgagee’s claim for support under the conditions of the mortgage, inasmuch as it passed all his title to the land, which was the only means he had of enforcing the performance of the condition; and that the assignee of such a mortgage could take nothing by such assignment except what was due at the time of the assignment, and could claim nothing for the future support of the mortgagee and other beneficiaries named in the mortgage, in case of the failure of the mortgager or his assignee to furnish it. Not so in either particular.
No good reason can be shown why such a conveyance should be construed as a release to the mortgager, or his assignee, who has (with the consent of the mortgagee) undertaken, but has not performed the duties of the mortgager, from the obligation to afford support according to the conditions of the mortgage. Manifestly, nothing of that sort was intended. True, the mortgagee, for want of the legal title, might be embarrassed in enforcing the claim; but if that is done in the name of the assignee for the benefit of the mortgagee and the other beneficiaries in the mortgage, it is not perceived why the mortgager, or his assignee, has any just cause of complaint. His rights and duties are affected by such assignment only in one respect. If he has notice of it, he must pay any sum that is due as damages for past non-performance to the assignee. [322]*322His obligations in all other respects remain the same, and it is solely by reason of his continued neglect to perform those obligations, that the assignee of the mortgagee can claim anything further in the premises.
It was held in Bryant v. Erskine, 55 Maine, 153, that the interest of the mortgagee was not assignable before breach of the condition, but it does not appear to have been held, in that case, that such assignment released the assignees of the mortgager from the obligation to afford future support in accordance with the conditions of the mortgage. In the present case, there had been both an actual breach and an entry for condition broken before the assignment by the mortgagee.
Doubtless the assignee of the mortgagee would acquire, and could exercise, only such rights as his grantor had in the premises; in this case, the right to hold possession of the mortgaged premises to compel the fulfilment of the condition, was included. Nothing more was required of the complainant than the performance of that condition, but he neglected it. Why should he claim to hold the estate free from the mcumbraüce which his grantors had placed upon it ?
Where, as here, the original mortgagee held the mortgage in trust for himself and others, and the existence of such trust was apparent upon the face of it, his grantee would take subject to the same trust; but when the interest of' all the beneficiaries has expired by death, or other limitation (which appears to have happened long ago in this case), there seems to be no good reason why the reasonable expense, incurred by the assignee of the mortgagee, over and above the rents and profits of the estate, in affording the support which it was the duty of the mortgager and his assignees to have furnished, should not be a charge against the estate, or why the assignee of the mortgager, if he seeks to redeem, should not pay it.
It would be adding grievouslyjand unnecessarily to the embarrassments of an aged and infirm mortgagee to withhold from him the power to convey an effective security for such support to one upon whom he can and does rely, when the party who has undertaken to furnish the support fails him.
[323]*323Tbe third, exception taken is to the allowance of any sum accruing for the support of the mortgagees, after the conveyance by this respondent to Jane Osgood, in 1853.
Though Jane Osgood held for a time the legal title, in trust' for the beneficiaries named in the condition of the mortgage, the support was actually furnished by this respondent, and at the request of the parties entitled to it under the condition of the mortgage. Since the reconveyance by Jane Osgood to the respondent, inasmuch as the respondent is the sole party interested, and the only one who holds any conveyance from the mortgagee ; and, inasmuch as it is not pretended that any payments were made by the complainant to Jane Osgood, or that any support was furnished by her, the fact that she once held a conveyance from the respondent cannot be considered as affecting the lights of the parties. It was rightly held when this case was originally presented, that the complainant’s tender was well made to this respondent, though the conveyance to Jane Osgood was then outstanding, for want of notice of that conveyance. Now that all rights or claims under it have been extinguished, so far as the duties, liabilities, and rights of these parties are concerned, it is as though it had never existed. The master allowed the rents and profits of the estate in offset to the support so long as the property was in the possession of the mortgagee, the respondent, or her grantee, Jane Osgood, or any person holding under them, or under any other than the complainant himself. The proper rents and profits to be allowed would be the same, no matter who was in the actual possession of the premises; and no complaint is made of the manner in which they w'ere estimated; for, during a large portion of the time, the report shows that they were found adequate for the support of the parties interested in the condition of the mortgage.
This brings us to the fourth exception, in which complaint is made that the respondent is not charged with the rents and profits since May, 1861.
The claim that she should be so charged comes with ill grace from the complainant, who, as the report shows, at that time, when there was no longer any one to be supported, seems to have bestirred [324]*324himself, to have sold the timber from the farm, collected the insurance on the buildings which were burned, and finally to have disposed of the entire premises. The exception cannot be sustained.
Neither can the fifth exception, which relates to the allowance of interest on the sum found due. The complainant’s counsel makes no point of tins, and, under all the circumstances, we think the interest was properly reckoned and allowed. Not finding any of the exceptions to the master’s report sustainable, and being satisfied that in the language of the opinion in Bryant v. Erskine, ubi supra, it “ will mete out equal justice between the contending parties.”
The exceptions are overruled.
Master’s report accepted and confirmed.
Mnal decree for redemption to be entered accordingly.
Appleton, C. J.; Cutting, Dickerson, Danforth, and Tapley, JJ., concurred.