Nolan v. Brewster

Opinion by Ellison, J. This is an action to foreclose a deed of trust. The making out and signing the deed of trust was not denied. Judgment was rendered dismissing the .petition and plaintiff appeals. The contention at the trial was as to whether the deed of trust was accepted by appellant’s intestate, or whether [499] lie rejected and refused it and demanded, obtained, and accepted personal security instead thereof. The cause, as indicated by some portion of the record, was possibly treated in the court below as one in equity; it was tried by the court without the intervention of a jury, and no instructions were asked or given on either side. The question, as stated by appellant, is “mainly one of fact, ” and being so, we bow to the finding of the court below on the issue presented. We cannot of course set out the evidence here, but say, that an examination of it does not justify us in stating the finding to be wholly and entirely unsupported by the testimony; or that it is the result of partiality or prejudice. We regard this as an action at law under section 3298, R. S., 1879. — Mason v. Barnard et al., 36 Mo. 384; Riley v. McCord, 24 Mo. 265; Fithian v. Monks, 43 Mo. 502. We have examined the objections concerning the admission of testimony and think, when considered in connection with the. motion for new trial, they can avail nothing here. The judgment is affirmed. The other judges concur.