Green v. Butler

By the Court, Sawyer, J. A large portion of the briefs on both sides is devoted to a discussion of the evidence. But no appeal has been taken from the order denying a new trial, and the parties must be presumed to have been satisfied with the facts as found. Whether they were or not, the appeal is from the judgment alone, and, on such appeal, we cannot review the evidence. The practice is the same in all cases, whether at law or in equity. (Allen v. Fennon, post.) Whatever doubt there might formerly have been on this point as to cases in equity, there can be none since the passage of the Act of 1861, the first section of which provides “that no distinction as to the mode of taking or perfecting appeals, or as to the [600]effect of them, shall be made between cases at law and cases in equity, but the provisions of the Practice Act shall apply in like manner to all cases of appeal.” (Laws 1861, p. 589.) Nor did the parties, when the appeal was taken, seem to contemplate that we should re-examine the evidence. It is stipulated that certain papers on file shall constitute the statement on appeal (there does not appear to have been any statement on motion for new trial), and the grounds of appeal specified in the statement are, substantially, that the referee erred in his conclusions of law, and, as a consequence, that the judgment is erroneous. No error as to the facts found is alleged in the statement as a ground of appeal.

The referee finds, among other facts, that, prior to the 14th of August, 1854, the plaintiff was in possession of the lands described in the complaint; that on that day, for a valuable consideration, he conveyed the said lands and improvements thereon by a deed, absolute on its face, to the defendant, Butler; that,-although the deed was absolute on its face, it was intended-as a mortgage, to secure to said defendant certain'"nnoi)e.'ys) d'tie and to grow due, for erecting buildings and improvements -thereon, for a firm composed of plaintiff and defqridant, Leavitt; That on the 20th of October, 1854, the said ',firm óf-;Gréen ¿ti Leavitt had an accounting with defendant', Butler,.’apd that upon said accounting it was found and agrebd'ji.y- all parties that said firm was indebted to said Butler for constructing said improvements in the sum of eight thousand five hundred dollars; that on said 20th day of October, said Butler executed and delivered to said Green & Leavitt, a written defeasance, whereby he bound himself, upon the payment by them to him on or before March 1, 1855, the said sum of eight thousand five hundred dollars, to convey, by quitclaim, to said Green & Leavitt, the said premises, and covenanted in said defeasance that if, after said 1st day of March, he should sell said premises he would pay over to said parties any surplus that might arise over his debt and costs; that said defendant, Butler, on the 1st of February, 1855, with the consent of said plaintiff and said defendant, Leavitt,