Hillwig

In this action judgment was entered in favor of plaintiff and against defendant for $3,864.92, and from this judgment defendant has appealed. He urges two points: 1. “The evidence does not establish that the deed was intended to be anything other than what on its face it purports to be”; 2. “The ex parte order made by the court sending the case to a referee for hearing was void and the judgment predicated upon the report of the referee is without support.” The complaint stated an action for money had and received, and the answer controverted the complaint. Without objection, however, the cause was tried by the plaintiff on the theory that he was indebted to the defendant on numerous notes secured by mortgages on his real estate to the amount of $15,000 and accrued interest; that the indebtedness was past due, and that defendant was demanding additional security; that the only additional security he could give the defendant was to deed him all of the mortgaged property to hold until a sale or disposition of the property could be made and the defendant paid, and that plaintiff on December 6, 1918, executed and delivered to defendant a deed, which in effect was nothing more than…