Kyle

This is a suit for the foreclosure of a mortgage, of date October 4, 1894, given by the defendant to the plaintiff to secure the note of the former for the sum of $825, with interest, due October 21, 1896. The complaint is in .the usual form. The defense pleaded is, in effect, the alleged substitution for the old of a new mortgage, of date February 5, 1898, in the form of a deed purporting to convey to- the plaintiff the mortgaged premises, and an accompanying agreement for the payment of the debt in three installments—two of $100 each, on the first days of November, 1898 and 1899, and the balance October'1, 1900. On this issue the finding of the court was adverse to the defendant; *895 and judgment was accordingly entered for the foreclosure of the original mortgage. This finding, it is claimed, is not justified by the evidence; and.this contention, we think, must be sustained.

It is an undisputed fact in the case that on the fifth day of February, 1898, the defendant, at the instance of the plaintiff, executed to her the alleged deed, and that, at the same time, she signed a document as to terms of payment, as alleged, and for return of the deed on payment. This took place in…

I dissent, and think that the judgment should be affirmed. In my opinion there was sufficient evidence to justify the finding of the court below that there had not been a substitution of a new mortgage for the one sued on.