Baxter v. Blodgett , 63 Vt. 629 ( 1891 )

The opinion of the court was delivered by

START, J.

The mortgage sought to be foreclosed purports to have been executed by Calvin IT. Blodgett and Luthera B. Blodgett to W. H. Baxter, and is conditioned for the payment of four promissory notes, given for the sum of $2,500 each, payable to the order of W. H. Baxter, and signed by Calvin H. Blodgett. The special master to whom the cause was referred has found that the mortgage was acknowledged by the mortgagors.

1. One of the defendants, George O. Briggs, insists that this finding is not supported by the evidence. The evidence before the master tended to show that the moi’tgage was properly acknowledged, and wa,s sufficient to justify the master in his finding. The facts reported by the master as the basis of this finding were solely for his consideration. It is not for the court to say what weight should be given to the evidence. The court can only determine whether the evidence was proper for the consideration of the master, and whether it tended to show due acknowledgment of the mortgage. The evidence considered by the master being proper for his consideration, and tending to support the issue, his finding is conclusive.

2. It appears from the report, that defendant Calvin H. Blodgett applied to W. II. Baxter, the orator’s intestate, for a loan of ten thousand dollars; that Baxter did not have the money conveniently at hand, and it was arranged to raise the money by Baxter’s endorsement upon the notes to be given; that thereupon, the notes secured by mortgage were executed, Baxter endorsed and delivered them to defendant Blodgett, and he negotiated them while current and before maturity ; that it was the expectation of both parties that Baxter would provide for the payment of the notes at maturity, thus virtually making it a loan by Baxter to defendant Blodgett, and that this manner of raising the money was resorted to for the convenience of Baxter ; that Baxter paid one of tlie notes in Ms lifetime, one was paid by tbe orator before be was appointed administrator and allowed to him by tbe commissioners on Baxter’s estate, and lie lias reimbursed himself from tbe funds of tbe estate for tbe sum so paid, and tbe other two were paid by tbe orator as administrator, with tbe funds of tlie Estate. Tbe arrangement between tbe parties at tbe time tbe mortgage and notes were given, having been fully carried out by Baxter, or bis legal representative, we bold that tbe transaction, in equity, is to be treated tbe same as if Baxter had paid Blodgett tbe money on tbe notes at tbe time they were executed and held them until bis decease; that annual interest was properly computed according to the terms of tbe notes; and that tbe mortgage security is available to the estate for tbe payment of all of tbe notes.

3. Tbe question of tbe correctness of tbe ruling of tbe master excluding tbe testimony of defendant Blodgett is not properly before this court for consideration. No exceptions were filed to tbe report in tbe Court of Cliancery by tbe defendants. Sec. '130 of R. L. provides that, “No questions in regard to the admission or rejection of evidence by tbe masters shall be beard in tbe Supreme Court, unless such objection is made by exception, duly filed, to tbe report, in tbe Court of Chancery.”

The decree of the Court of Chancery is affirmed, and cause remanded.