By the Court,
Paine, J.
This was an action to foreclose a .mortgage, originally given by David P. Mapes and wife to George N. Lyman, and transferred by several assignments to the respondent. The defense set up in the answers of David P. Mapes and Timothy J. Mapes, as well as in the answers of the appellants, who were subsequent purchasers of the [492]*492property, after the mortgage was given and recorded, is substantially as follows: Timothy J. Mapes was head clerk in Lyman’s store, and was charged by Lyman with having at divers times taken large amounts of money for which he had not accounted; and was threatened with a criminal prosecution therefor. And that this mortgage was executed on the demand of Lyman by David P. Mapes, the father of Timothy, to avoid such criminal prosecution, and under an agreement with Lyman that if it was given, the prosecution should be “ hushed up.”
The first point of the appellants is that the judgment must be reversed, because the finding of the court below is not a sufficient compliance with the provisions of the code upon that subject. This is a question that has been the subject of much consideration by the court at the present term, and which is not without difficulty. It was conceded by counsel in this case, and has been in other .cases where the matter has been incidentally alluded to, that the code did not, and could not, have the effect to deprive this court of the power to review both questions of fact and Jaw, in equity cases, which power was embraced in the appellate jurisdiction conferred' on it by the constitution. And if this is so, it seems difficult to imagine any good reason why, when the evidence is brought before this court in such a case, the judgment should be reversed solely for the reason that the finding of the court below was not sufficient. It is very easy to see why it should be so' in a case where this court cannot review the facts. For then it is in the nature of a special verdict, and this' court in determining whether the judgment was correct, could not go behind the verdict. If that was not sufficient to support it, then it could not be supported.
But in cases where this court not only has the right, but is bound to pass upon questions of fact, there, though the finding of the court below is not sufficient to support the judgment, [493]*493yet if this court on looking into the evidence finds such facts as are sufficient, I cannot see how it would be justified in reversing the judgment. It has the evidence before it. It can see that both in fact and law the judgment is right, why then should it be reversed ? Simply, it is said, because the finding below was insufficient. But this certainly is not a reason, when it is conceded that this court may itself find the facts, and thus supply, in its own finding, what was lacking in that of the court below.
Suppose the finding sufficient, yet this court is, not bound by it. If satisfied from the evidence that it is wrong, the judgment may be reversed. And if, when the finding is sufficient, we may reverse the judgment, because satisfied from the evidence that it is wrong, why may we not, on the same principle, where the finding is insufficient, support the judgment, if satisfied from the evidence that it is right ? Both rights follow from the power of the court to pass upon the facts; and I cannot see how it can surrender either, without abandoning this power.
Difficulties may arise in applying the provisions of the code, growing out of the different functions performed by this court in reviewing equity and law cases. But as it is conceded that this difference cannot be abolished without changing the constitution, it follows that the code must be construed and applied in a manner consistent Avith the proper exercise of these different functions. And, if this is done, I cannot see how we can reverse a judgment in a case where we have the power to find the facts, with the evidence before us, merely because the judge below did not file a sufficient finding.
We were referred on the argument to several authorities in New York and Missouri, where such finding was held necessary. Sisson vs. Barrett, 2 Coms. 406, was an action at law, where that rule is of course proper, as the finding supplies [494]*494the place of a verdict. Sands vs. Church, 2 Seld., 347, was an equity case. But the decisions of the New York court of appeals do not reach the point presented here, for that court holds that it has no power to review the facts in such cases. Newton vs. Bronson’s Executor, 3 Kernan, 587. Conceding to this court the power to review the facts on an appeal in an equity case, the office it performs is more like that of the New York supreme court on an appeal from a judgment at special term. And in Cady vs. Allen, 18 N. Y. Reports, 573, the court of appeals in referring to the different powers of the two courts says: “It was competent for that court to examine the evidence and find the facts differently, and on that ground to reverse the judgment rendered at the trial. But we must take the statement as we find it in the record. The appeal to this court is upon the law only, and we are to determine the law, after all matters of fact are determined and embraced in a proper statement or finding.” From this it would seem very clear, that the decisions of the N. Y. court of appeals, that the finding must support the judgment, are not applicable to this court in determining an appeal in an equity case where it may decide both fact and law. And the decision of that court in Dunham vs. Watkins, 2 Kern., 556, shows that they considered the requirements of the code in regard to the exceptions and finding of the facts inapplicable to a case where the appellate court may review both fact and law.
In Missouri the court first held that an insufficient finding was not ground of reversal, but afterwards held that it was. And then the legislature repealed the provisions requiring a finding. But before this repeal they seem to have made no distinction between law and equity cases, as to their power to review the facts, as appears from Skinner vs. Ellington, 15 Missouri 438, and Freeland vs. Eldridge, 19 id., 325. In the latter case the counsel urged that because it was an equity [495]*495case the court should review both law and fact. But the court, without determining whether there was any distinction in that respect, held that it could only inquire whether the finding supported the judgment, as no application for a review had been made to the court below, as required by their code.
In conformity with this case, it might possibly be held that the provisions of our code relating to trials by the court, may be applied to equity cases, without defeating the power of this court to review the fact. But it would be necessary for the party then, in order to bring the facts here for review, to make a case and exceptions under § 20, chap. 132, R. S., 1858. But, I confess, that this construction seems to me to be forced, and that the application of this section to an equity case is incompatible with the nature and effect of an appeal in such case. Sections 18, 19 and 20 of this chapter seem to refer to cases only where the judge acts in the place of a jury. The exceptions provided for in § 20 are to have the same effect as on a trial by jury, and the case for a review is to be made in like manner.
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By the Court,
Paine, J.
This was an action to foreclose a .mortgage, originally given by David P. Mapes and wife to George N. Lyman, and transferred by several assignments to the respondent. The defense set up in the answers of David P. Mapes and Timothy J. Mapes, as well as in the answers of the appellants, who were subsequent purchasers of the [492]*492property, after the mortgage was given and recorded, is substantially as follows: Timothy J. Mapes was head clerk in Lyman’s store, and was charged by Lyman with having at divers times taken large amounts of money for which he had not accounted; and was threatened with a criminal prosecution therefor. And that this mortgage was executed on the demand of Lyman by David P. Mapes, the father of Timothy, to avoid such criminal prosecution, and under an agreement with Lyman that if it was given, the prosecution should be “ hushed up.”
The first point of the appellants is that the judgment must be reversed, because the finding of the court below is not a sufficient compliance with the provisions of the code upon that subject. This is a question that has been the subject of much consideration by the court at the present term, and which is not without difficulty. It was conceded by counsel in this case, and has been in other .cases where the matter has been incidentally alluded to, that the code did not, and could not, have the effect to deprive this court of the power to review both questions of fact and Jaw, in equity cases, which power was embraced in the appellate jurisdiction conferred' on it by the constitution. And if this is so, it seems difficult to imagine any good reason why, when the evidence is brought before this court in such a case, the judgment should be reversed solely for the reason that the finding of the court below was not sufficient. It is very easy to see why it should be so' in a case where this court cannot review the facts. For then it is in the nature of a special verdict, and this' court in determining whether the judgment was correct, could not go behind the verdict. If that was not sufficient to support it, then it could not be supported.
But in cases where this court not only has the right, but is bound to pass upon questions of fact, there, though the finding of the court below is not sufficient to support the judgment, [493]*493yet if this court on looking into the evidence finds such facts as are sufficient, I cannot see how it would be justified in reversing the judgment. It has the evidence before it. It can see that both in fact and law the judgment is right, why then should it be reversed ? Simply, it is said, because the finding below was insufficient. But this certainly is not a reason, when it is conceded that this court may itself find the facts, and thus supply, in its own finding, what was lacking in that of the court below.
Suppose the finding sufficient, yet this court is, not bound by it. If satisfied from the evidence that it is wrong, the judgment may be reversed. And if, when the finding is sufficient, we may reverse the judgment, because satisfied from the evidence that it is wrong, why may we not, on the same principle, where the finding is insufficient, support the judgment, if satisfied from the evidence that it is right ? Both rights follow from the power of the court to pass upon the facts; and I cannot see how it can surrender either, without abandoning this power.
Difficulties may arise in applying the provisions of the code, growing out of the different functions performed by this court in reviewing equity and law cases. But as it is conceded that this difference cannot be abolished without changing the constitution, it follows that the code must be construed and applied in a manner consistent Avith the proper exercise of these different functions. And, if this is done, I cannot see how we can reverse a judgment in a case where we have the power to find the facts, with the evidence before us, merely because the judge below did not file a sufficient finding.
We were referred on the argument to several authorities in New York and Missouri, where such finding was held necessary. Sisson vs. Barrett, 2 Coms. 406, was an action at law, where that rule is of course proper, as the finding supplies [494]*494the place of a verdict. Sands vs. Church, 2 Seld., 347, was an equity case. But the decisions of the New York court of appeals do not reach the point presented here, for that court holds that it has no power to review the facts in such cases. Newton vs. Bronson’s Executor, 3 Kernan, 587. Conceding to this court the power to review the facts on an appeal in an equity case, the office it performs is more like that of the New York supreme court on an appeal from a judgment at special term. And in Cady vs. Allen, 18 N. Y. Reports, 573, the court of appeals in referring to the different powers of the two courts says: “It was competent for that court to examine the evidence and find the facts differently, and on that ground to reverse the judgment rendered at the trial. But we must take the statement as we find it in the record. The appeal to this court is upon the law only, and we are to determine the law, after all matters of fact are determined and embraced in a proper statement or finding.” From this it would seem very clear, that the decisions of the N. Y. court of appeals, that the finding must support the judgment, are not applicable to this court in determining an appeal in an equity case where it may decide both fact and law. And the decision of that court in Dunham vs. Watkins, 2 Kern., 556, shows that they considered the requirements of the code in regard to the exceptions and finding of the facts inapplicable to a case where the appellate court may review both fact and law.
In Missouri the court first held that an insufficient finding was not ground of reversal, but afterwards held that it was. And then the legislature repealed the provisions requiring a finding. But before this repeal they seem to have made no distinction between law and equity cases, as to their power to review the facts, as appears from Skinner vs. Ellington, 15 Missouri 438, and Freeland vs. Eldridge, 19 id., 325. In the latter case the counsel urged that because it was an equity [495]*495case the court should review both law and fact. But the court, without determining whether there was any distinction in that respect, held that it could only inquire whether the finding supported the judgment, as no application for a review had been made to the court below, as required by their code.
In conformity with this case, it might possibly be held that the provisions of our code relating to trials by the court, may be applied to equity cases, without defeating the power of this court to review the fact. But it would be necessary for the party then, in order to bring the facts here for review, to make a case and exceptions under § 20, chap. 132, R. S., 1858. But, I confess, that this construction seems to me to be forced, and that the application of this section to an equity case is incompatible with the nature and effect of an appeal in such case. Sections 18, 19 and 20 of this chapter seem to refer to cases only where the judge acts in the place of a jury. The exceptions provided for in § 20 are to have the same effect as on a trial by jury, and the case for a review is to be made in like manner. Now, a case made on a trial by a jury, is not made for the purpose of having the court try over again the questions tried by the jury, but to present the evidence to it for the same purpose for which, under the old system, it was presented on motions for new trial, and to carry it to the appellate court to be considered for the same purpose. But an appeal in equity brings up the whole case, law and fact, to be tried de novo in the appellate court, and these sections seem to me inappliqable to such a case, or, if applicable at all, that they cannot be applied with the same effect as in a law case, where the power of this court is entirely different.
I have here stated my own view of the matter, but the court go no further than to hold that the finding in this case, though general in its form, and finding the facts as alleged in [496]*496the complaint, is sufficient. Where a finding is actually filed in such a case we are not inclined to examine it with the same strictness as in a case at law, because the reasons for it do not exist.
It was urged that the finding does not show what amount was due on the note. But it was not necessary even for a special verdict to find facts admitted by the pleadings. And here the answers admit the execution and delivery of the note, and that nothing had been paid on it. And we think this sufficiently shows the amount due, if anything.
The counsel for the appellant made the further point that in this mortgage the note is referred to as collateral to it, instead of its being collateral to the note. This was for the purpose of taking it out of the rule applicable to the purchases of negotiable paper before due. But although the point is immaterial, from the view we have taken of the case, yet we will say that we think it very clear, that such a description does not change the essential nature of the instruments, so as to make the debt an incident to the security, instead of the security being incident to the debt.
The remaining questions are merely of facts, though there seemed some little uncertainty on the argument as to the precise ground upon which the defense rested. The answers state that the note and mortgage were given to compound a felony; though Timothy J. Mapes avers that he was not guilty of taking the money. But on the authority of Steuben Co. Bank vs. Matheson, 5 Hill, 249, it would seem that they do not sufficiently show any compounding of a felony, because they deny that any felony was in fact committed, and show that no prosecution for one was pending. And the counsel, instead of placing the defense on this ground, claimed that the note and mortgage were procured by duress per minas. But leaving out of view the question whether the plaintiff would not be entitled to protection as a bona fide [497]*497purchaser, even though they had been thus procured, we think with the court below, that the evidence entirely fails to establish this or any other defense. True, it is supported by the two Mapes, but the testimony of Lyman and the other witnesses quite overbalances theirs, and satisfies us that the note and mortgage were executed by them to secure an amount which they knew and felt that Timothy ought to pay.
The judgment is affirmed with costs
Note. — This case was before this court at the June term, IBS’?, upon an appeal by David P. and Timothy J. Mapes, from a decree made by the circuit court of Pond du Lac. At the trial in that court, the counsel, E. S, Bragg, for the defendants filed with the court an affidavit, setting forth that he was employed.in the case since the commencement of the term of the circuit court, and was not the attorney of record. The issue had been joined since the last term of the court; and that he had informed the defendants, who were in attendance at the court, that under the practice of the court the testimony would not be taken in open court; but it would be referred to a commissioner to take the same, and report to the court; and that the three months given by the rules to take testimony would commence from the time when a commissioner should be appointed; and that the defendants, under his advice, had gone home and were not in attendance upon the hearing of this case. That they resided twenty miles distant from the court and could not be procured in time for the trial; that he had advised them that they had a full defense on the merits. TTpon this he moved for a continuance, which the court refused; and entered a decree of foreclosure. From which they appealed.
This court reversed that decree, and remanded the case for further trial. The reversal was placed on the ground that a continuance ought to have been granted.