Guarantee Gold Bond, Loan & Savings Co. v. Edwards

104 S.W. 624, 7 Indian Terr. 297, 1907 Indian Terr. LEXIS 38

• Court: Court Of Appeals Of Indian Territory
• Decided: September 26, 1907
• Status: Published

Opinion

Townsend, J.

(after stating the facts as above). Appellant the Guarantee Gold Bond, Loan & Savings Company has filed 19 assignments of error, as follows: “(1) Because the court erred in sustaining the exceptions by the plaintiffs filed to the findings of fact, as made by the master in chancery, to whom the cause was referred, and as contended in the report of the master therein filed. (2) Because the court erred in setting aside the master’s findings of fact as made and contained in the report of the master herein .filed. (3) Because the court erred in considering and acting upon the exceptions filed by the plaintiffs to the findings of fact. (4) Because the court erred in sustaining the first exception by the plaintiffs filed to the findings of fact as made by the master. (5) Because the court erred in sustaining the second exception by the plaintiff filed to the findings offfact as made by the master. (6) Because the court erred in sustaining the third exception by the plaintiff filed to the findings of fact as made by the master. (7) Because the court erred in sustaining the exception by the plaintiffs filed to the findingfof fact by the master made, that the warranty deed by the plaintiffs, Rachel A. Edwards and Silas Edwards, executed and delivered to the defendant Guarantee Gold Bond, Loan & Savings Company, on the 7th day of September, 1905, was in fact a .deed of conveyance in fee. (8) Because the court*erred in sustaining the exception by the plaintiff filed to the findings of fact by the master made, that the real consideration for the conveyance of Rachel A. Edwards and Silas Edwards to the Guarantee Gold Bond, Loan & Savings Company was in fact six hundred ($600.00) dollars. (9) Because the court erred in sustaining the exception by the plaintiff filed|to the finding of fact by the master made, that no fraud was practiced upon the plaintiffs, Rachel A. Edwards and Silas Edwards, in the execution of the said warranty deed, and that the parties then and there intended said instrument to be an absolute conveyance. (10) Because the court erred in setting aside the fifth finding of fact as made by the master and in the report of the master contained. (11) Because the court erred in set'ting aside the sixth finding of fact as made by the master and in the report of the master contained. (12) Because the court erred in setting aside the eighth finding of fact as made by the master and in the report of the master contained. (13) Because the court erred in setting aside the conclusion of the master, in his report contained, that the warranty deed' executed and delivered to the Guarantee Gold Bond, Loan & Savings Company on September 7, 1905, was the valid instrument of the said Rachel A. Edwards and Silas Edwards, and was then and there intended by them to be a warranty deed conveying in fee the premises therein mentioned, and not as a mortgage. (14) Because the evidence showed that the warranty deed of conveyance by the plaintiffs, Rachel A. Edwards and Silas Edwards, executed and delivered to the Guarantee Gold Bond, Loan & Savings Company on the 7th day of September, 1905, was in fact a deed of conveyance in fee, and not a mortgage, and that the said conveyance was intended by the plaintiffs 'to operate as a.conveyance in fee. (15) Because the evidence tending to prove that the said deed of conveyance was in fact intended to be and to operate as a mortgage is not sufficient to support the decree. (16) Because the court erred in not sustaining the findings of fact as made by the rpaster in chancery, court erred in not su)taining the finding of fact as made by the master, wherein the master finds as follows: That no fraud was practiced upon the plaintiffs, Rachel A. Edwards and Silas Edwards, in the execution of sbid instrument, and that the parties thereto then and there intended said instrument to be an absolute conveyance of the lands therein mentioned. (18) Because the decree rendered is against the weight of the evidence. (19) Because the decree rendered is against the law. Wherefore the defendants pray that the said decree be reversed, and that the said court may be directed to enter a decree in accordance with the facts, and for a dismissal of the bill of the plaintiffs, Rachel A. Edwards, Silas Edwards, and G. M. Swanson”' — and states, under the errors assigned, there are in fact, however, but four paints to be argued, and, generally speaking, they are as follows: “(1) That the court erred in considering, acting upon, and sustaining the exceptions to the findings of fact made by the master, in the absence of a certificate of the master to whom.the cause was referred, to the effect that he had sent up. with the report all the evidence given in the case and upon which he based his findings of fact. (2) That the court erred because the evidence showed conclusively that the warranty deed of conveyance by the plaintiffs, Rachel A. Edwards and Silas Edwards, executed and delivered to the ‘Savings Company’ on the 7th day of September, 1905, was in fact a deed of conveyance in fee, and not a mortgage, and that the said conveyance was intended by the plaintiffs to operate as a conveyance in fee; and that therefore the decree rendered is against the weight of the evidence. (3) That the court erred in not according to the findings of fact made by the master that presumption of correctness to which they were entitled, and erred in setting aside the findings of facts as made by the master. (4) That the court erred because the evidence tending to prove that the said deed of conveyance was in fact intended to be and to operate as a mortgage is not sufficient to support the decree.”

Appellant’s first contention is that upon an exception to the master’s findings of fact, in the absence of a certificate from him that he has sent up all the evidence with his report, it is impossible for the court to impeach his conclusions, and in the absence of such certificate there is no presumption that he has sent up all the evidence. Appellant, to sustain his contention, cites the case of Sheffield, etc., Ry. Co. vs Gordon, 151 U. S. 285, 14 Sup. Ct. 343, 38 L. Ed. 164. Justice Brown, in delivering the opinion of the court, said: “Ah interlocutory decree was entered in this case by consent, and the questions in issue arise upon exceptions to the report of the special master to whom the case ivas referred to take proofs, and to report the amount found bjr him to be due. He was not, however, required to report the testimony. Defendants excepted to so much of said report and the findings of the master in reference thereto as determined: ‘(1) That the defenses set tip by the defendants are not sustained by the evidence’ ”— together with other exceptions. In discussing the exceptions, the court says: “The exceptions themselves are too broad, and amount simply to a general denial of the facts and conclusions of the master.” Then the court says: “There is another objection, however, to our exomination of the facts in this case. The order referring the case to the special master, though minute in its details, did not require him to send up the testimony; neither does he purport to do this in his report. And while a number of depositions taken before him are filed, there is nothing to indicate that these were all the testimony in the case. He finds in this connection that the defenses set up by the defendants are not sustained by the evidence, and that the petitioners, Gordon, Strobel, and Laureau, are entitled to be paid the contract price for the material. In the absence of any certificate that the entire evidence taken by the master was sent up with his report, it is impossible to impeach his conclusion in this particular.” Appellant cites Morrow vs Lander, 77 Wis. 77, 45 N. W. 956, in which the court says: “There is no bill of exceptions. This being so, we must assume not only that there was evidence to sustain each and all the findings of fact, but also evidence disproving any and all inconsistent inferences.” In Andrews vs Kerr, 49 Iowa, 680, the syllabus says: “In an equity case, triable de novo, the certificate of the trial judge must recite that the abstract contains, not simply the material portions,, but all the evidence.”

Appellant then cites Henderson's Chancery Practice sustaining the same contention, and Craggs vs Bohart, 4 Ind. Ter. 443, 69 S. W. 931. In that case, Judge Raymond, in delivering the opinion of the court, said: “In passing, upon the first four assignments of error, it is necessary to refer to the record as filed in this court, to see whether or not it contains all of the evidence which was introduced upon the trial. On page 40 of the printed record will be found this statement: ‘This was all the testimony introduced on the trial of this cause.' There is a dispute between counsel as to whether or not the record contains all of the evidence introduced. We cannot consider these assignments of error unless the record shows affirmatively that all of the evidence introduced upqp¡ the trial is made a part of the record bjr a bill of exceptions.. ...The statement that this was all the testimony given in the cause is not sufficient. ‘The statement that the bill of exceptions contains all the evidence must be .made in explicit terms. It will not be sufficient that it contains a recital that “this was all the testimony given in the case,” since the word “testimony” is not synonymous with the word “evidence.” ' * * * The first four assignments of error are therefore held to be not well taken.” The foregoing was an action at law, and was tried before a jury, and the first four assignments relate to the refusal of the court to admit certain testimony during the trial. In the case at bar, the exceptions being considered are the exceptions to the report of the master, in an equity case, and under the statutes of Arkansas adopted and put in force in this jurisdiction there are certain provisions that affect and regulate the reports of masters in chancery, as follows:

Sec. 5266, Mansf. Dig. (sec. 3471, Ind. Ter. Ann. St. 1899): “He shall reduce to writing the testimony of all witnesses examined by him, and shall have power to commit such witnesses as may refuse to testify.”

Sec. 5267 (sec. 3472): “Depositions, regularly taken in a cause, may be read in evidence before the master, where the cause has been referred to him.”

Sec. 5269 (sec. 3474): “If either party shall except to the competency of any witness, or to the admission or exclusion of any evidence, the master, if required, shall state the particulars of the exceptions in his report.”

Sec. 5270 (sec. 3475): “The master shall report .on all cases referred to him as speedily as possible, reciting in his report the order of the court referring the cause to him, the notice to the parties, the time and place of stating the account or taking depositions, and all other proceedings had therein, and return th same, together with the testimony,¡to the. court. The report shall be in sheets, neatly and securely stitched together.”

Sec. 5271 (sec. 3476): “All exceptions to the master's report shall be in writing, and shall be made within four days after the first day of the term of the court at which the report is made, if the term so long continue, and if not, befge the end of the term, and shall be disposed of without delay.”

Sec. 5272 (sec. 3477): “The-report shall stand good, except such parts as are excepted to, unless it shall appear on the face of the report or from the evidence in the cause that it is erroneous.”

Sec. 5273 (sec. 3478): “Exceptions may be allowed to the master's report where he admitted incompetent testimony, or where he excluded competent testimony, or for any other cause which may be adjudged good by the court, or when it shall be apparent from the face of the report that, injustice has been done.”

Hence it is conclusive in this juirsdietion that exceptions may be allowed for any other cause which may be adjudged good by the court, or when it shall be apparent from the face of the report that injustice has been done. In the case at bar, it was referred to the master in chancery under the following order: “Now, on this day, the 15th of Januarjq 1906, it is ordered by the court that all equity cases wherein issue has been joined be and the same are hereby referred to Clark J. Tisdel, the master in chancery of this court, to take evidence ail'd report, with conclusions of law and fact therein.” In the case of Schumann vs Helberg, 62 Ill. App. 218, 221, it is said: “Where a cause has been referred to a master to take and report the evidence, it is meant that he shall take all the evidence, and it is not 'competent for the court to hear other evidence when the cause comes on to be heard upon the master’s report. Cox vs Pierce, 120 Ill. 556, 12 N. E. 1964; Allison vs Perry, 130 Ill. 9, 22 N. E. 492; Gould vs Elgin City Banking Co., 36 .” In Morey vs Warrior Mower Company, 90 Ill. 307, it is stated in the syllabus: “The proceedings before a referee, being statutory, must, in all substantial respects, pursue the statute, or they cannot be sustained. The] statute authorizes no report by a referee, except one containing the evidence heard, and giving the referee’s conclusions thereon, to which the parties are entitled to be heard on exceptions. If the report fails to give the evidence, no judgmnt can be entered on it.” In Kent vs Dakota F. & M. Ins. Co., 2 S. D. 301, 50 N. W. 88, it is said: “Counsel for appellant contends that * * * referees must report their findings, 'together with all the evidence taken by them, and all excepions taken on the hearing.’ This provision is no doubt mandatory, and must be complied with, and, if the fact that a judgment was rendered when the evidence had not been reported affirma-tivly appeared in the recgd, and a proper motion had been made in the court below, an important question would be presented to the court. * * * While appellant’s exception asserted in the court below ‘that no evidence whatever is certified, reported, or submitted to this court by the referee, and there is now no evidence properly before this court upon which this court can review,’ etc., there is nothing in the record to show that the evidence was not reported, and was not before this Court at the time the motion for judgment was heard and decided.” In Brueggestradt vs Ludwig, 184 111. 24, 56 N. E. 419, the syllabus states: “An objection that the chancellor considered depositions that were not produced before nor considered by the master cannot be sustained, where the order of reference directed the master to consider all the testimony that had previously been taken in the cause, among which were the depositions in question, and there is no affirmative showing that the master disobeyed the order of reference. And in the absence of any showing to the contrary it will be presumed that the master complied with the order of reference” —citing, also, Shaw vs Wise, 166 Mass. 433, 44 N. E. 345.

The master in his report states as foliows: “This cause came on for hearing before me at my office at Muskogee, in this district, on March -21, 1906, after due notice to all the parties, and the plaintiffs in person and by Messrs. Patterson & Lilley, their attorneys, and the intervener, G. M. Swanson, appearing in person and by Messrs. Gibson & Ramsey,- his attorneys, and the defendant appearing by Messrs. Thomas & De Meules, its attorneys, the -following witnesses were produced by the parties, duly sworn and examined, and their testimony, which was taken in shorthand, is reduced to writing, and is attached hereto and made a part of this report” — giving the names of four witnesses for the plaintiffs, two witnesses for the intervener, and four witnesses for the defendant. On the 24th of March, 1906, a further hearing was had, in which the master certifies that the- witnesses were sworn, and their testimony, which was reduced,,to writing, is attached hereto and made a part of this report, giving the names of four witnesses for the plaintiff, one for the intervener, and one for the defendant. Then the master states that this cause came on for hearing before “me at my office on March 31, 1906,” all the parties hereto being represented by counsel, at which time the master heard the arguments of counsel upon the issues joined herein and upon the evidence introduced, and says: “From the pleadings in this cause, the testimony of said witnesses, the documentary evidence introduced, and the arguments of counsel, I find the facts in this case to be as follows.” The statute in this jurisdiction having prescribed the master’s duty, and the order of reference having been made of this case to the master, we are of the opinion that, unless it affirmatively appears that he has not discharged that duly and complied with the statute, the presumption is that he did comply; and that assignment, that the court, in considering, acting upon, and sustaining the exceptions to the findings of fact made by the master, in the absence of a certificate from the master that he had sent up with the report all the evidence given in the case, and upon which he based his findings of fact, is noot well taken.

The second contention of appellant is as follows: “The' court erred because the evidence shows conclusively that the warrant}' deed of conveyance by plaintiffs, Rachel A. Edwards and Silas Edwards, executed and delivered to the savings company on the 7th day of March, 1905, was in fact a deed of conveyance in fee, and not a mortgage, and that the said conveyance was intended by the plaintiff to operate as a conveyance in fee, and that therefore the decree rendered is against the weight of the evidence.” Appellant then says that the first and second exceptions to the master’s findings of fact go to the correctness of the above proposition, and the court erred in sustaining these exceptions. From an examination of the testimony of the appellee, it is apparent that Rachel A. Edwards is an ignorant woman, can read but little, and is barely able to write her name. Dr. W. H. Sims, with whom the transaction seems to have been made, is cashier of the appellant. On the 7th of September, 1905, when the appellee Rachel A. Edwards went to appellant’s bank, it is conclusively shown that she desired to borrow 1300. The contention of the appellant is that after asking for a loan of $300, and ascertaining she could not procure the loan that day, she said she must have $300 then, and he (Dr. ' Sims) said he could buy her land. “Q. What did he say? A. He said he could buy hei' land. He said he could loan her the money, but not for two or three days, but he said: ‘I can buy your land.’ And she said: ‘All right.’ He went out and returned in a few minutes and asked me for a warranty deed.” This was testified to by Dr. Sims, and by Lena Lannigan, his secretary. But Rachel Edwards, on that subject, testified as follows: “Q. You may state whether Dr. Sims drew any paper while you were in his bank on that day, and asked you to sign it. A. Mr. Sims, he written out a paper, a mortgage he called it. He said it was a mortgage. That is what he said. Q. Did you sign the instrument that you say Dr. Sims drew up? A. Yes, sir; I signed that. I signed my name to the paper he called a mortgage.” Silas Edwards testified that Dr. Sims told him it was a mortgage. “Q. What was the character of the paper that yod signed? A. Dr. Sims told me it was a mortgage.” It is conclusively shown that the paper signed and executed by the appellee was not a mortgage, but a warranty deed, and it is the contention of the appellee that Dr. Sims knew it, and that if he told her the true character of the instrument she would refuse to sign it; but it is the contention of the appellee that Dr. Sims, the cashier of the appellant, and Lena Lannigan, his secretary, are the only ones that contradict that testimony of the appellees, Rachel and Silas -Edwards.

A. B. Randle, a witness for the appellee, states that Dr. Sims told him that Rachel Edwards had borrowed $300 from him, and that there was a little misunderstanding between them. “Q. You may state what was said in that conversation. A. He proposed to me that Rachel A. Edwards had borrowed $300 from him, and that there was a little misunderstanding, he said, between them, and he says: T want you to get two other men, and yourself, or as many as you like, and come and bring Mrs. Edwards before me and let us fix this matter up. We can fix it among ourselves.' Q. You say that Dr. Sims told you that he had loaned Rachel Edwards $300? A. That he gave her a check for $300, the same thing. Q. What did he say? A. He said she came to him for $300, and he didn't have it in the house, and he just gave her a check for it. Q. Did he say anything about having bought her land? A. No, sir.” Caesar Morrison testified that he had a conversation with Dr. Sims subsequent to the transaction. Dr. Sims told him that he had loaned Rachel Edwards $300, 'or that Rachel had borrowed $300, for which he had charged her $50. It appears, from an examination of the deed executed by Rachel A. Edwards and her husband to the appellant, that the consideration therein stated was $2,450, but it is contended by the appellee that the original consideration was $300 or $350, and that it was subsequently changed by Sims, the cashier of the appellant, to $2,450.

S. F. Utsey, a witness for the appellee, testified as follows: “Q. Do you know anything about a certain transaction alleged to have taken place in the Guarantee Gold Bond, Loan & Savings Company’s office, on or about the 7th day of last September? A. I witnessed it on or about that date. I judge it is the same one jmu are talking about. Q. You may state, if you will, what took place there that day between the plaintiffs and the defendant in this action. A. Well, I simply went down with Rachel to this bank, and was called upon to wutness a paper there, which I did, and when my attention was first drawn to it afterwards was when I saw the consideration in the deed. There was a discrepancy between what I saw when I signed the paper, and my attention was first drawn to it afterwards when I saw the paper, when it was filed for record. There was. a discrepancy in the consideration. Q. I understand you to say that you were called upon to witness the instrument signed by Rachel A. Edwards? A. Yes, sir. Q. Do you know what the instrument purported to be? A. I know what it was stated what it was. It was a warranty deed. Q. Do you know what consideration was stated in the deed at the time it was signed by Rachel and Silas Edwards? A. $350. Q. What, if anything, did Mr. Sims say in reference to the transaction? A. I don’t remember that I. heard him say anything. I don’t remember of anything that he said. All I know and what he did say was he sent a note to me that morning. Q. That he sent you? A. Yes, sir. Q. Did you read the note? A. Yes, sir. Q. What was contained in the note? A. I don’t remember the exact wording, but the substance of it was that he would let hei have $300. I don’t remember the exact words of it. It was, I considered, unimportant. Q. Was it addressed to you? A. I think it was. Q. Who was the bearer of that note from Dr. Sims to you? A. Rachel herself, I think. Q. She brought the note to you and delivered it? A. Yes, sir; I think so. Q. What did you do upon having received the note? A. I think it was very soon after that we went down to the. bank. Q. Why did you go to the bank? A. To get the $300. Q. You may state whether or not subsequent to this transaction you had any conversation with Dr. Sims relative to it. A. No, I had no conversation. Q. After-wards, I say? A. It was a couple of days afterwards I had a conversation with him. Q. Relative to this same transaction? A. Yes, sir. Q. State what was said. A. It was after I seen it on record, and I asked him why it was that there was such a discrepancy in the consideration, and he made a somewhat short answer to me, in fact he didn’t give me any answer at all. Q. Did he make any statement to you regarding this transaction? A. No, sir; he didn’t give me any satisfactory answer at all. I told him I didn’t understand there was such 'a large consideration, such a .change from what it was in the deed I witnessed. Q. Was the original deed, which you have testified about, filled out in longhand or in typewriting? A. It was typewritten, I think, in fact I am sure it was. Q. Who was present at the time of its execution? A. Silas and Rachel Edwards, myself, and Dr. Sims and his lady stenographer. Q. At whose instance did you sign the deed as a witness? A. Dr. Sims’. Q. State whether or not you read the instrument. A. I did.”

Dr. Sims testified for the appellant as follows: “Q. You heard the testimony of Mr. Utsey yesterday regarding the conversation you had with him subsequent to this transaction about two days? A. Yes, sir. Q. Where was that conversation? A. In the bank. Q. Now briefly detail that. A. Well, Mr. Utsey came in and said: ‘I have come to see about that Rachel Edwards matter.’ And I asked: ‘What matter?’ And he said: ‘That deed I witnessed.’ And I said: ‘Well, what about it?’ And he says: ‘The consideration is changed.’ And I said to him: ‘That is not true.’ And I said I had been informed that he had gone around and told parties that the consideration was only $300, and I had changed it to $2,450, and he said: T didn’t say it.’ And I said: ‘You did say it.’ And he again said he didn’t, and asked who told me, and I told him he was as good as acknowledging he said it now. I said: ‘If you say that you are a liar.’ And he denied saying that. Q. What? A. That the consideration was $350; and, of course, he started to strike me, and I got ready for the strike, and he went put. Q. I will ask you when you wrote that deed whether or not you at any time before the deed was signed made any erasures on that deed? A. Yes, sir. Q. I will ask you to point out specifically what erasures were made on that deed at any time before the signatures, by you? A. There was three or four. In writing ‘twenty’ — Q. Of the consideration? A. Yes, sir; of the above consideration, I don’t handle the typewriter very well and I started to write the ‘twenty’ on the edge of the printed matter, and then I erased it and put it on the line where it ought to be, and on further down on the deed Mr. Utsey had written, ‘Western District,’ and I wrote it in in the wrong place, and I changed it, and two or three or other little errors I made in writing the instrument. Q. I will ask you what you paid Rachel Edwards for that land? A. Why I paid her $600. I agreed to pay her $600, and started to pay her $300 in cash, and thought I had better protect myself, so I gave her a check on the Commercial National Bank, where we would have a record of it.' Q. Did you deliver that check to her? A. I did, and then made her a deposit slip for $300, which she now has. Q. I will ask you whether or not that check was ever paid"? A. It was taken, from my account, but I never got the check back. Q. Explain. A. When my book was balanced it was charged to my account. Q. By whom? A. The Commercial National Bank.”

In the testimony of Rachel Edwards, it is stated: “Q. What did you do with that check? A. That check we took over to the First National Bank, but they wouldn’t take it there, and then we carried that check over to that other bank, and we left the check right there. Q. What else did you leave there, if anything? A. The check was the onliest thing. Q. How did you happen to leave the check there? A. We left the check there for safe-keeping, until we got back. Q. You swore in that complaint that you borrowed $350 from Dr. Sims, and he was to charge you $50 for using the money for a year, is that true or not? A. I didn’t get no $350. I just got $300. Q. Did he (Sims) ever say anything to you about turning the land over to him? A. No, sir; Mr. Sims said he would turn the land back to me if I would bring the $300; he. said that. Q. How much time did he give you to pay back the $300? A. The agreement was with I and Mr. Sims for one year, and I told him, if I should bring the money back before the year was up, would it be all right? Q. When was the first time you heard anything about Dr. Sims having $300 down there to your credit in his bank? A. I didn’t know anything about that. That is what I heard Dr. Sims say, but he never told me. Q. Is this the first time? A. Yes, sir. Q. You didn’t know then that Dr. Sims did claim to owe you $300? A. No, sir. Q. This is the first time you ever knew about it? A. Today is the first time, but he never told me. Q. Have you any paper, deposit slip, or any other paper? A. That paper that Dr.- Sims gave us we turned back to him. Q. Is]jthat the one you took up to Mr. Moore’s office? A. Yes, sir.

Dr. Sims testified: Q. You borrowed some money from Holmes & Hibbard the next day on this? A. Yes, sir. Q. How long did it take you to get that loan through? A. A couple of days. Q. Don't you know that the mortgage Avas made the next day, and recorded the same day, on the piece of land? A. They made the mortgage and recorded it. Q. -Before they paid it? A. .They usually do. Q. How much did you borrow? A. What I paid Rachel. Q. Only $600? A. Yes, sir. Q. Ever talk to Rachel about this since the suit was filed? A. I have tried to talk to her, but she wouldn't talk to me. Q. Isn't it a fact that you have offered her $1,500 in addition to this $600 which you agreed to let her have, if she would testify in this case that there was a voluntary sale of this land to you? A. No, sir. Q. What sum of money have you offered her in addition to the $600? A. During a talk Avith her attorneys and my attorneys, we thought that it would be better to compromise this suit than to spend it all with a lawsuit, so I offered to give her a thousand dollars more. Q. It was a bona fide sale of the land she made to you, was it? A. Yes, sir. Q. You had no fear of your title being affected in any way by the result of the suit? A. Yes, sir; I am afraid of smart attorneys. Q. Is there any entry upon the books of your bank of any account as to this land transaction, except the $300 credit Avhieh you showed here yesterday on the individual ledger? A. Not only but the check I sent the Commercial National Bank, entered on my check register. Q. But you said this afternoon that the check never had come back to you? A. But when my book was balanced the Commercial National give me a receipt for it, and took $300 from my account. Q. Did you ever balance your bank book? A. My cash account; yes, sir. Q. Now how did you make your cash account balance when you paid out $600 and didn't take in anything? A. Well, you see we have what you call a check register. Q. Now you , did draw a check for $300, which was deposited to her credit? A. No, sir. Q. How does the check register show that? A. That was in reference to the check sent to the Commercial National Bank. Q. Where did that check for $300 come from? A. From the bank, of course. Q. In what way? A. Just out of the funds of the bank. Q. Did you charge it to your cash account? A. Yes, sir. Q. On what? A. On my cash register. Q. You stated just now that you had not been able to find that, that you didn’t make any entry? A. I meant to say on the expenditures that day, I thought on my expenditure book for that day. Q. Now, as a matter of fact, you haven’t it on any book at all except on this individual ledger, this $300 credit? A. The cash on hand is, and if I got to pay it out it would appear on my cheek register. Q. Did you make a deposit slip or take the deposit for $300? A. Yes, sir. Q. What date? A. September 7th. Q. Now, on the book you showed here yesterday there was no credit checks at all to any of your depositors on the-page on which this woman’s name appeared of the date of September 7th; there being a skip between the 6th and the 8th. When your deposit slip showed it dated the 7th, why didn’t you enter it under the corresponding date? A. I don’t know why, unless it may not have been the 7th. I may have made a mistake in the date. Q. You remember, don’t you, that there were no credits entered on the 7th at all in the case you showed us yesterday? A. I post my books sometimes every other day. It depends on the number of checks I have drawn. Q. When you do post them, you post them all under the date of the day you do the posting, regardless of the date of the check? A. Yes, sir. Q. Has this $300 deposit ever appeared on your cash book at any time? A. Yes, sir; certainly there is some cash there. Q. Have you ever charged it to anything? A. No, sir. Q. How do you make that cash balance then? A. Why I simply see *the amount of cash on hand, and the amount paid out, and I keep the amount of cash on hand on one side, and the amount paid out on the other. Q. I thought when you left here you was going to bring up the book showing some entry of this $300. Will you now produce that book? A. No, I didn’t have it. Q. You can’t find it? A. No, sir. Q. Have you ever balanced your cash book since the 7th of September, 1905? A. I balanced it in my way. Q. Have you ever found that your book was short for $300 on aócount of this transaction? A. No, sir.”

The evidence in this case is to the effect that the 40 acres of land which the appellant claims to have purchased for $600, and which the appellee contends was a mortgage for $300, was of the value of somewhere near $2,000. It is clear that $300 in cash was all that was paid. From the method of bookkeeping, as testified to by the cashier of appellant, it is not clear that any credit of an additional $300 was given to the appellee. She positively says she never received the deposit slip, and had never heard of it until the day the testimony was taken. And under the statute in force in this jurisdiction, which allows exceptions for any cause which may be adjudged good by the court, or when it shall be apparent from the face of the report that injustice has been done, we think the court below was justified in holding that the assignment of error under the second proposition stated by appellant was not well taken.

The third proposition discussed by appellant in his assignments of error is as follows: “The court erred in not according to the findings of fact made by the master that presumption of correctness to which they were entitled, and erred in setting aside the findings of fact as made by the master.” The appellant then proceeds to cite authorities that great weight is to be attached to the findings of a master, and that the findings of a referee or master are conclusive upon the court, and cites many authorities to sustain his contention. But in the case at bar the court stated, when considering the exceptions to the master’s report, that he had^read and earefully considered the master’s report of the evidence, and, being fully advised in the premises, doth find the supposed warranty deed described and set forth in the complaint and report of said evidence, and was intended by all the parties thereto, to be a mortgage,” etc. And it is provided by section 5272 of Mansfield’s Digest (Ind. Ter. Ann. St. 1899, § 3477) that “a report shall stand good, except such parts as are excepted to, unless it shall appear on the face of the report, or from the evidence in the case, that it is erroneous.” In Henderson’s Chancery Practice, § 487, discussing the weight given to a master’s report, and the rule in the state courts, it is said: “These Illinois cases holding that a master’s findings are only advisory to the court, constitute no departure from the general rule. By the use of the words 'only advisory,’ the court simply mean that the master’s findings are not conclusive upon the court, but, on the contrary, his conclusions both of law and fact maj^ be reviewed by the chancellor, or, as said in a federal case: ‘The conclusions of the master do not bind the court on any questions of law or fact’ — citing In re Thomas (D. C.) 35 Fed. 337-339. The court does not hold, and does not mean to be understood as holding, that the chancellor can treat the master’s findings as advisory only, in the sense that the chancellor may arbitrarily or capriciously set aside the master’s conclusions, but what is meant is this: Upon exceptions taken to the master’s findings of fact, the duty is devolved upon the court of examining the whole evidence bearing upon the question, and if after taking into consideration the fact, if it be a fact, that the master had the advantage of seeing the witnesses upon the stand and hearing them testify, the chancellor is satisfied that the master had committed error or mistake, or has found against the weight of the -evidence, he may set the master’s conclusions aside, and make his own findings from the evidence, or re-refer the cause with further directions.” In Medler vs Albuquerque Hotel, etc., Company, 6 N. M. 331, 28 Pac. 551, it is stated in the syllabus: “* * * Where the case was referred to a master to take prpof and report with his findings thereon, the chancellor, on exceptions made to the master's report, did. not err in refusing to give any weight to the findings .of the. master, but was justified in considering the testimony as though, it had been originally heard by himself.” And in the opinion they state: “The question is now presented, however, what,-, if any, weight is to be given the findings of the master as to-facts when the chancellor has found differently than he had? It would seem inevitable from the foregoing holding that the findings of the master must in such a case be entirely repudiated' and that we can only consider the testimony and the findings, if any, of the chancellor. But what weight is to be given the findings of the chancellor? The reason usually advanced for giving so much Weight to the findings of a master — that he heard the witnesses, and beheld their demeanor upon the stand — does not apply to the case of the chancellor. Why, then, should any weight be given to his determination? Ought not this court, having all the evidence before it, as did the chancellor, pass upon it, unbiased by any presumptions or weight growing out of the chancellor's findings? The court think not, but consider that we should give some weight to the' findings of the chancellor, and not reverse those findings unless clearly opposed to the evidence.” In Lyons & Cooney vs Harris & Johnson, 73 Iowa, 292, 34 N. W. 864, it is said: “The plaintiffs insist-that the court below erred in setting aside the findings of fact above stated, to the effect that the checks were not taken into the account in the dissolution of the firm. Upon this point the evidence is not clear, but we are inclined to think that it supports the finding of the referee; but when a verdict is set aside bj' the court below, this court will reluctantly interfere, and will do so only when there is nothing found in the record to support the ruling.” The statutes in force in this jurisdiction undoubtedly invest the courts with large discretionary power in considering exceptions to the master’s report, and we are of the opinion that all the cases, with scarcely an exception, give to the court the right to review the evidence and reverse the findings of the master where the ends of justice may require it. Apart from the statute, the true rule appears to be that the findings of masters in chancery are only prima facie correct, and only advisory to the lower or Appellate Court where thg evidence accompanies the report. We are therefore of the opinion that the third assignment of error is not well taken.

The fourth proposition of the appellant is that “the court erred because the evidence, tending to prove that the said deed of conveyance was in fact to be and to operate as a mortgage, is not sufficient to support the decree.” In Haas vs Nanert (Super. Buff.) 2 N. Y. Supp. 723, it is stated in the syllabus: “ ‘The rule that the evidence to establish that a deed absolute on its face is a mortgage must be clear, unequivocal, and convincing,’ establishes no certain standard of evidence; the question being merely whether the evidence of extrinsic facts shown is sufficient to rebut the presumption that the deed is what it purports on its face to be. Where it appears that the evidence might fairly warrant a finding that the presumption arising on the face of the deed, as well as the adverse testimony, was overcome, a judgment declaring the deed a mortgage will not be disturbed on appeal.” We have examined many authorities upon this point, and we find they are in great confusion. All authorities agree, however, that the evidence of most intrinsic value is that of the circumstances under which the transaction was had. The uncontradicted evidence in the case at bar shows that the appellee Rachel Edwards wanted to borrow money; that she applied to appellant for a loan; that she needed $300, and that amount only. Sims offered her $600, but she declined to take that sum, and he states in his testimony she was willing to take just $300. “I said: ‘I will give you more than that,’ I asked her if she had any other money, and she said: T have got $300, and I am going to use that too.’ I said: T will give you $600.’ And she said she didn’t want that. And I said: ‘You can have it on deposit.’ And she said, ‘All right’.” The circumstances surrounding the transaction, as shown by the testimony, the property being valued in the neighborhood of $2,000, the appellee desiring to secure a loan of only $300, as appears from the testimony of Sims, cashier of appellant, he himself proposing to give her $600, then the consideration stated in the deed was $2,450, the cashier having stated that he gave her a deposit slip for $300, which she says she never heard of until the cashier testified on the trial before the master, that she had no knowledge that there was $300 on deposit, and the further fact that appellant’s books upon examination did not show any entry in regard to the $300, in our judgment furnishes ample cause why the court below adjudged that the exception to the master’s report was good, and furnishes ample reason for him to determine from the face of the report that injustice had been done the appellee. It is our judgment, therefore, that the fourth assignment of error was not well taken.

The intervener, G. M. Swanson, one of the appellants, has filed five assignments of error, as follows: “First. The court erred in dismissing the petition of the intervener, G. M. Swanson, the appellant herein, filed in said cause on March 20, 1906. Second. The court erred in not entering a decree in this cause adjudging the rights and liabilities of all the parties, including the appellant as the intervener under his said petition. Third. The court erred in sustaining the master’s report, wherein said master’s recommended the dismissal of the in-tervener’s petition, because from the evidence in the cause the report of the master is erroneous. Fourth. The court erred in not entering a decree adjudging the intervener, the appellant, the owner of the land in controversy under a deed' executed and delivered by plaintiffs, Rachel A. Edwards and Silas Edwards, to the intervener, on September 9, 1905, as shown by the record, subject to the deed of defendant Guarantee Gold Bond, Loan & Savings Company as a mortgage in effect to secure a loan of $300, as held-by the court. Fifth. The court erred in not entering a decree ordering the defendant Guarantee Gold Bond, Loan & Savings Company to convey said property to appellant upon payment of the debt owing it by plaintiff Rachel A. Edwards, to wit, $300, with interest.’’

Appellant in his argument contends that he filed his intervention under Mansf. Dig. § 4946 (Ind. Ter. Ann.. St. 1899, § 3151), which is as follows: “Where in an action for the recovery of real or personal property any person having an interest in the property applies to be made a party, the court may order it to be doné.” It may be observed that the action in this case was" not for the recovery of real property, but was an action to have an absolute deed declared to be a mortgage. Appellant Swanson, however, insists that, because neither the plaintiff nor the defendants in the case either filed demurrer or answer to his intervening petition, it is therefore to be taken as confessed. ' The prayer of his petition was as follows: “Premises considered, intervener prays that 'this petition be filed by permission of the court, and he be made a party to this case; that a reference to the master, proof taken, and report made, showing fully the nature of said transaction between plaintiff and defendant; that said deed executed to defendant by the plaintiffs on September 7, 1905, be declared in fact and in equity a mortgage to secure a loan of $300 by defendant to the plaintiff with a $50 commission thereon; that said amount of money due the defendant by the plaintiff be definitely ascertained and reported and the rights and liabilities of all the parties settled and adjudged in this case. He prays for all such other, further, and general relief as justice may demand under the premises.” It appears from the prayer of the petition that he joined with the plaintiff appellee to have the deed executed to the appellant on September 7, 1905, declared in fact and in equity a mortgage to secure a loan of $300 to the plaintiff, with a $50 commission thereon; that said amount of mone}'- due plaintiff by the defendant be definitely ascertained and reported, and the rights and liabilities of all the parties settled and adjudged in this case. And appellant Swanson states that: “The master in his report having concluded that the said deed of September 7, 1905, was not a mortgage, but in fact a deed, recommended that Swanson’s petition be dismissed for want of equity. We concede that if said instrument executed on September 7, 1905, was in fact a deed, then the petition of Swanson should have been dismissed for want of equity, because he acquired no rights or title by virtue of the deed made to him by plaintiffs.” If the master found against the contention of Swanson, and thereby disregarded his prayer that the deed be declared a mortgage, should he not have objected to the dismissal of his petition and filed his exceptions to the master’s report? The intervener, Swanson, prayed in his petition that the rights and liabilities of all the parties be settled and adjudged in this case. Said intervener had introduced testimony, and exhibited, a deed purporting to have been executed to him by appellants, Rachel A. and Silas' Edwards; but the record shows this evidence to have been successfully contradicted, and from the record the court was enabled to reach the decision that the said intervener had acquired no rights in the premises* and therefore his petition to have alleged rights enforced was properly dismissed.

Intervener’s fourth assignment was that the court erred in not entering a decree and adjudging the intervener, the appellant, owner of the land in controversy under the deed executed and delivered by plaintiffs; Rachel .A. Edwards and Silas Edwards, to him on September 9, 1905, subject to the deed of defendant savings company as a mortgage in effec to secure a loan of $300, as held by the court; and the fifth assignment is that the court erred in not entering a decree ordering defendant savings company to convey said property to appellant upon payment of the debt owing it by plaintiff Rachel A. Edwards. The evidence in the case shows that the intervener, G. IT Swanson, sent for Rachel and Silas Edwards two days after they had borrowed $300 from the Savings company, and told them that Sims, of the savings company, was about to sell their land, and that the savings company had a deed to the same, and while he (Swanson) was abusing Sims and declaring his friendship for Rachel Edwards, whom it appears he had never seen before, said appellant Swanson asked her to sign an affidavit, in .order that he might prevent the savings company from selling her land. She readily assented, and executed what she supposed to be an affidavit, but what was in fact a warranty deed purporting to convey to the said Swanson the land in question. The evidence clearly establishes that said Swanson was guilty of gross fraud, and explains why the court did not enter the decree adjudging him the owner of the land in controversy. He had paid nothing, not even the $1 stated as the consideration in the deed, and there was no evidence of a written agreement to pay for the land.

When the court reversed the findings of the master with reference to the savings company, and held the instrument, in writing executed to them by Rachel and Silas Edwards to be a mortgage, the question immediately arose: Should the court have dismissed the intervening petition of Swanson for want of equity? Without doubt the court was warranted in doing that, as it undoubtedly appeared to the court that Swanson took nothing by his deed; the same having been secured through fraud and misrepresentation. Intervener relies upon section 5072 of Mansfield's Digest (Ind. Ter. Ann. St. 1899, § 3277) to support his contention that, as his petition was neither answered nor demurred to, it must be taken to be true. Admitting for the moment that he has a ground for his contention, it is too late to raise that question for the first time on appeal. Rachel Edwards, the appellee, had sued the savings company, appellant, to have a certain deed declared a mortgage, and the accomplishment of the object, sought by the plaintiff in the suit would not have been prejudicial to the rights of the intervener, Swanson. Indeed, no rights could accrue to him under his so-called deed until this end had been accomplished. Intervener’s transaction was subsequent to and independent of that between the savings company and Rachel A. Edwards, so that in law the intervener had no right whatever that could be protected in this case, no right that could arise until the savings company deed had been declared a mortgage. By what right, then, was Swanson made a party to the issue, which in no wise affected his rights? His petition imposed upon appellees no duty to answer or demur. In Taylor vs Taylor, 3 Bush (Ky.) 118, it was held that no answer was required to such a petition. “It is to be regarded as traversed by all parties.” Intervener found the issue joined between Rachel A. Edwards and the savings company, and no decree rendered on that issue could by any possibility have affected the rights of the intervener. Carter vs City of New Orleans (C. C.) 19 Fed. 659.

The court reviewed the record and the transcript of the evidence as taken before the master, which shows plainly intervener’s flagrant attempt to filch the land in question, and how utterly he failed to impart any - color of honesty or good faith to his transaction. We are of the opinion that Swanson’s assignments of error should be dismissed because of his failure to file exceptions to the master’s report, and be-' cause the evidence adduced at the hearing does not warrant that his contention should prevail.

The judgment of the court below in sustaining the report of the master in dismissing the petition of intervener, Swanson, for want of equity, is abstained, and the judgment of the court below should be, and is hereby, affirmed.

Gill, C. J., and Clayton, J., concur.