
    Emma B. Fountain, etc., v. J. F. Kenney et al.
    
    No. 13,052.
    ( 72 Pac. 392.)
    Error from Lyon district court; O. L. Moose, judge pro term.
    
    Opinion filed April 11, 1903.
    Reversed.
    
      Align (& Allen, for plaintiff in error.
    
      Graves (& Hamer, and Kellogg c& Madden, for defendant error O. E. Sprague.
   Per Curiam:

The finding was made by the referee that Kenney bought the property of Flint and Smith after making inquiries of a number of persons connected with the plant and the transaction, and believed from what he learned that the sale was Iona fide and that Flint and Smith were the actual owners of the property, and that, relying upon this belief, he dismissed his foreclosure proceeding, believing that his mortgage had merged into the title purchased. This important finding was unsupported by the-testimony and the trial court so held and struck it out. A finding of this character, as well as some other matters that are in the report, and which have no support in the testimony, to a certain extent discredits all the findings made. There is some testimony tending to show good faith on the part of, Kenney, as, for instance, the circumstance that when he made application to Foulks for payment of the notes she told him she had just sold the plant to Flint and Smith. In view of the fact, however, that findings pertaining to his good faith are without support and were stricken out, and because of the erroneous ruling, setting aside the finding that the deed from Foulks to Flint and Smith was obtained by fraud, a new trial should be had. For this purpose the judgment will be reversed and the cause remanded.  