
    Wells v. Lawrence et al.
    1. Mortgage Foreclosure: defense of payment: question of fact. This being an action for the foreclosure of a mortgage, it is triable de novo in this court; and the only question being one of fact as to the payment of the mortgage debt, the evidence is considered, and held to establish the defense of payment.
    
      Appeal from Delaware Cireuit Court.
    
    Wednesday, December 10.
    This is an action to foreclose a mortgage upon certain real estate. The defense is that the promissory notes secured by the mortgage, of which notes the plaintiff claims to be owner, have been fully paid. The circuit court found that the defense of payment was established by the evidence, and rendered a judgment for the defendants for costs. Plaintiff appeals.
    
      J. M. Brayton, for appellant.
    
      E. M. Carr and Bronson & Le Roy, for appellee.
   Rothrock, Ch. J.

The case is triable anew in this court. The question of payment is purely one of fact, to be determined by the testimony of the witnesses and the written evidence in the case. We have carefully examined every fact presented to us, and have reached the conclusion that the decree of the circuit court is correct. The facts are somewhat complicated, and it is unnecessary to set them out and discuss the evidence.

Affirmed.  