
    Horace J. Brainard, Plaintiff in Error, vs. Chauncey E. Hastings, Defendant in Error.
    The Supreme Court cannot, upon "Writ of Error, review the finding of a Referee on questions of fact found by him.
    The Referee should pass and report upon all the material issues in a cause tried before him; but admissions in the pleadings need not be passed upon.
    This was a "Writ of Error to the District Court of Ramsey County. The suit was brought by Hastings to obtain a division and partition of certain real estate in Bamsey County. The pleadings present a number of issues of fact, and the cause was referred, by consent, to George W. Prescott, Esq., to hear the testimony and report the facts. Upon the filing of his report, the Plaintiff moved for the relief demanded in his complaint, and the Defendant filed certain exceptions to the report. Upon the hearing the District Court gave a decree in favor of the Plaintiff.
    As the Court refused to review the facts found by the Beferee, it is unnecessary to give a statement of the evidence which forms a part of the judgment roll.
    The following are the points and authorities relied upon by the counsel for Plaintiff in Error: .
    
      First. — This is an equitable action. On Appeal the Appelate Court will look and weigh the evidence. 7 Wend. 178; 25 do. 143.
    
      Second. — In an equitable action under the code, the report of a Beferee is analagous to the report of a Master, or decision of a Tice Chancellor, where upon exceptions or appeal, all qtiestions whether of law or fact are the subject of review. Burham vs Vanzandt, 7, Bar. 91.
    
      Third. — 'The report of the Beferee in a suit in equity, will be set aside when the facts are intricate and obscure, to let in new light and have the merits re-examined. Alloed vs. Mosecher, 1 Iowa C., 280; 1 How. Pr. 144.
    
      Fourth. — The Court below erred in affirming the finding of the Beferee, that the debts or notes still unpaid upon the purchase money of said real estate, were considered in said terms of dissolution assumed by said Brainard; that said Hastings is not liable to said Brainard for contribution upon any sum of money alleged by said Brainard to have been paid by him since dissolution of the partnership. Case, folio 59, 60. Eor,
    1. The liability of Hastings to pay Brainard, is a question of law upon the evidence — not of facts — the Beferee was appointed to find facts, not conclusions of law. Case, folio 52.
    2. There is no evidence in the case, going to show that the payment of the Oliver Ames notes, i. e. the» notes given upon the purchase of the land which is the subject of the action were considered in the agreement for dissolution as assumed by Brainard. Brainard denies it. Case,folio 92.
    And the testimony of Hastings himself, and all the other witnesses is, that the notes were not mentioned at all, while other notes were specified. Gase, folio 82 ; ease, folio 91; ease, folios 92, 93, 97, 99 ; case, folio 80.
    3. The only evidence in the case from which it can even be inferred, that Brainard assumed to pay the Oliver Ames note, are the engagements made by the parties in the agreement for dissolution of the co-partnership. As to the terms of that agreement, there is no dispute. Brainard was to pay Hastings $3,250 to take the partnership property and pay the partnership debts. Gase, folios 80, 82, 84, 85, 89. 90, 92, and 93.
    4. By the agreement, Brainard was to have all the partnership property. The Referee finds that these lands were purchased with, partnership funds — all except what Brainard has paid himself. Gase, folios 56, 57 a/nd 68.
    But lands purchased with partnership money, are partnership property. 2 Barr. Chan. B. 346; 6 Bar. 19. Under that agreement, as the Referee finds the facts, all the land which is the subject of this action, passed to Brainard, and Hastings has no interest whatever, and the Court below erred in decreeing a partition giving to Hastings the one half of the land. Gase, folios 56 and 57.
    5. The evidence in the case shows that whatever were the general terms of the agreement for dissolution of the co-partnership, neither Hastings nor Brainard, at the time, contemplated that the lands which are the subject of this action, or the note given upon that purchase of the land, were embraced within the scope of that agreement. Case, folios 64, 65, 66, 67, 68, 71, 75, 76, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 82, 93, 94, 95, 97, 99.
    6. The evidence in the case and the admission in the pleadings, show that Brainard has paid large sums upon the land? for which Hastings is liable to him for contribution. Case, folios 24, 25, 26, 41.
    
      
      Fifth. — The report of the Referee does not find all the facts upon the issues in the cause.
    The complaint alleges that one John Henry Byers has an estate or interest in a part of the land which is the subject of this action. The answer denies that Byers has any such estate or interest in the land, and evidence was given upon the hearing before the Referee upon this issue.
    The pleadings admit, and evidence was also given upon the hearing, showing that Brainard had paid large sums individually upon the land. Upon neither of these issues does the Referee find the facts. Folios 8, 9 — 27, 28' — -63, 64,65, 71, 74, 79; Doke vs. Peck, 1 Code Rep. 54; 6 How. Pr. 492; 1 Code Rep. 121; 1 Barr. Pr. 236; 4 J. R. 213; 3 Ses. 55; 2 Wheat. 22; 21 Wend. 90; 13 Wend. 425; 3 Chitty Gen. Pr. 476, 477; 7 Ad. & E. 595; 1 Sand. P. 27, 28; 2 Dunlay Pr. 693; 4 J. R. 213; 2 J. R. 210; 1 How. Pr. P. 412; 13 How. 411; 12 Wend. P. 291; 12 Bar. 126, 127; 2 Sanf. Rep. 641; 4 ibid. 691; 1 E. R. 54; ib. 61; ib. 121; 1 Whit. Pr. 714.
    
      Sixth. — The trial, if any, was by the Court. No decision has been filed by the Court, such as the statute requires, and judgment has been rendered, not upon the decision of the Court, but upon the report of the Referee. Authorities above cited; Statutes,page 356, sec. 34, sec. 41; ib. 358, sec. 54.
    The following are the points and.authorities relied upon by the counsel for Defendant in Error :
    
      First. — This cause being brought into this Court upon a Writ of Error, matters of fact will not be inquired into. Reynolds vs. Rogers, 5 Hammond, 169; Campbell vs. Patterson, 7 Vermont, 86; Clapp vs. Brougham, 9 Cowan, 530.
    
      Second. — All errors in fact assigned by Plaintiff in Error in this Court were finally disposed of by Court below, on the motion made by Brainard for a. new trial, which motion was denied. And they could only be brought into this Court on appeal from the order denying that motion, but they cannot be considered under a Writ of Error. Bee cases above cited, and also folios 108 and 109, of case.
    
    
      Third. — The rights of Hastings, Defendant in Error, in the premises undisputed, the Court below correctly assigned his share to him, leaving the rights of other parties to be subsequently adjusted. Phelps vs. Green, 3 Johnson’s Chan. 302.
    
      lowrth. — The facts as reported by the Beferee place Hastings in equity, in the position of a purchaser from Brainard of his interest in the E. 1-2 of the N. E. 1-4 of 20,29, 22, and render the decree which applies Brainard’s land first to the extinguishment of the mortgage debt equitable. See Gha/neellor Kent’s decision im Clowes vs. Dickenson, 4 Johnson’s Chancery, 235; 9 Paige, 173; 1 Paige, 228; 2 Paige, 300; 8 Paige, 277; 1 Johns. Ch. 447; 3 Green Ch. 224; 1 Kill Ch. 464-500; 2 Kill, 204.
    
      Fifth. — The Beferee not finding the exact interest of John II. Byers in the premises, cannot be taken advantage of by Brainard, Plaintiff in Error, because that interest was in no way connected with the interests of Hastings and Brainard, between whom alone the decree adjudicated. Barker vs. Callihan, 5 Ala., 708; Cin. Ins. Co. vs. Bakewell, 4 B. Monroe, 541.
    
      Sixth. — The report of George W. Prescott, Beferee in this cause, was simplyin the nature of a special verdict, upon which the decree of the Court below was regularly given, and judgment entered thereon after fair and full hearing of parties, which decree we ask the Court to sustain.
    Saneord & Beveridge, Counsel for Plaintiff in Error.
    Sanborn, French & Lund, Counsel for Defendant in Error,
   By the Cowrt

— Atwater, J.

It is urged by the counsel for the Plaintiff in Error, that this Court should review the finding of the Beferee, before whom the cause was heard, on questions of fact found by him. We might perhaps have that power on appeal, but this case comes before us on'a Writ of Error, and we find no authority which goes to the extent of granting or conceding such power in reviewing cases on Writ of Error. We are cited to 7 Wend. 178 and 25 do. 143, but those cases do not hold such a doctrine. The case of Burhcums vs. Van Zandt, 7 Bar. 91, was brought before the General Term of the Supreme Court, on exceptions to the report of a Referee, and. it is there rather intimated than decided, that upon “exceptions” or “appeal,” all questions decided, of fact as well as law, were the subject of review. The question was first raised the present term before this Court, whether a Writ of Error would lie in an equitable action, and we held that it would. In civil actions, we presume it would not be claimed, that anything save errors of law could be reviewed on Writ of Error. But the change made in equitable proceedings by the act of 185B, (Stat. Mwm.p. 480, seo. 1,) places all actions upon the same footing, so far as the machinery or forms by which they are conducted, are concerned, and the office of a Writ of Error is the same, whatever be the nature of the action. The object of the Legislature in abolishing the Court of Chancery and the forms which had obtained in equitable actions, was to simplify the practice and proceedings in such actions, and this end will best be attained, by confining the purposes of a Writ of Error in all cases within the well defined limits prescribed for it.

In this view of che case therefore, we cannot examine whether the Court below erred in affirming the finding of the Referee, “ that the debts or notes still unpaid upon the purchase money of said real estate, were considered in said terms of dissolution, assumed by Brainard, and that Hastings is not liable to said Brainard for contribution upon any sums of money alleged by said Brainard to have been paid by him since the dissolution of the partnership,” those being questions of fact, depending entirely on the proofs, of the effect and conclusiveness of which the Referee was sole judge. But even were we at liberty to enter into an examination of the evidence on these points, we are far from being satisfied that the finding of the Referee upon the facts was not correct. The testimony in regard to the dissolution of the partnership, and the property received, and debts assumed by each party thereupon, is somewhat conflicting, and is not placed in clear light by the proof. But the difficulty seems not to be, (as suggested by the counsel for the Plaintiff in Error,) that the facts are intricate and ob-scare, but from the very loose manner in which the parties made their contract. "Where so large and varied an amount of property as was held by the Plaintiff and Defendant in common, is disposed of by a merely verbal and informal agreement, it is easy to conceive how misunderstandings might arise, without imputing fraud or bad faith to either party. And if injury is suffered in consequence of such misunderstanding, the sufferer has but little claim to the interposition of the Court for redress.

It is urged by the counsel for Plaintiff in Error, that “ lands purchased with partnership money, are partnership property, —assets—and that under the agreement as the Beferee finds the facts, all the land which is the subject of this action, passed to Brainard, and Hastings has no interest whatever, (in these lands,) and that the Court below erred in decreeing a partition, giving to Hastings the one half of the lands.” But the answer admits the ownership of the plaintiff below to an undivided one-half of the lands in dispute, and also avers that he “ has always been ready and willing, and still is ready and willing that the same should be divided, or sold, as prayed for in the complaint.” He claims, however, that the proceeds should be applied towards satisfying the mortgage executed by the parties to Oliver Ames, and repaying the Defendant the one-half the amount, which he alleges he had paid individually on the joint obligation of the parties, previous to the commencement of the suit. But the Beferee has found as a question of fact, that on the dissolution of the partnership between the parties, the Defendant Brainard assumed all the joint obligations of Hastings and Brainard, comprising those set up in the answer, and that the Plaintiff was not liable to the Defendant for contribution on any joint obligations paid by the latter individually. Under the admissions and statements in the pleadings,, this was the only material issue in the case, and was found by the Beferee against the Defendant, which finding we cannot review (as above stated,) on "Writ of Error. The decree must therefore be held correct, in ordering the Defendant to pay the balance remaining unpaid on the mortgage given to secure the purchase money for the land, and that the said mortgage should be a specific lien upon, and be first satisfied out of that part of the real estate mortgaged, which was owned by the Defendant. The finding of the Beferee, shows that Brainard has received a verbal consideration from Hastings, for his agreement to assume and pay the debts of the firm, and places Hastings in equity, in the position of a purchaser from Brainard, of his (Brainard’s,) interest in the land in dispute ; and by the rule established in equitable actions of this kind, the real estate of the Defendant which was mortgaged for the purchase money, should first be applied towards the satisfaction of the mortgage. Clowes vs. Dickenson, et. als., 5 John. Ch. R. 235; Gill vs. Lyon, 1 John. Ch. 447; James vs. Hubbard, 1 Paige, 228; 8 Paige, 277.

It is further claimed on the part of the Plaintiff in Error, that the report of the Beferee does not find all the facts upon the issues in the cause, or rather that some of the issues are left undetermined. The objection is well taken, if it shall be found in fact, that there are material issues in the cause, upon which the Beferee has not passed, as either party has a right to the judgment of the Court, upon all such issues. It is alleged in the complaint, that one Byers has an estate or interest in the lands which is the subject of the action, which was obtained from, or acquired through the Defendant Brainard.

This is denied in the answer, and there seems to have been some evidence upon the point before the Beferee, although he has not passed upon it. But the answer having admitted that the Plaintiff is entitled to an undivided half in the premises, it is immaterial (as between the parties,) whether the Defendant has disposed of any part of the land in question, or not. Byers does not claim against the Plaintiff. The right of the Plaintiff standing admitted, it is unnecessary to ]Dass upon that question, and it does not seem to be properly in the case, and ' the issue being immaterial, the report should not be set aside, nor referred back on that ground. That only material issues need be considered by the Referee, see Van Steenburgh vs. Hoffmann, 6 How. Pr. P. 492; Lakin vs. N. Y. & E. RR. Co., 11 do, 412; Renovil vs. Harris, 2 Sand. 641.

It is also claimed by the counsel for the Plaintiff in Error, that the- pleadings admit, and the evidence shows that Brain.arel bad paid considerable sums of money individually upon tbe lands in question, and that tbe report is silent upon tbis point. Tbe very statement however, that tbe pleadings admit tbe fact, shows that no issue was made upon it, and consequently there was nothing for tbe Beferee to find thereon.

Tbe only issue relating to that point was, as to whether tbe Plaintiff was liable to tbe Defendant, for contribution, on sums paid by tbe latter individually for tbe land in question. Tbis issue was found against tbe Defendant and disposes of tbe objection, for that finding applied to all payments that bad been or which were to be made by tbe Defendant on account of tbe lands purchased by tbe parties of Ames.

Tbe judgment of tbe Court below is affirmed.  