
    Wesley J. Traphagen, appellee, v. Frank L. Sheldon et al., appellants.
    Trial: judgment. The evidence upon the sole question of fact at issue being contradictory, and nearly equally balanced, the finding and judgment of the trial court upheld.
    Appeal from the district court of Lancaster county. Tried below before Pound, J.
    
      L. C. Burr, for appellants.
    
      Webster & Stewart, for appellee.
   Cobb, J.

It appears from the abstract that on the 28th day of December, 1880, one Viroqua Doan and husband executed and delivered to the appellee their certain promissory note for $500, payable three years from that date, with interest at the rate of ten per cent per annum, and to secure the same they, on the same day, executed and delivered to the appellee a mortgage on the 80 acre tract of land therein described; that some time after the above transaction, and before the maturity of said note, B. E. Cobb, one of the appellants, purchased the said tract of land from the said Viroqua Doan, subject to the said mortgage, which he agreed to pay; that on or about the 1st day of May, 1884, the said note being past due and remaining unpaid, the said B. F. Cobb executed and delivered to the said appellee his note for $2,000, and secured the payment thereof by a mortgage on the said tract of land, with other lands; and that some months afterwards B. F. Cobb sold and-conveyed the said land, including the Doan 80, to the appellant, Frank L. Sheldon, to whom he warranted the same against all incumbrances except the $2,000 mortgage, and assured him that the Doan mortgage though not formally released was merged in the said $2,000 mortgage, subject to which latter mortgage the appellant Sheldon accepted the conveyance of the said land. This suit was brought to foreclose the said Doan mortgage; and the sole question involved in the trial before the district court was whether the Doan note was provided for and merged in the $2,000 note and mortgage. This issue the trial court found in favor of the appellee, plaintiff in that court, and rendered a judgment of foreclosure for the amount of the Doan note and interest. There were, but two witnesses sworn on the trial, the appellant Cobb for the defendants, and the appellee Traphagen on his own behalf.

The testimony of these witnesses agrees well enough in most respects; but upon the main point they contradict each other quite squarely. After a thorough examination of the abstract, the writer is in doubt which way he would have decided had he been- sitting in the trial court. It is not deemed incumbent on me to present the theories or tables of figures of the respective briefs of counsel, in and by which they each establish the case of their respective clients, no doubt, to their own satisfaction, as no amount of theorizing would justify this court in reversing the finding of a ’trial court upon equally or nearly equally balanced evidence.

The judgment of the district court is affirmed.

Judgment affirmed.

The other judges concur.  