
    No. 10,637.
    Peppers, et al. v. Heiserman, et al.
    Decided July 2, 1923.
    Rehearing denied November 5, 1923.
    Action for cancellation of promissory notes. Judgment for defendants.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Appeal and Ereoe — Fact Findings. Findings of fact by the trial court, based on conflicting evidence, will not be disturbed on review.
    
      Error to the District Court of Weld County, Hon. Neil F. Graham, Judge.
    
    Mr. Rice W. Means, Messrs. Deweese, Wheeler & Allen, Mr. R. E. Winbourn, Mr. C. F. Tew, for plaintiffs in error.
    Mr. Isaac Pelton, Mr. John F. Mail, for defendants in error.
    
      Department Two.
    
   Mr. Justice Whitford

delivered the opinion of the court.

The action seeks the cancellation of three promissory notes which the plaintiff in error, R. C. Peppers, alleged were paid in virtue of an oral agreement, in compliance with which he conveyed a one-quarter section of land by deed to John H. Heiserman, the defendant in error. The defendant in error answered, denying that the deed was made in satisfaction of the notes, but that it was given as security for the payment of the notes, and prayed a foreclosure of the deed.

The court found generally for the defendant, dismissed the plaintiff’s complaint, entered judgment upon the notes, and decreed a foreclosure of the deed as a mortgage.

The plaintiff in error contends that the evidence was insufficient h> sustain the court’s finding. Thirty witnesses were sworn. The evidence was conflicting. The credibility of the witnesses and the weight of the evidence was exclusively for the consideration of the court below. Its finding under such circumstances cannot be reviewed here.

Supersedeas denied. Judgment affirmed.

Mr. Chief Justice Teller and Mr. Justice Denison concur.  