
    No. 13,749.
    Daubenspeck v. Pool et al.
    Filed March 12, 1891.
    
      Moetgage. — Action to Foreclose. — Plea of Payment. — Sufficiency of Evidence.— In an action on a mortgage alleged to have been lost, where, as tending, to establish a plea of payment, one witness testifies that the plaintiff told him that “ the mortgagor had lifted the mortgage,” and another testified that she saw the mortgage in the possession of the mortgagor, a verdict for the defendant will not be disturbed as unsupported by the evidence.
    From the Marion Circuit Court.
    
      I. Klingensmith and W. P. Adkinson, for appellant.
    
      J. A. New, for appellees.
   Elliott, J.

The appellant’s complaint is founded upon, a mortgage alleged to have been lost, and the issue in the case was made by a plea of payment. It is asserted by appellant’s counsel that there is no evidence tending to establish the defence, but in this counsel are in error. There is-certainly some evidence to that effect. One witness swears-that the appellant told him that the mortgagor had lifted the mortgage,” and another swears that she saw the mortgage in the possession of the mortgagor. While the evidence of payment is not satisfactory, and while it is true that if the case were before us as triers of the facts, we would be inclined to a different conclusion from that reached by the trial court, still, the long settled rules of law constrain us to abide by the decision of the lower court.

Judgment affirmed.  