
    No. 2501.
    McLemore v. Powell.
    November Term, 1889.
    Motion to dismiss appeal from a decree of foreclosure, the ground of the motion being that no bond had been filed to stay the sale, and the sale had been made. On November 20, 1889. the motion was refused per curiam, and the appeal was then heard.
    The action was to foreclose a mortgage on land given to plaintiff by John W. McLemore, the land having been since sold by the sheriff under execution against said John W. McLemore, and purchased by plaintiff, the judgment creditor. The defence to this present action was that this mortgage was given pending action by defendant against John W. McLemore for the purpose of defeating the claims of defendant and other creditors. Upon the testimony reported by the master, the Ciicuit Judge (Norton) held that there was no fraud, and sustained the mortgage. He also ruled that testimony as to declarations of the mortgagor made after the mortgage was executed, in the absence of the mortgagee, were inadmissible, no conspiracy between mortgagor and mortgagee having been established.
    On appeal by defendant the Circuit decree was sustained, it not being made to appear that the findings of fact in the court below were wholly without testimony to sustain them, or that the manifest preponderance of the testimony was opposed to such findings ; and, further, that the testimony ruled out was hearsay.
    filed February 13, 1890.
    
      J. JS. Davis, for appellant. O. O. Simms, contra.
   Opinion (No. 2526) by

Mr. Chief Justice Simpson,  