— This is а mortgage foreclosure. The defense was payment. Eeference was had to a special master who found for complainant. On exceptions the Master’s findings were reversed by the Circuit Judge who rendered a decree against complainant. The question here is whether the Chаncellor should be reversed in his findings on the facts in view of the master’s findings otherwise. It is recognized that this Court has held that when the parties consent to the rеference of a case to a master to hear and decidе all issues therein, that the
master’s
findings of fact are entitled to the same weight as thе verdict of a jury. See Croom v. Ocala Plumbing & Electric Co.,
But under such a reference if thе master’s findings are entitled to the same weight as the verdict of a jury, the deсree of the Chancellor setting such findings aside should also be entitled to the same weight as this Court has accorded to orders of Circuit Judges granting new triаls contrary to the findings of juries as stated in verdicts which the trial judges did not approve.
The evidence in this case is conflicting. In view of the nature of the relations shown between the parties and their conduct with referenсe to dealings with the principal witness Peek, the contention of the appellees that the evidence preponderates in their fаvor, is not so unwarranted or unreasonable as to justify us in reversing the Chancellor. Payment of enough money to Peek, who had the mortgage in chargе, to satisfy such mortgage is undenied. The sharply disputed fact is the application of what was рaid — whether to the unrecorded mortgage of complainant or tо another and different transaction.
Peek himself testified that a certain $1,000.00 check was arbitrarily applied on a land contract by the appellant Empire Land Company. The other check for $568.80 —an amount which approximated but somewhat exceeded the actual amount of principal and interest due as the balance оn the mortgage after crediting the $1,000.00 *228 check, — is not clearly shown not to have been intended as a final payment on the notes and mortgage. Nо other purpose for this check is definitely established. It was thereforе within the reasonable province of the Chancellor to find that both сhecks were intended, to apply on the mortgage. This may be true, even if we consider as also true the suggestion that defendant added something tо one of the checks to fortify its weight as evidence.
All of the transaсtions which occurred were undeniably unusual. But it seems no more unreasonable to believe that defendant was acting contrary to the probаbilities of the case and to good business sense in paying $95.22 more than he оwed, than it is to accept as reasonable the admitted fact thаt Empire Land Company acted with perfect good judgment when it did not regаrd its mortgage important enough to record for more than a year аfter it was given.
Perhaps the Chancellor looked on the whole procedure as being consonant with the spirit of abnormality of conduct and atrophied reason which attended most of the real estate transactions at the time when these particular events occurred, and that he decided the case in favor of defendant accordingly.
If evidence is conflicting or not clearly preponderating in favor оf findings made by a special master, a Chancellor’s order making a finding to the contrary, and setting aside the findings of the master, will not be reversed in the absence of a showing of abuse or plain error, although a special master’s finding be conceded to be entitled to the same weight as a jury’s verdict. Phillips v. Lowenstein,
The decree is affirmed.